B-176759, JUN 25, 1974, 53 COMP GEN 1051

B-176759, JUN 25, 1974, 53 COMP GEN 1051

TRANSPORTATION - DEPENDENTS - OVERSEAS EMPLOYEES - ADVANCE TRAVEL OF DEPENDENTS - DIVORCE, ETC., PRIOR TO EMPLOYEE'S ELIGIBILITY WHILE THE PRINCIPLES IN 52 COMP. GEN. 246, WHEREIN THE COMPTROLLER GENERAL HAD NO OBJECTION TO A PROPOSED AMENDMENT TO THE FOREIGN SERVICE TRAVEL REGULATIONS PERMITTING GOVERNMENT PAYMENT OF RETURN TRAVEL OF AN EMPLOYEE'S DEPENDENTS, WHO TRAVELED AT GOVERNMENT EXPENSE TO OVERSEAS POSTS OF DUTY, ALTHOUGH THEY WERE NO LONGER DEPENDENTS AS OF THE DATE EMPLOYEE WAS ELIGIBLE FOR RETURN TRAVEL BECAUSE OF DIVORCE OR ANNULMENT, WOULD APPLY TO DEPENDENTS OF ALL OVERSEAS EMPLOYEES, VOLUME 2 OF THE JOINT TRAVEL REGULATIONS MAY NOT BE AMENDED TO PROVIDE FOR SUCH TRAVEL FOR A FORMER SPOUSE SINCE THE STATUTORY REGULATIONS IN THE FEDERAL TRAVEL REGULATIONS DO NOT PROVIDE FOR SUCH PAYMENT.

IN THE MATTER OF ADVANCE RETURN OF DEPENDENTS OF CIVILIAN EMPLOYEES OF DEPARTMENT OF DEFENSE ASSIGNED OVERSEAS, JUNE 25, 1974:

THE DEPARTMENT OF THE ARMY REQUESTED OUR DECISION AS TO WHETHER VOLUME 2 OF THE JOINT TRAVEL REGULATIONS (JTR) MAY BE AMENDED TO AUTHORIZE REIMBURSEMENT TO AN EMPLOYEE FOR THE RETURN TRAVEL OF A SPOUSE AND CHILDREN TRANSPORTED OVERSEAS AT GOVERNMENT EXPENSE ALTHOUGH THE MARRIAGE HAS BEEN TERMINATED BY DIVORCE PRIOR TO THE TIME THE EMPLOYEE BECOMES ELIGIBLE FOR RETURN TRAVEL. THE AMENDMENT IS PROPOSED AS A RESULT OF OUR DECISION OF OCTOBER 30, 1972, 52 COMP. GEN. 246, WHEREIN WE STATED THAT WE WOULD HAVE NO OBJECTION TO A SIMILAR PROPOSED AMENDMENT TO THE UNIFORM STATE/AID/USIA FOREIGN SERVICE TRAVEL REGULATIONS.

THE DEPARTMENT OF THE ARMY POINTS OUT THAT THE PRINCIPLES ENUNCIATED IN 52 COMP. GEN. 246 IN FAVOR OF THE PROPOSED AMENDMENT WOULD APPEAR TO BE EQUALLY APPLICABLE TO DEPENDENTS OF EMPLOYEES OF THE DEPARTMENT OF DEFENSE ASSIGNED OVERSEAS BUT NOTES THAT VOLUME 2 OF THE JOINT TRAVEL REGULATIONS IS AN IMPLEMENTATION OF THE FEDERAL TRAVEL REGULATIONS PROMULGATED BY THE GENERAL SERVICES ADMINISTRATION WHICH DO NOT CONTAIN SPECIFIC AUTHORITY FOR SUCH RETURN TRAVEL. ACCORDINGLY, THERE IS DOUBT AS TO THE PROPRIETY OF ISSUING SUCH A REGULATION IN THE ABSENCE OF EXPRESS AUTHORITY IN THE FEDERAL TRAVEL REGULATIONS. THE REQUEST HAS BEEN ASSIGNED CONTROL NO. 73- 45 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE AMENDMENT PROPOSED BY THE DEPARTMENT OF STATE WHICH WAS THE SUBJECT OF OUR DECISION IN 52 COMP. GEN. 246 IS NOW CONTAINED IN SECTION 126.2, VOLUME 6, FOREIGN AFFAIRS MANUAL, AND READS AS FOLLOWS:

REIMBURSEMENT MAY BE MADE FOR ADVANCE TRAVEL OR RETURN TRAVEL TO THE UNITED STATES FOR A SPOUSE AND/OR MINOR CHILDREN OF AN EMPLOYEE WHO HAVE TRAVELED TO THE POST AS DEPENDENTS EVEN IF, BECAUSE OF DIVORCE OR ANNULMENT, SUCH SPOUSE AND/OR MINOR CHILDREN HAVE CEASED TO BE DEPENDENTS AS OF THE DATE THE EMPLOYEE BECOMES ELIGIBLE FOR TRAVEL (PROVIDED THAT SUCH ELIGIBILITY DATE OCCURS ON OR AFTER JANUARY 10, 1973). REIMBURSABLE TRAVEL MAY NOT BE DEFERRED MORE THAN 6 MONTHS AFTER THE EMPLOYEE COMPLETES PERSONAL TRAVEL PURSUANT TO THE AUTHORIZATION.

IN CONCURRING IN THE ABOVE-CITED AMENDMENT WE POINTED OUT THAT CURRENT REGULATIONS IN THE FOREIGN AFFAIRS MANUAL AND IN OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56 (NOW THE FEDERAL TRAVEL REGULATIONS) PROVIDE FOR THE RETURN TRANSPORTATION OF AN EMPLOYEE'S CHILDREN OVER THE AGE OF 21 IF SUCH CHILDREN WERE TRANSPORTED OVERSEAS AT GOVERNMENT EXPENSE WHEN THEY WERE UNDER 21. IT WAS NOTED, THEREFORE, THAT THOSE REGULATIONS RECOGNIZED TO A PARTIAL DEGREE AN OBLIGATION ON THE PART OF THE GOVERNMENT TO RETURN MEMBERS OF AN EMPLOYEE'S FAMILY WHO WERE TRANSPORTED OVERSEAS FOR THE CONVENIENCE OF THE GOVERNMENT ALTHOUGH SUCH MEMBERS HAD CEASED TO BE DEPENDENTS OF THE EMPLOYEE WHEN HE BECAME ELIGIBLE FOR RETURN TRAVEL. THEREFORE, WE FOUND THAT THE PROPOSED REGULATION WOULD EXTEND THAT PRINCIPLE TO OTHER MEMBERS OF AN EMPLOYEE'S FAMILY WHOSE TRANSPORTATION TO THE OVERSEAS POST WAS AT GOVERNMENT EXPENSE. WE NOTED IN THAT REGARD THAT, ALTHOUGH THE WIFE WOULD NOT BE A MEMBER OF THE EMPLOYEE'S FAMILY AFTER A DIVORCE, IN MANY CASES THE EMPLOYEE WOULD BE RESPONSIBLE FOR HER SUPPORT AND IT WOULD IMPOSE A FINANCIAL HARDSHIP UPON HIM TO PROVIDE FOR HER RETURN TRAVEL. MOREOVER, THE PROVIDING OF RETURN TRAVEL WOULD AVOID A POTENTIAL EMBARRASSMENT TO THE UNITED STATES CAUSED BY THE PRESENCE OVERSEAS OF EX-FAMILY MEMBERS WHO WERE UNABLE TO RETURN HOME DUE TO LACK OF FUNDS. IN ADDITION, PROVIDING SUCH RETURN TRAVEL WOULD HELP ALLEVIATE MENTAL DISTRESS ON THE PART OF EX-FAMILY MEMBERS WHO FOUND THEMSELVES DIVORCED, OVERSEAS WITH NO FAMILY, AND UNABLE TO AFFORD A RETURN TRIP HOME.

THE BASIC STATUTORY PROVISIONS AUTHORIZING ADVANCE RETURN OF THE IMMEDIATE FAMILY OF CIVILIAN EMPLOYEES NOT IN THE FOREIGN SERVICE FROM OVERSEAS POSTS OF DUTY IS CONTAINED IN SECTION 5729 OF TITLE 5, U.S.C. THAT SECTION PROVIDES, IN PART, AS FOLLOWS:

SEC. 5729. TRANSPORTATION EXPENSES; PRIOR RETURN OF FAMILY

(A) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, AN AGENCY SHALL PAY FROM ITS APPROPRIATIONS, NOT MORE THAN ONCE BEFORE THE RETURN TO THE UNITED STATES OR ITS TERRITORIES OR POSSESSIONS OF AN EMPLOYEE WHOSE POST OF DUTY IS OUTSIDE THE CONTINENTAL UNITED STATES, THE EXPENSES OF TRANSPORTING HIS IMMEDIATE FAMILY AND OF SHIPPING HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS FROM HIS POST OF DUTY TO HIS ACTUAL PLACE OF RESIDENCE WHEN -

(1) HE HAS ACQUIRED ELIGIBILITY FOR THAT TRANSPORTATION; OR

(2) THE PUBLIC INTEREST REQUIRES THE RETURN OF THE IMMEDIATE FAMILY FOR COMPELLING PERSONAL REASONS OF A HUMANITARIAN OR COMPASSIONATE NATURE, SUCH AS MAY INVOLVE PHYSICAL OR MENTAL HEALTH, DEATH OF A MEMBER OF THE IMMEDIATE FAMILY, OR OBLIGATION IMPOSED BY AUTHORITY OR CIRCUMSTANCES OVER WHICH THE INDIVIDUAL HAS NO CONTROL.

THE PRESIDENT, BY EXECUTIVE ORDER 11609, JULY 22, 1971, HAS DELEGATED HIS AUTHORITY TO ISSUE REGULATIONS UNDER THAT SECTION TO THE ADMINISTRATOR OF GENERAL SERVICES OF THE GENERAL SERVICES ADMINISTRATION. THOSE REGULATIONS ARE CONTAINED IN CHAPTER 2 OF THE FEDERAL TRAVEL REGULATIONS, FPMR 101-7, MAY 1, 1973. CURRENTLY THEY PROVIDE FOR GOVERNMENT PAYMENT OF RETURN TRANSPORTATION EXPENSES FOR MEMBERS OF AN EMPLOYEE'S IMMEDIATE FAMILY ONLY AFTER THE EMPLOYEE HAS COMPLETED AN AGREED PERIOD OF SERVICE EXCEPT THAT IN CIRCUMSTANCES INVOLVING COMPELLING PERSONAL REASONS, GOVERNMENT PAYMENT FOR RETURN OF THE IMMEDIATE FAMILY MAY BE AUTHORIZED WITHOUT REGARD TO THE EMPLOYEE'S COMPLETION OF THE AGREED PERIOD OF SERVICE. "IMMEDIATE FAMILY" IS DEFINED IN SECTION 2-1.4D OF THE FEDERAL TRAVEL REGULATIONS AS FOLLOWS:

D. IMMEDIATE FAMILY. ANY OF THE FOLLOWING NAMED MEMBERS OF THE EMPLOYEE'S HOUSEHOLD AT THE TIME HE REPORTS FOR DUTY AT HIS NEW PERMANENT DUTY STATION OR PERFORMS AUTHORIZED OR APPROVED OVERSEAS TOUR RENEWAL AGREEMENT TRAVEL OR SEPARATION TRAVEL: SPOUSE, CHILDREN (INCLUDING STEP- CHILDREN AND ADOPTED CHILDREN (UNMARRIED AND UNDER 21 YEARS OF AGE PHYSICALLY OR MENTALLY INCAPABLE OF SUPPORTING THEMSELVES REGARDLESS OF AGE, OR DEPENDENT PARENTS OF THE EMPLOYEE AND OF THE EMPLOYEE'S SPOUSE.

UNDER THAT REGULATION A DIVORCE OR ANNULMENT WOULD NOT CHANGE THE AUTHORITY OF THE DEPARTMENT TO APPROVE ADVANCE TRAVEL FOR THE EMPLOYEE'S CHILDREN AND IN THOSE CIRCUMSTANCES WE BELIEVE THE ALLOWANCE OF ADVANCE TRAVEL FOR CHILDREN WHO TRAVELED OVERSEAS AS MEMBERS OF THE EMPLOYEE'S IMMEDIATE FAMILY WOULD BE APPROPRIATE. FURTHER, WE AGREE WITH THE DEPARTMENT OF THE ARMY THAT THE PRINCIPLES UPON WHICH WE BASED OUR DECISION IN 52 COMP. GEN. 246 ARE EQUALLY APPLICABLE TO THE SPOUSES OF DEPARTMENT OF DEFENSE EMPLOYEES ASSIGNED OVERSEAS AND, IN FACT, BELIEVE THAT SUCH PRINCIPLES APPLY TO THE SPOUSES OF ALL CIVILIANS ASSIGNED OVERSEAS. A REGULATION SIMILAR TO THE ONE NOW APPLICABLE TO DEPENDENTS OF EMPLOYEES IN THE FOREIGN SERVICE COVERING THE SPOUSES OF ALL GOVERNMENT EMPLOYEES ASSIGNED OVERSEAS WOULD RECOGNIZE THAT BOTH THE BEST INTERESTS OF THE UNITED STATES AND THE PERSONAL WELL-BEING OF THE CHILDREN AND FORMER SPOUSE WOULD BE SERVED BY AUTHORIZING GOVERNMENT PAYMENT FOR THE RETURN OF THE SPOUSE AS WELL AS THE CHILDREN FROM AN OVERSEAS POST OF DUTY AFTER A MARRIAGE HAS BEEN TERMINATED DUE TO DIVORCE OR ANNULMENT. THIS WOULD ALSO PLACE ALL EMPLOYEES OVERSEAS ON AN EQUAL BASIS WHETHER THEY ARE SUBJECT TO THE FEDERAL TRAVEL REGULATIONS OR TO THE FOREIGN SERVICE TRAVEL REGULATIONS. FURTHER, WE BELIEVE SUCH A REGULATION MAY BE PROMULGATED UNDER 5 U.S.C. 5729(A).

HOWEVER, NOTWITHSTANDING THE ABOVE, SINCE THE GENERAL SERVICES ADMINISTRATION IS THE AGENCY CHARGED WITH THE IMPLEMENTATION OF REGULATIONS UNDER 5 U.S.C. 5729(A) AND SINCE VOLUME 2 OF THE JOINT TRAVEL REGULATIONS, AN IMPLEMENTATION OF THE FEDERAL TRAVEL REGULATIONS, CANNOT PROVIDE GREATER BENEFITS FOR DEPARTMENT OF DEFENSE EMPLOYEES THAN ARE AUTHORIZED BY THE FEDERAL TRAVEL REGULATIONS, IT IS OUR VIEW THAT SUCH AN AMENDMENT MAY NOT BE ADDED TO THE JOINT TRAVEL REGULATIONS UNTIL THE FEDERAL TRAVEL REGULATIONS ARE AMENDED BY THE GENERAL SERVICES ADMINISTRATION.