B-160026, AUGUST 23, 1967, 47 COMP. GEN. 125

B-160026, AUGUST 23, 1967, 47 COMP. GEN. 125

OFFICERS AND EMPLOYEES - TRANSFERS - SERVICE AGREEMENTS - FAILURE TO FULFILL EMPLOYEES SUBJECT TO A 12 MONTH TRANSPORTATION AGREEMENT EXECUTED PURSUANT TO PUBLIC LAW 89-516, THAT REQUIRED THEM TO REMAIN IN THE SERVICE OF THE CONCERNED DEPARTMENT OR AGENCY OF THE DEPARTMENT OF DEFENSE RATHER THAN "IN THE GOVERNMENT SERVICE," MAY WITH AGENCY APPROVAL BE TRANSFERRED INCIDENT TO PROMOTION WITHIN OR OUTSIDE THE DEFENSE DEPARTMENT PRIOR TO THE EXPIRATION OF AN OBLIGATED PERIOD OF SERVICE AND RELIEVED OF THE OBLIGATION TO REFUND TRANSFER COSTS, THE PROMOTIONAL TRANSFER, ALTHOUGH NOT A REASON PROVIDED BY THE AGREEMENT FOR NOT COMPLETING A REQUIRED PERIOD OF SERVICE, CONSIDERED TO BE IN THE INTEREST OF THE GOVERNMENT, THE TRANSPORTATION AGREEMENT WAS NOT BREACHED. HOWEVER, THE EMPLOYING AGENCY IF UNWILLING TO REGARD THE PROMOTIONAL TRANSFER AS IN THE INTEREST OF THE GOVERNMENT MAY REFUSE TO RELEASE AN EMPLOYEE FROM AN OBLIGATED PERIOD OF SERVICE, OR A PARTICULAR TYPE AGREEMENT MAY BE PRESCRIBED FOR PROMOTIONAL TRANSFERS THAT OCCUR PRIOR TO COMPLETION OF AN AGREED PERIOD OF SERVICE.

TO THE SECRETARY OF DEFENSE, AUGUST 23, 1967:

WE REFER TO THE LETTER DATED JULY 18, 1967, FROM THE ASSISTANT SECRETARY OF DEFENSE, COMPTROLLER, CONCERNING THE TRANSFER INCIDENT TO PROMOTION OF EMPLOYEES OF THE DEPARTMENT OF DEFENSE AND OF ITS COMPONENT DEPARTMENTS AND AGENCIES WHILE THEY ARE SUBJECT TO A 12 MONTH TRANSPORTATION AGREEMENT EXECUTED UNDER SECTION 28 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS ADDED BY THE ACT OF JULY 21, 1966, PUB. L. 89-516, 80 STAT. 325, INCIDENT TO A PRIOR TRANSFER OF OFFICIAL STATION.

SECTION 28 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 PROVIDES:

"NOTWITHSTANDING THE PROVISIONS OF SUBSECTIONS (A) AND (B) OF SECTION 1, AND OF SECTIONS 23, 24, 25, AND 27 OF THIS ACT, THE TRAVEL AND TRANSPORTATION EXPENSES, INCLUDING STORAGE OF HOUSEHOLD GOODS AND PERSONAL EFFECTS, AND OTHER RELOCATION ALLOWANCES SHALL NOT BE ALLOWED THEREUNDER WHEN A CIVILIAN OFFICER OR EMPLOYEE IS TRANSFERRED WITHIN THE CONTINENTAL UNITED STATES, EXCLUDING ALASKA, UNLESS AND UNTIL SUCH OFFICER OR EMPLOYEE SHALL AGREE IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR TWELVE MONTHS FOLLOWING HIS TRANSFER, UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED. IN CASE OF VIOLATION OF SUCH AGREEMENT, ANY MONEYS EXPENDED BY THE UNITED STATES UNDER SAID SECTIONS OF THIS ACT ON ACCOUNT OF SUCH OFFICER OR EMPLOYEE SHALL BE RECOVERABLE FROM HIM AS A DEBT DUE THE UNITED STATES.'

SECTION 1.3C (1) OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966, WHICH IMPLEMENTS THAT SECTION ALSO PROVIDES THAT EMPLOYEES MUST AGREE TO "REMAIN IN THE SERVICE OF THE GOVERNMENT" FOR A PERIOD OF 12 MONTHS FOLLOWING A CHANGE OF OFFICIAL STATION IN ORDER TO BE ELIGIBLE FOR PAYMENT BY THE GOVERNMENT OF THE APPLICABLE TRAVEL AND TRANSPORTATION EXPENSES AND OTHER TRANSFER ALLOWANCES. WE UNDERSTAND THE DEPARTMENT OF DEFENSE AND ITS COMPONENT DEPARTMENTS AND AGENCIES REQUIRE THAT TRANSPORTATION AGREEMENTS EXECUTED UNDER THOSE PROVISIONS SPECIFY THAT THE EMPLOYEE WILL REMAIN IN THE SERVICE OF THE DEPARTMENT OR AGENCY CONCERNED RATHER THAN "IN THE GOVERNMENT SERVICE" FOR THE AGREED PERIOD.

THE ASSISTANT SECRETARY ASKS WHETHER THE TRANSFER OF AN EMPLOYEE TO ANOTHER DEPARTMENT OR AGENCY WITHIN THE DEPARTMENT OF DEFENSE OR TO A DEPARTMENT OR AGENCY OUTSIDE OF THAT DEPARTMENT WHICH IS INCIDENT TO A PROMOTION OF THE EMPLOYEE MAY BE CONSIDERED AS IN THE INTEREST OF THE GOVERNMENT AND AS SUCH RELIEVE THE EMPLOYEE OF HIS OBLIGATION TO REFUND THE COSTS OF HIS PRIOR TRANSFER OF STATION. THE QUESTION APPARENTLY ARISES BECAUSE THE AGREEMENTS EXECUTED BY THE DEPARTMENT'S EMPLOYEES PROVIDE THAT THE AGREEMENT FOR CONTINUED SERVICE IN THE DEPARTMENT OR AGENCY CONCERNED WILL NOT BE ENFORCED ONLY IF THE EMPLOYEE IS SEPARATED FROM THAT DEPARTMENT OR AGENCY FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED.

WHEN PRIOR TO THE EXPIRATION OF AN OBLIGATED PERIOD OF SERVICE WITH A PARTICULAR GOVERNMENT AGENCY, AN EMPLOYEE TRANSFERS TO ANOTHER GOVERNMENT AGENCY WITH THE APPROVAL OF THE AGENCY WITH WHICH HE SIGNED THE CONTINUED SERVICE AGREEMENT THE TRANSFER NEED NOT BE REGARDED AS A BREACH OF SUCH AGREEMENT. CF. DECISION OF NOVEMBER 21, 1966, B 160092. HOWEVER, IF THE AGENCY WITH WHICH HE IS OBLIGATED TO SERVE FOR A SPECIFIED PERIOD OF TIME IS NOT WILLING TO REGARD THE TRANSFER- PRIOR TO THE EXPIRATION OF SUCH SPECIFIED PERIOD--AS BEING IN THE INTEREST OF THE GOVERNMENT IT PROPERLY MAY REFUSE TO RELEASE THE EMPLOYEE FROM HIS OBLIGATION TO SERVE WITH THAT AGENCY. CF. DECISION OF NOVEMBER 21, 1966, ABOVE.

IF IT IS DETERMINED THAT A UNIFORM RULE SHOULD BE FOLLOWED WHEN EMPLOYEES TRANSFER TO OTHER DEPARTMENTS OR AGENCIES TO ACCEPT PROMOTIONS IT WOULD BE APPROPRIATE TO INCLUDE A PROVISION IN THE JOINT TRAVEL REGULATIONS SPECIFYING THE USE OF A PARTICULAR TYPE AGREEMENT UNDER WHICH AN EMPLOYEE WOULD BE RELIEVED OF HIS OBLIGATION IF HE TRANSFERS TO ANOTHER AGENCY TO ACCEPT A PROMOTION--THEREBY UTILIZING HIS KNOWLEDGE AND SKILLS IN A HIGHER TYPE OF WORK. IN CONNECTION WITH THIS MATTER YOU MAY WISH TO COMPARE 5 U.S.C. 4108 (B) RELATING TO TRAINING AGREEMENTS. THAT SECTION PROVIDES THAT IN THE CASE OF AN EMPLOYEE'S TRANSFER TO ANOTHER DEPARTMENT OR AGENCY, THE EMPLOYEE WILL NOT BE REQUIRED TO REFUND THE AMOUNT HE WOULD OTHERWISE BE LIABLE FOR UPON SEPARATION FROM SERVICE IN THAT DEPARTMENT UNLESS THE AGENCY ADVISES HIM BEFORE THE TRANSFER IS EFFECTED THAT HE WILL BE LIABLE UNDER THE TERMS OF HIS AGREEMENT.