B-160762, JUNE 9, 1967, 46 COMP. GEN. 838

B-160762, JUNE 9, 1967, 46 COMP. GEN. 838

OFFICERS AND EMPLOYEES - OVERSEAS - HIRED LOCALLY - TRAVEL STATUS EMPLOYEES WHO ARE STATIONED AND RESIDE IN ALASKA OR HAWAII MAY NOT BE AUTHORIZED VACATION LEAVE TRAVEL AND TRANSPORTATION EXPENSES TO ANOTHER LOCATION IN THE STATE OF THEIR RESIDENCY, THE LONG-ESTABLISHED RULE THAT TRAVEL AND TRANSPORTATION EXPENSES ARE NOT AUTHORIZED FOR AN EMPLOYEE APPOINTED TO A DUTY STATION AT THE PLACE IN WHICH HE RESIDES OUTSIDE THE CONTINENTAL UNITED STATES, REQUIRING THAT TRAVEL AND TRANSPORTATION INCIDENT TO APPOINTMENT, SEPARATION, OR LEAVE MAY NOT BE AUTHORIZED UNDER 5 U.S.C. 5722, 5728, OR 5729, FOR AN EMPLOYEE ASSIGNED TO A POST OF DUTY IN ALASKA OR HAWAII, WHOSE PLACE OF RESIDENCE AT THE TIME OF ASSIGNMENT IS LOCATED IN THE SAME STATE. OFFICERS AND EMPLOYEES - OVERSEAS - RETIREMENT, SEPARATION, ETC. - RETURN TO OTHER THAN PLACE OF RESIDENCE AN EMPLOYEE STATIONED IN ALASKA OR HAWAII WHOSE PLACE OF RESIDENCE AT THE TIME OF APPOINTMENT IS LOCATED IN ANOTHER OF THE 50 STATES OR THE DISTRICT OF COLUMBIA MAY BE AUTHORIZED TRAVEL AND TRANSPORTATION UPON SEPARATION TO ANOTHER LOCATION IN ANY ONE OF THE 50 STATES, OR THE DISTRICT OF COLUMBIA, PROVIDED THE ALLOWABLE EXPENSES DO NOT EXCEED THE CONSTRUCTIVE COST TO PLACE OF ACTUAL RESIDENCE. OVERRULES B-156524, MAY 20, 1965. TRANSPORTATION - DEPENDENTS - OVERSEAS EMPLOYEES - ADVANCE TRAVEL OF DEPENDENTS - REIMBURSEMENT NOTWITHSTANDING THE FAMILY OF AN EMPLOYEE STATIONED IN ALASKA OR HAWAII, WHOSE PLACE OF RESIDENCE AT THE TIME OF APPOINTMENT IS LOCATED IN ANOTHER OF THE 50 STATES OR THE DISTRICT OF COLUMBIA, TRAVEL IN ADVANCE OF HIS SEPARATION FROM THE SERVICE, HE MAY BE AUTHORIZED, PURSUANT TO 5 U.S.C. 5729, TRAVEL AND TRANSPORTATION TO ANOTHER LOCATION IN ANY ONE OF THE 50 STATES OR THE DISTRICT OF COLUMBIA, PROVIDED THE ALLOWABLE EXPENSES DO NOT EXCEED THE CONSTRUCTIVE COSTS TO PLACE OF ACTUAL RESIDENCE.

TO THE ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, JUNE 9, 1967:

BY LETTER DATED APRIL 18, 1967, YOU REQUESTED OUR DECISION ON SEVERAL QUESTIONS INVOLVING TRAVEL AND TRANSPORTATION OF EMPLOYEES STATIONED IN ALASKA AND HAWAII. THE QUESTIONS ARE RAISED AS A RESULT OF OUR DECISION TO YOU OF FEBRUARY 28, 1967, 46 COMP. GEN. 675, HOLDING THAT UNDER SECTION 7.2 OF BUREAU OF THE BUDGET CIRCULAR NO. A 56, REVISED OCTOBER 12, 1966, AN EMPLOYEE STATIONED IN ALASKA OR HAWAII, WHOSE PLACE OF ACTUAL RESIDENCE IS LOCATED IN ANOTHER OF THE 50 STATES OR THE DISTRICT OF COLUMBIA, MAY BE AUTHORIZED VACATION LEAVE TRAVEL TO ANOTHER LOCATION IN ANY ONE OF THE 50 STATES OR THE DISTRICT OF COLUMBIA.

YOUR QUESTIONS ARE AS FOLLOWS:

1. WHETHER AN EMPLOYEE STATIONED IN THE STATE OF ALASKA WHOSE PLACE OF ACTUAL RESIDENCE IS LOCATED IN THE STATE OF ALASKA IS NOW ENTITLED TO PAYMENT BY THE GOVERNMENT OF VACATION LEAVE TRAVEL AND TRANSPORTATION EXPENSES TO ANOTHER LOCATION IN THE STATE OF ALASKA.

2. WHETHER AN EMPLOYEE STATIONED IN THE STATE OF HAWAII WHOSE PLACE OF ACTUAL RESIDENCE IS LOCATED IN THE STATE OF HAWAII IS NOW ENTITLED TO PAYMENT BY THE GOVERNMENT OF VACATION LEAVE TRAVEL AND TRANSPORTATION EXPENSES TO ANOTHER LOCATION IN THE STATE OF HAWAII.

3. WHETHER AN EMPLOYEE STATIONED IN THE STATE OF HAWAII OR ALASKA, WHOSE PLACE OF ACTUAL RESIDENCE IS IN THE CONTINENTAL UNITED STATES IS ENTITLED TO REIMBURSEMENT BY THE GOVERNMENT FOR THE ACTUAL COST OF TRANSPORTATION OF HOUSEHOLD GOODS AND PERSONAL EFFECTS TO A LOCATION IN THE 50 STATES OTHER THAN HIS PLACE OF ACTUAL RESIDENCE, WHEN THE TRANSPORTATION IS PERFORMED PURSUANT TO A SEPARATION FROM THE SERVICE, PROVIDED THE COST DOES NOT EXCEED THAT ALLOWABLE FOR RETURN OVER THE USUALLY TRAVELLED ROUTE BETWEEN HIS POST OF DUTY AND HIS PLACE OF ACTUAL RESIDENCE.

4. WHETHER AN EMPLOYEE STATIONED IN THE STATE OF ALASKA WHOSE PLACE OF ACTUAL RESIDENCE IS IN THE STATE OF ALASKA OR HAWAII, IS ENTITLED TO REIMBURSEMENT BY THE GOVERNMENT FOR THE ACTUAL COST OF TRANSPORTATION OF HOUSEHOLD GOODS AND PERSONAL EFFECTS TO A LOCATION IN THE 50 STATES OTHER THAN HIS PLACE OF ACTUAL RESIDENCE, WHEN THE TRANSPORTATION IS PERFORMED PURSUANT TO A SEPARATION FROM THE SERVICE, PROVIDED THE COST DOES NOT EXCEED THAT ALLOWABLE FOR RETURN OVER THE USUALLY TRAVELLED ROUTE BETWEEN THE POST OF DUTY AND HIS PLACE OF ACTUAL RESIDENCE.

5. WHETHER AN EMPLOYEE STATIONED IN THE STATE OF HAWAII OR ALASKA, WHOSE PLACE OF ACTUAL RESIDENCE IS IN THE CONTINENTAL UNITED STATES AND WHOSE FAMILY RETURNS TO THE UNITED STATES PRIOR TO HIS RETURN FOR SEPARATION, IS ENTITLED TO REIMBURSEMENT BY THE GOVERNMENT FOR THE ACTUAL COST OF TRANSPORTATION OF HIS IMMEDIATE FAMILY AND HOUSEHOLD GOODS AND PERSONAL EFFECTS TO A LOCATION IN THE 50 STATES OTHER THAN HIS PLACE OF ACTUAL RESIDENCE, PROVIDED THE COST DOES NOT EXCEED THAT ALLOWABLE FOR RETURN OVER THE USUALLY TRAVELLED ROUTE BETWEEN THE POST OF DUTY AND HIS PLACE OF ACTUAL RESIDENCE.

6. WHETHER AN EMPLOYEE STATIONED IN THE STATE OF ALASKA, WHOSE PLACE OF ACTUAL RESIDENCE IS THE STATE OF ALASKA OR HAWAII AND WHOSE FAMILY RETURNS TO THE UNITED STATES PRIOR TO HIS RETURN FOR SEPARATION, IS ENTITLED TO REIMBURSEMENT BY THE GOVERNMENT FOR THE ACTUAL COST OF TRANSPORTATION OF HIS IMMEDIATE FAMILY, AND HOUSEHOLD GOODS AND PERSONAL EFFECTS TO A LOCATION IN THE 50 STATES OTHER THAN HIS PLACE OF ACTUAL RESIDENCE, PROVIDED THE COST DOES NOT EXCEED THAT ALLOWABLE FOR RETURN OVER THE USUALLY TRAVELLED ROUTE BETWEEN THE POST OF DUTY AND HIS PLACE OF ACTUAL RESIDENCE.

IN 27 COMP. GEN. 509, OUR OFFICE WAS ASKED TO CONSIDER WHETHER OR NOT AN APPOINTEE RESIDING IN ALASKA AND APPOINTED TO A POST OF DUTY ALSO IN ALASKA WAS ENTITLED TO TRAVEL AND TRANSPORTATION EXPENSES UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 (5 U.S.C. 5722). WE HELD THE FOLLOWING:

WHILE ONE OF THE PURPOSES OF SECTION 7 OF PUBLIC LAW 600, WAS TO FACILITATE THE RECRUITMENT OF PERSONNEL FOR DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, IT PRIMARILY WAS INTENDED FOR APPLICATION TO CASES OF PERSONS WHO, AT THE TIME OF THEIR APPOINTMENT, ACTUALLY WERE RESIDENTS OF THIS COUNTRY AND WHO WERE REQUIRED TO TRAVEL TO POSTS OF DUTY BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES. SEE PAGE 6 OF HOUSE REPORT 2186, 79TH CONGRESS. ALTHOUGH IN DECISION OF MARCH 18, 1947, 26 COMP. GEN. 679, SUPRA, THE ACT WAS INTERPRETED AS COVERING A NEW APPOINTEE WHO RESIDED IN HAWAII AND WHO WAS REQUIRED TO TRAVEL TO A POST OF DUTY IN ALASKA, SINCE, IN THE INSTANT CASE, THE NEW APPOINTEES WOULD NOT BE REQUIRED TO TRAVEL OUTSIDE OF ALASKA, THE TERRITORY IN WHICH THEY WOULD BE HIRED, I AM CONSTRAINED TO THE VIEW THAT THE PAYMENT OF THEIR TRAVELING AND TRANSPORTATION EXPENSES TO THEIR POSTS OF DUTY WOULD NOT BE AUTHORIZED UNDER THE PROVISIONS OF SECTION 7 OF PUBLIC LAW 600.

IN THE DECISION OF OCTOBER 6, 1955, B-124005, WE WERE ASKED TO RECONSIDER OUR HOLDING IN 27 COMP. GEN. 509, SO AS TO ALLOW TRAVEL AND TRANSPORTATION OF AN EMPLOYEE FROM HIS OVERSEAS RESIDENCE TO AN OVERSEAS DUTY STATION WHERE BOTH RESIDENCE AND DUTY STATION ARE LOCATED IN THE SAME TERRITORY OR COUNTRY. IN RESPONSE THERETO, WE SAID:

IT MAY BE THAT LITERALLY ACCEPTED THE TERMINOLOGY OF THE SECTION IN QUESTION (SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946) IS SUFFICIENTLY BROAD TO EMBRACE TRAVEL OF NEW APPOINTEES TO THEIR FIRST DUTY STATIONS OUTSIDE THE CONTINENTAL UNITED STATES EVEN THOUGH SUCH DUTY STATIONS ARE WITHIN THE SAME TERRITORY OR COUNTRY IN WHICH THEY RESIDE. HOWEVER, IN CONSTRUING OR CONSIDERING THE APPLICATION OF A STATUTE IT IS PERMISSIBLE TO LOOK TO ITS EVIDENT SPIRIT AND PURPOSE AS WELL AS TO THE STRICT LETTER OF THE LAW AND THE STRICT LETTER MUST YIELD TO ITS EVIDENT SPIRIT WHEN THIS IS NECESSARY TO GIVE EFFECT TO THE INTENT OF CONGRESS. IT DOES NOT APPEAR FROM THE LEGISLATIVE HISTORY OF SECTION 7 THAT CONGRESS INTENDED TO AUTHORIZE TRAVEL AT GOVERNMENT EXPENSE UNDER THE CIRCUMSTANCES CITED IN THE LETTER. IN FACT IT IS EVIDENT FROM THE TENOR OF THE LEGISLATIVE HISTORY THAT THE CONGRESS DID NOT EVEN CONSIDER OR CONTEMPLATE THE TYPE OF SITUATION REFERRED TO IN THE LETTER. SEE ABOVE CITED HOUSE REPORT; PAGE 6 OF SENATE REPORT NO. 1636, 79TH CONGRESS; AND PAGES 26 AND 27. HEARINGS BEFORE THE COMMITTEE ON EXPENDITURES IN THE EXECUTIVE DEPARTMENTS, HOUSE OF REPRESENTATIVES, 79TH CONGRESS, 2ND SESSION, ON H.R. 4586, WHICH WAS SUPERSEDED BY H.R. 6533, THE LATTER BECOMING PUBLIC LAW 600. FROM THE DISCUSSION OF SECTION 7 CONTAINED IN THE ABOVE CITED HEARINGS IT IS EVIDENT THAT THE TRAVEL CONTEMPLATED THEREIN WAS TRAVEL TO "FOREIGN POSTS.' TRAVEL BETWEEN TWO POINTS IN A TERRITORY OR FOREIGN COUNTRY BY A RESIDENT OR CITIZEN OF THAT TERRITORY OR COUNTRY IS NOT TRAVEL TO A "FOREIGN POST" AS FAR AS THAT RESIDENT OR CITIZEN IS CONCERNED.

ACCORDINGLY, WE MUST HOLD THAT TRAVEL AND TRANSPORTATION AT GOVERNMENT EXPENSE MAY NOT BE AUTHORIZED UNDER SECTION 7 OF PUBLIC LAW 600 FOR A PERSON NEWLY APPOINTED TO A DUTY STATION IN THE SAME TERRITORY OR COUNTRY OUTSIDE THE CONTINENTAL UNITED STATES IN WHICH HE RESIDES. * * *

WE FIND NOTHING IN THE LANGUAGE OF THE CURRENT STATUTORY PROVISIONS GOVERNING TRAVEL AND TRANSPORTATION OF EMPLOYEES STATIONED OUTSIDE THE CONTINENTAL UNITED STATES OR THE BUREAU OF THE BUDGET REGULATIONS (CIRCULAR NO. A-56) WHICH WOULD SERVE AS A BASIS FOR ALTERING THE VIEWS EXPRESSED IN THE ABOVE-CITED DECISIONS. NOR WOULD THE FACT THAT ALASKA AND HAWAII ARE NOW STATES MAKE ANY DIFFERENCE. THEREFORE, WE MUST CONCLUDE THAT TRAVEL AND TRANSPORTATION INCIDENT TO APPOINTMENT, SEPARATION OR LEAVE MAY NOT BE AUTHORIZED UNDER SECTIONS 5722, 5728 OR 5729 OF TITLE 5, U.S.C. FOR AN EMPLOYEE WHO IS ASSIGNED TO A POST OF DUTY IN ALASKA OR HAWAII, AND WHOSE PLACE OF RESIDENCE AT TIME OF ASSIGNMENT IS LOCATED IN THE SAME STATE. QUESTIONS 1 AND 2, THEREFORE, ARE ANSWERED IN THE NEGATIVE.

WITH RESPECT TO QUESTIONS 3 THROUGH 6, YOUR LETTER READS, IN PART, AS FOLLOWS:

FURTHER, IN LIGHT OF DECISION B-160762, WE HAVE A QUESTION CONCERNING THE APPLICATION OF COMPTROLLER GENERAL DECISION B-156524, DATED MAY 20, 1965. THE LATTER DECISION DETERMINED THAT 5 U.S.C. 5722 (A) DOES NOT AUTHORIZE PAYMENT FOR TRAVEL AND TRANSPORTATION COSTS BETWEEN POINTS OUTSIDE THE CONTINENTAL UNITED STATES WHERE AN EMPLOYEE, UPON SEPARATION FROM SERVICE, ELECTS TO REMAIN AT A PLACE IN A STATE OUTSIDE THE CONTINENTAL UNITED STATES RATHER THAN RETURN TO HIS PLACE OF RESIDENCE AT THE TIME OF EMPLOYMENT. HOWEVER, WHEN VACATION LEAVE IS INVOLVED, THE DECISION IN B- 160762 SEEMS TO INDICATE THAT AN EMPLOYEE MAY ELECT TO TAKE SUCH LEAVE IN THE STATE OF ALASKA OR HAWAII, RATHER THAN WHERE HIS PLACE OF ACTUAL RESIDENCE IS LOCATED, AND BE REIMBURSED FOR TRAVEL EXPENSES NOT TO EXCEED THE COST OF TRAVEL TO HIS PLACE OF ACTUAL RESIDENCE. * * *

ALSO, YOU POINT OUT THAT SECTION 8.1E OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966, PROVIDES FOR THE TRANSPORTATION OF THE EMPLOYEE'S IMMEDIATE FAMILY AND HOUSEHOLD GOODS PRIOR TO THE RETURN OF THE EMPLOYEE TO AN ALTERNATE LOCATION IN THE 50 STATES, THE DISTRICT OF COLUMBIA, ETC., PROVIDED THE ALLOWABLE EXPENSES SHALL NOT EXCEED THE CONSTRUCTIVE COST TO PLACE OF ACTUAL RESIDENCE.

OUR DECISION OF MAY 20, 1965, B-156524, CONCERNING AN EMPLOYEE WHO ELECTED TO REMAIN IN ALASKA UPON COMPLETION OF HIS SERVICE RATHER THAN RETURN TO HIS RESIDENCE IN THE CONTINENTAL UNITED STATES WAS BASED UPON A LONGSTANDING DETERMINATION THAT SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED (5 U.S.C. 5722), DOES NOT AUTHORIZE PAYMENT FOR TRAVEL AND TRANSPORTATION COSTS BETWEEN POINTS OUTSIDE THE CONTINENTAL UNITED STATES WHERE THE EMPLOYEE, UPON SEPARATION FROM SERVICE, ELECTS TO SO REMAIN RATHER THAN RETURN TO HIS PLACE OF RESIDENCE AT TIME OF EMPLOYMENT.

WHILE THERE HAS BEEN NO SUBSTANTIVE CHANGE IN THE APPLICABLE STATUTORY PROVISIONS SINCE OUR DECISION OF MAY 20, 1965 (B-156524), IN VIEW OF OUR DECISION OF FEBRUARY 28, 1967, 46 COMP. GEN. 675, CONCERNING LEAVE TRAVEL UNDER SECTION 7 OF THE REGULATIONS AND THE LANGUAGE OF SECTION 8.1E CONCERNING ADVANCE RETURN OF FAMILY AND HOUSEHOLD GOODS, WE NO LONGER CAN APPLY THE RULE EXPRESSED IN B-156524 TO EMPLOYEES WHO ELECT TO REMAIN IN ALASKA OR HAWAII UPON SEPARATION FROM THE SERVICE. THEREFORE, THAT DECISION IS REVERSED AND WE NOW HOLD THAT AN EMPLOYEE STATIONED IN ALASKA OR HAWAII, WHOSE PLACE OF RESIDENCE AT TIME OF APPOINTMENT IS LOCATED IN ANOTHER OF THE 50 STATES OR THE DISTRICT OF COLUMBIA MAY BE AUTHORIZED TRAVEL AND TRANSPORTATION UPON SEPARATION (OR IN ADVANCE OF HIS RETURN UNDER 5 U.S.C. 5729) TO ANOTHER LOCATION IN ANY ONE OF THE 50 STATES OR THE DISTRICT OF COLUMBIA, PROVIDED THE ALLOWABLE EXPENSES SHALL NOT EXCEED THE CONSTRUCTIVE COST TO PLACE OF ACTUAL RESIDENCE. HOWEVER, IN ACCORDANCE WITH OUR ANSWER TO QUESTIONS 1 AND 2, ABOVE, SUCH TRAVEL AND TRANSPORTATION MAY NOT BE AUTHORIZED FOR AN EMPLOYEE ASSIGNED TO A POST OF DUTY IN ALASKA OR HAWAII WHOSE PLACE OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT IS LOCATED IN THE SAME STATE.

QUESTIONS 3 THROUGH 6 ARE ANSWERED ACCORDINGLY.

IN VIEW OF THE ABOVE, THE CLAIM OF MR. GLENN D. DAVIS, WHICH WAS THE SUBJECT OF OUR DECISION B-156524, REFERRED TO ABOVE, MAY BE RECONSIDERED BY YOUR OFFICE AND PROCESSED FOR PAYMENT IF OTHERWISE CORRECT.