B-158273, MARCH 7, 1967, 46 COMP. GEN. 691

B-158273, MARCH 7, 1967, 46 COMP. GEN. 691

TRAVEL EXPENSES - OVERSEAS EMPLOYEES - HOME LEAVE - LOCALLY HIRED EMPLOYEES AN EMPLOYEE LOCALLY HIRED OVERSEAS WITHOUT AN EMPLOYMENT AGREEMENT WHO PRIOR TO THE OCTOBER 12, 1966 REVISION OF THE BUREAU OF THE BUDGET CIRCULAR NO. A-56, HAD BEEN AUTHORIZED HOME LEAVE TRAVEL AT GOVERNMENT EXPENSE UPON COMPLETING AN AGREED PERIOD OF SERVICE AND EXECUTING A WRITTEN AGREEMENT FOR ANOTHER PERIOD OF SERVICE, ALTHOUGH INELIGIBLE FOR HOME LEAVE TRAVEL ALLOWANCES UNDER THE REVISED BUDGET CIRCULAR, NEVERTHELESS, IS ENTITLED TO HOME LEAVE TRAVEL EXPENSES UNDER THE AGREEMENT ENTERED INTO PRIOR TO OCTOBER 12, 1966, UPON THE SATISFACTORY COMPLETION OF THE AGREED PERIOD OF SERVICE AND THE SIGNING PRIOR TO DEPARTURE ON HOME LEAVE OF ANOTHER AGREEMENT TO SERVE OVERSEAS. HOWEVER, IN THE EVENT THE NEW AGREEMENT IS VIOLATED, SECTION 7.4 OF CIRCULAR NO. A- 56 WOULD BE FOR APPLICATION, AND IN VIEW OF SECTION 7.3B RESTRICTIONS, NO FURTHER HOME LEAVE TRAVEL MAY BE AUTHORIZED. TRAVEL EXPENSES - OVERSEAS EMPLOYEES - HOME LEAVE - LOCALLY HIRED EMPLOYEES AN EMPLOYEE HIRED LOCALLY OVERSEAS ALTHOUGH INELIGIBLE FOR HOME LEAVE UNDER THE OCTOBER 12, 1966 REVISION OF THE BUREAU OF THE BUDGET CIRCULAR NO. A-56, HAVING ENTERED INTO AN EMPLOYMENT AGREEMENT PRIOR TO THE REVISION OF THE CIRCULAR HAS A RIGHT TO HOME LEAVE TRAVEL AND TRANSPORTATION EXPENSES UPON THE COMPLETION OF THE AGREED TOUR OF DUTY, PROVIDED THE EMPLOYEE SIGNS A NEW AGREEMENT FOR THE REQUIRED PERIOD OF SERVICE, BUT NO FURTHER HOME LEAVE TRAVEL RIGHTS WILL ACCRUE. TRAVEL EXPENSES - OVERSEAS EMPLOYEES - LOCALLY HIRED - RETURN TRAVEL UPON SEPARATION FROM THE SERVICE, AN OVERSEAS EMPLOYEE HIRED LOCALLY WITHOUT AN EMPLOYMENT AGREEMENT, ALTHOUGH GRANTED AN ALLOWANCE FOR THE COST OF HOME LEAVE TRAVEL AFTER ENTERING INTO A WRITTEN AGREEMENT FOR ANOTHER PERIOD OF SERVICE UNDER THE BUREAU OF THE BUDGET CIRCULAR NO. A 56 IN EFFECT PRIOR TO THE OCTOBER 12, 1966 REVISION, IS NOT ENTITLED TO TRAVEL AND TRANSPORTATION EXPENSES, THE AGREEMENT FOR HOME LEAVE TRAVEL NOT IN ITSELF CREATING AN ENTITLEMENT TO TRAVEL EXPENSES UPON SEPARATION FROM THE SERVICE, ABSENT A WRITTEN AGREEMENT OBLIGATING THE GOVERNMENT TO ASSUME THE EXPENSES. TRAVEL EXPENSES - OVERSEAS EMPLOYEES - HOME LEAVE - LOCALLY HIRED EMPLOYEES ALTHOUGH UNDER SECTION 7.3C OF THE BUREAU OF THE BUDGET CIRCULAR NO. A- 56, REVISED OCTOBER 12, 1966, A GOVERNMENT AGENCY HAS THE DISCRETION TO REFUSE TO EXTEND ELIGIBILITY FOR HOME LEAVE TRAVEL AND TRANSPORTATION ALLOWANCES TO A LOCALLY HIRED OVERSEAS EMPLOYEE WHO DID NOT SIGN A WRITTEN EMPLOYMENT AGREEMENT, THE AGENCY IS REQUIRED TO GIVE NOTICE OF ITS INTENT TO DENY HOME LEAVE TRAVEL BEFORE THE EMPLOYEE COMPLETES A PERIOD OF SERVICE EQUAL TO THE PERIOD GENERALLY APPLICABLE TO THE EMPLOYEES OF THE AGENCY SERVING AT THE POST OF DUTY CONCERNED OR IN THE SAME GEOGRAPHICAL AREA, OTHERWISE THE AGENCY IS OBLIGATED TO EXTEND TO THE EMPLOYEE ELIGIBILITY FOR HOME LEAVE TRAVEL ALLOWANCES.

TO THE ADMINISTRATOR, FEDERAL AVIATION AGENCY, MARCH 7, 1967:

THIS REFERS TO LETTER OF DECEMBER 23, 1966 FROM MR. D. D. THOMAS, ACTING ADMINISTRATOR, REQUESTING OUR DECISION ON CERTAIN QUESTIONS ARISING FROM OUR RULING OF JANUARY 24, 1966, TO YOUR AGENCY, 45 COMP. GEN. 444, AND A RECENT AMENDMENT TO BUREAU OF THE BUDGET CIRCULAR NO. A-56, PERTAINING TO THE COST OF HOME LEAVE AND SEPARATION TRAVEL TO EMPLOYEES LOCALLY HIRED OUTSIDE THE CONTINENTAL UNITED STATES.

OUR DECISION IN 45 COMP. GEN. 444 INVOLVED AN OVERSEAS EMPLOYEE WHO WAS HIRED LOCALLY IN HAWAII SOME 40 DAYS AFTER HER ARRIVAL THERE WITH HER HUSBAND WHO WAS ON TEMPORARY ASSIGNMENT WITH A PRIVATE FIRM. SHE WAS NOT REQUESTED TO AND DID NOT SIGN ANY FORMAL AGREEMENT AT THAT TIME OBLIGATING HER TO SERVE ANY SPECIFIC PERIOD OF TIME WITH THE AGENCY IN HAWAII. HOWEVER, WE RULED THAT THIS EMPLOYEE UPON EXECUTION OF AN AGREEMENT TO REMAIN IN THE GOVERNMENT SERVICE FOR ANOTHER 2-YEAR PERIOD WAS ENTITLED TO PAYMENT BY THE GOVERNMENT OF THE COST OF HOME LEAVE TRAVEL TO THE CONTINENTAL UNITED STATES FOR HERSELF AND HER IMMEDIATE FAMILY PURSUANT TO 5 U.S.C. 73 B-3 (NOW 5 U.S.C. 5728). THE CONCLUSION THEREIN WAS BASED ON THE FACT THAT SHE DID NOT COME UNDER THE EXCLUSIONS IN THE STATUTORY REGULATIONS ISSUED BY THE BUREAU OF THE BUDGET IN ITS CIRCULAR NO. A-56. SUBSEQUENT TO THAT DECISION, THE BUREAU OF THE BUDGET UNDER DATE OF OCTOBER 12, 1966, REVISED ITS ELIGIBILITY REQUIREMENTS TO BROADEN THE CATEGORIES OF LOCALLY HIRED PERSONS WHO ARE INELIGIBLE FOR PAYMENT OF HOME LEAVE TRAVEL AND TRANSPORTATION EXPENSES.

YOUR QUESTIONS WILL BE QUOTED AND ANSWERED IN THE ORDER PRESENTED.

1. AN OVERSEAS EMPLOYEE WAS INITIALLY HIRED LOCALLY WITHOUT A WRITTEN EMPLOYMENT AGREEMENT, COMPLETING A TOUR OF DUTY PRIOR TO THE REVISION OF BOB CIRCULAR NO. A-56. FOLLOWING DECISION B-158273 REFERRED TO ABOVE, THE EMPLOYEE WAS GRANTED AN ALLOWANCE FOR THE COST OF HOME LEAVE TRAVEL AFTER ENTERING INTO A WRITTEN AGREEMENT FOR ANOTHER PERIOD OF SERVICE PURSUANT TO THE STATUTORY REGULATIONS THEN IN EFFECT (BOB CIRCULAR NO. A-56, SECTION 4.1B, DATED APRIL 30, 1962). THE EMPLOYEE IS AND AT ALL RELEVANT TIMES HAS BEEN IN THE CATEGORY OF PERSONS WHO NOW WOULD BE INELIGIBLE FOR HOME LEAVE TRAVEL ALLOWANCES UNDER EITHER SUBSECTION 7.3B (1) (B) OR SUBSECTION 7.3B (2) OF REVISED BOB CIRCULAR NO. A-56, I.E., EITHER A MARRIED EMPLOYEE WHO IS IN THE IMMEDIATE GEOGRAPHIC AREAS BECAUSE THE SPOUSE IS IN THE AREA AS AN EMPLOYEE OF A NON-FEDERAL ORGANIZATION, OR AN EMPLOYEE UNDER 21 YEARS OF AGE WHOSE PARENT IS IN THE IMMEDIATE GEOGRAPHIC AREA AS AN EMPLOYEE OF A NON-FEDERAL ORGANIZATION. UNDER THE CIRCUMSTANCES, WILL THE EMPLOYEE HAVE A RIGHT TO HOME LEAVE TRAVEL AND TRANSPORTATION EXPENSES AFTER COMPLETION OF THE CURRENT TOUR OF DUTY UNDER THE PRESENTLY EFFECTIVE WRITTEN AGREEMENT, IF HE TENDERS THE AGENCY A NEW WRITTEN AGREEMENT FOR ANOTHER PERIOD OF SERVICE, NOTWITHSTANDING THE APPLICABILITY OF EITHER SUBSECTION 7.3B (1) (B) OR SUBSECTION 7.3B (2/?

SECTION 7.3B OF BUREAU OF THE BUDGET CIRCULAR NO. A-56 AS REVISED ON OCTOBER 12, 1966, PERTAINING TO TRAVEL AND TRANSPORTATION EXPENSES IN CONNECTION WITH LEAVE FOR RETURNING TO PLACES OF RESIDENCE BETWEEN TOURS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES PROVIDES IN PART THAT:

B. THE FOLLOWING EMPLOYEES HIRED LOCALLY ARE NOT ELIGIBLE FOR ALLOWANCES UNDER THIS SECTION:

(1) A MARRIED EMPLOYEE WHO IS IN THE IMMEDIATE GEOGRAPHIC AREA BECAUSE THE SPOUSE IS IN THE AREA AS---

(B) A PRIVATE INDIVIDUAL OR AN EMPLOYEE OF A PRIVATE INDIVIDUAL OR OF A NON-FEDERAL ORGANIZATION.

(2) AN EMPLOYEE UNDER 21 YEARS OF AGE WHOSE PARENT IS IN THE IMMEDIATE GEOGRAPHIC AREA AS * * * AN EMPLOYEE OF A * * * NON-FEDERAL ORGANIZATION.

IT IS OUR UNDERSTANDING THAT THE EMPLOYEE REFERRED TO IN THE FIRST QUESTION PRIOR TO TAKING HOME LEAVE WAS REQUIRED TO COMPLETE THAT PART OF EMPLOYMENT AGREEMENT FORM FAA-2666 WHICH PROVIDES AS FOLLOWS:

RETURN TRANSPORTATION TO (IT IS UNDERSTOOD THAT THIS IS THE PLACE OF ACTUAL RESIDENCE TO WHICH YOUR TRAVEL AND TRANSPORTATION EXPENSES WILL BE PAID UPON THE RETURN FROM YOUR POST OF DUTY FOR LEAVE OR SEPARATION, AND THAT THE COSTS OF RETURN TO ANY OTHER LOCATION MAY NOT EXCEED THE COSTS OF TRAVEL TO SUCH PLACE OF ACTUAL RESIDENCE) ------- YOUR PLACE OF ACTUAL RESIDENCE, WILL BE GRANTED AT THE AGENCY'S EXPENSE FOR YOU, YOUR IMMEDIATE FAMILY AND HOUSEHOLD GOODS, IF YOU REMAIN IN THE SERVICE OUTSIDE THE CONTIGUOUS 48 STATES AND THE DISTRICT OF COLUMBIA FOR A PERIOD OF 24- MONTHS FOLLOWING YOUR ARRIVAL AT YOUR FIRST POST OF DUTY.

3. ROUND TRIP TRAVEL EXPENSES IN CONNECTION WITH LEAVE

YOU WILL BE ENTITLED TO ROUND TRIP TRAVEL FOR YOURSELF AND YOUR IMMEDIATE FAMILY (EXCLUSIVE OF THE COST OF TRANSPORTATION OF HOUSEHOLD GOODS) TO (IT IS UNDERSTOOD THAT THIS IS THE PLACE OF ACTUAL RESIDENCE TO WHICH YOUR TRAVEL AND TRANSPORTATION EXPENSES WILL BE PAID UPON THE RETURN FROM YOUR POST OF DUTY FOR LEAVE OR SEPARATION, AND THAT THE COSTS OF RETURN TO ANY OTHER LOCATION MAY NOT EXCEED THE COSTS OF TRAVEL TO SUCH PLACE OF ACTUAL RESIDENCE) ------- YOUR PLACE OF ACTUAL RESIDENCE, FOR THE PURPOSE OF TAKING LEAVE, IF YOU:

A. SATISFACTORILY COMPLETE A 22-MONTH PERIOD OF SERVICE OUTSIDE THE CONTIGUOUS 48 STATES AND THE DISTRICT OF COLUMBIA.

B. AGREE, THROUGH THE EXECUTION OF A NEW FORM SUCH AS THIS, PRIOR TO DEPARTURE FROM YOUR POST OF DUTY, TO SERVE ANOTHER TOUR OF DUTY AT THAT OR SOME OTHER POST OF DUTY OUTSIDE THE CONTIGUOUS 48 STATES AND THE DISTRICT OF COLUMBIA; AND

C. CARRY OUT THE AGREEMENT TO SERVE THE NEW TOUR OF DUTY. THE NEW TOUR OF DUTY TO BEGIN UPON YOUR ARRIVAL AT YOUR POST OF DUTY FOLLOWING LEAVE.

UNDER THIS AGREEMENT WHICH THE EMPLOYEE HAD ENTERED INTO PRIOR TO THE REVISION OF BUREAU OF THE BUDGET CIRCULAR NO. A-56 ON OCTOBER 12, 1966, THE EMPLOYEE AFTER SATISFACTORILY COMPLETING HIS 22 MONTHS OF DUTY AFTER RETURNING TO HIS OVERSEAS DUTY STATION WOULD BE ENTITLED TO HOME LEAVE TRAVEL EXPENSES. HOWEVER, PRIOR TO DEPARTURE FROM HIS POST THE EMPLOYEE SHOULD BE REQUIRED TO SIGN A NEW AGREEMENT PROVIDING THAT UPON RETURN TO HIS OVERSEAS PLACE OF DUTY FROM HOME LEAVE HE WILL SERVE A PERIOD EQUAL TO THE PERIOD GENERALLY APPLICABLE TO THE EMPLOYEES OF THE FEDERAL AVIATION AGENCY SERVING AT THE POST OF DUTY CONCERNED OR IN THE SAME GEOGRAPHIC AREA. IN THE EVENT OF A VIOLATION OF THAT AGREEMENT THE PROVISIONS OF SECTION 7.4 OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED, DATED OCTOBER 12, 1966, WOULD BE FOR APPLICATION. NO FURTHER HOME LEAVE TRAVEL WOULD BE AUTHORIZED THEREAFTER IN VIEW OF THE RESTRICTIONS IN SECTION 7.3 B OF CIRCULAR NO. A-56.

2. AN OVERSEAS EMPLOYEE WAS INITIALLY HIRED LOCALLY WITH A WRITTEN EMPLOYMENT AGREEMENT BUT HAS NOT YET COMPLETED THE AGREED TOUR OF DUTY. THIS EMPLOYEE IS IN THE CATEGORY OF PERSONS WHO WOULD NOW BE INELIGIBLE FOR HOME LEAVE TRAVEL ALLOWANCES UNDER THE ABOVE-MENTIONED PROVISIONS OF SUBSECTION 7.3B (1) (B) OR SUBSECTION 7.3B (2) OF REVISED BOB CIRCULAR NO. A-56. UNDER THE CIRCUMSTANCES, WILL THE EMPLOYEE HAVE A RIGHT TO HOME LEAVE TRAVEL AND TRANSPORTATION EXPENSES AFTER COMPLETION OF THE AGREED TOUR OF DUTY UNDER THE PRESENTLY EFFECTIVE WRITTEN AGREEMENT IF HE TENDERS THE AGENCY A NEW WRITTEN AGREEMENT FOR ANOTHER PERIOD OF SERVICE, NOTWITHSTANDING THE APPLICABILITY OF EITHER SUBSECTION 7.3B (1) (B) OR SUBSECTION 7.3B (2/?

THE INFORMATION FURNISHED SHOWS THAT THOSE LOCALLY HIRED EMPLOYEES WHO INITIALLY SIGN AN EMPLOYMENT AGREEMENT UPON BEING HIRED SIGN THE SAME FORM FAA-2666 AS THE EMPLOYEE REFERRED TO IN QUESTION 1 SIGNED. THEREFORE, AND SINCE THE EMPLOYMENT AGREEMENT WAS SIGNED BY THE EMPLOYEE PRIOR TO THE REVISION OF BUREAU OF THE BUDGET CIRCULAR NO. A 56 ON OCTOBER 12, 1966, THE GENERAL PRINCIPLES AS APPLIED IN THE REPLY TO QUESTION 1 SET FORTH ABOVE ARE APPLICABLE. THAT IS, THE EMPLOYEE BE ENTITLED TO THE HOME LEAVE TRAVEL PROVIDED HE SIGNS A NEW AGREEMENT FOR THE REQUIRED PERIOD OF SERVICE, BUT NO FURTHER HOME LEAVE TRAVEL RIGHTS WOULD ACCRUE.

3. AN OVERSEAS EMPLOYEE WAS INITIALLY HIRED LOCALLY WITHOUT AN EMPLOYMENT AGREEMENT AND COMPLETED A TOUR OF DUTY. IN ACCORDANCE WITH DECISION B- 158273, THE EMPLOYEE WAS GRANTED AN ALLOWANCE FOR THE COST OF HOME LEAVE TRAVEL AFTER ENTERING INTO A WRITTEN AGREEMENT FOR ANOTHER PERIOD OF SERVICE PURSUANT TO THE STATUTORY REGULATIONS THEN IN EFFECT (BOB CIRCULAR NO. A-56, SECTION 4.1B, DATED APRIL 30, 1962). HOWEVER, THE AGENCY DID NOT OBLIGATE ITSELF IN THE WRITTEN AGREEMENT TO PROVIDE THE EMPLOYEE WITH TRAVEL AND TRANSPORTATION EXPENSES FROM THE OVERSEAS POST UPON SEPARATION FROM THE SERVICE. THIS EMPLOYEE IS IN THE CATEGORY OF PERSONS WHO WOULD NOW BE INELIGIBLE FOR HOME LEAVE TRAVEL ALLOWANCES UNDER THE ABOVE- MENTIONED PROVISIONS OF SUBSECTION 7.3B (1) (B) OR SUBSECTION 7.3B (2) OF REVISED BOB CIRCULAR NO. A-56. UNDER THE CIRCUMSTANCES, WILL THE EMPLOYEE BE ENTITLED TO SUCH TRAVEL AND TRANSPORTATION EXPENSES UPON SEPARATION FROM THE SERVICE AS A MATTER OF RIGHT? IN UNPUBLISHED DECISION B-140735, DATED DECEMBER 16, 1959, IT IS STATED,"* * * THAT WHEN AN EMPLOYEE EXECUTES AN EMPLOYMENT AGREEMENT CONSISTENT WITH THE STATUTORY LIMITATIONS, AND SERVES THE PERIOD SPECIFIED, HE HAS A VESTED RIGHT TO OTHERWISE PROPER RETURN TRAVEL EXPENSES FOR SEPARATION, NOTWITHSTANDING HE HAS BEEN HIRED LOCALLY AT THE OVERSEAS TION.' OUR QUESTION, IN EFFECT, IS WHETHER AN AGREEMENT ENTERED INTO BY A LOCAL HIRE SUBSEQUENT TO THE INITIAL EMPLOYMENT FOR THE PURPOSE OF OBTAINING HOME LEAVE TRAVEL ALLOWANCES SERVES THE PURPOSES OF SECTION 1.3 OF REVISED BOB CIRCULAR NO. A-56 (OR SECTION 1.5 OF THE PREVIOUS VERSION OF CIRCULAR NO. A-56), SO AS TO CREATE A VESTED RIGHT TO RETURN TRAVEL AND TRANSPORTATION EXPENSES UPON SEPARATION.

WE HAVE INFORMALLY ASCERTAINED FROM YOUR OFFICE THAT THE EMPLOYEE REFERRED TO IN QUESTION 3 PRIOR TO RETURNING TO THE UNITED STATES FOR HOME LEAVE WOULD BE REQUIRED TO SIGN EMPLOYMENT AGREEMENT FORM FAA 2666 WITH ONLY SECTION 3 FILLED IN, THAT IS THE SECTION WHICH RELATES SOLELY TO ROUND TRIP LEAVE TRAVEL EXPENSES.

THE AGREEMENT WITH A LOCAL HIRE FOR HOME LEAVE TRAVEL DOES NOT IN ITSELF CREATE AN ENTITLEMENT TO TRAVEL EXPENSES UPON SEPARATION FROM THE SERVICE. IN OUR DECISION OF DECEMBER 16, 1959, B-140735, WE STATED THAT WHEN NO AGREEMENT IS EXECUTED WITH A LOCAL HIRE FOR RETURN TRAVEL TO HIS PLACE OF RESIDENCE AT GOVERNMENT EXPENSE UPON REPARATION THERE IS NO OBLIGATION UPON THE AGENCY TO REIMBURSE THE EMPLOYEE FOR SUCH EXPENSES. SINCE, IN THIS CASE, NO AGREEMENT WAS EXECUTED BY THE EMPLOYEE ENTITLING HIM TO RETURN TRAVEL EXPENSES UPON SEPARATION, THE QUESTION IS ANSWERED IN THE NEGATIVE.

4. SECTION 7.3C OF CURRENT BOB CIRCULAR NO. A-56 SPECIFIES THAT WITH REGARD TO A LOCALLY-HIRED EMPLOYEE WHO DID NOT SIGN A WRITTEN AGREEMENT, THE AGENCY MAY REFUSE TO EXTEND ELIGIBILITY FOR HOME LEAVE TRAVEL AND TRANSPORTATION ALLOWANCES. HOWEVER, THE REGULATION REQUIRES THE AGENCY TO NOTIFY THE EMPLOYEE OF ITS INTENTION TO DO SO BEFORE THE EMPLOYEE HAS COMPLETED THE PERIOD OF SERVICE EQUAL TO THE PERIOD GENERALLY APPLICABLE TO THE EMPLOYEES OF THE AGENCY SERVING AT THE POST OF DUTY CONCERNED OR IN THE SAME GEOGRAPHIC AREA. WHERE SUCH AN EMPLOYEE HAS COMPLETED THE EQUIVALENT OF A TOUR OF DUTY AND THE AGENCY FAILS TO NOTIFY HIM OF ITS INTENTION NOT TO EXTEND ELIGIBILITY, IS THE AGENCY OBLIGATED TO EXTEND TO HIM ELIGIBILITY FOR HOME LEAVE TRAVEL LLOWANCES?

UNDER SECTION 7.3C AN AGENCY, WITHIN ITS DISCRETION, MAY REFUSE TO EXTEND ELIGIBILITY FOR HOME LEAVE TRAVEL TO A LOCAL HIRE. THAT SECTION, HOWEVER, LIMITS THE DISCRETIONARY AUTHORITY TO THOSE CASES IN WHICH THE DEPARTMENT GIVES THE REQUIRED NOTICE OF ITS INTENTION TO DENY THAT RIGHT. THEREFORE, THE QUESTION IS ANSWERED IN THE AFFIRMATIVE.