B-122796, NOVEMBER 4, 1955, 35 COMP. GEN. 270

B-122796, NOVEMBER 4, 1955, 35 COMP. GEN. 270

TRAVELING EXPENSES - HOME LEAVE - CHANGE OF RESIDENCE WHILE OVERSEAS AN EMPLOYEE WHOSE PLACE OF ACTUAL RESIDENCE WAS THE UNITED STATES AT THE TIME OF HIS TRANSFER TO A POST OF DUTY IN ALASKA AND WHO HAS NO INTENTION OF BECOMING A PERMANENT RESIDENT OF ALASKA, EVEN THOUGH HE HAS ESTABLISHED A VOTING RESIDENCE THERE, IS ENTITLED, UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, TO REIMBURSEMENT FOR ROUND TRIP TRAVEL FOR HIMSELF AND FAMILY TO THE UNITED STATES FOR PURPOSES OF LEAVE PRIOR TO SERVING ANOTHER TOUR OF DUTY. 34 COMP. GEN. 546, MODIFIED. THE PHYSICAL LOCATION OF AN EMPLOYEE AT A POINT OUTSIDE THE UNITED STATES AT THE TIME OF HIS TRANSFER FROM ONE AGENCY TO ANOTHER AT THE SAME OR A DIFFERENT LOCATION DOES NOT IN ITSELF FIX HIS ,ACTUAL RESIDENCE" AT TIME OF "APPOINTMENT OR TRANSFER" OVERSEAS SO AS TO PRECLUDE HIS RETURN TO THE UNITED STATES FOR LEAVE PURPOSES UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, NOVEMBER 4, 1955:

REFERENCE IS MADE TO YOUR LETTER OF JULY 12, 1955, RELATIVE TO OUR DECISION OF APRIL 25, 1955, B-122796 (34 COMP. GEN. 546), WHICH HELD THAT MR. ERNEST E. LINCOLN, AN EMPLOYEE OF THE VETERANS ADMINISTRATION, WAS NOT ENTITLED TO REIMBURSEMENT FOR THE EXPENSES OF TRAVEL AND TRANSPORTATION OF HIMSELF AND HIS IMMEDIATE FAMILY FROM JUNEAU, ALASKA, TO SEATTLE, WASHINGTON, AND RETURN, FOR THE PURPOSE OF TAKING LEAVE.

MR. LINCOLN WAS EMPLOYED BY THE WAR MANPOWER COMMISSION IN MARCH 1943 AT SEATTLE, WASHINGTON. HE WAS LATER ASSIGNED BY THE COMMISSION TO A POST OF DUTY AT JUNEAU, ALASKA, AND AT THAT TIME HIS LEGAL RESIDENCE WAS SEATTLE. IN MARCH 1944, HE BECAME ASSISTANT MANPOWER DIRECTOR FOR THE DEPARTMENT OF LABOR UNTIL MAY 5, 1946, WHEN HE RESIGNED TO ACCEPT EMPLOYMENT WITH THE VETERANS ADMINISTRATION. ON THE FOLLOWING DAY, MAY 6, 1946, HE WAS APPOINTED TO A POSITION WITH THE VETERANS ADMINISTRATION AT ANCHORAGE, ALASKA, AND HAS CONTINUED IN THE EMPLOYMENT AT THAT AGENCY IN ALASKA UNTIL THE PRESENT TIME. HIS CURRENT POST OF DUTY IS JUNEAU. MR. LINCOLN STATES THAT HIS PRESENT DOMICILE IS JUNEAU AND THAT HIS EMPLOYMENT IN ALASKA BY THE FEDERAL GOVERNMENT HAS BEEN CONTINUOUS FROM THE DATE HE REACHED HIS FIRST POST OF DUTY IN ALASKA. THE DATE WHEN HE CHANGED HIS DOMICILE FROM SEATTLE, WASHINGTON, TO ALASKA DOES NOT APPEAR IN THE RECORD BUT THE FORM 57 WHICH MR. LINCOLN SUBMITTED TO THE VETERANS ADMINISTRATION IN 1946 SHOWS THAT HE WAS BORN IN KANSAS AND THAT HIS LEGAL OR VOTING RESIDENCE IS IN ALASKA. BEFORE DEPARTING FROM ALASKA ON OCTOBER 11, 1954, FOR A VACATION TRIP TO THE STATE OF WASHINGTON, MR. LINCOLN SIGNED AN EMPLOYMENT AGREEMENT TO REMAIN IN THE SERVICE OF THE VETERANS ADMINISTRATION AT JUNEAU FOR AT LEAST 24 MONTHS FOLLOWING HIS RETURN FROM VACATION LEAVE.

SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 808, 5 U.S.C. 73B-3, AS AMENDED BY THE ACT OF AUGUST 31, 1954, PUBLIC LAW 737, 68 STAT. 1008, 5 U.S.C. 73B-3, PROVIDES IN PART AS FOLLOWS:

APPROPRIATIONS FOR THE DEPARTMENTS SHALL BE AVAILABLE, IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT, FOR EXPENSES OF TRAVEL OF NEW APPOINTEES, EXPENSES OF TRANSPORTATION OF THEIR IMMEDIATE FAMILIES AND EXPENSES OF TRANSPORTATION OF THEIR HOUSEHOLD GOODS AND PERSONAL EFFECTS FROM PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT TO PLACES OF EMPLOYMENT OUTSIDE CONTINENTAL UNITED STATES, AND FOR SUCH EXPENSES ON RETURN OF EMPLOYEES FROM THEIR POSTS OF DUTY OUTSIDE CONTINENTAL UNITED STATES TO THE PLACES OF THEIR ACTUAL RESIDENCE AT TIME OF ASSIGNMENT TO DUTY OUTSIDE THE UNITED STATES: * * * THAT EXPENSES OF ROUND TRIP TRAVEL OF EMPLOYEE * * * FROM THEIR POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT OR TRANSFER TO SUCH OVERSEAS POSTS OF DUTY, SHALL BE ALLOWED IN THE CASE OF PERSONS WHO HAVE SATISFACTORILY COMPLETED AN AGREED PERIOD OF SERVICE OVERSEAS AND ARE RETURNING TO THEIR ACTUAL PLACES OF RESIDENCE FOR THE PURPOSE OF TAKING LEAVE * * *. ( ITALICS SUPPLIED.)

THE DECISION OF APRIL 25 STATES THAT "AT THE TIME OF APPOINTMENT OR TRANSFER TO THE VETERANS ADMINISTRATION, THE EMPLOYEE'S ACTUAL PLACE OF RESIDENCE WAS ALASKA WITHIN THE MEANING OF THE TERM ,ACTUAL RESIDENCE" AS USED IN THE STATUTE.' THE LANGUAGE USED IN THE DECISION IS NOT TO BE CONSTRUED AS MEANING THAT THE PHYSICAL LOCATION OF AN EMPLOYEE AT A POINT OUTSIDE THE UNITED STATES AT THE TIME OF HIS TRANSFER FROM ONE AGENCY TO ANOTHER AT THE SAME OR A DIFFERENT LOCATION IN ITSELF FIXES HIS "ACTUAL RESIDENCE" AT TIME OF "APPOINTMENT OR TRANSFER" AT THE OVERSEAS POINT SO AS TO PRECLUDE HIS RETURN TO THE UNITED STATES FOR LEAVE PURPOSES UNDER PUBLIC LAW 737. FURTHERMORE, THE DECISION WAS NOT CONCERNED WITH NOR IS IT TO BE INTERPRETED AS MEANING THAT AN EMPLOYEE NECESSARILY FORFEITS HIS RIGHT TO RETURN TO THIS COUNTRY FOR LEAVE SOLELY BECAUSE HE PARTICIPATES IN LOCAL COMMUNITY ACTIVITIES AND EXERCISES THE RIGHT TO VOTE AT THE DUTY STATION OUTSIDE THE CONTINENTAL UNITED STATES. ORDINARILY THE PLACE OF "ACTUAL RESIDENCE" FOR THE PURPOSE OF RETURNING EMPLOYEES FOR LEAVE WOULD BE THE ACTUAL PLACE OF RESIDENCE AT THE TIME OF APPOINTMENT OR TRANSFER TO THE OVERSEAS POST OF DUTY. THERE DOUBTLESS WILL BE ISOLATED INSTANCES, HOWEVER, WHERE THERE IS SUCH CLEAR ABANDONMENT OF THE RESIDENCE IN THE UNITED STATES SUBSEQUENT TO THE APPOINTMENT OR TRANSFER OVERSEAS AS TO WARRANT THE VIEW THAT THE EMPLOYEE NO LONGER IS WITHIN THE SCOPE OF THE STATUTORY PROVISIONS AUTHORIZING RETURN TO THE UNITED STATES UPON TERMINATION OF EMPLOYMENT OR FOR LEAVE PURPOSES AFTER SERVING AN AGREED PERIOD OF SERVICE OVERSEAS.

THE RECORD BEFORE US AT THE TIME OF THE DECISION OF APRIL 25 INDICATED THAT MR. LINCOLN HAD ABANDONED HIS RESIDENCE IN THE UNITED STATES AND WAS TO BE CONSIDERED AS OUTSIDE THE SCOPE OF THE LEAVE PROVISO. WE WERE FULLY COGNIZANT OF THE POSSIBILITY THAT FURTHER FACTS MIGHT LATER BE BROUGHT TO OUR ATTENTION THAT WOULD PERMIT OF A DIFFERENT CONCLUSION. SINCE WE NOW UNDERSTAND THAT THIS EMPLOYEE HAS NO INTENTION OF BECOMING A PERMANENT RESIDENT OF ALASKA AND EXPECTS TO RETURN TO THE UNITED STATES UPON TERMINATION OF HIS FEDERAL EMPLOYMENT, WE HOLD THAT HE MAY BE ALLOWED OTHERWISE PROPER EXPENSES INCURRED INCIDENT TO HIS RETURN TO SEATTLE, WASHINGTON, PURSUANT TO THE LEAVE PROVISO OF THE STATUTE.