B-84159, OCTOBER 6, 1949, 29 COMP. GEN. 157

B-84159, OCTOBER 6, 1949, 29 COMP. GEN. 157

TRAVELING AND TRANSPORTATION EXPENSES - RETURN TO U.S. FROM OVERSEAS STATION UPON RESIGNATION OR FOR PURPOSE OF TAKING LEAVE WHILE VOLUNTARY RESIGNATIONS OF TRANSFERRED EMPLOYEES FROM FOREIGN POSTS OF DUTY WOULD NOT APPEAR TO BE SEPARATIONS FOR THE PURPOSES OF THE GOVERNMENT SO AS TO PERMIT PAYMENT OF RETURN TRAVEL AND TRANSPORTATION EXPENSES OF EMPLOYEES, THEIR FAMILIES, AND HOUSEHOLD EFFECTS UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, THE AUTHORIZATION OF RETURN TRANSPORTATION WOULD NOT BE FORECLOSED IF THERE BE A FACTUAL SHOWING TO THE CONTRARY IN ANY PARTICULAR CASE, BUT ANY CASE IN WHICH IT IS ADMINISTRATIVELY DETERMINED THAT AN EMPLOYEE'S RETURN WOULD BE FOR THE PURPOSES OF THE GOVERNMENT SHOULD BE SUBMITTED TO THIS OFFICE FOR CONSIDERATION UPON ITS MERITS. 28 COMP. GEN. 651, MODIFIED IN PART. IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY IN SECTION 7 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, OR OTHERWISE, EMPLOYEES AND THEIR FAMILIES MAY NOT BE RETURNED TO THE UNITED STATES FROM FOREIGN POSTS OF DUTY AT GOVERNMENT EXPENSE FOR THE PURPOSE OF TAKING ANNUAL LEAVE; HOWEVER, IN VIEW OF THE PRIOR ADMINISTRATIVE POLICY AUTHORIZING SUCH TRANSPORTATION, TOGETHER WITH THE FACT THAT MANY EMPLOYEES ACCEPTED FOREIGN ASSIGNMENTS WITH THE UNDERSTANDING THAT SUCH POLICY WAS STILL IN EFFECT, THIS OFFICE WILL INTERPOSE NO OBJECTION TO THE CONTINUATION OF THE PRACTICE FOR THE PURPOSE OF FULFILLING ANY EXISTING COMMITMENTS. SEE, ALSO, 29 COMP. GEN. 160.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, OCTOBER 6, 1949:

REFERENCE IS MADE TO YOUR LETTER OF JULY 20, 1949, RELATIVE TO OFFICE DECISION OF MAY 19, 1949, B-84159, 28 COMP. GEN. 651, WHEREIN IT WAS HELD THAT EMPLOYEES TRANSFERRED FOR DUTY OUTSIDE THE CONTINENTAL UNITED STATES MAY NOT BE RETURNED TO THE UNITED STATES AT GOVERNMENT EXPENSE UNDER THE PROVISIONS OF SECTION 7 OF THE ACT OF AUGUST 2, 1946, PUBLIC LAW 600 (60 STAT. 806, 808), EITHER UPON VOLUNTARY RESIGNATION OR FOR THE PURPOSE OF TAKING LEAVE.

IN REQUESTING FURTHER CONSIDERATION OF THE MATTER, YOU EMPHASIZE THE DIFFICULTIES ENCOUNTERED IN RECRUITING AND RETAINING TECHNICAL PERSONNEL NECESSARY FOR THE CONDUCT OF YOUR DEPARTMENT'S FOOT AND MOUTH DISEASE ERADICATION PROGRAM IN MEXICO, AND THE FACT THAT EMPLOYEES ASSIGNED TO SUCH DUTIES GENERALLY UNDERSTOOD THAT THEY WOULD NOT BE REQUIRED TO REMAIN OUTSIDE THE COUNTRY LONGER THAN FROM 12 TO 18 MONTHS. IT IS STATED THAT MORE THAN TWO YEARS NOW HAVE ELAPSED SINCE THE PROGRAM WAS INITIATED AND MANY CAREER EMPLOYEES ARE REQUESTING TO BE RETURNED TO THE UNITED STATES AT GOVERNMENT EXPENSE EITHER FOR DUTY OR FOR THE PURPOSE OF TAKING LEAVE. IN THAT CONNECTION, IT IS CONTENDED THAT STRICT ADHERENCE TO THE VIEWS EXPRESSED IN THE SAID DECISION OF MAY 19, 1949, WILL RESULT IN THE LOSS BY THE DEPARTMENT OF SOME EMPLOYEES MOST VALUABLE TO ITS MEXICAN PROGRAM, AS WELL AS VARIOUS INTERNATIONAL PROGRAMS ADMINISTERED THROUGH THE OFFICE OF FOREIGN AGRICULTURAL RELATIONS. THUS, IT IS YOUR POSITION THAT, ASIDE FROM THE MORAL OBLIGATION OF THE DEPARTMENT NOT TO REPUDIATE THE UNDERSTOOD POLICY OF RETURNING TRANSFERRED EMPLOYEES AFTER NOT TO EXCEED 18 MONTHS' FOREIGN SERVICE, ADMINISTRATIVE AUTHORITY TO RETURN EMPLOYEES FOR LEAVE PURPOSES WOULD RESULT IN INCREASED EFFICIENCY FOR THE BENEFIT OF THE GOVERNMENT, AS WELL AS AID IN THE RECRUITMENT AND RETENTION OF CAREER EMPLOYEES TO CARRY OUT THE DEPARTMENT'S FOREIGN PROGRAMS.

IN THE LIGHT OF THE FOREGOING ADDITIONAL REPRESENTATIONS WHICH ARE ILLUSTRATED FURTHER BY SPECIFIC EXAMPLES OF EXISTING FACTUAL SITUATIONS, YOU REQUEST A DECISION IN RESPECT TO THE FOLLOWING QUESTIONS:

(1) IS THERE ADMINISTRATIVE AUTHORITY UNDER SECTION 7 OF PUBLIC LAW 600 TO PERMIT THE PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES OF CAREER EMPLOYEES AND FAMILIES, HOUSEHOLD EFFECTS, INCIDENT TO THE VOLUNTARY RESIGNATION OF SUCH EMPLOYEES AT FOREIGN POSTS UPON DETERMINATION THAT SUCH AUTHORIZATION IS IN THE INTEREST OF THE GOVERNMENT, AND

(2) IS THERE ADMINISTRATIVE AUTHORITY UNDER SECTION 7 OF PUBLIC LAW 600 TO PERMIT THE PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES OF CAREER EMPLOYEES AND THEIR FAMILIES INCIDENT TO THE RETURN TO THE UNITED STATES FOR THE PURPOSE OF TAKING ACCUMULATED LEAVE UPON DETERMINATION THAT SUCH AUTHORIZATION IS IN THE INTEREST OF THE GOVERNMENT.

WITH RESPECT TO QUESTION (1), IT WAS POINTED OUT IN THE REFERRED-TO DECISION OF MAY 19, 1949, THAT, UNDER PRIOR DECISIONS OF THIS OFFICE, EMPLOYEES WHO ARE TRANSFERRED TO FOREIGN DUTY POSTS AND WHOSE SERVICES NO LONGER MAY BE UTILIZED EITHER IN THE FOREIGN COUNTRY OR IN THE UNITED STATES--- SO AS TO PERMIT RE-TRANSFER UNDER SECTION 1 OF PUBLIC LAW 600, 60 STAT. 806--- MAY BE ALLOWED RETURN TRANSPORTATION AND TRAVELING EXPENSES UNDER AUTHORITY OF SECTION 7 OF SAID ACT, UPON THE BASIS THAT THE TRAVEL UNDER SUCH CIRCUMSTANCES WOULD BE FOR THE PURPOSE OF THE GOVERNMENT. WHILE IT WAS INDICATED IN THE DECISION OF MAY 19 THAT VOLUNTARY RESIGNATIONS OF TRANSFEREES GENERALLY WOULD NOT APPEAR TO BE SEPARATIONS FOR THE PURPOSES OF THE GOVERNMENT, IF THERE IS A FACTUAL SHOWING TO THE CONTRARY IN ANY PARTICULAR CASE THE AUTHORIZATION OF RETURN TRANSPORTATION AT GOVERNMENT EXPENSE WOULD NOT BE FORECLOSED. HOWEVER, SINCE THE FACTS OF EACH CASE CONSTITUTE THE DETERMINING FACTORS IN THAT RESPECT, NO SATISFACTORY RULE CAN BE STATED UPON WHICH ANY GENERAL ADMINISTRATIVE DETERMINATION IN SUCH CASES MAY BE BASED. THEREFORE, IT IS SUGGESTED THAT THERE BE SUBMITTED TO THIS OFFICE FOR CONSIDERATION UPON ITS MERITS ANY CASE INVOLVING THE RETURN TO THE UNITED STATES OF A TRANSFEREE WHO RESIGNS FROM HIS POSITION AT A FOREIGN POST OF DUTY IN WHICH IT IS ADMINISTRATIVELY DETERMINED THAT THE EMPLOYEE'S RETURN WOULD BE FOR THE PURPOSES OF THE GOVERNMENT. QUESTION (1) IS ANSWERED ACCORDINGLY.

IN CONNECTION WITH QUESTION (2), THERE IS NOTHING IN THE PROVISIONS OF SECTION 7, OR IN ITS LEGISLATIVE HISTORY, WHICH REASONABLY MAY BE CONSTRUED AS AUTHORIZING THE RETURN OF EMPLOYEES TO THE UNITED STATES AT GOVERNMENT EXPENSE FOR THE PURPOSE OF TAKING LEAVE. HOWEVER, IN VIEW OF THE PRIOR POLICY OF YOUR DEPARTMENT AUTHORIZING SUCH TRANSPORTATION, TOGETHER WITH YOUR REPRESENTATION THAT MANY OF THE EMPLOYEES CONCERNED ACCEPTED FOREIGN ASSIGNMENTS WITH THE UNDERSTANDING THAT SUCH POLICY WAS STILL IN EFFECT, THIS OFFICE WILL INTERPOSE NO OBJECTION TO THE CONTINUATION OF THE PRACTICE FOR THE PURPOSE OF FULFILLING ANY EXISTING COMMITMENTS. WITH RESPECT TO FUTURE ASSIGNMENTS OR TRANSFERS, RETURN TRAVEL AND TRANSPORTATION EXPENSES OF EMPLOYEES FROM FOREIGN DUTY POSTS FOR THE PURPOSE OF TAKING LEAVE MAY NOT BE AUTHORIZED IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR. SEE DECISION B-86698 OF TODAY, 29 COMP. GEN. 160, TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, COPY ATTACHED.