B-176759, OCT 30, 1972, 52 COMP GEN 246

B-176759: Oct 30, 1972

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THE GOVERNMENT HAS THE OBLIGATION TO RETURN DEPENDENTS AT GOVERNMENT EXPENSE SINCE AN EMPLOYEE AND HIS FAMILY ARE SENT TO AN OVERSEAS POST FOR THE CONVENIENCE OF THE GOVERNMENT AND. THE AMENDMENT WILL BRING THE REGULATION IN HARMONY WITH 6 FAM 126.3 AND SECTION 1.11F OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR A-56. 1972: REFERENCE IS MADE TO THE LETTER FROM YOUR ASSISTANT SECRETARY OF ADMINISTRATION DATED AUGUST 1. HE CITES THE FOLLOWING TWO EXAMPLES OF SUCH CIRCUMSTANCES: (1) AN EMPLOYEE WITH A WIFE AND CHILD ARE TRANSFERRED OVERSEAS. THIS EX- WIFE AND CHILD CANNOT BE RETURNED TO THE UNITED STATES AT GOVERNMENT EXPENSE SINCE THEY ARE NO LONGER DEPENDENTS OF THE EMPLOYEE WHEN HE BECOMES ELIGIBLE TO TRAVEL.

B-176759, OCT 30, 1972, 52 COMP GEN 246

TRANSPORTATION - DEPENDENTS - OVERSEAS EMPLOYEES - ADVANCE TRAVEL OF DEPENDENTS - DIVORCE, ETC., PRIOR TO EMPLOYEE'S ELIGIBILITY REIMBURSEMENT TO AN EMPLOYEE FOR THE ADVANCE RETURN TRAVEL TO THE UNITED STATES OF A SPOUSE AND/OR MINOR CHILDREN WHO TRAVELED TO THE FOREIGN POST AS DEPENDENTS BUT CEASED TO BE DEPENDENTS AS OF THE DATE THE EMPLOYEE BECAME ELIGIBLE FOR RETURN TRAVEL BECAUSE OF DIVORCE OR THE ANNULMENT OF THE MARRIAGE MAY BE PROVIDED AND SECTION 126.2, VOLUME 6, FOREIGN AFFAIRS MANUAL (FAM) AMENDED ACCORDINGLY UNDER THE AUTHORITY OF 22 U.S.C. 1136 - THE AMENDMENT TO PRESCRIBE THAT THE REIMBURSABLE TRAVEL MAY NOT BE DEFERRED MORE THAN 6 MONTHS AFTER THE EMPLOYEE COMPLETES HIS TRAVEL. THE GOVERNMENT HAS THE OBLIGATION TO RETURN DEPENDENTS AT GOVERNMENT EXPENSE SINCE AN EMPLOYEE AND HIS FAMILY ARE SENT TO AN OVERSEAS POST FOR THE CONVENIENCE OF THE GOVERNMENT AND, FURTHERMORE, THE AMENDMENT WILL BRING THE REGULATION IN HARMONY WITH 6 FAM 126.3 AND SECTION 1.11F OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR A-56.

TO THE SECRETARY OF STATE, OCTOBER 30, 1972:

REFERENCE IS MADE TO THE LETTER FROM YOUR ASSISTANT SECRETARY OF ADMINISTRATION DATED AUGUST 1, 1972, REQUESTING OUR CONCURRENCE IN A PROPOSED REVISION OF THE UNIFORM STATE/AID/USIA FOREIGN SERVICE TRAVEL REGULATIONS TO PERMIT REIMBURSEMENT TO AN EMPLOYEE FOR THE RETURN TRAVEL EXPENSES OF A SPOUSE AND CHILDREN TRANSPORTED OVERSEAS AT GOVERNMENT EXPENSE ALTHOUGH THE MARRIAGE HAS BEEN TERMINATED BY DIVORCE PRIOR TO THE TIME THE EMPLOYEE BECOMES ELIGIBLE FOR RETURN TRAVEL.

THE ASSISTANT SECRETARY STATES THAT UNDER CERTAIN CIRCUMSTANCES A DEFINITE FINANCIAL HARDSHIP RESULTS TO THE EMPLOYEE. HE CITES THE FOLLOWING TWO EXAMPLES OF SUCH CIRCUMSTANCES:

(1) AN EMPLOYEE WITH A WIFE AND CHILD ARE TRANSFERRED OVERSEAS. AT SOME POINT AFTER ARRIVAL OVERSEAS, THE WIFE AND HUSBAND DEVELOP MARITAL PROBLEMS. THE WIFE DIVORCES HER HUSBAND AT THE OVERSEAS POST AND GAINS TEMPORARY CUSTODY OF THE MINOR CHILD. UNDER CURRENT REGULATIONS, THIS EX- WIFE AND CHILD CANNOT BE RETURNED TO THE UNITED STATES AT GOVERNMENT EXPENSE SINCE THEY ARE NO LONGER DEPENDENTS OF THE EMPLOYEE WHEN HE BECOMES ELIGIBLE TO TRAVEL. UNDER THE CIRCUMSTANCES, IT BECOMES AN ADDED EXPENSE FOR THE EMPLOYEE TO ASSUME THE COSTS IN RETURNING HIS EX WIFE AND CHILD TO THE UNITED STATES.

(2) AN EMPLOYEE AND WIFE ARE TRANSFERRED TO AN OVERSEAS POST FOR A TWO YEAR TOUR OF DUTY. AFTER SIX MONTHS, DURING WHICH TIME MARITAL PROBLEMS HAVE DEVELOPED, THE WIFE RETURNS TO THE UNITED STATES AT THE HUSBAND'D EXPENSE. BEFORE THE EMPLOYEE IS ELIGIBLE FOR HOME LEAVE, HIS WIFE DIVORCES HIM. AGAIN, THE EMPLOYEE CANNOT CLAIM REIMBURSEMENT FOR THE EXPENSE OF HIS WIFE'S TRAVEL, BECAUSE AT THE TIME HE BECOMES ELIGIBLE TO TRAVEL, SHE IS NO LONGER HIS DEPENDENT.

THE ASSISTANT SECRETARY ADVISES THAT HE REVIEWED PRIOR COMPTROLLER GENERAL DECISIONS, SUCH AS 26 COMP. GEN. 864; 29 ID. 160; 30 ID. 80; 32 ID. 194; AND 36 ID. 116, WHICH CONCERN SIMILAR PROBLEMS. HE NOTES THAT A FAMILY MEMBER'S BENEFITS ARE DERIVED FROM THOSE GIVEN THE EMPLOYEE AND, THEREFORE, THE DEPENDENTS' TRAVEL IS AUTHORIZED INCIDENT TO THAT OF THE EMPLOYEE OR WHEN IT IS IN THE GOVERNMENT'S INTEREST TO PROVIDE TRAVEL FOR THE DEPENDENTS.

THE ASSISTANT SECRETARY IS OF THE OPINION THAT SINCE AN EMPLOYEE AND MEMBERS OF HIS FAMILY ARE SENT TO AN OVERSEAS POST FOR THE CONVENIENCE OF THE GOVERNMENT, IT WOULD APPEAR THAT THE GOVERNMENT HAS AN OBLIGATION TO RETURN THEM TO THE UNITED STATES AT GOVERNMENT EXPENSE. IN ORDER TO ALLEVIATE THE FINANCIAL BURDEN UPON THE EMPLOYEE WHEN HE AND HIS SPOUSE ARE DIVORCED AFTER THE TRANSPORTATION OF THE DEPENDENTS OVERSEAS AT GOVERNMENT EXPENSE AND PRIOR TO HIS ELIGIBILITY FOR RETURN TRAVEL, IT IS PROPOSED TO AMEND THAT PART OF SECTION 126.2, VOLUME 6, FOREIGN AFFAIRS MANUAL (FAM), WHICH NOW READS AS FOLLOWS:

NO REIMBURSEMENT WILL BE MADE FOR ADVANCE TRAVEL OF AN INDIVIDUAL WHO HAS CEASED TO BE A MEMBER OF THE EMPLOYEE'S FAMILY THROUGH A CHANGE IN MARITAL OR DEPENDENCY STATUS (EXCEPT AS PROVIDED IN 126.3) PRIOR TO THE DATE THE EMPLOYEE BECOMES ELIGIBLE FOR RETURN TRAVEL AND SUCH TRAVEL HAS BEEN AUTHORIZED FOR HIM.

UPON AMENDMENT THE ABOVE WOULD READ:

REIMBURSEMENT MAY BE MADE FOR ADVANCE TRAVEL OF RETURN TRAVEL TO THE UNITED STATES FOR A SPOUSE AND/OR MINOR CHILDREN OF AN EMPLOYEE WHO HAVE TRAVELED TO THE POST AS DEPENDENTS EVEN IF SUCH SPOUSE AND/OR MINOR CHILDREN CEASE TO BE DEPENDENTS AS OF THE DATE THE EMPLOYEE BECOMES ELIGIBLE FOR TRAVEL BECAUSE OF A DIVORCE OR AN ANNULMENT. REIMBURSABLE TRAVEL MAY NOT BE DEFERRED MORE THAN 6 MONTHS AFTER THE EMPLOYEE COMPLETES PERSONAL TRAVEL PURSUANT TO THE AUTHORIZATION.

SECTION 1136 OF TITLE 22, U.S. CODE, PROVIDES IN PERTINENT PART AS FOLLOWS:

THE SECRETARY MAY, UNDER SUCH REGULATIONS AS HE SHALL PRESCRIBE, PAY

(2) THE TRAVEL EXPENSES OF THE MEMBERS OF THE FAMILY OF AN OFFICER OR EMPLOYEE OF THE SERVICE WHEN PROCEEDING TO OR RETURNING FROM HIS POST OF DUTY ***.

WE NOTE THAT UNDER THIS AUTHORITY THE SECRETARY HAS PROMULGATED 6 FAM 126.3, WHICH AUTHORIZES THE RETURN TRANSPORTATION OF AN EMPLOYEE'S CHILDREN WHO ARE OVER 21 YEARS OF AGE WHEN THE EMPLOYEE BECOMES ELIGIBLE FOR RETURN TRAVEL, PROVIDED SUCH CHILDREN WERE TRANSPORTED TO THE OVERSEAS POST AT GOVERNMENT EXPENSE WHEN THEY WERE UNDER 21 YEARS OF AGE. THE CURRENT REGULATIONS, THEREFORE, RECOGNIZE TO A PARTIAL DEGREE AN OBLIGATION ON THE PART OF THE GOVERNMENT TO RETURN MEMBERS OF AN EMPLOYEE'S FAMILY WHO WERE TRANSPORTED OVERSEAS FOR THE CONVENIENCE OF THE GOVERNMENT ALTHOUGH SUCH MEMBERS CEASED TO BE DEPENDENTS OF THE EMPLOYEE WHEN HE BECOMES ELIGIBLE FOR RETURN TRAVEL. FOR SIMILAR PROVISIONS APPLICABLE TO THE CHILDREN OF OVERSEAS GOVERNMENT EMPLOYEES IN AGENCIES OTHER THAN THE DEPARTMENT OF STATE SEE SECTION 1.11F OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56.

THE PROPOSED REGULATION, THUS, WOULD EXTEND THE ABOVE PRINCIPLE TO OTHER MEMBERS OF AN EMPLOYEE'S FAMILY WHOSE TRANSPORTATION TO THE OVERSEAS POST WAS AT GOVERNMENT EXPENSE. REGARDING THE CHILDREN, THE PROPOSED AMENDMENT WOULD NOT BE A RADICAL DEPARTURE FROM CURRENT TRAVEL REGULATIONS SINCE THE EMPLOYEE WOULD, IN MANY CASES, BE RESPONSIBLE FOR THEIR SUPPORT AND THEY WOULD REMAIN MEMBERS OF HIS FAMILY. SEE B 163138, JANUARY 17, 1968. ALTHOUGH THE WIFE WOULD NOT BE A MEMBER OF THE EMPLOYEE'S FAMILY AFTER THE DIVORCE, THE EMPLOYEE WOULD, IN MANY CASES, BE RESPONSIBLE FOR HER SUPPORT AND IT WOULD IMPOSE A FINANCIAL HARDSHIP UPON HIM TO PROVIDE FOR HER RETURN TRAVEL. ALSO, AS POINTED OUT BY THE ASSISTANT SECRETARY, THE PROVIDING OF RETURN TRAVEL WILL AVOID A POTENTIAL EMBARRASSMENT TO THE UNITED STATES CAUSED BY THE PRESENCE OVERSEAS OF EX-FAMILY MEMBERS WHO ARE UNABLE TO RETURN HOME DUE TO LACK OF FUNDS.

IN VIEW OF THE ABOVE WE DO NOT OBJECT TO THE PROPOSED AMENDMENT TO THE REGULATIONS.