B-3365, FEBRUARY 26, 1940, 19 COMP. GEN. 750

B-3365, FEBRUARY 26, 1940, 19 COMP. GEN. 750

TRAVELING EXPENSES - LEAVES OF ABSENCE - FOREIGN SERVICE OFFICERS - EFFECT ON STATUS OF CONTINUOUS SERVICE ABROAD OF CONSULTATION TRIP TO THE UNITED STATES SECTION 22 OF THE ACT OF FEBRUARY 23, 1931, 46 STAT. 1210, AUTHORIZING THE SECRETARY OF STATE TO ORDER TO THE UNITED STATES ON HIS STATUTORY LEAVE OF ABSENCE, AT GOVERNMENT EXPENSE, ANY FOREIGN SERVICE OFFICER OR VICE CONSUL OF CAREER WHO HAS PERFORMED 3 YEARS OR MORE OF CONTINUOUS SERVICE ABROAD, DOES NOT REQUIRE THAT AN OFFICER REMAIN AT ALL TIMES PHYSICALLY PRESENT WITHIN THE SERVICE ABROAD IN ORDER TO MEET THE "CONTINUOUS SERVICE" REQUIREMENT, AND WHERE AN OFFICER'S TEMPORARY RETURN TO THE UNITED STATES FOR CONSULTATION PURPOSES HAD DIRECT CONNECTION WITH, OR RELATION TO, HIS ASSIGNED POST OF DUTY ABROAD, IT DID NOT CONSTITUTE A BREAK IN HIS "CONTINUOUS SERVICE ABROAD" WITHIN THE MEANING OF THE SECTION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF STATE, FEBRUARY 26, 1940:

I HAVE YOUR LETTER OF FEBRUARY 13, 1940, AS FOLLOWS:

MR. MAXWELL BLAKE, AMERICAN DIPLOMATIC AGENT AND CONSUL GENERAL AT TANGIER, MOROCCO, WAS GRANTED HOME LEAVE UNDER SECTION 22 OF THE ACT APPROVED FEBRUARY 23, 1931, BY DEPARTMENTAL INSTRUCTION OF OCTOBER 31, 1938. DUE TO VERY IMPORTANT OFFICIAL MATTERS, CONCERNING THE NEGOTIATION OF A COMMERCIAL TREATY WITH THE GOVERNMENT OF MOROCCO, THE DEPARTMENT'S INSTRUCTION UNDER REFERENCE INFORMED HIM THAT HE "SHOULD NOT DEPART FROM TANGIER, HOWEVER, UNTIL AFTER RECEIVING THE APPROVAL OF THE DEPARTMENT.'

ON JANUARY 9, 1940, THE DEPARTMENT'S TELEGRAM TO MR. BLAKE ORDERED HIM TO WASHINGTON FOR CONSULTATION AND DIRECTED HIM TO PURCHASE ROUND TRIP TRANSPORTATION. THEN ON JANUARY 23, 1940, INSTRUCTIONS WERE ISSUED TO THE CONSUL GENERAL DIRECTING HIM TO PROCEED ON THE STEAMER SATURNIA, FROM GIBRALTAR OR LISBON, ON FEBRUARY 5 OR 6, RESPECTIVELY. MR. BLAKE WILL SOON RETURN TO TANGIER FOR ADDITIONAL DATA AND IMMEDIATELY UPON PROCUREMENT OF SUCH DATA, HE WILL BE ORDERED TO RETURN AGAIN TO WASHINGTON FOR CONSULTATION.

MR. BLAKE'S FAMILY COULD NOT, UNDER EXISTING REGULATIONS, ACCOMPANY HIM TO THE UNITED STATES AT GOVERNMENT EXPENSE WHILE THE CONSUL GENERAL WAS ORDERED TO THE DEPARTMENT FOR CONSULTATION. THEREFORE, SINCE MR. BLAKE WILL BE ORDERED TO RETURN TO TANGIER, THEN TO PROCEED TO THE DEPARTMENT AGAIN ON CONSULTATION BEFORE HE AND HIS FAMILY CAN AVAIL THEMSELVES OF THE LEAVE OF ABSENCE WHICH HAS BEEN AUTHORIZED, THE DEPARTMENT IS APPREHENSIVE REGARDING HIS LEAVE STATUS. SECTION 22 OF THE ACT APPROVED FEBRUARY 23, 1931, STATES IN PART:

"THAT THE SECRETARY OF STATE IS AUTHORIZED WHENEVER HE DEEMS IT TO BE IN THE PUBLIC INTEREST TO ORDER TO THE UNITED STATES ON HIS STATUTORY LEAVE OF ABSENCE ANY FOREIGN SERVICE OFFICER OR VICE CONSUL OF CAREER WHO HAS PERFORMED THREE YEARS OR MORE OF CONTINUOUS SERVICE ABROAD. * * *"

THE DEPARTMENT FEELS THAT IN SUCH CASES AS THIS THE RETURN OF AN OFFICER TO THE UNITED STATES ON CONSULTATION SHOULD NOT BE CONSTRUED AS A BREAK IN HIS CONTINUOUS SERVICE ABROAD. THEREFORE, IT WILL BE GREATLY APPRECIATED IF YOU CAN ISSUE A DECISION AT AN EARLY DATE PERMITTING MR. BLAKE AND HIS FAMILY TO PROCEED TO THE UNITED STATES ON HOME LEAVE AT GOVERNMENT EXPENSE WHEN HIS PERIODS OF CONSULTATION IN THE DEPARTMENT ARE COMPLETED.

THE WORDS,"CONTINUOUS SERVICE," APPEARING IN THE QUOTED STATUTE, ARE NOT USED LITERALLY AS REQUIRING THE FOREIGN SERVICE OFFICER TO REMAIN AT ALL TIMES PHYSICALLY WITHIN THE "SERVICE ABROAD; " NOR DO SUCH WORDS APPEAR SYNONYMOUS WITH UNINTERRUPTED SERVICE. COMPARE IN RE SCHNEIDER, 164 FED. 335, 336; IN RE DEANS, 208 FED. 1018; IN RE KALPACHNIKOFF, 28 FED. (2D) 288. IN THE CASE PRESENTED, THE RETURN OF THE OFFICER TO THE UNITED STATES FOR CONSULTATION PURPOSES HAD DIRECT CONNECTION WITH, OR RELATION TO, HIS ASSIGNED POST OF DUTY ABROAD, AND IN NOWISE AFFECTED HIS ASSIGNMENT AS SUCH. ACCORDINGLY, THE OFFICER'S RETURN TO THE UNITED STATES FOR THE PURPOSE INDICATED WOULD NOT CONSTITUTE A BREAK IN HIS "CONTINUOUS SERVICE ABROAD" WITHIN THE MEANING OF THE QUOTED STATUTE.