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B-112928, SEPTEMBER 24, 1957, 37 COMP. GEN. 203

B-112928 Sep 24, 1957
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THAT IT WOULD BE HIGHLY DESIRABLE AND EVEN ESSENTIAL TO FULL OPERATION OF THE PROGRAM THAT THE DEPARTMENT BE PERMITTED TO RETURN SUCH PERSONNEL TO THE UNITED STATES AND PLACE THEM IN A LEAVE STATUS WHILE THE PLACEMENT PROCESS IS BEING NEGOTIATED. HE URGES THAT THERE IS THUS AN EVIDENT INTENT THAT DESPITE DIFFERING LANGUAGE AS TO THE CONDITIONS UNDER WHICH THE INDIVIDUAL AUTHORITIES MAY BE USED. THE FOLLOWING QUESTIONS ARE ASKED: SPECIFICALLY. UNDER CURRENT AUTHORITIES MAY THE DEPARTMENT PAY EXPENSES OF RETURN TRAVEL AND TRANSPORTATION WHEN THE INDIVIDUAL IS TO BE CARRIED IN A LEAVE STATUS PENDING PLACEMENT IN ANOTHER POSITION WHICH IS AS YET NOT IDENTIFIED? IT SHOULD BE EMPHASIZED THAT FAVORABLE ACTION ON THIS ISSUE WILL NOT INVOLVE ANY ADDITIONAL OR EXTRAORDINARY EXPENDITURE OF APPROPRIATED FUNDS BECAUSE THERE ALREADY EXISTS AUTHORITY FOR PAYMENT OF TRAVEL EXPENSES IN CONNECTION WITH EITHER THE TRANSFER OR THE LEAVE OF ABSENCE.

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B-112928, SEPTEMBER 24, 1957, 37 COMP. GEN. 203

OVERSEAS EMPLOYEES - TRAVEL EXPENSES - TRANSPORTATION - RETURN FOR REASSIGNMENT THE RETURN OF OVERSEAS EMPLOYEES IN A LEAVE STATUS FOR REASSIGNMENT TO OTHER POSTS, AS MAY BE DETERMINED DURING OR AFTER LEAVE, MAY NOT BE REGARDED AS RETURN FOR TRANSFER UNDER 5 U.S.C. 73B-1, OR RETURN FOR SEPARATION FROM THE SERVICE, OR RETURN FOR HOME LEAVE PRIOR TO SERVING ANOTHER OVERSEAS TOUR OF DUTY, UNDER A NEW WRITTEN EMPLOYMENT AGREEMENT, WITHIN THE PURVIEW OF 5 U.S.C. 73B-3, SO AS TO PERMIT PAYMENT BY THE GOVERNMENT OF THE RETURN TRAVEL AND TRANSPORTATION EXPENSES OF EMPLOYEES, DEPENDENTS, AND HOUSEHOLD EFFECTS. SHIPMENT OF HOUSEHOLD EFFECTS FROM STORAGE TO A NEW OFFICIAL STATION WITHIN THE UNITED STATES INCIDENT TO THE TRANSFER OF OVERSEAS EMPLOYEES TO THE UNITED STATES SHOULD BE EFFECTED BY GOVERNMENT BILL OF LADING OR AN ACTUAL EXPENSE REIMBURSEMENT BASIS UNDER TITLE III OF EXECUTIVE ORDER NO. 9805, PROVIDED THE COST SHALL NOT EXCEED THE COST OF SHIPMENT IN ONE LOT "BY THE MOST ECONOMICAL ROUTE FROM THE LAST OFFICIAL STATION TO THE NEW.'

TO THE SECRETARY OF THE ARMY, SEPTEMBER 24, 1957:

ON JULY 8, 1957, THE ASSISTANT SECRETARY OF THE ARMY REQUESTED OUR DECISION ON SEVERAL QUESTIONS CONCERNING THE RETURN AT GOVERNMENT EXPENSE OF EMPLOYEES ASSIGNED TO OVERSEAS DUTY.

IT APPEARS THAT PURSUANT TO AN INTEGRATION OF OVERSEAS POSITIONS INTO THE COMPETITIVE CIVIL SERVICE UNDER EXECUTIVE ORDER NO. 10641 THE DEPARTMENT HAS INSTITUTED A COMPREHENSIVE PROGRAM FOR INCREASED INTERCHANGE OF CAREER EMPLOYEES BETWEEN OVERSEAS AND DOMESTIC ASSIGNMENTS. THE ASSISTANT SECRETARY SAYS THAT THE PROGRAM DEPENDS FOR ITS SUCCESS ON A COMBINATION OF ADMINISTRATIVE REEMPLOYMENT RIGHTS AND PREFERENTIAL PLACEMENT CONSIDERATION UPON COMPLETION OF OVERSEAS SERVICE REQUIREMENTS; THAT SUCH A SYSTEM ENCOUNTERS DELAY IN LOCATING AN APPROPRIATE PLACEMENT OPPORTUNITY FOR SOME RETURNING EMPLOYEES, PARTICULARLY THOSE AT THE HIGHER GRADES OF SPECIALIZED OCCUPATIONS; AND THAT IT WOULD BE HIGHLY DESIRABLE AND EVEN ESSENTIAL TO FULL OPERATION OF THE PROGRAM THAT THE DEPARTMENT BE PERMITTED TO RETURN SUCH PERSONNEL TO THE UNITED STATES AND PLACE THEM IN A LEAVE STATUS WHILE THE PLACEMENT PROCESS IS BEING NEGOTIATED.

THE ASSISTANT SECRETARY POINTS OUT THAT FOR OVER A DECADE CONGRESS HAS PROVIDED AN ACCRETION OF SPECIFIC TRAVEL AUTHORITIES SO THAT OVERSEAS EMPLOYEES AND/OR THEIR DEPENDENTS MAY NOW BE PROVIDED TRAVEL TO THE UNITED STATES AT GOVERNMENT EXPENSE (1) UPON SEPARATION FROM THE SERVICE, (2) FOR TRANSFER TO A POSITION IN THE UNITED STATES, (3) IN CASES OF PERSONAL EMERGENCIES OF A HUMANITARIAN NATURE, AND (4) FOR THE PURPOSE OF PERIODIC LEAVE OF ABSENCE IN THE UNITED STATES. HE URGES THAT THERE IS THUS AN EVIDENT INTENT THAT DESPITE DIFFERING LANGUAGE AS TO THE CONDITIONS UNDER WHICH THE INDIVIDUAL AUTHORITIES MAY BE USED, THE CONGRESS DESIRED TO MEET THE ADMINISTRATIVE NEEDS OF OVERSEAS OPERATIONS.

THE FOLLOWING QUESTIONS ARE ASKED:

SPECIFICALLY, UNDER CURRENT AUTHORITIES MAY THE DEPARTMENT PAY EXPENSES OF RETURN TRAVEL AND TRANSPORTATION WHEN THE INDIVIDUAL IS TO BE CARRIED IN A LEAVE STATUS PENDING PLACEMENT IN ANOTHER POSITION WHICH IS AS YET NOT IDENTIFIED? IT SHOULD BE EMPHASIZED THAT FAVORABLE ACTION ON THIS ISSUE WILL NOT INVOLVE ANY ADDITIONAL OR EXTRAORDINARY EXPENDITURE OF APPROPRIATED FUNDS BECAUSE THERE ALREADY EXISTS AUTHORITY FOR PAYMENT OF TRAVEL EXPENSES IN CONNECTION WITH EITHER THE TRANSFER OR THE LEAVE OF ABSENCE. IN THE EVENT THAT A MORE LIBERAL INTERPRETATION IS CONSIDERED POSSIBLE UNDER THE CHANGED CONDITIONS NOW PREVAILING, WE WOULD ALSO APPRECIATE YOUR ADVICE CONCERNING THE FOLLOWING DETAILS OF ITS APPLICATION:

1. IT WILL FREQUENTLY HAPPEN THAT THE EVENTUAL NEW POST OF DUTY IS GEOGRAPHICALLY CLOSER TO THE OLD OVERSEA POST THAN IS THE EMPLOYEE'S PLACE OF RESIDENCE (TO WHICH HE MAY BE TRANSPORTED UNDER THE LEAVE TRAVEL AUTHORITY). IN SUCH CASES, SHOULD THE COST OF TRANSPORTATION (PRINCIPAL, DEPENDENTS AND HOUSEHOLD GOODS) BE LIMITED TO THAT INVOLVED IN PERFORMING TRAVEL FROM THE OLD OVERSEA POST OF DUTY TO THE NEW DUTY STATION WHEN THAT POINT HAS BEEN ESTABLISHED?

2. IF THE ANSWER TO THE ABOVE QUESTION IS NEGATIVE, MAY TRAVEL ORDERS BE AMENDED OR FURTHER ORDERS ISSUED TO PROVIDE TRANSPORTATION FROM PLACE OF ACTUAL RESIDENCE TO THE NEW DUTY STATION? IN THIS CONNECTION, IT SHOULD BE NOTED THAT IF TRAVEL WERE AUTHORIZED UNDER THE REEMPLOYMENT LEAVE PROVISION, THE GREATER EXPENSE OF RETURN TRAVEL TO THE OVERSEA COMMAND WOULD BE AUTHORIZED.

THE DEPARTMENT DESIRES ALSO TO TAKE THE OCCASION OF THIS SUBMISSION TO SECURE YOUR VIEWS CONCERNING ANOTHER RELATED PROBLEM WHICH HAS ARISEN IN CONNECTION WITH SHIPMENT OF HOUSEHOLD GOODS WHEN EMPLOYEES ARE TRANSFERRED TO OR FROM OVERSEA ASSIGNMENTS. YOUR ADVICE IS THEREFORE REQUESTED ON THE FOLLOWING ADDITIONAL QUESTIONS:

3. IN MANY INSTANCES BECAUSE OF AVAILABILITY OF GOVERNMENT FURNISHED QUARTERS AT THE OVERSEA STATION, SCARCITY OF PRIVATE HOUSING, ADMINISTRATIVE PROHIBITIONS AGAINST SHIPMENT, OR, FOR OTHER REASONS, EMPLOYEES PROCEEDING OVERSEAS FOR PERMANENT DUTY PROVIDE FOR THE CARE OF THEIR HOUSEHOLD GOODS (OR THE MAJOR PORTION OF THEM) IN COMMERCIAL STORAGE FACILITIES, OR OTHER PRIVATE ARRANGEMENT, IN THE UNITED STATES. UPON THEIR RETURN FOR TRANSFER TO A NEW DUTY STATION WITHIN THE UNITED STATES, SUBSEQUENT TO THE COMPLETION OF AN OVERSEA TOUR OF DUTY, MOVEMENT OF HOUSEHOLD GOODS FROM STORAGE TO THE NEW DUTY STATION IS DESIRED. IN SUCH CASES, MAY MOVEMENT OF HOUSEHOLD GOODS BE AUTHORIZED TO THE NEW OFFICIAL STATION?

4. IF THE ANSWER TO QUESTION 3 IS AFFIRMATIVE, ADVICE IS REQUESTED ON THE FOLLOWING POINTS:

A. IS COST OF THE MOVEMENT LIMITED TO AN AMOUNT NOT TO EXCEED COST OF THE GOVERNMENT OF THE MOVEMENT OF HOUSEHOLD GOODS IN ONE LOT FROM THE OVERSEA STATION TO THE NEW STATION?

B. SINCE TRANSFER OF THE EMPLOYEE IS FROM AN OVERSEA STATION TO A CONTINENTAL UNITED STATES STATION, WOULD MOVEMENT OF HOUSEHOLD GOODS FROM STORAGE TO NEW STATION BE BY GOVERNMENT BILL OF LADING OR AN ACTUAL EXPENSE REIMBURSEMENT BASIS UNDER TITLE III OF EXECUTIVE ORDER 9805, AS AMENDED, OR, ON A COMMUTED RATE BASIS UNDER TITLE II, EXECUTIVE ORDER 9805, AS AMENDED? IF THE LATTER, WHAT IS THE APPROPRIATE WEIGHT ALLOWANCE IN THOSE INSTANCES WHERE A PORTION OF THE HOUSEHOLD GOODS SHIPMENT ORIGINATES AT THE OVERSEA STATION AND THE BALANCE IS MOVED FROM STORAGE IN THE UNITED STATES.

5 U.S.C. 73B-1 PROVIDES THAT WHERE AN EMPLOYEE IS "TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY" THE GOVERNMENT MAY PAY HIS TRAVEL AND TRANSPORTATION (DEPENDENTS AND HOUSEHOLD EFFECTS) EXPENSES. U.S.C. 73B-3 PROVIDES THAT WHERE AN EMPLOYEE HAS SERVED A MINIMUM PERIOD OF OVERSEAS SERVICE THE GOVERNMENT SHALL PAY HIS RETURN TRAVEL AND TRANSPORTATION (DEPENDENTS AND HOUSEHOLD EFFECTS) EXPENSES TO HIS PLACE OF ACTUAL RESIDENCE "UPON SEPARATION FROM THE SERVICE" AND FURTHER PROVIDES THAT WHERE AN EMPLOYEE HAS SERVED AN AGREED PERIOD OF OVERSEAS SERVICE THE GOVERNMENT SHALL PAY THE EXPENSE OF THE ROUND-TRIP TRAVEL OF THE EMPLOYEE AND TRANSPORTATION OF HIS DEPENDENTS, EXCLUDING THOSE OF HOUSEHOLD GOODS, FROM THE OVERSEAS POST TO HIS PLACE OF ACTUAL RESIDENCE "FOR THE PURPOSE OF TAKING LEAVE PRIOR TO SERVING ANOTHER TOUR OF DUTY AT THE SAME OR SOME OTHER OVERSEAS POST, UNDER A NEW WRITTEN AGREEMENT ENTERED INTO BEFORE DEPARTING FROM THE OVERSEAS POST.'

THE WORD "TRANSFERRED" APPEARING IN 5 U.S.C. 73B-1 RELATES TO AN EMPLOYEE WHO HAS BEEN ORDERED OR DIRECTED TO MAKE A PERMANENT CHANGE OF STATION. 27 COMP. GEN. 737. PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES UNDER THAT SECTION MAY NOT BE MADE UNTIL THE ORDERS DIRECTING THE SPECIFIC CHANGE OF STATION ARE ACTUALLY ISSUED. B-123066, APRIL 19, 1955; B- 120435, JULY 8, 1954. THE PHRASE "UPON SEPARATION FROM THE SERVICE" APPEARING IN 5 U.S.C. 73B-3 MAY NOT BE REGARDED SIMPLY AS REQUIRING THAT EMPLOYEES COMPLETE A MINIMUM PERIOD OF OVERSEAS SERVICE; IT REQUIRES ACTUAL SEPARATION FROM THE SERVICE AS A NECESSARY PREREQUISITE TO THE PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES BY THE GOVERNMENT. 33 COMP. GEN. 200. FURTHERMORE, PAYMENT OF TRAVELING EXPENSES FOR THE PURPOSE OF TAKING HOME LEAVE IS CONDITIONAL UPON THE PRIOR SIGNING OF A NEW AGREEMENT TO SERVE AN ADDITIONAL TOUR OF OVERSEAS DUTY. B-128103, JULY 18, 1956.

THE AUTHORITY SOUGHT BY THE DEPARTMENT OF THE ARMY, AS OUTLINED IN THE ASSISTANT SECRETARY'S LETTER, WOULD REQUIRE THAT THE STATUTORY LANGUAGE BE EXTENDED TO PERMIT THE RETURN OF EMPLOYEES FROM THEIR OVERSEAS POSTS PERIODICALLY FOR HOME LEAVE AND REASSIGNMENT TO POSTS IN THE UNITED STATES OR PERHAPS TO OTHER OVERSEAS POSTS, AS MAY BE DETERMINED DURING OR AFTER VACATION LEAVE IN THE UNITED STATES. IN EFFECT THE DEPARTMENT SEEKS THE SAME AUTHORITY AS THAT NOW HELD BY THE DEPARTMENT OF STATE REGARDING OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE UNDER 22 U.S.C. 1148. BELIEVE YOU WILL AGREE WITH US THAT EXISTING STATUTORY AUTHORITY IN THAT REGARD CONCERNING CIVILIAN EMPLOYEES OF THE DEPARTMENT OF THE ARMY IS NOT COEXTENSIVE WITH THE HOME LEAVE AUTHORITY PROVIDED FOR FOREIGN SERVICE OFFICERS. IT IS APPARENT THAT THE EMPLOYEES IN QUESTION MAY NOT BE CONSIDERED TO BE "TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY" SO AS TO BE WITHIN THE PURVIEW OF 5 U.S.C. 73B-1. ALSO, THEIR RETURN TO THE UNITED STATES IS NEITHER "UPON SEPARATION FROM THE SERVICE" NOR "FOR THE PURPOSE OF TAKING LEAVE PRIOR TO SERVING ANOTHER TOUR OF DUTY AT THE SAME OR SOME OTHER OVERSEAS POST, UNDER A NEW WRITTEN AGREEMENT ENTERED INTO BEFORE DEPARTING FROM THE OVERSEAS POST" TO BRING THEM WITHIN THE PURVIEW OF 5 U.S.C. 73B-3. THE STATUTES ARE CLEAR AND UNAMBIGUOUS CONCERNING THE LEAVE ASPECT AND DO NOT ADMIT OF INTERPRETATION.

THEREFORE, THE DEPARTMENT MAY NOT PAY EXPENSES OF RETURN TRAVEL AND TRANSPORTATION WHEN THE EMPLOYEE IS TO BE CARRIED IN A LEAVE STATUS PENDING PLACEMENT IN ANOTHER POSITION WHICH IS NOT YET IDENTIFIED. VIEW THEREOF, DETAILED QUESTIONS NUMBERED 1 AND 2 REQUIRE NO ANSWER.

REGARDING THE OTHER QUESTIONS, SECTION 8 OF THE EXECUTIVE ORDER NO. 9805, AS AMENDED ( EXECUTIVE ORDER NO. 10196), AUTHORIZES PAYMENT OF EXPENSES FOR TRANSPORTATION OF AN EMPLOYEE'S HOUSEHOLD EFFECTS WHETHER THE SHIPMENT ORIGINATES AT THE EMPLOYEE'S OFFICIAL STATION OR AT SOME OTHER POINT OR PARTIALLY AT BOTH, PROVIDED THAT THE COST TO THE GOVERNMENT SHALL NOT EXCEED THE COST OF SHIPMENT IN ONE LOT "BY THE MOST ECONOMICAL ROUTE FROM THE LAST OFFICIAL STATION TO THE NEW.' THEREFORE, QUESTIONS 3 AND 4A ARE ANSWERED IN THE AFFIRMATIVE. B 132795, AUGUST 28, 1957.

SINCE THE TRANSFER OF THE EMPLOYEE IS FROM AN OVERSEAS STATION TO A CONTINENTAL UNITED STATES STATION, THE MOVEMENT OF HOUSEHOLD EFFECTS FROM STORAGE TO NEW STATION WOULD BE BY GOVERNMENT BILL OF LADING OR ON AN ACTUAL EXPENSE REIMBURSEMENT BASIS UNDER TITLE III OF EXECUTIVE ORDER NO. 9805, AS AMENDED. B-103442, JUNE 13, 1951. QUESTION 4B IS ANSWERED ACCORDINGLY.

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