B-131083, MAY 13, 1957

B-131083, MAY 13, 1957

TO MR. MARTIN R. ADDINGTON:

YOUR LETTER OF FEBRUARY 20, 1957, REQUESTS RECONSIDERATION OF OUR SETTLEMENT DATED JANUARY 25, 1957, WHICH DISALLOWED YOUR CLAIM FOR TRAVEL EXPENSES, INCLUDING PER DIEM IN LIEU OF SUBSISTENCE, IN CONNECTION WITH THE TRAVEL PERFORMED BY YOU AND YOUR WIFE FROM HONOLULU, HAWAII, TO KANSAS CITY, MISSOURI, AND RETURN, WHILE A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, OFFICE OF THE POST ENGINEER, HEADQUARTERS 25TH INFANTRY DIVISION, SCHOFIELD BARRACKS, HAWAII.

THE RECORD SHOWS THAT YOU TRAVELED FROM HONOLULU TO KANSAS CITY BY COMMERCIAL AIR SEPTEMBER 10-11, 1955. THE RETURN JOURNEY FROM KANSAS CITY TO SAN FRANCISCO WAS BY PRIVATELY OWNED AUTOMOBILE OCTOBER 5-19, FOR WHICH MILEAGE AT THE RATE OF SEVEN CENTS PER MILE HAS BEEN CLAIMED; AND THE RETURN OCEAN VOYAGE BETWEEN SAN FRANCISCO AND HONOLULU WAS PERFORMED ON THE S.S. LURLINE OCTOBER 26-31, 1955.

YOUR RETURN TO THE UNITED STATES FOR LEAVE PURPOSES AT PERSONAL EXPENSE WAS PERFORMED SUBSEQUENT TO THE DATE YOUR APPLICATION THEREFOR HAD BEEN ADMINISTRATIVELY DISAPPROVED. THE SETTLEMENT DISALLOWING YOUR CLAIM WAS IN ACCORDANCE WITH THE ADMINISTRATIVE RECOMMENDATIONS FURNISHED OUR OFFICE SHOWING (1) THAT NO NEW WRITTEN AGREEMENT FOR ANOTHER TOUR OF OVERSEAS DUTY HAD BEEN EXECUTED BY YOU PRIOR TO THE DATE YOU DEPARTED THEREFROM FOR LEAVE PURPOSES, AND (2) "A REPLACEMENT COULD BE SECURED LOCALLY.'

QUOTED BELOW ARE PERTINENT PROVISIONS COPIED FROM PARAGRAPH 2 OF 1ST INDORSEMENT, HEADQUARTERS UNITED STATES ARMY, PACIFIC, APO 958, SAN FRANCISCO, CALIFORNIA, DATED NOVEMBER 29, 1956, WHICH EXPLAIN THE REASONS WHY YOUR REQUEST FOR ROUND-TRIP TRAVEL TO THE UNITED STATES AT GOVERNMENT EXPENSE WAS ADMINISTRATIVELY DISAPPROVED:

"A. THIS COMMAND HAS MAINTAINED A RESTRICTIVE POLICY ON APPROVAL OF REQUESTS FOR "REEMPLOYMENT LEAVE TRAVEL" SINCE 1948 * * *.

"B. UNDER THIS RESTRICTIVE POLICY, THE PRIMARY CONSIDERATIONS ARE WHETHER SUCH TRAVEL IS IN THE BEST INTEREST OF THE GOVERNMENT, WHETHER THE EMPLOYEE CAN BE REPLACED SATISFACTORILY FROM THE LOCAL LABOR MARKET (EITHER BY DIRECT HIRE TO THE POSITION OR BY PROMOTION FROM WITHIN AND REPLACEMENT AT A LOWER LEVEL), AND WHETHER THE POSITION OCCUPIED WILL CONTINUE FOR AT LEAST TWO MORE YEARS. IF THESE CRITERIA ARE SATISFIED, A NEW WRITTEN AGREEMENT IS EXECUTED, SIGNED BY THE EMPLOYEE AND A COMMAND OFFICIAL ON BEHALF OF THE GOVERNMENT, AND THE EMPLOYEE BECOMES ELIGIBLE FOR REEMPLOYMENT LEAVE TRAVEL AT GOVERNMENT EXPENSE. IF THE CRITERIA ARE NOT SATISFIED, THE EMPLOYMENT OF THE EMPLOYEE CONTINUES UNLESS TERMINATED FOR OTHER REASONS.

"C. THIS COMMAND POLICY ON APPROVAL OF REQUESTS FOR REEMPLOYMENT LEAVE TRAVEL HAS BEEN APPLIED UNIFORMLY AND CONSISTENTLY TO ALL ARMY EMPLOYEES IN HAWAII SINCE ITS INITIATION.

"D. THE ENACTMENT OF PUBLIC LAW 737, 83RD CONGRESS, 2ND SESSION, WAS NOT CONSIDERED TO PROHIBIT THE EXERCISE OF COMMAND DISCRETION IN DETERMINING THE EXTENT TO WHICH SUCH APPROVALS COULD BE GRANTED * * *.

"E. MR. ADDINGTON'S REQUEST FOR REEMPLOYMENT LEAVE TRAVEL WAS CONSIDERED AGAINST THESE LONG-ESTABLISHED COMMAND CRITERIA. THE U.S. CIVIL SERVICE REGION COMMISSION (BRANCH OFFICE OF THE 12TH U.S. CIVIL SERVICE REGION, FEDERAL BUILDING, HONOLULU, T.H.) CERTIFIED THAT TWO LOCAL RESIDENTS, QUALIFIED FOR THE POSITION OF SUPERVISORY (NOT CIVIL) ENGINEER, WERE AVAILABLE ON THE LIST OF CIVIL SERVICE ELIGIBLES * * *.'

ALTHOUGH YOU RETURNED TO YOUR OVERSEAS STATION AND RESUMED YOUR REGULAR DUTIES AS SUPERVISORY GENERAL ENGINEER, UNDER THE FIRST PROVISO OF THE AMENDATORY ACT OF AUGUST 31, 1954, 68 STAT. 1008 (PUBLIC LAW 737), THE GOVERNMENT'S OBLIGATION TO PAY TRAVEL EXPENSES TO AND FROM ACTUAL PLACE OF RESIDENCE FOR THE PURPOSE OF TAKING HOME LEAVE IS CONTINGENT UPON THE EMPLOYEE'S EXECUTION OF A NEW WRITTEN AGREEMENT FOR ANOTHER TOUR OF DUTY AT THE SAME OR SOME OTHER POST BEFORE DEPARTING FROM THE OVERSEAS STATION. THERE IS NO THERMO-FAX COPY OF ANY AGREEMENT EXECUTED BY YOU ON FILE IN OUR OFFICE. IN FACT, SINCE USARPAO FORM 50, PART III, INDICATED A TRANSPORTATION AND REEMPLOYMENT AGREEMENT HAD BEEN EXECUTED, WE WROTE TO THE ADMINISTRATIVE OFFICE TO ASCERTAIN WHETHER SUCH AN AGREEMENT HAD BEEN MADE. UNDER DATE OF DECEMBER 5, 1956, WE WERE INFORMED THAT ,FIRST INDORSEMENT, DATED 29 NOVEMBER 1956 FORM THE FINANCE OFFICER AT APO 958 STATES NO WRITTEN AGREEMENT WAS EXECUTED BY THAT COMMAND WITH MR. ADDINGTON PRIOR TO HIS LEAVE TO UNITED STATES.' YOU HAVE FURNISHED NO DOCUMENTARY EVIDENCE OVERCOMING THE PRESUMPTION OF THE CORRECTNESS OF THE ADMINISTRATIVE REPORT. MOREOVER, ON PAGE 7, HOUSE OF REPRESENTATIVES, REPORT NO. 2096, H.R. 179, ENACTED AS PUBLIC LAW 737, THE CHART SHOWS APPROXIMATELY 11,135 EMPLOYEES OVERSEAS TO WHOM THE DEPARTMENT OF DEFENSE DID NOT ANTICIPATE APPLYING THE LEAVE TRAVEL PROVISION. FURTHER, THE LEGISLATIVE HISTORY INDICATES THE LAW WAS NOT DESIGNED TO COVER PERSONS WHO UPON EMPLOYMENT WITH THE FEDERAL GOVERNMENT IN HAWAII, OR ELSEWHERE OVERSEAS, INTENDED TO RESIDE PERMANENTLY AT THE POST OF DUTY AND EXECUTED NO EMPLOYMENT AGREEMENT. IN YOUR CASE THE CONDITIONS OF THE STATUTE AS TO A PRIOR WRITTEN RENEWAL AGREEMENT, HAVE NOT BEEN SATISFIED. ALSO, THE RECORD INDICATES THAT NO AGREEMENT WAS ENTERED INTO IN 1940 FOR SERVICE OVERSEAS FOR A FIXED PERIOD OF TIME, AND WE HAVE NO INFORMATION BEFORE US SHOWING THAT YOUR EMPLOYMENT IN 1940 WAS OTHER THAN INCIDENT TO YOUR ESTABLISHING A PERMANENT RESIDENCE IN HAWAII. THUS, UPON THE EXISTING RECORD, OUR OFFICE WOULD NOT BE WARRANTED IN CONCLUDING THAT THE ADMINISTRATIVE OFFICE ACTED OUTSIDE THE SCOPE OF ITS AUTHORITY UNDER THE ACT IN REJECTING YOUR APPLICATION FOR THE TRAVEL TO THE UNITED STATES AT GOVERNMENT EXPENSE.

IN VIEW OF THE FOREGOING, WE CONCLUDE, UPON THE PRESENT RECORD, THAT THE SETTLEMENT DISALLOWING YOUR CLAIM WAS CORRECT AND MUST BE AND IS SUSTAINED.