B-191216, MAR. 29, 1978, 57 COMP.GEN. 387

B-191216, MAR. 29, 1978, 57 COMP.GEN. 387

FOREIGN SERVICE - RETIREMENT - POSTPONEMENT OF RETURN TO U.S. FOREIGN SERVICE EMPLOYEE WHO RETIRED OVERSEAS HAS DELAYED RETURN TRAVEL MORE THAN 7 YEARS EVEN THOUGH STATE DEPARTMENT TRAVEL REGULATIONS REQUIRE THAT SUCH TRAVEL MUST BEGIN NOT LATER THAN 18 MONTHS AFTER SEPARATION. STATE DEPARTMENT REGULATION GRANTING EXCEPTIONS TO TRAVEL REGULATIONS WHERE ALLOWANCES ARE EXCEEDED OR EXCESS COSTS ARE INCURRED PROVIDES NO BASIS FOR GRANTING EXCEPTIONS TO TIME LIMITATION ON RETURN TRAVEL, AND FORMER EMPLOYEE MAY NOT BE GRANTED ANY FURTHER TIME EXTENSIONS.

IN THE MATTER OF ROBERT R. SCHOTT-- EXTENSION OF TIME LIMITATION FOR BEGINNING RETURN TRAVEL FROM OVERSEAS POST, MARCH 29, 1978:

THIS ACTION IS IN RESPONSE TO THE REQUEST FOR AN ADVANCE DECISION DATED JANUARY 26, 1978, FROM MR. LAWRENCE J. DUPRE, DEPUTY ASSISTANT SECRETARY FOR OPERATIONS, DEPARTMENT OF STATE, CONCERNING THE REQUEST OF MR. ROBERT R. SCHOTT, A FORMER EMPLOYEE OF THE DEPARTMENT OF STATE, FOR AN EXTENSION OF THE TIME LIMITATION FOR BEGINNING RETURN TRAVEL AND SHIPMENT OF HOUSEHOLD GOODS TO THE UNITED STATES FROM AN OVERSEAS POST.

THE REPORT FROM THE DEPARTMENT OF STATE INDICATES THAT MR. SCHOTT RETIRED FROM THE FOREIGN SERVICE IN 1970 WHILE STATIONED IN IRAN AND THAT SINCE THAT TIME HE HAS BEEN LIVING AND WORKING IN IRAN AS A PRIVATE CITIZEN. APPEARS THAT MR. SCHOTT WAS ELIGIBLE FOR TRAVEL AND SHIPMENT OF HIS HOUSEHOLD GOODS AT THE TIME OF HIS RETIREMENT. HOWEVER, MR. SCHOTT HAS DELAYED HIS RETURN TRAVEL AND HAS REQUESTED AND BEEN GRANTED EXTENSIONS IN HIS TRAVEL AUTHORIZATION OF SOME 90 MONTHS (7 YEARS, 6 MONTHS). THE CURRENT TIME LIMIT EXTENSION EXPIRES ON APRIL 30, 1978, AND THE DEPARTMENT OF STATE HAS EXPRESSED RELUCTANCE TO GRANT ANOTHER EXTENSION IN LIGHT OF OUR DECISION IN 52 COMP.GEN. 407 (1973).

OUR OFFICE HAS LONG HELD THAT RETURN TRAVEL AND TRANSPORTATION FROM A POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES MUST BE CLEARLY INCIDENTAL TO THE TERMINATION OF AN ASSIGNMENT AND SHOULD COMMENCE WITHIN A REASONABLE TIME. 52 COMP.GEN. 407 (1973); 28 ID. 285, 289 (1948); JAMES P. O'NEIL, B-182993, AUGUST 13, 1975; AND B-177455, JUNE 22, 1973. HAVE FURTHER HELD THAT ACCEPTANCE OF PRIVATE EMPLOYMENT OVERSEAS GENERALLY REQUIRES THE VIEW THAT SUBSEQUENT RETURN TRAVEL IS NOT INCIDENT TO THE SEPARATION. 37 COMP.GEN. 502 (1958).

THESE DECISIONS HAVE INVOLVED EMPLOYEES WHO WERE AUTHORIZED RETURN TRAVEL UNDER THE PROVISIONS OF WHAT IS NOW 5 U.S.C. 5722 (1976) AND THE IMPLEMENTING REGULATIONS CURRENTLY CONTAINED IN THE FEDERAL TRAVEL REGULATIONS (FTR) (FPMR 101-7) (MAY 1973). THE REGULATIONS IMPLEMENTING THIS STATUTORY PROVISION HAVE REQUIRED THAT TRAVEL MUST BEGIN WITHIN 2 YEARS, WITHOUT EXCEPTION, AND OUR DECISIONS HAVE APPLIED THIS TIME LIMITATION TO RETURN TRAVEL FOLLOWING SEPARATION. SEE FTR PARA. 2-1.5(2); 28 COMP.GEN. 285, 289, SUPRA; AND O'NEIL, SUPRA. HOWEVER, THE PROVISIONS OF 5 U.S.C. 5722 AND THE IMPLEMENTING REGULATIONS ARE NOT APPLICABLE TO EMPLOYEES IN THE FOREIGN SERVICE (SEE 5 U.S.C. 5722(D)) AND, THEREFORE, OUR DECISIONS REQUIRING THAT RETURN TRAVEL BE INCIDENTAL TO THE SEPARATION AND THAT IT COMMENCE WITHIN A REASONABLE TIME ARE NOT DIRECTLY APPLICABLE TO THE PRESENT CASE.

THE AUTHORITY FOR PAYMENT OF THE TRAVEL AND RELATED EXPENSES OF OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE IS CONTAINED IN 22 U.S.C. 1136 (1970). UNDER THAT SECTION, AN EMPLOYEE WHO IS SEPARATED FROM THE FOREIGN SERVICE IS ENTITLED TO TRAVEL AND SHIPMENT OF HIS HOUSEHOLD GOODS TO THE PLACE WHERE HE WILL RESIDE IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE SECRETARY OF STATE. THE APPLICABLE REGULATIONS, CONTAINED IN VOLUME 6 OF THE FOREIGN AFFAIRS MANUAL (FAM), SECTION 132.2-2, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEPARATION FROM THE SERVICE

WHEN AN EMPLOYEE IS SEPARATED FROM THE FOREIGN SERVICE AND QUALIFIES FOR TRAVEL AND SHIPMENT OF EFFECTS * * *, THE ACTUAL DEPARTURE OF THE EMPLOYEE, THE DEPARTURE OF THE EMPLOYEE'S FAMILY, AND THE TRANSPORTATION OF ALL EFFECTS SHALL NOT BE DEFERRED MORE THAN 12 MONTHS * * *. THE TIME LIMITATION WILL BE CALCULATED FROM THE EMPLOYEE'S LAST DAY IN PAY STATUS, UNLESS AN EARLIER OR LATER LIMITATION IS SPECIFIED IN THE TRAVEL AUTHORIZATION OR THE TIME LIMITATION IS EXTENDED. SUCH LATER LIMIT OR EXTENSION SHALL NOT EXCEED 18 MONTHS AFTER THE EMPLOYEE'S LAST DAY IN PAY STATUS.

DESPITE THE LANGUAGE OF THE REGULATION THAT TIME EXTENSIONS SHALL NOT EXCEED 18 MONTHS, MR. SCHOTT HAS BEEN GRANTED TIME EXTENSIONS WHICH HAVE EXTENDED FOR A PERIOD OF 90 MONTHS THE DEADLINE FOR THE DEPARTURE OF HIMSELF, HIS FAMILY, AND HIS HOUSEHOLD GOODS. THE REASONS WHY SUCH EXTENSIONS HAVE BEEN GRANTED ARE NOT ENTIRELY CLEAR, BUT MR. SCHOTT'S DELAYED DEPARTURE IS APPARENTLY RELATED TO HIS PRIVATE EMPLOYMENT IN IRAN.

WE HAVE BEEN INFORMALLY ADVISED THAT THE TIME EXTENSIONS HAVE BEEN GRANTED TO MR. SCHOTT UNDER THE AUTHORITY OF 6 FAM 121.1-4 WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

EXCEPTIONS TO FOREIGN SERVICE TRAVEL REGULATIONS* (STATE/USIA)*

A. ALTHOUGH EMPLOYEES ARE RESPONSIBLE FOR STRICT COMPLIANCE WITH THESE REGULATIONS, THERE ARE INSTANCES IN WHICH ALLOWANCES ARE EXCEEDED OR EXCESS COSTS ARE INCURRED FOR TRAVEL, TRANSPORTATION, OR STORAGE OF EFFECTS, DESPITE ALL REASONABLE PRECAUTIONS TAKEN BY THE EMPLOYEES * * *. THE DEPARTMENT * AND USIA HAVE * ESTABLISHED SPECIAL COMMITTEES FOR REVIEWING REQUESTS FOR RELIEF AND RECOMMENDING APPROPRIATE ACTION WHEN IT HAS BEEN CONCLUSIVELY DEMONSTRATED THAT SUCH EXCESSES HAVE OCCURRED THROUGH NO FAULT OF THE EMPLOYEE, OR WHEN AN INCREASE IN THE LIMITED SHIPPING ALLOWANCE IS FULLY JUSTIFIABLE. EMPLOYEES WHO HAVE UNAVOIDABLY INCURRED EXCESS CHARGES FOR TRAVEL, TRANSPORTATION, OR STORAGE OF THEIR EFFECTS, OR WHO CAN JUSTIFY AN INCREASE IN THEIR LIMITED SHIPPING ALLOWANCE, MAY SUBMIT THEIR REQUESTS FOR APPROPRIATE RELIEF TO THE DEPARTMENT * OR USIA (AS PERTINENT) FOR CONSIDERATION BY THESE COMMITTEES

THIS REGULATION PROVIDES FOR THE GRANTING OF EXCEPTIONS TO THE FOREIGN SERVICE TRAVEL REGULATIONS WHERE ALLOWANCES ARE EXCEEDED OR EXCESS COSTS ARE INCURRED BUT MAKES NO REFERENCE TO GRANTING EXCEPTIONS UNDER ANY OTHER CIRCUMSTANCES. THEREFORE, WE DO NOT BELIEVE THAT THE PROVISIONS OF 6 FAM 121.1-4 PROVIDE AUTHORITY FOR THE GRANTING OF EXCEPTIONS TO THE TIME LIMITATION CONTAINED IN 6 FAM 132.2-2, AND WE FIND NO BASIS FOR THE DEPARTMENT OF STATE TO GRANT MR. SCHOTT ANY FURTHER TIME EXTENSIONS TO BEGIN HIS RETURN TRAVEL.