B-54669, JANUARY 3, 1946, 25 COMP. GEN. 480

B-54669, JANUARY 3, 1946, 25 COMP. GEN. 480

TRANSPORTATION EXPENSES - MILITARY AND NAVAL PERSONNEL DEMOBILIZED ABROAD TO ACCEPT CIVILIAN EMPLOYMENT - RETURN TO UNITED STATES UNDER SECTION 1 OF THE ACT OF APRIL 9, 1943, AUTHORIZING THE SECRETARY OF THE NAVY TO PAY THE TRANSPORTATION EXPENSES OF CIVILIAN EMPLOYEES TO AND FROM FOREIGN DUTY STATIONS, MILITARY AND NAVAL PERSONNEL ON FOREIGN SHORE DUTY WHO ARE DEMOBILIZED ABROAD IN ORDER TO ACCEPT CIVILIAN EMPLOYMENT WITH THE NAVY DEPARTMENT MAY BE FURNISHED RETURN TRANSPORTATION TO THE UNITED STATES UPON THE TERMINATION OF SUCH CIVILIAN EMPLOYMENT, IRRESPECTIVE OF WHETHER THEY WERE CIVILIAN EMPLOYEES OF THE GOVERNMENT PRIOR TO ENTRY INTO THE ARMED FORCES.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, JANUARY 3, 1946:

I HAVE YOUR LETTER OF DECEMBER 20, 1945, REFERENCE JAG:II:RT:AF, L20 1/LL, AS FOLLOWS:

SECTION 1 OF THE ACT OF CONGRESS APPROVED APRIL 9, 1943 (57 STAT. 61; 34 U.S.C. 602, SUPP. IV), PROVIDES.

"THAT THE SECRETARY OF THE NAVY IS HEREBY AUTHORIZED TO PAY THE COSTS OF TRANSPORTATION OF CIVILIAN EMPLOYEES TO PLACES OF DUTY IN THE NAVAL ESTABLISHMENT OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA, AND RETURN, UPON RELIEF THEREFROM, TO PLACES AT WHICH THEY WERE ENGAGED OR FROM WHICH THEY WERE TRANSFERRED FOR SUCH DUTY: PROVIDED, THAT NOTHING HEREIN SHALL BE CONSTRUED AS AUTHORIZING THE SECRETARY OF THE NAVY TO TRANSFER SUCH EMPLOYEES FROM ONE STATION TO ANOTHER WITHOUT THEIR CONSENT.'

THE PRINCIPAL OBJECTIVE OF THIS LEGISLATION, AS DISCLOSED BY THE HEARINGS, WAS TO AUTHORIZE THE NAVY TO PAY RETURN TRANSPORTATION TO THE UNITED STATES OF CIVILIAN EMPLOYEES AT THE NAVY YARD, PEARL HARBOR, T.H., WHOSE DISCHARGE WAS NECESSITATED BY REASON OF PHYSICAL DISABILITY. HEARINGS, COMMITTEE ON NAVAL AFFAIRS, U.S. SENATE,78TH CONG., ST SESSION, ON BILL S. 643, FEB. 9, 1943, INCLUDED IN HEARINGS BEFORE THE COMMITTEE ON NAVAL AFFAIRS, UNITED STATES SENATE 78TH ONG., ST SESSION, ON MISCELLANEOUS BILLS, PP. 9-12.) BECAUSE OF THE EMERGENCY AND THE NECESSITY FOR SECRECY AT THE TIME THESE EMPLOYEES WERE RECRUITED, THE USUAL CONTRACT APPOINTMENTS FOR A SPECIFIED PERIOD, WITH PROVISIONS FOR PAYMENT OF RETURN TRANSPORTATION AT THE TERMINATION THEREOF, WERE NOT PRACTICABLE. THIS METHOD OF RECRUITING SUBSEQUENTLY RESULTED IN MANY HARDSHIP CASES, INVOLVING RETURN TRANSPORTATION OF AFFECTED EMPLOYEES. THE FOLLOWING EXCERPT IS QUOTED FROM THE AFORESAID HEARINGS WITH REFERENCE TO THE CLASS OF EMPLOYEES REFERRED TO ABOVE, AND ALSO BRINGS OUT A FURTHER OBJECTIVE OF THE LEGISLATION:

" MR. PIOZET. IN THE ABSENCE OF A CONTRACT OF EMPLOYMENT FOR A SPECIFIED TIME, NO LEGAL AUTHORITY EXISTS TO DEFRAY THE COST OF THEIR RETURN TRANSPORTATION TO THEIR HOMES IN THE CONTINENTAL UNITED STATES. THIS MATTER WAS PRESENTED TO THE COMPTROLLER GENERAL OF THE UNITED STATES AND HE RENDERED AN OPINION THAT THERE IS NO APPROPRIATION AVAILABLE TO THE NAVY DEPARTMENT FOR EXTENDING RELIEF IN THESE CASES. (COMP. GEN., B- 26973, JULY 7, 1942.) HE SUGGESTED THAT THE NAVY DEPARTMENT SECURE THE AUTHORITY SIMILAR TO THAT GRANTED TO THE SECRETARY OF WAR BY PUBLIC LAW 580. THE ENACTMENT OF THE PROPOSED LEGISLATION WOULD PLACE THE NAVY DEPARTMENT ON AN EQUAL FOOTING WITH THE WAR DEPARTMENT, INSOFAR AS IT RELATES TO THE TRANSPORTATION OF CIVILIAN PERSONNEL TO AND FROM STATIONS BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES.

"THE COMPTROLLER GENERAL HAS NOT QUESTIONED OUR PROCEDURE IN THE PAST OF PAYING THE TRANSPORTATION OF PER DIEM EMPLOYEES RECRUITED FOR DUTY AT STATIONS BEYOND THE CONTINENTAL LIMITS WHERE THE CONTRACT OF EMPLOYMENT PROVIDED FOR A FIXED PERIOD OF SERVICE, BUT HAS RECENTLY INDICATED THAT LEGISLATION WOULD BE DESIRABLE, PARTICULARLY IN THE CASE OF THE SALARIED EMPLOYEES UNDER THE CLASSIFICATION ACT, THE GROUP 4-B EMPLOYEES, BECAUSE THEIR COMPENSATION BEING FIXED BY LAW, THE COST OF TRANSPORTATION TO AND FROM THEIR POSTS OF DUTY COULD NOT BE ADDED THERETO AND MADE A PART OF THEIR CONTRACT.' ( HEARINGS, SUPRA, P. 11.)

IN THE ASSIGNMENT OF UNITED STATES CITIZEN CIVIL SERVICE PERSONNEL TO POSITIONS IN U.S. NAVAL ATTACHE, OBSERVER, OR LIAISON OFFICES ABROAD, IT HAS BEEN THE PRACTICE TO MAKE THE APPOINTMENTS IN THE UNITED STATES AND TO ISSUE ORDERS TO SUCH PERSONS PROVIDING FOR THEIR TRANSPORTATION AT GOVERNMENT EXPENSE FROM THE UNITED STATES TO THE FOREIGN POST, AND FOR RETURN TRANSPORTATION TO THE UNITED STATES UPON COMPLETING THE DESIGNATED TOUR OF DUTY.

DURING THE WAR A LARGE NUMBER OF MILITARY PERSONNEL HAVE BEEN ON DUTY IN THE OFFICES REFERRED TO ABOVE. DUE TO THE EXISTING DEMOBILIZATION OF MILITARY PERSONNEL NOW ON DUTY IN THESE OFFICES, THERE IS NEED FOR IMMEDIATE REPLACEMENT OF CERTAIN OF THESE PERSONS BY CIVILIANS ( U.S. CITIZENS) IN ORDER TO MEET POSTWAR REQUIREMENTS. IT IS CONTEMPLATED TO HAVE THE NECESSARY REPLACEMENTS MADE IN CERTAIN INSTANCES FROM MILITARY PERSONNEL NOW ON DUTY IN THE AFORESAID OFFICES.

IF SUCH MILITARY PERSONNEL ARRANGE TO HAVE THEMSELVES DEMOBILIZED ABROAD IN ORDER TO ACCEPT THESE CIVILIAN ASSIGNMENTS, THEY WILL FORFEIT RETURN TRANSPORTATION TO THE UNITED STATES TO WHICH THEY WOULD HAVE BEEN ENTITLED IF RETURNED TO THIS COUNTRY FOR DEMOBILIZATION. IF THEY RETURN TO THE UNITED STATES FOR DEMOBILIZATION AND ARE THEN APPOINTED TO THEIR FOREIGN POSTS IN A CIVILIAN CAPACITY, THE GOVERNMENT WOULD NECESSARILY INCUR, ASIDE FROM DELAY AND INCONVENIENCE, A DOUBLE TRANSPORTATION EXPENSE. IS CONSIDERED THAT DEMOBILIZATION ABROAD IN THE FOREGOING SITUATION WOULD BE FOR THE CONVENIENCE OF THE GOVERNMENT RATHER THAN FOR THE INDIVIDUAL. THERE MAY BE CASES WHERE THE INDIVIDUAL CONCERNED WAS IN THE SERVICE OF THE UNITED STATES IN A CIVILIAN CAPACITY PRIOR TO INDUCTION INTO THE MILITARY SERVICE; OTHERS WHERE HE HAS NO PRIOR GOVERNMENT SERVICE OR WAS NOT SO EMPLOYED IMMEDIATELY PRIOR TO INDUCTION.

THE NAVY DEPARTMENT UNDERSTANDS THAT IN THE CASE OF UNITED STATES CITIZENS WHO ARE EMPLOYED BY A GOVERNMENT AGENCY ABROAD, WHILE RESIDING ABROAD, BUT WHO WENT ABROAD INITIALLY FOR PERSONAL OR BUSINESS REASONS, THERE IS NO AUTHORITY TO FURNISH SUCH PERSONS WITH RETURN TRANSPORTATION TO THE UNITED STATES UPON TERMINATION OF THEIR GOVERNMENT SERVICE ABROAD. (23 COMP. GEN. 280, 283-284, OCT. 18, 1943.) HOWEVER, IT IS CONSIDERED THAT THE MILITARY PERSONNEL REFERRED TO ABOVE ARE IN A POSITION COMPARABLE TO UNITED STATES CITIZENS WHO WENT ABROAD WITH A UNITED STATES GOVERNMENT CONTRACTOR, OR A DEPARTMENT OF THE UNITED STATES GOVERNMENT, AND WERE ENTITLED TO RETURN TRANSPORTATION AT THE TERMINATION OF SUCH EMPLOYMENT, BUT INSTEAD OF BEING RETURNED HOME THEIR SERVICES WERE UTILIZED BY THE WAR DEPARTMENT ABROAD. IN THE LATTER TWO SITUATIONS, IT WAS HELD IN THE CITED DECISION OF OCTOBER 18, 1943, THAT UPON SEPARATION FROM SERVICE OF SUCH PERSONS, RETURN TRANSPORTATION TO THE UNITED STATES MAY BE PAID BY THE WAR DEPARTMENT PURSUANT TO THE AUTHORITY VESTED IN THE SECRETARY OF WAR UNDER THE ACT OF JUNE 5, 1942 (56 STAT. 314; U.S.C. SUPP. IV, WAR, APPENDIX, 763), WHICH AUTHORITY IS SIMILAR TO THAT VESTED IN THE SECRETARY OF THE NAVY BY THE ACT OF APRIL 9, 1943, SUPRA.

IN VIEW OF THE FOREGOING, YOUR DECISION IS REQUESTED WHETHER, IN THE CASE OF MILITARY PERSONNEL WHO ARE ENTITLED TO RETURN TRANSPORTATION TO THE UNITED STATES FOR DEMOBILIZATION BUT WHO ARE DEMOBILIZED ABROAD IN ORDER TO ACCEPT CIVIL EMPLOYMENT WITH THE NAVY ABROAD, UPON THE TERMINATION OF SUCH CIVIL EMPLOYMENT, SUCH PERSONS MAY BE RETURNED TO THE UNITED STATES AT THE EXPENSE OF THE NAVY DEPARTMENT. IT IS FURTHER REQUESTED THAT YOUR DECISION COVER THE SITUATION BOTH WITH RESPECT TO INDIVIDUALS WHO WERE CIVIL EMPLOYEES OF THE GOVERNMENT PRIOR TO THEIR INDUCTION INTO THE MILITARY SERVICE AND THOSE WHO DID NOT HOLD SUCH POSITIONS AT THE TIME OF INDUCTION. IN THE MEANTIME DEMOBILIZATION OF THE AFFECTED SERVICE MEN IN MANY PARTS OF THE WORLD IS BEING WITHHELD.

REPORT NO. 148, FEBRUARY 22, 1943, OF THE COMMITTEE ON NAVAL AFFAIRS, HOUSE OF REPRESENTATIVES, TO ACCOMPANY THE BILL H.R. 1691, SUBSEQUENTLY ENACTED INTO LAW AS PUBLIC LAW 28, ACT OF APRIL 9, 1943, 57 STAT. 61, QUOTED IN YOUR LETTER, AS WELL AS THE REPORT ON SAID HEARINGS BEFORE THE COMMITTEE ON NAVAL AFFAIRS, UNITED STATES SENATE, ON S. 643--- SUBSTANTIALLY IDENTICAL WITH H.R. 1691--- WHICH IS QUOTED IN PART IN YOUR LETTER, CLEARLY DISCLOSES THAT THE GENERAL PURPOSE OF THAT STATUTE WAS TO GRANT TO THE SECRETARY OF THE NAVY THE SAME AUTHORITY WITH RESPECT TO THE PAYMENT OF THE COST OF TRANSPORTATION OF CIVILIAN EMPLOYEES OF THE NAVY TO AND FROM PLACES OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES, OR IN ALASKA, AS THERETOFORE HAD BEEN GRANTED TO THE SECRETARY OF WAR RESPECTING CIVILIAN EMPLOYEES OF THAT DEPARTMENT UNDER THE PROVISIONS OF SECTION 3 (A) OF PUBLIC LAW 580, APPROVED JUNE 5, 1942, 56 STAT. 314, WHICH PROVIDES:

THAT THE SECRETARY OF WAR IS HEREBY AUTHORIZED TO EFFECT APPOINTMENTS OF CIVILIAN EMPLOYEES IN THE UNITED STATES, OR TO EFFECT THE TRANSFER OF SUCH EMPLOYEES IN THE FEDERAL SERVICE IN THE UNITED STATES, FOR DUTY AT ANY POINT OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA AT WHICH IT MAY BE FOUND NECESSARY TO ASSIGN SUCH CIVILIAN EMPLOYEES, AND TO PAY THE COSTS OF TRANSPORTATION OF SUCH EMPLOYEES FROM THE PLACE OF ENGAGEMENT IN THE UNITED STATES, OR FROM THE PRESENT POST OF DUTY IN THE UNITED STATES OR IN ALASKA, IF ALREADY IN THE FEDERAL SERVICE, TO THE POST OF DUTY OUTSIDE THE UNITED STATES AND RETURN UPON RELIEF THEREFROM, AND TO PROVIDE FOR THE SHIPMENT OF PERSONAL EFFECTS OF PERSONS SO APPOINTED OR TRANSFERRED FROM THE PLACE OF ENGAGEMENT OR TRANSFER TO THE POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA AND RETURN UPON RELIEF THEREFROM.

IN DECISION OF OCTOBER 18, 1943, 23 COMP. GEN. 280, REFERRED TO IN YOUR LETTER, IT WAS HELD THAT THE PROVISIONS OF THE QUOTED SECTION FOR PAYMENT OF TRANSPORTATION FOR CIVILIAN EMPLOYEES OF THE WAR DEPARTMENT UPON RETURN TO THE UNITED STATES WERE NOT LIMITED TO PERSONS WHOSE ORIGINAL TRANSPORTATION TO DUTY STATIONS OUTSIDE THE UNITED STATES WAS AUTHORIZED UNDER THAT SECTION, BUT, RATHER, THE PERSONS WHO PROPERLY MIGHT BE RETURNED TO THE UNITED STATES UNDER AUTHORITY THEREOF ENCOMPASS THOSE (1) WHO TRAVELED TO THE FOREIGN POST AT THE EXPENSE OF THE UNITED STATES, EITHER MEDIATELY OR IMMEDIATELY, (2) WHO SO TRAVELED WITH THE UNDERSTANDING THAT THEY WOULD BE RETURNED AFTER THE COMPLETION OF THEIR ASSIGNMENT FOR WORK IN OR ON A GOVERNMENT ACTIVITY, AND (3) WHO, UPON RELIEF FROM SUCH ASSIGNMENT ON A WAR DEPARTMENT ACTIVITY, REQUEST TO BE RETURNED. AND, IN ANSWER TO THE SPECIFIC QUESTION PRESENTED BY THE SECRETARY OF WAR, IT WAS CONCLUDED THAT, UNDER THE PROVISIONS OF SECTION 3 (A), SUPRA, HE WAS AUTHORIZED TO PAY THE COST OF THE RETURN TRANSPORTATION TO THE UNITED STATES OF PERSONS WHO WERE TRANSPORTED AT GOVERNMENT EXPENSE TO FOREIGN STATIONS BY A GOVERNMENT AGENCY WITH THE UNDERSTANDING THAT RETURN TRANSPORTATION WOULD BE FURNISHED, AND WHOSE SERVICES SUBSEQUENTLY WERE UTILIZED ABROAD BY THE WAR DEPARTMENT. THE 1942 STATUTE THUS HAVING BEEN CONSTRUED AS AUTHORIZING THE PAYMENT BY THE SECRETARY OF WAR OF THE TRANSPORTATION TO THE UNITED STATES OF PERSONS EMPLOYED ABROAD BY THE WAR DEPARTMENT, WHO OTHERWISE WERE ENTITLED THERETO AT GOVERNMENT EXPENSE, THERE APPEARS NO SOUND REASON TO ASCRIBE A DIFFERENT CONSTRUCTION TO THE ESSENTIALLY SIMILAR PROVISIONS OF THE SAID 1943 STATUTE, SUPRA, RESPECTING CIVILIAN EMPLOYEES OF THE NAVAL ESTABLISHMENT.

SO FAR AS CONCERNS THEIR RIGHTS TO TRANSPORTATION, AT GOVERNMENT EXPENSE, TO THE UNITED STATES, THIS OFFICE, IN CONSONANCE WITH THE VIEW EXPRESSED IN YOUR LETTER, PERCEIVES NO DISTINCTION BETWEEN MILITARY AND NAVAL PERSONNEL ON FOREIGN SHORE DUTY AND CIVILIAN EMPLOYEES ORIGINALLY TRANSPORTED TO FOREIGN POSTS, AT GOVERNMENT EXPENSE, WITH THE UNDERSTANDING THAT THEY WOULD BE RETURNED TO THE UNITED STATES, WITHOUT ANY PERSONAL EXPENSE, UPON COMPLETION OF THE ASSIGNMENTS ON GOVERNMENT ACTIVITIES. WHILE MATTERS RELATIVE TO TRANSPORTATION OF CIVILIAN EMPLOYEES TO AND FROM THE UNITED STATES GENERALLY ARE THE SUBJECT OF EXPRESS PROVISIONS IN THE CONTRACT OF EMPLOYMENT, THERE CAN BE NO DOUBT THAT THE OBLIGATION ON THE PART OF THE GOVERNMENT TO RETURN TO THE UNITED STATES, AT THE TERMINATION OF THEIR ACTIVE SERVICE, MILITARY AND NAVAL PERSONNEL SERVING ON FOREIGN SHORES IS NO LESS BINDING. AND THAT OBLIGATION IN NOWISE IS AFFECTED BY THE FACT THAT, PRIOR TO ENTERING THE ARMED FORCES, SUCH MILITARY AND NAVAL PERSONNEL FORMERLY WERE CIVILIAN EMPLOYEES OF THE GOVERNMENT.

ACCORDINGLY, THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE, AND YOU ARE ADVISED THAT SUCH CONCLUSION IS APPLICABLE TO ALL OF THE MILITARY PERSONNEL REFERRED TO, REGARDLESS OF WHETHER THEY WERE CIVILIAN EMPLOYEES OF THE GOVERNMENT PRIOR TO THEIR ENTRY INTO THE ARMED FORCES.