B-105411, NOVEMBER 1, 1951, 31 COMP. GEN. 159

B-105411, NOVEMBER 1, 1951, 31 COMP. GEN. 159

TRAVELING EXPENSES - EMPLOYEES ASSIGNED TO DUTY OVERSEAS - RETURN TO U.S. TO ENTER MILITARY SERVICE AN EMPLOYEE WHO IS SEPARATED FROM HIS OVERSEAS POST OF DUTY, PRIOR TO COMPLETION OF HIS AGREED PERIOD OF SERVICE, FOR THE PURPOSE OF VOLUNTARILY ENLISTING IN THE MILITARY SERVICE OR FOR THE PURPOSE OF VOLUNTARY ENTRY UPON ACTIVE DUTY AS A RESERVIST IS ENTITLED, UNDER SECTION 7 OF THE ACT OF AUGUST 2, 1946, TO RETURN TRANSPORTATION AT GOVERNMENT EXPENSE INCIDENT TO HIS OVERSEAS APPOINTMENT TO THE SAME EXTENT AS AN EMPLOYEE WHO IS INVOLUNTARILY SEPARATED BY INDUCTION INTO THE ARMED FORCES.

COMPTROLLER GENERAL WARREN TO A. L. ROHAN, DEPARTMENT OF AGRICULTURE, NOVEMBER 1, 1951:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 30, 1951, FORWARDING REFUND VOUCHERS IN FAVOR OF THREE EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE COVERING AMOUNTS WITHHELD FROM THEIR FINAL PAY AND LUMP-SUM LEAVE PAYMENTS PENDING DETERMINATION AS TO THEIR POSSIBLE INDEBTEDNESS TO THE UNITED STATES FOR THE COST OF TRANSPORTATION FURNISHED UNDER THE PROVISIONS OF SECTION 7 OF THE ACT OF AUGUST 2, 1946 (60 STAT. 808), INCIDENT TO THEIR APPOINTMENTS AND TRAVEL FROM THE UNITED STATES TO A FOREIGN POST OF DUTY. ALSO, THERE IS ENCLOSED A TRAVEL VOUCHER IN FAVOR OF ONE EMPLOYEE COVERING TRANSPORTATION AND OTHER EXPENSES INCURRED BY HIM IN RETURNING TO THE UNITED STATES PRIOR TO COMPLETION OF HIS AGREED PERIOD OF SERVICE. UNDER THE FACTS HEREINAFTER RELATED, YOU REQUEST A DECISION AS TO WHETHER THE SAID VOUCHERS LEGALLY MAY BE CERTIFIED FOR PAYMENT.

IT IS STATED THAT EACH OF THE EMPLOYEES INVOLVED WAS NEWLY APPOINTED TO THE POSITION OF LIVESTOCK INSPECTOR WITH HEADQUARTERS IN MEXICO AND THAT PRIOR TO EXPIRATION OF THE AGREED PERIOD OF SERVICE WAS SEPARATED FOR THE PURPOSE OF ENTERING THE ARMED FORCES. THE REASON SHOWN ON THE PERSONNEL ACTION COVERING THE SEPARATION OF ALFREDO P. DE LUNA, ONE OF THE EMPLOYEES INVOLVED, WAS , TO JOIN ARMED FORCES," WHICH INDICATES THE POSSIBILITY THAT HE MAY HAVE ENLISTED. THE REASONS SHOWN FOR THE OTHER TWO EMPLOYEES, JOSE L. LOPEZ AND JAMES R. DUKE WERE " TO ENTER MILITARY ERVICE" AND " ENTERED MILITARY SERVICE," RESPECTIVELY. HOWEVER, IN BOTH OF THE LATTER CASES SUBSEQUENT CORRESPONDENCE FROM THE EMPLOYEES INDICATES THAT EACH WAS RECALLED TO ACTIVE DUTY AS A MEMBER OF A RESERVE UNIT.

YOU REFER TO OFFICE DECISION OF MAY 23, 1951, B-102517, 30 COMP. GEN. 478, HOLDING, IN EFFECT, THAT SEPARATIONS FOR THE PURPOSE OF INDUCTION INTO THE ARMED FORCES PRIOR TO EXPIRATION OF THE AGREED PERIOD OF SERVICE ARE SEPARATIONS FOR THE PURPOSES OF THE GOVERNMENT AND FOR REASONS BEYOND THE EMPLOYEE'S CONTROL, SUCH AS WOULD NOT DEFEAT HIS RIGHT TO TRANSPORTATION AT GOVERNMENT EXPENSE UNDER THE PROVISIONS OF THE SAID SECTION 7. HOWEVER, YOU EXPRESS DOUBT AS TO WHETHER THE SAME RULE APPLIES IN CASES, SUCH AS HERE INVOLVED, WHERE THE EMPLOYER ENLISTS OR IS RECALLED EITHER INVOLUNTARILY OR AT HIS OWN REQUEST FOR ACTIVE DUTY AS A MEMBER OF A RESERVE CORPS.

IT APPEARS CLEAR THAT SEPARATIONS BY RESIGNATION OR OTHERWISE INCIDENT TO INVOLUNTARY RECALL FOR ACTIVE DUTY IN A RESERVE UNIT FALL WITHIN THE RULE STATED IN THE SAID DECISION OF MAY 23, 1951.

ALTHOUGH RESIGNATIONS INCIDENT TO ENLISTMENTS AND VOLUNTARY REQUESTS FOR ACTIVE DUTY IN RESERVE UNITS GENERALLY CANNOT BE CONSIDERED SEPARATIONS BEYOND THE EMPLOYEE'S CONTROL, IN VIEW OF EXISTING CONDITIONS WHICH NECESSITATE EXPANSION OF THE ARMED SERVICES, SUCH SEPARATIONS PROPERLY MAY BE VIEWED AS SERVING A VITAL AND PARAMOUNT PURPOSE OF THE UNITED STATES. ACCORDINGLY, UNDER THE RULE STATED IN THE SAID DECISION OF MAY 23, 1951, IT APPEARS THAT EMPLOYEES SO SEPARATED ARE ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE TO THE SAME EXTENT AS THOSE WHO INVOLUNTARILY ENTER THE ARMED FORCES BY OPERATION OF THE SELECTIVE SERVICE SYSTEM.

IN VIEW OF THE FOREGOING, THE SUBMITTED VOUCHERS, WHICH ARE RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT, IF THEY ARE OTHERWISE CORRECT.