B-122450, APR 1, 1955

B-122450, APR 1, 1955

PRECIS-UNAVAILABLE

MR. J. E. FOWLER, JR., DEPARTMENT OF THE INTERIOR:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 28, 1954, REQUESTING A DECISION WHETHER MR. JESSE H. AUVIL, JR., A FORMER POINT IV PROGRAM (ACT FOR INTERNATIONAL DEVELOPMENT, 22 U.S.C. 1557) EMPLOYEE OF THE BUREAU OF MINES, IS ENTITLED, INCIDENT TO THE TERMINATION OF HIS SERVICES, TO REIMBURSEMENT FOR THE EXPENSES INCURRED FOR THE RETURN TRAVEL OF HIS DEPENDENTS FROM OVERSEAS. THE QUESTION ARISES IN CONNECTION WITH THE CERTIFICATION FOR PAYMENT OF TWO TRANSMITTED VOUCHERS COVERING THE TRAVELING EXPENSES OF MR. AUVIL, HIS WIFE, AND THREE CHILDREN, FROM KABUL, AFGHANISTAN, THE OVERSEAS DUTY STATION, TO PLACE OF RESIDENCE IN THE UNITED STATES.

PRIOR TO DEPARTURE FROM THE UNITED STATES MR. AUVIL, BY A WRITTEN INSTRUMENT EXECUTED NOVEMBER 25, 1953, AGREED TO SERVE OVERSEAS WITH THE BUREAU OF MINES FOR A PERIOD OF TWO YEARS. UNDER THE TERMS OF THE AGREEMENT, ENTITLEMENT TO REIMBURSEMENT FOR THE EXPENSES OF RETURN TRAVEL, INCLUDING THAT OF DEPENDENTS AND THE MOVEMENT OF HOUSEHOLD GOODS TO THE UNITED STATES, WAS CONDITIONED UPON THE PERFORMANCE BY THE EMPLOYEE OF THE TWO-YEAR PERIOD OF SERVICE, UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL.

MR. AUVIL ARRIVED AT KABUL, AFGHANISTAN, FOR PERMANENT DUTY ON DECEMBER 18, 1953. HE SUBSEQUENTLY BECAME ILL, AND IT WAS CONSIDERED ADVISABLE THAT HE RETURN TO THE UNITED STATES. A TRAVEL ORDER DATED AUGUST 26, 1954, AUTHORIZED HIS TRAVEL, THAT OF HIS DEPENDENTS, AND THE MOVEMENT OF HOUSEHOLD GOODS TO PLACE OF RESIDENCE IN THE UNITED STATES FOR THE PURPOSE OF TERMINATION OF EMPLOYMENT BECAUSE OF ILLNESS AND THE NEED OF HOSPITAL AND MEDICAL CARE. THE ORDER DIRECTED MR. AUVIL TO STOP IN WASHINGTON, D. C., FOR MEDICAL EXAMINATION BY THE FOREIGN SERVICE MEDICAL STAFF. IT ALSO STATED THAT A "PERSONNEL ACTION WILL FOLLOW AS SOON AS DATE OF TERMINATION IS KNOWN."

PURSUANT TO THE TRAVEL ORDER OF AUGUST 26, 1954, MR. AUVIL AND HIS FAMILY TRAVELED TO THE UNITED STATES, HE STOPPING AT WASHINGTON, D. C., AS DIRECTED. THE SUBMITTED VOUCHERS INDICATE THAT MR. AUVIL'S TRAVEL UNDER THE ORDER WAS COMPLETED ON NOVEMBER 2, 1954, AND THAT OF HIS FAMILY PRIOR THERETO. ON NOVEMBER 16, 1954, EFFECTIVE NOVEMBER 20, THE PERSONNEL ACTION TERMINATING MR. AUVIL WAS ISSUED. HOWEVER, THE STATED REASON FOR THE ACTION WAS NOT THE ILLNESS OF THE EMPLOYEE, BUT HIS MISCONDUCT. THE CIRCUMSTANCES GIVING RISE TO THAT TYPE OF SEPARATION ARE SET FORTH IN A MEMORANDUM DATED NOVEMBER 17, 1954, OF THE CHIEF PERSONNEL OFFICER, BUREAU OF MINES, WHICH IS AS FOLLOWS:

"UPON THE RECOMMENDATION OF AND AFTER CONSULTATION WITH FCA IT WAS DETERMINED THAT MR. JESSE H. AUVIL, JR., MINING ENGINEER, REGION IX, WHO WAS HEADQUARTERED IN KABUL, AFGHANISTAN, SHOULD BE RETURNED TO THE UNITED STATES AND SEPARATED FOR MEDICAL REASONS. ACCORDINGLY, TRAVEL ORDERS WERE ISSUED AND MR. AUVIL DEPARTED KABUL SEPTEMBER 24, 1954, FOR WASHINGTON, D. C. AFTER ARRIVAL HE WAS HOSPITALIZED AT THE NAVAL MEDICAL CENTER IN BETHESDA, MARYLAND.

"IN THE MEANTIME THIS OFFICE RECEIVED ADVERSE REPORTS REGARDING MR. AUVIL'S CONDUCT, MOSTLY CONCERNING HIS ACTIONS SHORTLY BEFORE DEPARTURE. BECAUSE OF THE NATURE OF THESE REPORTS A DECISION WAS MADE TO SEPARATE HIM FOR THE GOOD OF THE SERVICE FOR REASONS OF CONDUCT INSTEAD OF MEDICAL REASONS. HOWEVER, HE WAS ACTUALLY RETURNED FOR TERMINATION FOR MEDICAL REASONS, A CONDITION BEYOND HIS CONTROL. HAD THE ADVERSE REPORTS REGARDING HIS CONDUCT NOT BEEN RECEIVED HE WOULD HAVE BEEN SEPARATED FOR THE REASONS STATED ON THE TRAVEL ORDER."

THE TRAVEL OF MR. AUVIL AND HIS DEPENDENTS HAVING BEEN PERFORMED PURSUANT TO A TRAVEL ORDER ISSUED UPON A VALID BASIS, ONE THAT WOULD ENTITLE HIM AND HIS FAMILY TO TRAVEL AT GOVERNMENT EXPENSE, THE SUBSEQUENT ADMINISTRATIVE DETERMINATION TO REMOVE HIM FOR CAUSE IS NOT VIEWED AS HAVING THE EFFECT OF CHANGING THE CHARACTER OF THE TRAVEL PERFORMED, I.E., INCIDENT TO TERMINATION FOR REASONS BEYOND HIS CONTROL, OR AS ABROGATING THE TRAVEL ORDER INVOLVED. CONSEQUENTLY, YOU ARE ADVISED THAT THE REIMBURSABLE EXPENSES INCURRED BY MR. AUVIL FOR THE TRAVEL OF HIS DEPENDENTS MAY BE CERTIFIED FOR PAYMENT.

THE VOUCHERS SUBMITTED ARE RETURNED.