B-123896, FEB. 1, 1956

B-123896, FEB. 1, 1956

TO MR. EDMUND KUNO GIVENS:

REFERENCE IS MADE TO YOUR COMMUNICATION OF OCTOBER 31, 1955, REQUESTING FURTHER CONSIDERATION OF THAT PART OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED AUGUST 10, 1955, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF RETURN TRANSPORTATION, FROM HONOLULU, HAWAII, TO CHICAGO, ILLINOIS, AS AN EMPLOYEE OF THE CIVIL AERONAUTICS ADMINISTRATION.

YOUR CLAIM WAS DISALLOWED SUBSTANTIALLY FOR THE REASON THAT THERE WAS NO STATUTORY PROVISION IN EFFECT AT THE TIME OF YOUR TRAVEL UNDER WHICH RETURN TRANSPORTATION COULD BE PAID, FOR THE PURPOSE OF TAKING LEAVE IN THE CONTINENTAL UNITED STATES. IN YOUR REQUEST FOR REVIEW YOU STATE THAT YOU WERE INFORMED BY YOUR SUPERVISORS THAT YOU WOULD BE REQUIRED TO REMAIN IN HAWAII FOR AT LEAST TWO YEARS BEFORE YOU COULD BE RETURNED TO THE UNITED STATES AT GOVERNMENT EXPENSE. ALSO, YOU URGE THAT YOU WERE GRANTED ANNUAL LEAVE AND LEAVE WITHOUT PAY AND RETURNED TO THE UNITED STATES IN THE INTEREST OF THE GOVERNMENT. FURTHER YOU POINT OUT THAT YOU WERE IN A LEAVE STATUS AT THE TIME OF THE AMENDMENT OF THE ACT OF AUGUST 2, 1946, 60 STAT. 806, BY THE ACT OF SEPTEMBER 23, 1950, 64 STAT. 985, AND APPARENTLY BELIEVE YOU ARE ENTITLED TO THE BENEFITS OF THE AMENDING ACT.

THE RECORDS SHOW THAT YOU WERE TRANSFERRED FROM NEW YORK TO HONOLULU, HAWAII, ON JANUARY 12, 1947, FOR AN INDEFINITE TOUR OF DUTY AS AN EMPLOYEE OF THE CIVIL AERONAUTICS ADMINISTRATION AND THAT AT YOUR REQUEST YOU WERE GRANTED ANNUAL LEAVE AND LEAVE WITHOUT PAY EFFECTIVE JULY 17, 1950, FOR THE PURPOSE OF COMPLETING YOUR EDUCATION IN THE CONTINENTAL UNITED STATES UNDER THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 284, AS AMENDED. UNDER THE GRANT OF LEAVE YOU RETURNED TO THE CONTINENTAL UNITED STATES IN JULY 1950. UPON COMPLETION OF YOUR EDUCATION AT PURDUE UNIVERSITY IN JULY 1954 YOUR OFFICIAL STATION WAS CHANGED FROM HAWAII TO WASHINGTON, D.C., AND INCIDENT TO THAT TRANSFER YOUR TRAVEL EXPENSES FROM CHICAGO TO WASHINGTON WERE ALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT OF AUGUST 10, 1955.

REGARDING THE FIRST POINT MADE IN YOUR REQUEST FOR REVIEW, THE GENERAL RULE UNDER THE ACT OF AUGUST 2, 1946, PRIOR TO ITS AMENDMENT BY THE ACT OF SEPTEMBER 23, 1950, IS THAT EMPLOYEES TRANSFERRED FOR INDEFINITE TOURS OF DUTY TO STATIONS OUTSIDE OF THE UNITED STATES UNDER THE AUTHORITY OF SECTION 1 OF THE 1946 ACT COULD NOT BE RETURNED TO THE UNITED STATES AT GOVERNMENT EXPENSE EXCEPT WHEN SUCH ACTION WAS NECESSARY IN THE INTERESTS OF THE UNITED STATES. SEE 27 COMP. GEN. 282, AND 29 COMP. GEN. 157. NO INSTANCE, HOWEVER, WAS THE ACT OF AUGUST 2, 1946, CONSTRUED TO AUTHORIZE EMPLOYEES STATIONED ABROAD TO RETURN TO THE UNITED STATES FOR THE PURPOSE OF TAKING LEAVE UNLESS THERE EXISTED A COMMITMENT ON THE PART OF THE AGENCY TO RETURN THEM FOR THAT PURPOSE AFTER THE COMPLETION OF A SPECIFIED TOUR OF DUTY. IT IS NOT CLEAR FROM YOUR LETTER WHETHER IT WAS THE UNIFORM PRACTICE OF THE CIVIL AERONAUTICS ADMINISTRATION AT THE TIME OF YOUR ASSIGNMENT TO HONOLULU TO AUTHORIZE ITS EMPLOYEES TO RETURN TO THE UNITED STATES AFTER THE COMPLETION OF TWO OR MORE YEARS' SERVICE FOR THE PURPOSE OF TAKING LEAVE. ACCORDINGLY, ON THE PRESENT RECORD WE WOULD NOT BE WARRANTED IN ASSUMING THE EXISTENCE OF SUCH A COMMITMENT IN YOUR CASE.

IN REGARD TO YOUR SECOND POINT, IT SHOULD BE STATED THAT THE AUTHORITY TO GRANT ANNUAL LEAVE AND LEAVE WITHOUT PAY, AND THE AUTHORITY TO AUTHORIZE RETURN TRANSPORTATION OF EMPLOYEES TO THE UNITED STATES AT GOVERNMENT EXPENSE, ARE DERIVED FROM TWO ENTIRELY DIFFERENT STATUTES. WHILE IT MAY HAVE BEEN IN THE INTEREST OF THE UNITED STATES TO GRANT YOU ANNUAL LEAVE AND LEAVE WITHOUT PAY UNDER AUTHORITY OF REGULATIONS PROMULGATED PURSUANT TO THE LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, IT DOES NOT FOLLOW THAT IT WAS IN THE INTEREST OF THE UNITED STATES TO BEAR YOUR TRANSPORTATION EXPENSES FROM HAWAII TO CHICAGO, UNDER THE ACT OF AUGUST 2, 1946, INCIDENT TO THAT GRANT OF LEAVE. ACCORDINGLY, AN ADMINISTRATIVE FINDING THAT IT WAS IN THE INTEREST OF THE GOVERNMENT TO GRANT YOU LEAVE CANNOT SUPPORT A SIMILAR FINDING THAT YOU WERE ENTITLED TO THE TRANSPORTATION IN QUESTION.

REGARDING THE THIRD POINT IN YOUR LETTER, THE ACT OF SEPTEMBER 23, 1950, AMENDING THE 1946 STATUTE, OPERATED ONLY PROSPECTIVELY; AND THE FACT THAT YOU WERE IN A LEAVE STATUS IN THE UNITED STATES ON THE DATE OF ITS ENACTMENT CANNOT OPERATE TO CREATE RIGHTS TO TRANSPORTATION NOT IN EXISTENCE AT THE TIME OF PERFORMANCE OF THE TRAVEL.

IN LIGHT OF THE FOREGOING, AND ON THE BASIS OF THE PRESENT RECORD, THE ACTION TAKEN IN GENERAL ACCOUNTING OFFICE SETTLEMENT OF AUGUST 10, 1955, IS PROPER AND UPON REVIEW IT MUST BE SUSTAINED.