B-125293, OCTOBER 28, 1955, 35 COMP. GEN. 244

B-125293, OCTOBER 28, 1955, 35 COMP. GEN. 244

TRAVELING EXPENSES - EMPLOYEES APPOINTED FOR OVERSEAS DUTY - HOME LEAVE TRAVEL INASMUCH AS THE PHRASE "PLACES OF ACTUAL RESIDENCE" IN SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 AUTHORIZING HOME LEAVE TRAVEL AT GOVERNMENT EXPENSE FOR OVERSEAS EMPLOYEES IS NOT SUSCEPTIBLE TO EXACT DEFINITION, AN ADMINISTRATIVE DETERMINATION THAT SOME LOCALITY OTHER THAN THE PLACE WHERE THE EMPLOYEE WAS STATIONED AT THE TIME OF TRANSFER OVERSEAS IS THE "HOME PLACE OF RESIDENCE" OF EMPLOYEES REQUIRED TO MOVE FREQUENTLY FROM ONE FIELD STATION TO ANOTHER MUST BE MADE ON THE FACTS IN EACH CASE. ALTHOUGH THE VOTING RESIDENCE IS AN ELEMENT FOR CONSIDERATION IN THE DETERMINATION OF AN OVERSEAS EMPLOYEE'S "PLACE OF ACTUAL RESIDENCE" FOR HOME LEAVE TRAVEL AUTHORIZED BY SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, IT IS NOT NECESSARILY CONTROLLING WHERE THE EMPLOYEE HAS A HOME IN ONE LOCATION AND A VOTING RESIDENCE AT A DIFFERENT LOCATION. THE COST OF RETURN HOME LEAVE TRAVEL CHARGEABLE TO THE GOVERNMENT FOR AN OVERSEAS EMPLOYEE TO A LOCATION OTHER THAN THE PLACE OF RESIDENCE AT THE TIME OF APPOINTMENT OR TRANSFER TO THE OVERSEAS POST OF DUTY MAY NOT EXCEED THE COST OF ROUND-TRIP TRAVEL TO THE APPOINTMENT OR TRANSFER LOCATION. UNDER SECTION 203 (E) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, WHICH AUTHORIZES LEAVE-FREE TRAVEL TIME TO OVERSEAS EMPLOYEES FOR HOME LEAVE PURPOSES, THE PHRASE " DIRECTLY RECRUITED OR TRANSFERRED FROM THE UNITED STATES" HAS REFERENCE TO PERSONS HIRED IN THE CONTINENTAL UNITED STATES BY NEW APPOINTMENT OR TRANSFER FOR DUTY OUTSIDE SUCH GEOGRAPHICAL LIMITS, AND DOES NOT INCLUDE EMPLOYEES STATIONED IN THE CANAL ZONE WHO ARE APPOINTED LOCALLY. THE RETURN TRANSPORTATION OF OVERSEAS EMPLOYEES WHO WERE EMPLOYED LOCALLY BUT WHO WERE ORIGINALLY RECRUITED FROM THE UNITED STATES AND HAVE BEEN IN SUBSTANTIALLY CONTINUOUS EMPLOYMENT BY FEDERAL AGENCIES OR ORGANIZATIONS IN WHICH THE GOVERNMENT PARTICIPATES, OR BY FOREIGN GOVERNMENTS, MAY BE CONSIDERED A CONDITION OF EMPLOYMENT PRESCRIBED BY STATUTE, NOTWITHSTANDING THEIR EMPLOYMENT AGREEMENTS DID NOT PROVIDE FOR RETURN TRANSPORTATION AND THERE IS NO NECESSITY FOR THE REVISION OF SUCH AGREEMENTS TO BRING THEM WITHIN THE LEAVE-FREE TRAVEL TIME PROVISIONS OF SECTION 203 (E) (2) (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951. A DETERMINATION AS TO WHETHER OVERSEAS EMPLOYEES, WHO WERE RECRUITED LOCALLY WHILE TEMPORARILY OUTSIDE THE CONTINENTAL UNITED STATES FOR TRAVEL OR STUDY PURPOSES, MAY BE CONSIDERED TO HAVE MAINTAINED A RESIDENCE IN THE UNITED STATES SO AS TO COME WITHIN THE LEAVE-FREE TRAVEL TIME PROVISIONS IN SECTION 203 (D) (2) (B) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, INVOLVES A FINDING THAT THE SOJOURN ABROAD WAS NOT OF SUCH DURATION OR UNDER SUCH CIRCUMSTANCES AS WOULD CONSTITUTE A RESIDENCE AT SUCH PLACE RATHER THAN IN THE UNITED STATES. SINCE SUBSISTENCE IS A PART OF THE EXPENSES OF TRAVEL, PER DIEM MAY BE AUTHORIZED FOR HOME LEAVE TRAVEL PURSUANT TO SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 TO AN OVERSEAS EMPLOYEE WHO IS INELIGIBLE FOR THE LEAVE-FREE TRAVEL TIME UNDER SECTION 203 (E) OF THE ANNUAL AND SICK LEAVE ACT OF 1951.

TO THE SECRETARY OF COMMERCE, OCTOBER 28, 1955:

REFERENCE IS MADE TO LETTER DATED AUGUST 19, 1955, FROM THE ASSISTANT SECRETARY OF COMMERCE, PRESENTING FOR DECISION SEVERAL QUESTIONS STATED TO HAVE ARISEN IN THE ADMINISTRATION OF THE PROVISION OF SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED BY PUBLIC LAW 737, 68 STAT. 1008, 5 U.S.C. 73B-3, AUTHORIZING TRAVEL AT GOVERNMENT EXPENSE FOR OVERSEAS EMPLOYEES AND THEIR IMMEDIATE FAMILIES, AND IN THE ADMINISTRATION OF SECTION 203 (E) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED (5 U.S.C. 2062), PROVIDING IN CERTAIN CASES THAT TIME CONSUMED IN TRAVEL BETWEEN AN OVERSEAS STATION AND THE UNITED STATES ON LEAVE SHALL NOT BE CHARGED TO ANNUAL LEAVE.

SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, PROVIDES IN PERTINENT PART AS FOLLOWS:

* * * EXPENSES OF ROUND TRIP TRAVEL OF EMPLOYEE AND TRANSPORTATION OF IMMEDIATE FAMILY * * * FROM THEIR POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT OR TRANSFER TO SUCH OVERSEAS POSTS OF DUTY, SHALL BE ALLOWED IN THE CASE OF PERSONS WHO * * * ARE RETURNING TO THEIR ACTUAL PLACE OF RESIDENCE FOR THE PURPOSE OF TAKING LEAVE * * *

THE QUESTIONS INVOLVING THE ABOVE-QUOTED PROVISION RELATE TO THE MEANING OF THE PHRASE "PLACES OF ACTUAL RESIDENCE" AS USED THEREIN AND ARE STATED IN THE ASSISTANT SECRETARY'S LETTER AS FOLLOWS:

1. MAY "PLACES OF ACTUAL RESIDENCE" BE HELD TO MEAN THE "HOME" PLACE OF RESIDENCE WHERE THE EMPLOYEE AND HIS FAMILY HAVE ESTABLISHED THEIR PERMANENT LIVING TIES?

2. IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, MAY "PLACES OF ACTUAL RESIDENCE" BE HELD TO MEAN THE HOME PLACES OF RESIDENCE EVEN THOUGH VOTING RESIDENCE MAY HAVE BEEN ESTABLISHED AT A DIFFERENT LOCATION?

3. SHOULD THE USE OF THE TERM "ACTUAL PLACE OF RESIDENCE" IN SECTION 7, AS OPPOSED TO "PLACES OF ACTUAL RESIDENCE," BE CONSIDERED SIGNIFICANT? SHOULD THE RETURN DESTINATION OF THE EMPLOYEE AND FAMILY BE REVIEWED FOR ANY REASON OTHER THAN THE DETERMINATION THAT THE EXPENSES TO BE BORNE BY THE GOVERNMENT ARE NOT IN EXCESS OF THOSE WHICH WOULD BE INCURRED BY ROUND TRIP TRAVEL TO THE ,PLACES OF ACTUAL RESIDENCE" AT TIME OF APPOINTMENT OR TRANSFER TO SUCH OVERSEAS POSTS OF DUTY?

THE DEPARTMENT'S LETTER STATES THAT THE NATURE OF THE DUTIES OF MANY EMPLOYEES OF YOUR DEPARTMENT REQUIRES THAT THEY BE MOVED FREQUENTLY FROM ONE FIELD STATION TO ANOTHER WITH PERIODS OF SERVICE RANGING FROM A FEW MONTHS TO SEVERAL YEARS. ANOTHER FACTOR IS THE INTERNAL REGULATIONS RELATING TO CERTAIN TYPES OF ACTIVITY WHICH RESTRICT THE ASSIGNMENT OF EMPLOYEES TO THE LOCALITIES FROM WHICH THEY WERE RECRUITED OR TO THE LOCALITIES WHERE THEY HAVE BEEN ENGAGED IN A SPECIFIC ACTIVITY. MANY OF THE EMPLOYEES HAVE NO OPPORTUNITY TO ESTABLISH ROOTS OR HOME TIES IN A PARTICULAR PLACE FROM WHICH THEY WERE RECRUITED OR HAD LIVED A LARGE PORTION OF THEIR LIVES PRIOR TO RECRUITMENT. OTHERS HAVE ESTABLISHED THEIR HOME TIES AT ONE OF SEVERAL FORMER OFFICIAL STATIONS. IN MANY CASES THE "HOME" LOCATION IS UNDERSTOOD TO COINCIDE WITH THE LEGAL RESIDENCE OR DOMICILE. FURTHER, IT IS STATED THAT IN CERTAIN CASES THE EMPLOYEE MAY HAVE ESTABLISHED RESIDENCE AT THE CURRENT OFFICIAL STATION OUTSIDE THE CONTINENTAL UNITED STATES FOR VOTING PURPOSES IN ORDER TO PARTICIPATE IN LOCAL GOVERNMENT ACTIVITIES.

THE ASSISTANT SECRETARY'S LETTER POINTS OUT THAT WHILE THE "HOME PLACE OF RESIDENCE" GENERALLY CAN BE ESTABLISHED FROM DOCUMENTARY EVIDENCE IN THE OFFICIAL PERSONNEL FILES, IT IS NECESSARY TO KNOW THE LEGAL BOUNDARIES IMPOSED BY LAW BEFORE MAKING ADMINISTRATIVE DETERMINATION OF "PLACE OF ACTUAL RESIDENCE" TO WHICH THE EMPLOYEE IS ENTITLED TO RETURN AT GOVERNMENT EXPENSE.

IN OUR DECISION OF AUGUST 24, 1955, B-124663, 35 COMP. GEN. 101, WE HELD AS FOLLOWS:

THE TERM "PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT OR TRANSFER" IS NOT DEFINED IN PUBLIC LAW 737 AND NEITHER IS IT DEFINED IN THE REGULATIONS OF THE BUREAU OF THE BUDGET IMPLEMENTING THAT LAW. WHILE IN MANY--- PERHAPS THE MAJORITY--- CASES THE PLACE OF ACTUAL RESIDENCE AT TIME OF THE TRANSFER OVERSEAS FACTUALLY WOULD BE THE PLACE FROM WHICH TRANSFERRED, THE LAW DOES NOT RESTRICT THE PAYMENT OF HOME LEAVE TRAVEL EXPENSES TO THAT PLACE. THE PLACE CONSTITUTING THE "ACTUAL RESIDENCE" MUST BE DETERMINED UPON THE FACTS AND CIRCUMSTANCES IN EACH INDIVIDUAL CASE. THE RESPONSIBILITY FOR THAT DETERMINATION IS PRIMARILY AN ADMINISTRATIVE ONE. IN DOUBTFUL CASES WE WOULD, OF COURSE, MAKE SUCH A DETERMINATION UPON REQUEST, PROVIDED THE COMPLETE FACTS BE SUBMITTED. * *

THAT DECISION INVOLVED A FACTUAL SITUATION SIMILAR IN MANY RESPECTS TO THOSE DESCRIBED IN THE INSTANT CASE. WHILE THAT DECISION HOLDS THAT THE LAW DOES NOT RESTRICT PAYMENT OF HOME LEAVE TRAVEL EXPENSES TO THE PLACE THE EMPLOYEE WAS STATIONED AT THE TIME OF HIS TRANSFER OVERSEAS, DETERMINATION THAT SOME OTHER LOCALITY CONSTITUTES THE PLACE OF ACTUAL RESIDENCE MUST BE SUPPORTED BY A FINDING OF FACT TO THAT EFFECT.

A CATEGORICAL ANSWER TO QUESTION NO. 1 CANNOT BE GIVEN BECAUSE THE TERM "HOME PLACE OF ESIDENCE" USED THEREIN IS NO MORE SUSCEPTIBLE TO EXACT DEFINITION THAN "PLACE OF ACTUAL RESIDENCE" AS USED IN THE STATUTE. THEREFORE, OF NECESSITY, A DETERMINATION OF "ACTUAL RESIDENCE" MUST BE MADE ON THE BASIS OF THE FACTS IN EACH CASE, AND ORDINARILY OUR OFFICE WILL NOT QUESTION ANY REASONABLE ADMINISTRATIVE DETERMINATION THEREOF. SEE DECISION OF SEPTEMBER 21, 1955, B-124492.

IN ANSWER TO QUESTION NO. 2, WHILE THE VOTING RESIDENCE OF AN EMPLOYEE IS AN ELEMENT FOR CONSIDERATION IT IS NOT NECESSARILY CONTROLLING IN DETERMINING "PLACE OF ACTUAL RESIDENCE" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 7.

IN CONNECTION WITH QUESTION NO. 3, IT IS OUR VIEW THAT NO SPECIAL SIGNIFICANCE SHOULD ATTACH TO THE DIFFERENCE IN PHRASEOLOGY BETWEEN THE TERMS "PLACE OF ACTUAL RESIDENCE" AND "ACTUAL PLACE OF RESIDENCE" AS THEY APPEAR IN SECTION 7. THUS, THE ONLY DETERMINATION NECESSARY REGARDING THE RETURN DESTINATION OF EMPLOYEES ON "HOME LEAVE" TRAVEL IS THAT THE COST THEREOF CHARGEABLE TO THE GOVERNMENT SHOULD NOT EXCEED THE COST OF ROUND TRIP TRAVEL TO THE "PLACES OF ACTUAL RESIDENCE" AT THE TIME OF APPOINTMENT OR TRANSFER TO OVERSEAS POSTS OF DUTY. THE QUESTION IS ANSWERED ACCORDINGLY.

THE SECOND GROUP OF QUESTIONS CONCERNS SECTION 203 (E) OF THE ANNUAL AND SICK LEAVE ACT, OF 1951, WHICH AUTHORIZES EMPLOYEES TO WHOM SUBSECTION 203 (D) IS APPLICABLE TO BE GRANTED LEAVE-FREE TRAVEL FOR THE PURPOSE OF TAKING HOME LEAVE. SUBSECTION (D) IS APPLICABLE TO:

(1) PERSONS DIRECTLY RECRUITED OR TRANSFERRED FROM THE UNITED STATES BY THE FEDERAL GOVERNMENT. (2) PERSONS EMPLOYED LOCALLY BUT (A) WHO WERE ORIGINALLY RECRUITED FROM THE UNITED STATES AND HAVE BEEN IN SUBSTANTIALLY CONTINUOUS EMPLOYMENT BY OTHER FEDERAL AGENCIES, UNITED STATES FIRMS, INTERESTS, OR ORGANIZATIONS, INTERNATIONAL ORGANIZATIONS IN WHICH THE UNITED STATES GOVERNMENT PARTICIPATES, OR FOREIGN GOVERNMENTS, AND WHOSE CONDITIONS OF EMPLOYMENT PROVIDE FOR THEIR RETURN TRANSPORTATION TO THE UNITED STATES, OR (B) WHO WERE AT THE TIME OF EMPLOYMENT TEMPORARILY ABSENT FROM THE UNITED STATES FOR PURPOSES OF TRAVEL OR FORMAL STUDY AND MAINTAINED RESIDENCE IN THE UNITED STATES DURING SUCH TEMPORARY ABSENCE.

THE ASSISTANT SECRETARY'S LETTER STATES THAT SOME OF THE EMPLOYEES PRESENTLY STATIONED IN THE CANAL ZONE WERE APPOINTED LOCALLY UNDER CONDITIONS IDENTICAL WITH THOSE INVOLVED IN THE ANSWER TO QUESTION NO. 2 OF OUR DECISION OF JANUARY 15, 1947, 26 COMP. GEN. 488. THE EMPLOYEES THERE INVOLVED WERE APPOINTED WHILE ON THE ISTHMUS TEMPORARILY OR FOLLOWING TERMINATION OF EMPLOYMENT WITH SOME OTHER EMPLOYER OR WERE CHILDREN OF GOVERNMENT EMPLOYEES WHO WERE BORN ON THE ISTHMUS OR WERE BROUGHT THERE AT AN EARLY AGE. IN THAT DECISION, WE HELD THAT "LEGAL RESIDENCE" OR "DOMICILE OR VOTING RESIDENCE" MAY BE DETERMINED TO BE THE "ACTUAL RESIDENCE" TO WHICH AN EMPLOYEE IS ENTITLED TO RETURN UNDER THE PROVISIONS OF SECTION 7, UPON COMPLETION OF HIS AGREED PERIOD OF SERVICE IN THE CANAL ZONE. IN VIEW THEREOF, AND IN RECOGNITION OF THE RESTRICTIONS CONCERNING THE ESTABLISHMENT OF A RESIDENCE IN THE CANAL ZONE, WE CONCLUDE THAT A SIMILAR ADMINISTRATIVE DETERMINATION MAY BE ADOPTED IN ESTABLISHING "PLACES OF ACTUAL RESIDENCE" FOR THE PURPOSE OF APPLYING THE PROVISIONS OF THE HOME LEAVE TRAVEL AMENDMENT TO SECTION 7 TO EMPLOYEES IN THE CANAL ZONE OTHERWISE ELIGIBLE THERETO. CONCERNING HOME LEAVE TRAVEL OF THAT CLASS OF EMPLOYEES, THE FOLLOWING QUESTION IS PRESENTED:

4. MAY SUCH AN EMPLOYEE BE DETERMINED TO HAVE BEEN "DIRECTLY RECRUITED OR TRANSFERRED FROM THE UNITED STATES" BY THE FEDERAL GOVERNMENT FOR THE PURPOSES OF SECTION 203?

IT IS OUR VIEW THAT THE TERM MUST BE CONSIDERED AS ONLY REFERRING TO PERSONS HIRED IN THE CONTINENTAL UNITED STATES BY NEW APPOINTMENT OR TRANSFER FOR DUTY OUTSIDE SUCH GEOGRAPHICAL LIMITS. SINCE THE EMPLOYEES INVOLVED IN QUESTION NO. 4 WERE RECRUITED FROM WITHIN THE CANAL ZONE, THEY DO NOT COME WITHIN THE PURVIEW OF SUBSECTION (1) ABOVE. FROM THE FACTS PRESENTED WE ARE UNABLE TO DETERMINE DEFINITELY WHETHER ANY OF THE EMPLOYEES INVOLVED IN THIS QUESTION MEET THE CRITERIA PRESCRIBED IN SUBSECTIONS (2) (A) OR (2) (B) ABOVE. QUESTION NO. 4 IS ANSWERED ACCORDINGLY.

THE DEPARTMENT'S LETTER STATES THAT SOME OF YOUR OVERSEAS EMPLOYEES WERE HIRED UNDER CIRCUMSTANCES WHICH MEET THE CRITERIA OF SUBSECTION (2) (A) EXCEPT THAT THEIR CONDITIONS OF EMPLOYMENT DO NOT PROVIDE THEIR RETURN TRANSPORTATION TO THE UNITED STATES. IN THAT CONNECTION THE ASSISTANT SECRETARY'S LETTER PRESENTS THE FOLLOWING QUESTION.

5. COULD THESE EMPLOYEES NOW BE MADE ELIGIBLE FOR SUCH TRANSPORTATION BY AN APPROPRIATE REVISION OF THEIR CONDITIONS OF EMPLOYMENT UPON A FINDING THAT THE REVISION WAS IN THE INTEREST OF THE GOVERNMENT?

IN OUR DECISION OF DECEMBER 7, 1950, 30 COMP. GEN. 231, RENDERED PRIOR TO THE ENACTMENT OF THE HOME LEAVE TRAVEL AMENDMENT OF AUGUST 31, 1954 (68 STAT. 1008), WE HELD THAT UNDER THE PROVISIONS OF SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, 60 STAT. 806, 5 U.S.C. 73B-3, LOCALLY HIRED EMPLOYEES WHO ESTABLISH AS A FACT THAT THEIR ACTUAL RESIDENCE AT THE TIME OF APPOINTMENT WAS IN THE CONTINENTAL UNITED STATES AND HAVE COMPLIED WITH THE OTHER STATUTORY REQUIREMENTS ARE ENTITLED AS A MATTER OF RIGHT TO ALLOWANCE OF THE EXPENSES OF RETURN TRANSPORTATION. ALSO, SEE OUR DECISION OF APRIL 20, 1955, B-123411, 34 COMP. GEN. 540. GENERALLY, THE RETURN TRANSPORTATION TO THE UNITED STATES OF THESE EMPLOYEES MAY BE CONSIDERED A CONDITION OF EMPLOYMENT PRESCRIBED BY STATUTE SUCH AS WOULD OBVIATE THE NECESSITY FOR REVISION OF THEIR CONDITIONS OF EMPLOYMENT IN ORDER TO BRING THEM WITHIN THE PURVIEW OF SUBSECTION (2) (A) ABOVE. QUESTION NO. 5 IS ANSWERED ACCORDINGLY.

QUESTION 6 RELATES TO EMPLOYEES OF YOUR DEPARTMENT AT LOCATIONS OUTSIDE CONTINENTAL UNITED STATES WHO WERE RECRUITED LOCALLY AND WHO, AT THE TIME OF RECRUITMENT, WERE TEMPORARILY ABSENT FROM THE UNITED STATES FOR TRAVEL OR FORMAL STUDY PURPOSES, BUT WHO WERE NOT THEN PHYSICALLY MAINTAINING A DWELLING PLACE IN THE UNITED STATES. THREE TYPES OF CASES ENCOUNTERED ARE STATED TO BE:

(1) PERSONS WHO LIVED WITH RELATIVES BEFORE GOING OVERSEAS AND NO LONGER CONTRIBUTED TO THE MAINTENANCE OF THE DWELLING, (2) PERSONS WHO HAD BEEN LIVING ALONE AND WHO RETAINED ONLY A DOMICILE OR VOTING RESIDENCE, AND (3) PERSONS WHO RETAINED A PROPERTY INTEREST BUT HAVE SUBLEASED OR RENTED THE PROPERTY AND THUS SHIFTED THE MAINTENANCE OBLIGATION.

THE QUESTION RAISED BY THESE SITUATIONS IS AS FOLLOWS:

6. MAY ANY OR ALL OF THESE GROUPS OF PERSONS BE FOUND TO HAVE BEEN MAINTAINING RESIDENCE IN THE UNITED STATES FOR THE PURPOSE OF THE QUOTED CLAUSE (B) OF SECTION 203 (E) (2/?

OUR VIEW IS THAT THE TERM "MAINTAINED RESIDENCE" AS IT APPEARS IN SUBSECTION (2) (B) DOES NOT RELATE TO THE PHYSICAL MAINTENANCE OF A DWELLING, BUT RATHER TO THE PLACE WHERE A PERSON INTENDS TO CONTINUE LIVING ON A PERMANENT BASIS AFTER A SOJOURN ABROAD.

IN MANY CASES--- PERHAPS THE MAJORITY--- INVOLVING TEMPORARY ABSENCE FROM THE UNITED STATES FOR THE PURPOSE OF TRAVEL OR FORMAL STUDY, THE PERSONS INVOLVED MAINTAIN RESIDENCE IN THE UNITED STATES WITHIN THE MEANING OF THE ABOVE-CITED STATUTE. HOWEVER, FINAL DETERMINATION OF RESIDENCE IN ANY CASE RESTS ON THE PARTICULAR FACTS, AND INVOLVES A FINDING THAT THE SOJOURN ABROAD WAS NOT OF SUCH DURATION OR UNDER SUCH CIRCUMSTANCES AS WOULD CONSTITUTE A RESIDENCE AT SUCH PLACE RATHER THAN IN THE UNITED STATES. QUESTION NO. 6 IS ANSWERED ACCORDINGLY.

THE 7TH QUESTION PRESENTED INVOLVES THE PAYMENT OF PER DIEM TO EMPLOYEES WHO ARE INELIGIBLE FOR FREE HOME LEAVE TRAVEL TIME UNDER THE PROVISIONS OF SECTION 203 (E) ABOVE, AND IS STATED AS OLLOWS: 7. MAY AN EMPLOYEE WHO IS INELIGIBLE FOR FREE TRAVEL TIME UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, AND IS CHARGED ANNUAL LEAVE FOR THE PERIOD SPENT IN TRAVEL TO AND FROM HIS PLACE OF RESIDENCE, BUT WHO IS ELIGIBLE FOR EXPENSES OF ROUND TRIP TRAVEL UNDER PUBLIC LAW 737, BE PAID A PER DIEM ALLOWANCE FOR THE TIME SPENT IN TRAVEL?

SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, PUBLIC LAW 737, AUTHORIZES THE ALLOWANCE OF THE EXPENSES OF ROUND TRIP TRAVEL OF EMPLOYEES FROM OVERSEAS POSTS OF DUTY TO THEIR PLACES OF RESIDENCE IN THE UNITED STATES. SINCE SUBSISTENCE IS A PART OF THE EXPENSES OF TRAVEL, PER DIEM MAY BE AUTHORIZED FOR HOME LEAVE TRAVEL REGARDLESS OF WHETHER THE EMPLOYEES ARE ELIGIBLE FOR FREE TRAVEL TIME UNDER THE PROVISION OF SECTION 203 (E) OF THE ANNUAL AND SICK LEAVE ACT. ACCORDINGLY, QUESTION NO. 7 IS ANSWERED IN THE AFFIRMATIVE.