B-125528, NOV. 16, 1955

B-125528, NOV. 16, 1955

TO MR. THOMAS T. TAKAKI, AUTHORIZED CERTIFYING OFFICER, CIVIL AERONAUTICS ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 6, 1955, FORWARDED BY LETTER OF SEPTEMBER 15, FROM THE CHIEF, ACCOUNTING DIVISION, CIVIL AERONAUTICS ADMINISTRATION, REQUESTING A DECISION AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT THE VOUCHER THEREWITH ENCLOSED FOR $291.62 IN FAVOR OF WESLEY G. HOLLAND.

MR. HOLLAND WAS GIVEN AN APPOINTMENT TO THE CIVIL AERONAUTICS ADMINISTRATION AT PALMYRA ISLAND, SOUTH PACIFIC, MARCH 23, 1947, BY TRANSFER FROM THE PEARL HARBOR NAVY YARD. HE HAD BEEN BROUGHT TO THE TERRITORY OF HAWAII FROM BEDFORD, MASSACHUSETTS, IN SEPTEMBER 1945 BY THE NAVY UNDER AN AGREEMENT OF SERVICE WHICH COMMITTED HIM TO 12 MONTHS OVERSEAS DUTY. MR. HOLLAND'S ORIGINAL OVERSEAS AGREEMENT PREDATED THE PASSAGE OF PUBLIC LAW 600, OF AUGUST 2, 1946, AND HIS TRANSFER TO YOUR ADMINISTRATION WAS AFTER THE PASSAGE OF THAT LAW. THE OFFICIAL PERSONNEL FILE OF THIS EMPLOYEE IN ADDITION TO THE EMPLOYMENT AGREEMENTS CONTAINS STANDARD FORM 57, DATED MARCH 12, 1947, IN WHICH HONOLULU IS INDICATED IN BLOCK 6 AS THE LEGAL OR VOTING RESIDENCE. MR. HOLLAND'S SERVICE WITH YOUR ADMINISTRATION FROM JULY 1947 UNTIL FEBRUARY 1953, WAS ON THE ISLAND OF GUAM. THE OFFICIAL PERSONNEL FILE ALSO CONTAINS STANDARD FORM 57 DATED JANUARY 1950 WHICH INDICATES MASSACHUSETTS AS HIS LEGAL OR VOTING RESIDENCE.

PUBLIC LAW 737, PROVIDES IN PERTINENT PART AS FOLLOWS:

"THAT EXPENSES OF ROUND TRIP TRAVEL OF EMPLOYEE AND TRANSPORTATION OF IMMEDIATE FAMILY BUT EXCLUDING HOUSEHOLD EFFECTS, 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 HAVE SATISFACTORILY COMPLETED AN AGREED PERIOD OF SERVICE OVERSEAS AND ARE RETURNING TO THEIR ACTUAL PLACE OF RESIDENCE FOR THE PURPOSE OF TAKING LEAVE PRIOR TO SERVING ANOTHER TOUR OF DUTY AT THE SAME OR SOME OTHER OVERSEAS POST, UNDER A NEW WRITTEN AGREEMENT ENTERED INTO BEFORE DEPARTING FROM THE OVERSEAS POST; * * *"

IN B-124663, AUGUST 24, 1955, 35 COMP. GEN. 101, IT WAS STATED:

"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. THE INSTANT CASE, WE ARE UNABLE TO MAKE AN INDEPENDENT DETERMINATION AS TO THE LOCATION OF THE EMPLOYEE'S ACTUAL RESIDENCE FROM THE MEAGER FACTS PRESENTED. ASSUMING HOWEVER, THE CORRECTNESS OF THE CONCLUSION STATED IN THE ASSISTANT SECRETARY'S LETTER CONCERNING THE ACTUAL PLACE OF RESIDENCE OF THE EMPLOYEE BEING RUMFORD, RHODE ISLAND, AT TIME OF TRANSFER, WE BELIEVE THAT PAYMENT OF OTHERWISE PROPER HOME LEAVE TRAVEL EXPENSES TO THAT POINT WOULD BE AUTHORIZED BY LAW.'

YOU STATE THAT THE OFFICIALS WHO SIGNED THE TRAVEL ORDER IN THIS CASE AUTHORIZING THE ROUND TRIP FROM HONOLULU TO BEDFORD, MASSACHUSETTS, AND RETURN, INDICATED THAT THEY WERE SATISFIED THAT ALL CONDITIONS FOR ELIGIBILITY FOR TRAVEL UNDER PUBLIC LAW 737, HAD BEEN MET BY THIS EMPLOYEE BEFORE THE TRAVEL ORDER WAS ISSUED. ASSUMING THAT SUCH DETERMINATION FOUND BEDFORD, MASSACHUSETTS, TO HAVE BEEN THE ACTUAL PLACE OF RESIDENCE OF THIS EMPLOYEE AT TIME OF APPOINTMENT TO OVERSEAS DUTY AND THAT SUCH DETERMINATION WAS WITHIN THE JURISDICTION OF THE OFFICIALS IN QUESTION, WE SEE NO OBJECTION TO CERTIFYING THE VOUCHER IN THIS CASE FOR PAYMENT, IF OTHERWISE CORRECT. SEE B-122796, NOVEMBER 4, 1955, COPY ATTACHED. THE VOUCHER IS RETURNED.