B-125727, DEC. 1, 1955

B-125727, DEC. 1, 1955

TO HONORABLE WHITNEY GILLILLAND, CHAIRMAN, FOREIGN CLAIMS SETTLEMENT COMMISSION OF THE UNITED STATES:

YOUR LETTER OF OCTOBER 10, 1955, REQUESTS OUR DECISION WHETHER THE VOUCHER THEREWITH TRANSMITTED IN YOUR FAVOR FOR $103.60, COVERING REIMBURSEMENT OF TRAVEL EXPENSES INCURRED DURING THE PERIOD JULY 18 THROUGH AUGUST 17, 1955, LEGALLY MAY BE PAID. YOUR PRINCIPAL CONCERN APPEARS TO BE THE REIMBURSEMENT OF THOSE EXPENSES INCURRED ON JULY 18 AND 19, 1955, INCIDENT TO YOUR RECALL TO WASHINGTON, D.C., WHILE YOU WERE ON LEAVE AT OMAHA, NEBRASKA.

YOU SAY THAT IN THE MIDAFTERNOON OF JULY 13, 1955, YOU LEFT WASHINGTON, D.C., FOR OMAHA, NEBRASKA, BY AUTOMOBILE WHERE YOU HAD PLANNED TO BE ON LEAVE UNTIL AUGUST 1, 1955, BUT THAT YOUR LEAVE STATUS WAS INTERRUPTED BY AN EMERGENCY REQUIRING YOUR PRESENCE AT YOUR OFFICIAL DUTY STATION, WASHINGTON, D.C., ON JULY 20 TO TESTIFY BEFORE THE SENATE APPROPRIATIONS COMMITTEE. TRAVEL ORDER NO. 6-0920, DATED JULY 15, 1955, AUTHORIZED TRAVEL ON OR ABOUT JULY 18 FROM OMAHA TO WASHINGTON AND RETURN WITHIN A REASONABLE TIME AFTER COMPLETION OF TESTIMONY BEFORE THAT COMMITTEE. YOU TRAVELED FROM OMAHA TO WASHINGTON BY PRIVATELY OWNED AUTOMOBILE, WHICH TYPE OF TRAVEL WAS ADMINISTRATIVELY APPROVED SEPTEMBER 15, 1955, IN ACCORDANCE WITH PARAGRAPH 12A (1) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. MILEAGE AT THE RATE OF 7 CENTS PER MILE AND PAYMENT OF PER DIEM AT THE RATE OF $9, THE TOTAL NOT TO EXCEED THE COST FOR ROUND-TRIP TRAVEL BY PLANE, WAS AUTHORIZED. THE VOUCHER SHOWS THAT YOU PAID THE EXPENSES OF THAT TRIP.

THE RECORD SHOWS THAT APPROXIMATELY A MONTH LATER--- AUGUST 13 TO BE EXACT--- YOU LEFT WASHINGTON BY PLANE, ROUND-TRIP PLANE TICKETS BEING SECURED UPON GOVERNMENT TRANSPORTATION REQUEST FROM WASHINGTON, D. C., TO OMAHA, NEBRASKA, AND RETURN VIA DES MOINES, IOWA, AND THAT YOU WENT ON LEAVE AT 12:35 P.M., AUGUST 13, UPON YOUR ARRIVAL AT OMAHA. THE RECORD FURTHER SHOWS THAT YOU WERE ON LEAVE UNTIL 7:45 P.M., AUGUST 15, AT WHICH TIME YOU LEFT OMAHA BY PLANE FOR DES MOINES WHERE, AS AUTHORIZED BEFORE YOU LEFT WASHINGTON, YOU ATTENDED A CONVENTION AND RETURNED TO YOUR OFFICIAL HEADQUARTERS ON AUGUST 17 BY PLANE FROM DES MOINES.

UNDER THE PROVISIONS OF SUBSECTION 1 (C) (1) (A) OF THE ACT OF JULY 2, 1953 (PUBLIC LAW 102, 83D CONGRESS), 67 STAT. 137, YOU ARE EXCEPTED FROM THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679. SUBSECTION (2) OF THE ACT OF JULY 2, 1953, PROVIDES AS FOLLOWS:

"THE PRESIDENT, IN HIS DISCRETION, MAY AUTHORIZE LEAVES OF ABSENCE TO PERSONS WHO ARE EXEMPTED FROM THIS TITLE PURSUANT TO SUBSECTION (C) (1) (B) FOR USE IN THE UNITED STATES AND ITS TERRITORIES AND POSSESSIONS. LEAVES OF ABSENCE AUTHORIZED UNDER THIS SUBSECTION SHALL NOT CONSTITUTE A LEAVE SYSTEM, AND NO SUCH LEAVE OF ABSENCE WHICH IS NOT USED SHALL BE MADE THE BASIS FOR ANY LUMP-SUM PAYMENT.'

SINCE YOU ARE COVERED BY SUBSECTION 1 (C) (1) (A) IT WOULD APPEAR THAT SUBSECTION (2) HAS NO APPLICATION TO YOU. THE LEGISLATIVE HISTORY BEARING UPON THE FOREGOING PROVISIONS OF THE STATUTE IS REFLECTED IN HOUSE REPORT NO. 629, 83D CONGRESS, 1ST SESSION, BEGINNING ON PAGE 6, AS FOLLOWS:

"THE PURPOSE OF BOTH THE HOUSE BILL AND THE SENATE AMENDMENT, IN REMOVING FROM THE PURVIEW OF THE ANNUAL AND SICK LEAVE ACT OF 1951 THE ABOVE- MENTIONED RESPECTIVE CATEGORIES OF HIGH-RANKING OFFICIALS, IS TO PREVENT SUCH OFFICIALS IN THE FUTURE FROM EARNING AND ACCUMULATING LEAVE AND RECEIVING LUMP-SUM PAYMENTS FOR UNUSED ANNUAL LEAVE. THE REMOVAL OF SUCH OFFICIALS FROM THE EXISTING LEAVE SYSTEM IS BASED ON THE THEORY THAT SUCH OFFICIALS ARE, BY VIRTUE OF THEIR RESPECTIVE OFFICES AND POSITIONS, ACTUALLY ON DUTY AT ALL TIMES, INCLUDING PERIODS OF VACATION OR SICKNESS. MOREOVER, SINCE SUCH OFFICIALS NOW HAVE COMPLETE FREEDOM TO ABSENT THEMSELVES FROM DUTY AS THEY SEE FIT, IT IS INCOMPATIBLE WITH THEIR OFFICES AND POSITIONS TO MAKE THEM SUBJECT TO A LEAVE SYSTEM REQUIRING THE MAINTENANCE OF ATTENDANCE AND LEAVE RECORDS AND TO ALLOW THEM LUMP-SUM PAYMENTS FOR UNUSED ANNUAL LEAVE. BOTH THE HOUSE BILL AND THE SENATE AMENDMENT TERMINATE THE PRESENT ADVANTAGE WHICH HIGH-RANKING OFFICIALS NOW HAVE OVER OTHER OFFICERS AND EMPLOYEES IN BEING ELIGIBLE TO RECEIVE THE BENEFITS OF A STATUTORY LEAVE SYSTEM AND, AT THE SAME TIME, BEING EXEMPTED, IN EFFECT, FROM THE OBLIGATIONS OF SUCH LEAVE SYSTEM TO THE EXTENT THAT BY THE NATURE OF THEIR OFFICES AND POSITIONS THEY HAVE FREEDOM TO ABSENT THEMSELVES FROM DUTY FROM TIME TO ME.'

IT THUS WOULD APPEAR THAT YOUR ABSENCE FROM DUTY IS NOT CONSIDERED TO BE IN THE NATURE OF LEAVE BUT RATHER IS A MATTER WITHIN YOUR OWN DISCRETION.

IN OUR DECISION, 16 COMP. GEN. 481, INVOLVING AN EMPLOYEE WHO WAS COVERED BY THE LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, WE HELD AS FOLLOWS, QUOTING FROM THE SYLLABUS:

"ANNUAL LEAVE, EXCEPT AS TO TIME OF TAKING, BEING AN ABSOLUTE RIGHT UNDER THE ACT OF MARCH 14, 1936, 49 STAT. 1161, AN EMPLOYEE DIRECTED, WHILE ON LEAVE, TO PERFORM TEMPORARY DUTY AT A PLACE OTHER THAN HIS REGULAR DUTY STATION AND PERMITTED TO RETURN TO THE PLACE WHERE HE WAS ON LEAVE TO RESUME HIS VACATION, IS ENTITLED TO REIMBURSEMENT OF THE AUTHORIZED EXPENSES OF THE TRAVEL INVOLVED, BUT IF HIS LEAVE STATUS IS TERMINATED AT THE COMPLETION OF THE TEMPORARY DUTY AND HE IS REQUIRED TO RETURN TO HIS REGULAR DUTY STATION, HE MAY BE ALLOWED ONLY SUCH TRAVEL EXPENSES AS REPRESENT THE DIFFERENCE BETWEEN COST OF RETURN TO OFFICIAL HEADQUARTERS VIA TEMPORARY PLACE OF DUTY AND COST OF DIRECT RETURN FROM PLACE WHERE ON LEAVE.'

SINCE YOU ARE NOT SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, YOUR CASE DOES NOT FALL SQUARELY WITHIN THE HOLDING IN THAT DECISION, BUT UNDER THE FACTS AND CIRCUMSTANCES STATED BY YOU, NO GOOD REASON IS APPARENT WHY THE PRINCIPLE OF THAT DECISION MAY NOT BE APPLIED TO YOUR SITUATION. ACCORDINGLY, SINCE IN THE APPROVAL DATED SEPTEMBER 15, 1955, OF YOUR OFFICIAL TRAVEL REIMBURSEMENT WAS LIMITED IN AN AMOUNT "NOT TO EXCEED THE COST WHICH WOULD HAVE BEEN INVOLVED FOR ROUND-TRIP TRAVEL BY PLANE FROM OMAHA, NEBRASKA, TO WASHINGTON, D.C. AND RETURN, PURCHASING AND USING A ROUND-TRIP TICKET," THE VOUCHER MAY NOT BE PAID AS PRESENTLY STATED, BUT IF IT BE RE-EXECUTED TO CONFORM WITH THE REFERRED-TO PRINCIPLE AND TO ACCORD WITH WITH REFERRED-TO APPROVAL OF SEPTEMBER 15, 1955, IT MAY BE PROCESSED FOR PAYMENT IN THE ABSENCE OF OTHER OBJECTIONS.