B-127919, JULY 5, 1956, 36 COMP. GEN. 10

B-127919, JULY 5, 1956, 36 COMP. GEN. 10

TRANSPORTATION OF DEPENDENTS - OVERSEAS EMPLOYEES - DEPENDENTS RETURN PRIOR TO RETURN OF EMPLOYEE THE DEPENDENTS OF AN OVERSEAS FEDERAL EMPLOYEE WHO WERE RETURNED TO THE UNITED STATES AT GOVERNMENT EXPENSE, PURSUANT TO THE AUTHORITY IN SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 WHICH AUTHORIZES RETURN TRANSPORTATION FOR COMPELLING PERSONAL REASONS, AND THEN RETURN AT PERSONAL EXPENSE TO THE OVERSEAS STATION ARE NOT ELIGIBLE FOR RETURN TRANSPORTATION TO THE UNITED STATES AT GOVERNMENT EXPENSE INCIDENT TO THE EMPLOYEE'S SEPARATION FROM SERVICE UPON COMPLETION OF THE SAME TOUR OF DUTY. ALTHOUGH AN OVERSEAS EMPLOYEE WHO IS ELIGIBLE FOR HOME LEAVE TRAVEL MAY NOT BE ALLOWED ROUND-TRIP TRANSPORTATION FOR HIS DEPENDENTS WHO WERE RETURNED AT GOVERNMENT EXPENSE TO THE UNITED STATES FOR PERSONAL REASONS DURING THE SAME TOUR OF DUTY, HE MAY BE ALLOWED ONE-WAY TRANSPORTATION FOR HIS DEPENDENTS AT GOVERNMENT EXPENSE BACK TO THE OVERSEAS STATION. UNDER THE ACT OF AUGUST 31, 1954, THE RETURN OF AN OVERSEAS EMPLOYEE'S DEPENDENTS AND HOUSEHOLD EFFECTS IS NOT DEPENDENT UPON THE EMPLOYEE PERFORMING SUCH TRAVEL AND, THEREFORE, AT THE TIME OF AN EMPLOYEE'S SEPARATION FROM THE SERVICE OVERSEAS HIS DEPENDENTS AND HOUSEHOLD EFFECTS MAY BE RETURNED AT GOVERNMENT EXPENSE EVEN THOUGH HE REMAINS OVERSEAS.

TO THE SECRETARY OF DEFENSE, JULY 5, 1956:

REFERENCE IS MADE TO THE LETTER OF MAY 8, 1956, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING OUR DECISION ON SEVERAL QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE IMPLEMENTATION OF THE ACT OF AUGUST 31, 1954, 68 STAT. 1008, PUBLIC LAW 737, 5 U.S.C. 73B 3, AMENDING SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 808, 5 U.S.C. 73B-3, CONCERNING TRANSPORTATION FOR DEPENDENTS OF CIVILIAN EMPLOYEES. THE QUESTIONS WILL BE ANSWERED IN THE ORDER PRESENTED.

EXAMPLE 1: AN EMPLOYEE RECRUITED FOR OVERSEAS DUTY ASSIGNMENT SIGNS A TRANSPORTATION AGREEMENT FOR A SPECIFIC PERIOD OF OVERSEAS SERVICE. HE IS JOINED AT HIS OVERSEAS PERMANENT DUTY STATION BY HIS DEPENDENTS FOR WHOM TRANSPORTATION AT GOVERNMENT EXPENSE WAS AUTHORIZED. BEFORE COMPLETION OF THE AGREED PERIOD OF SERVICE ADVANCE TRANSPORTATION IS OFFICIALLY AUTHORIZED AND PERFORMED BY THE EMPLOYEE'S DEPENDENTS UNDER THE "COMPELLING PERSONAL REASONS OF A HUMANITARIAN OR COMPASSIONATE NATURE" PROVISIONS OF PUBLIC LAW 737, 83RD CONGRESS. SUBSEQUENTLY, THE DEPENDENTS RETURN TO THE EMPLOYEE'S OVERSEAS DUTY STATION AT NO EXPENSE TO THE GOVERNMENT AND REMAIN UNTIL THE AGREED TOUR OF DUTY IS COMPLETED.

(1) ARE THEY ELIGIBLE FOR TRANSPORTATION AT GOVERNMENT EXPENSE TO ACCOMPANY THE EMPLOYEE AFTER COMPLETION OF HIS AGREED PERIOD OF SERVICE WHEN HE IS RETURNED TO HIS PLACE OF ACTUAL RESIDENCE FOR SEPARATION?

SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 808, AS AMENDED BY THE ACT OF SEPTEMBER 23, 1950, 64 STAT. 985, 5 U.S.C. 73B 3, PROVIDES THAT THE EXPENSES OF RETURN TRAVEL AND TRANSPORTATION UPON SEPARATION SHALL BE ALLOWED WHETHER SUCH SEPARATION IS FOR THE PURPOSES OF THE GOVERNMENT OR FOR PERSONAL CONVENIENCE; BUT THAT SUCH EXPENSES SHALL NOT BE ALLOWED UNLESS THE EMPLOYEE HAS SERVED OUTSIDE THE UNITED STATES FOR A MINIMUM PERIOD OF NOT LESS THAN ONE NOR MORE THAN THREE YEARS PRESCRIBED IN ADVANCE, OR UNLESS THE SEPARATION IS FOR REASONS BEYOND THE CONTROL OF THE INDIVIDUAL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED. THE FIRST PROVISO OF THE ACT OF AUGUST 31, 1954, 68 STAT. 1008, FURTHER AMENDING SECTION 7, PROVIDES THAT THE EXPENSES OF ROUND TRIP TRAVEL OF EMPLOYEES AND TRANSPORTATION OF IMMEDIATE FAMILY FROM 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 PLACES OF RESIDENCE FOR THE PURPOSE OF TAKING LEAVE PRIOR TO SERVING ANOTHER TOUR OF OVERSEAS DUTY UNDER A NEW WRITTEN AGREEMENT ENTERED INTO BEFORE DEPARTING FROM THE OVERSEAS POST. THE SECOND PROVISO OF SUCH ACT PROVIDES THAT THE EXPENSES OF TRANSPORTATION OF THE IMMEDIATE FAMILY AND SHIPMENT OF HOUSEHOLD EFFECTS FROM THE POST OF DUTY OF SUCH EMPLOYEE OUTSIDE THE UNITED STATES TO PLACE OF ACTUAL RESIDENCE SHALL BE ALLOWED,"NOT IN EXCESS OF ONE TIME," PRIOR TO THE RETURN OF SUCH EMPLOYEE TO THE UNITED STATES WHEN THE EMPLOYEE HAS ACQUIRED ELIGIBILITY FOR SUCH TRANSPORTATION OR WHEN THE PUBLIC INTEREST REQUIRES THE RETURN OF THE IMMEDIATE FAMILY FOR COMPELLING PERSONAL REASONS OF A HUMANITARIAN OR COMPASSIONATE NATURE, SUCH AS MAY INVOLVE PHYSICAL OR THE MENTAL HEALTH, DEATH OF ANY MEMBER OF THE IMMEDIATE FAMILY, OR OBLIGATION IMPOSED BY AUTHORITY OR CIRCUMSTANCES OVER WHICH THE INDIVIDUAL HAS NO CONTROL.

PRIOR TO THE ACT OF AUGUST 31, 1954, AND ON THE BASIS OF THE PROVISIONS OF THE ACT OF SEPTEMBER 23, 1950, WE HELD THAT WHERE COMPELLING PERSONAL CIRCUMSTANCES REQUIRED THAT DEPENDENTS BE RETURNED BEFORE THE EMPLOYEE BECAME ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE, THE EMPLOYEE COULD BE REIMBURSED FOR EXPENSES INCURRED THEREIN FROM PERSONAL FUNDS UPON THE COMPLETION OF HIS AGREED PERIOD OF SERVICE, PROVIDED CERTAIN SPECIFIED CONDITIONS WERE SATISFIED. 32 COMP. GEN. 143. THE EMPLOYEE COULD BE REIMBURSED FOR ONLY ONE RETURN OF DEPENDENTS INCIDENT TO A PARTICULAR TOUR OF DUTY. IF UNDER THOSE CIRCUMSTANCES THE DEPENDENTS RETURNED TO THE EMPLOYEE'S OVERSEAS POST PRIOR TO THE COMPLETION OF THE EMPLOYEE'S TOUR OF DUTY, THE EMPLOYEE UPON SEPARATION AT THE COMPLETION THEREOF WOULD NOT HAVE BEEN ENTITLED TO AN ADDITIONAL RETURN OF DEPENDENTS FROM THE OVERSEAS POST AT GOVERNMENT EXPENSE. THE LEGISLATIVE HISTORY OF THE ACT OF AUGUST 31, 1954, DOES NOT DISCLOSE ANY INTENT TO INCREASE THE EMPLOYEE'S ENTITLEMENT IN THIS RESPECT. THE ONLY DIFFERENCE BETWEEN THE PRIOR AND PRESENT LAW LIES IN THE FACT THAT UNDER PRIOR LAW SUCH TRANSPORTATION WAS REQUIRED TO BE MADE AT PERSONAL EXPENSE, SUBJECT TO LATER REIMBURSEMENT WHEN ELIGIBILITY THEREFOR WAS ACQUIRED; WHEREAS UNDER THE PRESENT PROVISIONS OF LAW, THE TRANSPORTATION MAY BE INITIALLY AUTHORIZED AT GOVERNMENT EXPENSE WITH NO REQUIREMENT FOR EXPENDITURE OF PERSONAL FUNDS. SEE SENATE REPORT NO. 1944, 83RD CONGRESS, 2D SESSION, PAGE 3.

A FURTHER INDICATION THAT CONGRESS DID NOT INTEND TO PERMIT MORE THAN ONE RETURN OF DEPENDENTS INCIDENT TO EACH TOUR OF DUTY IS FOUND IN HOUSE REPORT NO. 2096, 83RD CONGRESS, 2D SESSION, PAGE 3, STATING AS FOLLOWS:

THE SECOND PROVISO PERMITS THE GOVERNMENT TO PAY THE EXPENSES OF TRANSPORTATION OF THE EMPLOYEE'S IMMEDIATE FAMILY AND SHIPMENT OF HOUSEHOLD EFFECTS FROM THE POST OF DUTY TO THE EMPLOYEE'S PLACE OF RESIDENCE, NOT IN EXCESS OF ONCE FOR EACH TOUR OF DUTY, WHEN THE EMPLOYEE HAS ACQUIRED ELIGIBILITY FOR SUCH TRANSPORTATION OR WHEN THE PUBLIC INTEREST SO REQUIRES, FOR COMPELLING REASONS OF A HUMANITARIAN OR COMPASSIONATE NATURE, OR BECAUSE OF OBLIGATION IMPOSED BY AUTHORITY OR CIRCUMSTANCES OVER WHICH THE INDIVIDUAL HAS NO CONTROL. (ITALICS SUPPLIED.)

ALSO, SEE TITLE VII, SECTION 28, EXECUTIVE ORDER NO. 9805, AS ADDED BY BUREAU OF THE BUDGET'S CIRCULAR A-4, MAY 2, 1955.

ACCORDINGLY, THE QUESTION IS ANSWERED IN THE NEGATIVE.

(2) ARE THEY ELIGIBLE FOR ROUND TRIP TRANSPORTATION AT GOVERNMENT EXPENSE TO ACCOMPANY THE EMPLOYEE, WHO HAS COMPLIED WITH THE PRESCRIBED REQUIREMENTS, AND IS AUTHORIZED ROUND TRIP REEMPLOYMENT TRAVEL UNDER THE PROVISIONS OF PUBLIC LAW 737, 83RD CONGRESS?

THE LEGISLATIVE HISTORY OF THE FIRST PROVISO OF THE ACT OF AUGUST 31, 1954, SHOWS THAT IT WAS INTENDED TO SUPPLY THE STATUTORY AUTHORITY WHICH WE HAD HELD WAS NECESSARY FOR EMPLOYEES, WHO WERE ENTITLED TO RETURN TRANSPORTATION ON SEPARATION, TO BE ALLOWED RETURN TRANSPORTATION AT GOVERNMENT EXPENSE FOR TRAVEL PERFORMED FOR THE PURPOSE OF TAKING LEAVE. SENATE REPORT NO. 1944, SUPRA, PAGES 1 AND 2. SINCE THE EMPLOYEE'S DEPENDENTS, IN THIS CASE, MAY NOT BE RETURNED FROM OVERSEAS AT GOVERNMENT EXPENSE INCIDENT TO THE EMPLOYEE'S SEPARATION, IT FOLLOWS THAT THEY MAY NOT BE RETURNED AT GOVERNMENT EXPENSE INCIDENT TO THE EMPLOYEE'S LEAVE TRAVEL. THE QUESTION IS ANSWERED IN THE NEGATIVE.

(3) IF THE ANSWER TO (2) ABOVE IS NEGATIVE AND DEPENDENTS ARE REQUIRED TO TRAVEL AT NO EXPENSE TO THE GOVERNMENT IN ACCOMPANYING THE EMPLOYEE FROM HIS OVERSEAS DUTY STATION, ARE THE DEPENDENTS ELIGIBLE FOR TRANSPORTATION AT GOVERNMENT EXPENSE ONE WAY FROM THE EMPLOYEE'S PLACE OF ACTUAL RESIDENCE RETURNING TO THE OVERSEAS DUTY STATION WITH THE EMPLOYEE UNDER REEMPLOYMENT?

WHILE THE EMPLOYEE MAY NOT BE ALLOWED ROUND TRIP TRANSPORTATION OF DEPENDENTS BY REASON OF THEIR HAVING ALREADY PERFORMED RETURN TRAVEL FROM OVERSEAS AT GOVERNMENT EXPENSE INCIDENT TO THE SAME TOUR OF DUTY, HE MAY BE ALLOWED UNDER THE FIRST PROVISO OF THE ACT THEIR ONE-WAY TRANSPORTATION AT GOVERNMENT EXPENSE BACK TO HIS OVERSEAS DUTY STATION. SEE 35 COMP. GEN. 101.

EXAMPLE 2: AN EMPLOYEE HAS COMPLETED AN AGREED PERIOD OF OVERSEAS SERVICE THEREBY EARNING ENTITLEMENT FOR TRANSPORTATION AT GOVERNMENT EXPENSE FROM HIS OVERSEAS OFFICIAL DUTY STATION TO HIS PLACE OF ACTUAL RESIDENCE UPON SEPARATION. TRANSPORTATION FOR HIS DEPENDENTS AND HOUSEHOLD GOODS IS INCLUDED IN HIS EARNED TRANSPORTATION ENTITLEMENT.

(1) TRANSPORTATION FOR THE EMPLOYEE, HIS DEPENDENTS AND HOUSEHOLD GOODS IS AUTHORIZED AT THE TIME OF SEPARATION. HOWEVER, THE EMPLOYEE USES THE TRANSPORTATION AUTHORIZATION ONLY FOR HIS DEPENDENTS AND HOUSEHOLD GOODS AND DOES NOT PERFORM TRAVEL HIMSELF. THE EMPLOYEE ELECTS TO BE SEPARATED OVERSEAS AND REMAINS IN THE OVERSEAS AREA FOR AN INDEFINITE PERIOD. PARTIAL USE OF THE EARNED ENTITLEMENT FOR TRANSPORTATION PROPER IF THE FULL AUTHORITY IS NOT USED?

(2) MAY A TRAVEL ORDER BE ISSUED ONLY FOR TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS AT THE TIME OF THE EMPLOYEE'S SEPARATION IF THE EMPLOYEE DOES NOT ACTUALLY PERFORM TRAVEL HIMSELF?

PRIOR TO THE ACT OF AUGUST 31, 1954, WE HELD THAT UNDER THE GENERAL LANGUAGE OF SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED BY THE ACT OF SEPTEMBER 23, 1950, AN EMPLOYEE'S DEPENDENTS AND HOUSEHOLD GOODS COULD BE RETURNED AT GOVERNMENT EXPENSE FROM OVERSEAS WHEN HE HAD ACQUIRED ELIGIBILITY FOR SUCH TRANSPORTATION, EVEN THOUGH THE EMPLOYEE DID NOT RETURN, PROVIDED THE EMPLOYEE ELECTED TO SERVE AT THE OVERSEAS STATION FOR AN ADDITIONAL PERIOD. 31 COMP. GEN. 683. THE SECOND PROVISO OF THE ACT OF AUGUST 31, 1954, PROVIDES A SPECIFIC STATUTORY BASIS FOR PAYMENT OF THE PRIOR RETURN OF THE DEPENDENTS AND HOUSEHOLD GOODS "WHEN THE EMPLOYEE HAS ACQUIRED ELIGIBILITY" FOR HIS RETURN TRANSPORTATION. UNDER THE STATUTE, ENTITLEMENT TO RETURN TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS AT GOVERNMENT EXPENSE IS NOT DEPENDENT UPON THE EMPLOYEE, HIMSELF, PERFORMING SUCH TRAVEL. ACCORDINGLY, QUESTIONS (1) AND (2) OF EXAMPLE 2 ARE ANSWERED IN THE AFFIRMATIVE.