B-147742, JANUARY 4, 1962, 41 COMP. GEN. 434

B-147742, JANUARY 4, 1962, 41 COMP. GEN. 434

TRAVEL EXPENSES - OVERSEAS EMPLOYEES - MINIMUM SERVICE REQUIREMENT - PART -TIME STATUS AN OVERSEAS EMPLOYEE WHOSE STATUS WAS CHANGED FROM FULL-TIME TO PART TIME AFTER HE HAD SIGNED HIS LATEST EMPLOYMENT AGREEMENT TO REMAIN IN THE SERVICE FOR ANOTHER 24 MONTHS MAY BE REGARDED AS FULFILLING HIS DUTY WITH RESPECT TO THE PERIOD OF OBLIGATED SERVICE FOR ENTITLEMENT TO PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, 5 U.S.C. 73B-3 (A), WHICH DOES NOT RESTRICT THE TRAVEL AND TRANSPORTATION BENEFITS TO EMPLOYEES WITH FULL- TIME STATUS. ALTHOUGH A LONGER PERIOD OF REQUIRED SERVICE FOR OVERSEAS EMPLOYEES WITH PART-TIME STATUS MAY BE ADMINISTRATIVELY PRESCRIBED FOR ENTITLEMENT TO PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES BY THE GOVERNMENT, UP TO THE MAXIMUM SPECIFIED IN SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, 5 U.S.C. 73B-3 (A), AND SO LONG AS THE PERIOD OF SERVICE IS SPECIFIED IN THE EMPLOYMENT AGREEMENT, WHEN THE EMPLOYMENT AGREEMENT DOES NOT CONTAIN ANY QUALIFICATION OF THE TERM "IN THE SERVICE OF THE GOVERNMENT," SUCH TERM MAY BE ACCORDED THE SAME MEANING FOR PART-TIME EMPLOYEES AS FOR FULL TIME EMPLOYEES.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, JANUARY 4, 1962:

THE LETTER OF DECEMBER 6, 1961, FROM YOUR ASSOCIATE DEPUTY ADMINISTRATOR REQUESTS OUR DECISION ON CERTAIN QUESTIONS CONCERNING THE ENTITLEMENT OF A PART-TIME EMPLOYEE TO THE TRANSPORTATION AND TRAVEL EXPENSES AUTHORIZED BY 5 U.S.C. 73B-3 (A), UNDER THE FOLLOWING FACTS AND CIRCUMSTANCES.

IT APPEARS THAT AN EMPLOYEE ( COUNSELING PSYCHOLOGIST) OF THE VETERANS ADMINISTRATION REGIONAL OFFICE AT HONOLULU, HAWAII, HAS AGREED TO A CHANGE IN HIS WORK SCHEDULE FROM THAT OF FULL-TIME TO PART-TIME (REGULARLY SCHEDULED). THE EMPLOYEE PREVIOUSLY HAD TRAVELED TO THE UNITED STATES ON SEVERAL OCCASIONS (PRESUMABLY ON HOME LEAVE) AND EACH TIME HE SIGNED AN AGREEMENT TO REMAIN IN THE SERVICE OF THE VETERANS ADMINISTRATION FOR 24 MONTHS. THE LATEST EMPLOYMENT AGREEMENT BECAME EFFECTIVE DECEMBER 14, 1960, THE DAY OF THE EMPLOYEE'S RETURN TO DUTY AFTER TRAVEL TO THE UNITED STATES AND RETURN. SHORTLY THEREAFTER, BECAUSE OF A REDUCTION IN THE WORK LOAD THE STATUS OF THE EMPLOYEE WAS CHANGED TO THAT OF A PART-TIME EMPLOYEE, WHICH ARRANGEMENT WAS MUTUALLY AGREEABLE TO THE VETERANS ADMINISTRATION AND THE EMPLOYEE.

THE SPECIFIC QUESTIONS PRESENTED FOR DECISION AND REQUIRING ANSWERS ARE AS FOLLOWS:

1. IS THIS EMPLOYEE FULFILLING HIS DUTY WITH RESPECT TO OBLIGATED SERVICE INSOFAR AS THE SAME IS GERMANE TO HIS RIGHT TO EXPENSES OF TRAVEL FOR HIMSELF AND TRANSPORTATION FOR HIS IMMEDIATE FAMILY UNDER 5 U.S.C. 73-B- 3?

3. WILL THE EMPLOYEE BE ENTITLED TO EXPENSES OF TRAVEL FOR HIMSELF AND TRANSPORTATION FOR HIS IMMEDIATE FAMILY UNDER 5 U.S.C. 73B-3 PROVIDED HE CONTINUES TO SERVE, THOUGH ON A PART TIME RATHER THAN ON A FULL TIME BASIS, UNTIL THE EXPIRATION OF HIS AGREED PERIOD OF SERVICE, I.E., TWO CALENDAR YEARS FROM THE EFFECTIVE DATE OF HIS LAST AGREEMENT?

THE PERTINENT PROVISIONS OF 5 U.S.C. 73B-3 (A) ARE AS FOLLOWS:

APPROPRIATIONS FOR THE DEPARTMENTS SHALL BE AVAILABLE, IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT, FOR EXPENSES OF TRAVEL OF NEW APPOINTEES, EXPENSES OF TRANSPORTATION OF THEIR IMMEDIATE FAMILIES AND EXPENSES OF TRANSPORTATION OF THEIR HOUSEHOLD GOODS AND PERSONAL EFFECTS FROM PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT TO PLACES OF EMPLOYMENT OUTSIDE CONTINENTAL UNITED STATES, AND FOR SUCH EXPENSES ON RETURN OF EMPLOYEES FROM THEIR POST OF DUTY OUTSIDE CONTINENTAL UNITED STATES TO THE PLACES OF THEIR ACTUAL RESIDENCE AT TIME OF ASSIGNMENT TO DUTY OUTSIDE THE UNITED STATES: PROVIDED, THAT SUCH EXPENSES OF TRAVEL AND TRANSPORTATION TO POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES SHALL NOT BE ALLOWED UNLESS AND UNTIL THE PERSON SELECTED FOR APPOINTMENT SHALL AGREE IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR TWELVE MONTHS FOLLOWING HIS APPOINTMENT, UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED AND IN CASE OF VIOLATION OF SUCH AGREEMENT ANY MONEYS EXPENDED BY THE UNITED STATES ON ACCOUNT OF SUCH TRAVEL AND TRANSPORTATION SHALL BE RECOVERABLE FROM THE INDIVIDUAL CONCERNED AS A DEBT DUE THE UNITED STATES: AND PROVIDED FURTHER, THAT EXPENSES OF RETURN TRAVEL AND TRANSPORTATION UPON SEPARATION FROM THE SERVICE SHALL BE ALLOWED WHETHER SUCH SEPARATION IS FOR THE PURPOSES OF THE GOVERNMENT OR FOR PERSONAL CONVENIENCE, BUT SHALL NOT BE ALLOWED UNLESS SUCH PERSONS SELECTED FOR APPOINTMENT OUTSIDE THE CONTINENTAL UNITED STATES SHALL HAVE SERVED FOR A MINIMUM PERIOD OF NOT LESS THAN ONE NOR MORE THAN THREE YEARS PRESCRIBED IN ADVANCE BY THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED OR UNLESS SEPARATION IS FOR REASONS BEYOND THE CONTROL OF THE INDIVIDUAL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED: PROVIDED FURTHER, 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 * * *.

AS INDICATED IN YOUR ASSOCIATE DEPUTY ADMINISTRATOR'S LETTER THE ABOVE- QUOTED STATUTORY PROVISIONS AS WELL AS THE REGULATIONS ISSUED PURSUANT THERETO DO NOT CONTAIN ANY QUALIFYING LANGUAGE RESTRICTING ITS BENEFITS ONLY TO FULL-TIME EMPLOYEES. MOREOVER, AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE STATUTE FAILS TO REVEAL ANY DISCUSSION OF THE PROBLEM.

IN THE ABSENCE OF ANY RESTRICTION IN THE LAW OR REGULATIONS, WE ARE OF THE OPINION THAT THE PROVISIONS OF 5 U.S.C. 73B-3 (A) MAY BE APPLIED TO A PART-TIME EMPLOYEE. THEREFORE, THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

AS TO WHETHER A PART-TIME EMPLOYEE SHOULD SERVE A LONGER PERIOD OF TIME OVERSEAS TO MEET THE TIME REQUIREMENTS OF THE STATUTE OUR VIEW IS THAT THE TERM "REMAIN IN THE GOVERNMENT SERVICE" AS WELL AS OTHER REFERENCES TO SERVICE APPEARING IN THE STATUTE EMBRACES PART-TIME SERVICE AS LONG AS THE PART-TIME SERVICE IS THE PRIMARY REASON FOR THE EMPLOYEE'S REMAINING OVERSEAS. OF COURSE, THE ADMINISTRATIVE OFFICE MAY WITHIN ITS DISCRETION SET A LONGER PERIOD FOR ENTITLEMENT OF PART TIME EMPLOYEES FOR CERTAIN OF THE BENEFITS OF 5 U.S.C. 73B-3 (A) UP TO THE MAXIMUM SPECIFIED THEREIN AS LONG AS IT IS INCLUDED IN THE EMPLOYMENT AGREEMENT. WHEN, AS HERE, THE EMPLOYMENT AGREEMENT CONTAINS NO QUALIFICATION CONCERNING THE TERM "IN THE SERVICE OF THE GOVERNMENT" AS USED THEREIN WE SEE NO OBJECTION TO ACCORDING IT THE SAME MEANING FOR A PART-TIME EMPLOYEE AS FOR A FULL-TIME EMPLOYEE. THEREFORE, QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE.