B-156742, MAY 24, 1965

B-156742, MAY 24, 1965

TO THE HONORABLE SECRETARY OF THE INTERIOR:

WE REFER TO THE LETTER OF YOUR ASSISTANT SECRETARY DATED MAY 7, 1965, CONCERNING THE PAYMENT OF THE COSTS OF TRANSPORTING THE HOUSEHOLD EFFECTS OF AN EMPLOYEE OF THE DEPARTMENT OF THE INTERIOR TO HIS DUTY STATION INCIDENT TO HIS ASSIGNMENT AS A PROFESSIONAL ENGINEER AFTER HE HAS SERVED FOR ALMOST TWO YEARS AS A STUDENT TRAINEE IN PART TIME, FULL-TIME AND LEAVE-WITHOUT-PAY STATUS AT THE SAME DUTY STATION.

THE FACTS OF THE CASE AS CONTAINED IN YOUR ASSISTANT SECRETARY'S LETTER ARE AS FOLLOWS:

"HE WAS GIVEN CAREER-CONDITIONAL APPOINTMENT ON JUNE 17, 1963, AS A STUDENT TRAINEE (CIVIL ENGINEERING), GS-4, AT DENVER, COLORADO.

"NEGOTIATIONS WITH THE EMPLOYEE FOR THE ABOVE APPOINTMENT WERE ADDRESSED TO HIM AT BOZEMAN, MONTANA, WHERE HE WAS ATTENDING COLLEGE AT MONTANA STATE COLLEGE, WORKING TOWARD HIS DEGREE IN CIVIL ENGINEERING.

"ON STANDARD FORM 85, SECURITY INVESTIGATION DATA FOR NONSENSITIVE POSITION, WHICH HE FILLED OUT AT THE TIME OF HIS APPOINTMENT, HE SHOWED THE FOLLOWING INFORMATION CONCERNING DATES AND PLACES OF RESIDENCE:

CHART

6/17/63 TO PRESENT DENVER, COLORADO

12/62 TO 6/63 BOZEMAN, MONTANA

4/60 TO 12/62 HELENA, MONTANA

"ACTUALLY IT IS UNDERSTOOD THAT HE CONSIDERED HELENA, MONTANA, HIS HOME, EVEN THOUGH HE WAS GOING TO COLLEGE AT BOZEMAN, MONTANA. HE WAS MARRIED DECEMBER 24, 1962, AT HELENA, MONTANA. AFTER A FULL SUMMER OF WORK ON A FULL TIME BASIS, THE EMPLOYEE WAS SHIFTED TO A PART-TIME BASIS ON SEPTEMBER 17, 1963. FOR PERSONAL REASONS HE WAS UNABLE TO RETURN TO MONTANA STATE COLLEGE, AND THEREFORE AS OF SEPTEMBER 17, 1963, HE STATED WORKING PART-TIME WHILE TAKING CERTAIN APPLICABLE COURSE WORK AT THE UNIVERSITY OF COLORADO, EXTENSION CENTER, DENVER, COLORADO.

"ON SEPTEMBER 29, 1963, THE EMPLOYEE WAS PROMOTED TO A STUDENT TRAINEE (CIVIL ENGINEERING), GS-5.

"ON JUNE 19, 1964, THE EMPLOYEE WAS PLACED ON FULL-TIME LEAVE WITHOUT PAY IN ORDER THAT HE MIGHT PURSUE FULL-TIME STUDIES AT THE UNIVERSITY OF COLORADO, BOULDER, COLORADO, TOWARD HIS B.S. DEGREE IN CIVIL ENGINEERING.

"ON AUGUST 24, 1964, HE RETURNED TO DUTY ON A FULL-TIME BASIS IN HIS POSITION OF STUDENT TRAINEE (CIVIL ENGINEERING), GS-5.

"ON SEPTEMBER 12, 1964, HE WAS AGAIN GRANTED EDUCATIONAL LEAVE WITHOUT PAY SO HE COULD PURSUE FULL-TIME STUDY AT THE UNIVERSITY OF COLORADO TOWARD HIS B.S. DEGREE IN CIVIL ENGINEERING, WHICH HE EXPECTS TO OBTAIN IN JUNE 1965. HE RETURNED TO DUTY FOR A SHORT PERIOD DURING CHRISTMAS VACATION, DECEMBER 28, 1964, THROUGH JANUARY 4, 1965, AND WAS AGAIN PLACED ON EDUCATIONAL LEAVE WITHOUT PAY. HE IS STILL CARRIED ON THIS PERIOD OF LWOP, WHICH IS APPROVED TO JUNE 9, 1965.

"OUR MOST RECENT CORRESPONDENCE WITH THIS EMPLOYEE HAS BEEN ADDRESSED TO HIM AT BOULDER, COLORADO, WHERE HE IS ATTENDING SCHOOL AT THE UNIVERSITY OF COLORADO. HE WILL RETURN TO DUTY AS A PROFESSIONAL CIVIL ENGINEER, GS- 5 UPON GRADUATION.'

IT APPEARS THAT THE DEPARTMENT DID NOT PAY THE TRAVEL AND TRANSPORTATION EXPENSES OF THE EMPLOYEE INVOLVED INCIDENT TO HIS APPOINTMENT AS A STUDENT TRAINEE WITH DUTY STATION IN DENVER, COLORADO. SINCE HE HAS LIVED IN DENVER AND VICINITY SINCE JUNE 1963, ATTENDING SCHOOL AND WORKING IN THE STUDENT-TRAINEE POSITION, YOU QUESTION WHETHER YOU MAY NOW PAY THE COST OF TRANSPORTING HIS HOUSEHOLD EFFECTS FROM HELENA, MONTANA, TO DENVER INCIDENT TO HIS ASSIGNMENT TO A PROFESSIONAL POSITION IN DENVER UNDER THE APPLICABLE LAW AND REGULATION.

SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, APPROVED AUGUST 2, 1946, CH. 744, 60 STAT. 808, AS AMENDED, 5 U.S.C. 73B-3, WAS AMENDED BY THE ACT OF AUGUST 25, 1958, PUB.L. 85-749, 72 STAT. 843, TO AUTHORIZE GOVERNMENT DEPARTMENTS TO PAY THE TRAVEL AND TRANSPORTATION COSTS OF NEW EMPLOYEES IN CERTAIN SHORTAGE CATEGORY OCCUPATIONS INCIDENT TO THEIR REPORTING TO THEIR FIRST DUTY STATIONS. THE TEMPORARY AND RATHER LIMITED PROVISIONS OF THAT ACT WERE EXPANDED AND MADE PERMANENT BY THE ACT OF JULY 5, 1960, PUB.L. 86-587, 74 STAT. 327, WHICH ACT CONTAINED AUTHORITY TO PAY THE TRAVEL AND TRANSPORTATION EXPENSES OF STUDENT TRAINEES WHEN THEY WERE "PROMOTED UPON COMPLETION OF COLLEGE WORK.' THE ACT OF OCTOBER 16, 1963, PUB.L. 88-146, 77 STAT. 252 ELIMINATED THE REQUIREMENT THAT THE STUDENT TRAINEE BE PROMOTED UPON COMPLETION OF COLLEGE WORK TO BECOME ELIGIBLE FOR THE TRAVEL AND TRANSPORTATION BENEFITS PROVIDED.

THE PURPOSE OF THE THREE STATUTES AS EVIDENCED BY THEIR LEGISLATIVE HISTORIES WAS TO ENABLE THE GOVERNMENT TO COMPETE ON A MORE EQUAL FOOTING WITH PRIVATE INDUSTRY IN RECRUITING EMPLOYEES TO FILL SHORTAGE CATEGORY POSITIONS. SENATE REPORT NO. 1584, 86TH CONG., 2D SESS., CONTAINS THE FOLLOWING EXPLANATION OF THE NEED FOR PAYING TRAVEL AND TRANSPORTATION EXPENSES TO STUDENT TRAINEES AT PAGE 5:

"SEVERAL DEPARTMENTS HAVE RECOMMENDED THAT THE LAW BE REVISED TO AUTHORIZE PAYMENT OF TRAVEL AND MOVING EXPENSES OF STUDENT TRAINEES WHO ARE ON LEAVE WITHOUT PAY ATTENDING COLLEGE AND WHO, UPON GRADUATION, ARE PLANNING TO RETURN TO THEIR AGENCIES IN A PROFESSIONAL CAPACITY. SINCE THESE TRAINEES ARE ALREADY ON THE AGENCY'S ROLLS, THEY CANNOT BE CONSIDERED AS NEW APPOINTEES. AGENCIES HAVE INVESTED HEAVILY IN MONEY AND TIME IN THE TRAINING OF THESE STUDENTS. UNLESS PAYMENT OF THEIR TRAVEL AND MOVING EXPENSES AT TIME OF GRADUATION IS POSSIBLE, THERE IS THE STRONG LIKELIHOOD THAT MANY WILL RESIGN AND ACCEPT OTHER EMPLOYMENT. THEY WILL THEN RECEIVE PAYMENT FOR THEIR TRAVEL AND MOVING EXPENSES FROM THEIR NEW EMPLOYERS. A HIGH PERCENTAGE OF SENIOR STUDENTS ARE MARRIED AND HAVE CHILDREN. THE PAYMENT OF MOVING EXPENSES TO THE FIRST "PERMANENT" POST OF PROFESSIONAL DUTY TAKES ON UNUSUALLY HIGH SIGNIFICANCE, ESPECIALLY SINCE THE FAMILIES ARE OFTEN IN DEBT. ENACTMENT OF THIS PROVISION WILL AFFECT VERY FEW EMPLOYEES, BUT WILL REMOVE A SOURCE OF IRRITATION OVER UNEQUAL TREATMENT OF TWO GROUPS OF NEW PROFESSIONAL EMPLOYEES.'

REGULATIONS GOVERNING PAYMENTS FOR THE AUTHORIZED TRAVEL AND TRANSPORTATION EXPENSES ARE CONTAINED IN BUREAU OF THE BUDGET CIRCULAR NO. A-56, SECTION 7.2A OF WHICH PROVIDES:

"A. TYPES. APPROPRIATIONS FOR THE DEPARTMENTS SHALL BE AVAILABLE FOR EXPENSES OF TRAVEL OF APPOINTEES, TRANSPORTATION OF THEIR IMMEDIATE FAMILIES, AND TRANSPORTATION OF THEIR HOUSEHOLD GOODS AND PERSONAL EFFECTS, ALL FROM THEIR PLACES OF ACTUAL RESIDENCE AT TIME OF SELECTION FOR APPOINTMENT, OR FOR ASSIGNMENT, TO THEIR FIRST PERMANENT DUTY STATIONS

"/1) WHERE THE FIRST PERMANENT DUTY STATION AND PLACE OF ACTUAL RESIDENCE AT TIME OF SELECTION FOR APPOINTMENT OR FOR ASSIGNMENT ARE BOTH LOCATED IN THE CONTINENTAL UNITED STATES, BUT NOT IN ALASKA, THE EXPENSES SHALL BE ALLOWED IN THE MANNER PRESCRIBED IN SECTIONS 1 (EXCLUDING SUBSECTION 1.5), 2, AND 6.'

WE HAVE HELD THAT THE TERM "ACTUAL RESIDENCE" AS USED IN THE SAME SECTION OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 IN CONNECTION WITH THE RETURN OF EMPLOYEES FROM OVERSEAS FOR HOME LEAVE AND UPON SEPARATION DOES NOT NECESSARILY REFER TO THE PLACE AT WHICH THE EMPLOYEE CONCERNED RESIDED AT THE TIME OF HIS TRANSFER OVERSEAS BUT THAT THE EMPLOYEE'S "ACTUAL RESIDENCE" FOR THE PURPOSE OF THAT PROVISION WAS A MATTER FOR DETERMINATION BY THE AGENCY INVOLVED ON THE FACTS AND CIRCUMSTANCES IN EACH INDIVIDUAL CASE. 35 COMP. GEN. 101, 244. A SIMILAR RULE MAY BE APPLIED TO THE TERM AS IT IS USED IN CONNECTION WITH TRAVEL AND TRANSPORTATION EXPENSES OF NEWLY ASSIGNED STUDENT TRAINEES. THUS, THE PLACE AT WHICH THE STUDENT TRAINEE INVOLVED IS LIVING AT THE TIME OF HIS ASSIGNMENT TO A PROFESSIONAL POSITION NEED NOT BE CONSIDERED HIS ACTUAL RESIDENCE IF THE FACTS OF THE CASE INDICATE OTHERWISE.

IN VIEW OF THE PURPOSE OF THE PROVISION OF LAW IN QUESTION AND IN VIEW OF THE PREVIOUSLY ESTABLISHED RULE CONCERNING THE DETERMINATION OF AN EMPLOYEE'S "ACTUAL RESIDENCE" A DETERMINATION BY YOUR DEPARTMENT ON THE BASIS OF THE FACTS HERE INVOLVED THAT THE "ACTUAL RESIDENCE" OF THE EMPLOYEE INVOLVED IS AT HELENA, MONTANA, AT THE TIME HE IS ASSIGNED TO A PROFESSIONAL POSITION IN DENVER WOULD NOT APPEAR TO BE SO UNREASONABLE AS TO REQUIRE US TO OBJECT THERETO.