B-160785, FEB. 16, 1967

B-160785, FEB. 16, 1967

TO THE FINANCE AND ACCOUNTING OFFICER:

WE REFER TO YOUR LETTER OF JANUARY 19, 1967, YOUR REFERENCE SERIAL: D5/124, BY WHICH YOU REQUEST OUR DECISION WHETHER THE SUPPLEMENTAL TRAVEL VOUCHER DATED DECEMBER 21, 1966, OF MR. JOHN L. NUELSEN, CIVILIAN EMPLOYEE OF THE NATIONAL SECURITY AGENCY, DEPARTMENT OF DEFENSE, ATTACHED THERETO, MAY PROPERLY BE PAID.

MR. NUELSEN TRAVELED FROM BERLIN, GERMANY, TO FORT GEORGE G. MEADE, MARYLAND, BETWEEN JULY 29 AND AUGUST 1, 1966, INCIDENT TO A PERMANENT CHANGE OF STATION, AS AUTHORIZED BY DEPARTMENT OF DEFENSE TRAVEL ORDER NO. 66-043, FEBRUARY 28, 1966. PER DIEM FOR THE EMPLOYEE WAS AUTHORIZED IN THE TRAVEL ORDER. IN THE SUPPLEMENTAL VOUCHER OF DECEMBER 21 MR. NUELSEN MAKES A CLAIM FOR PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE FOR HIS WIFE AND DAUGHTER WHO ACCOMPANIED HIM ON THE TRAVEL IN QUESTION AND FOR PAYMENT OF THE MISCELLANEOUS EXPENSE ALLOWANCE AS AUTHORIZED BY SECTIONS 23 (1) AND 24, RESPECTIVELY, OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS ADDED BY THE ACT OF JULY 21, 1966, PUB.L. 89-516, 80 STAT. 323, 324, AND SECTIONS 2.2B (1), 2.2B (2) AND 3.2A (1) (B) OF BUREAU OF THE BUDGET CIRCULAR NO. A-56 REVISED, OCTOBER 12, 1966. ON DECEMBER 21, 1966, MR. NUELSEN SIGNED WHAT PURPORTED TO BE AN AGREEMENT TO REMAIN IN GOVERNMENT SERVICE FOR 12 MONTHS FOLLOWING HIS TRANSFER IN RETURN FOR PAYMENT BY THE GOVERNMENT OF THE COSTS OF SUCH TRANSFER AS AUTHORIZED BY THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED BY PUB.L. 89-516.

SECTION 28 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS ADDED BY PUB.L. 89-516, PROVIDES:

"NOTWITHSTANDING THE PROVISIONS OF SUBSECTIONS (A) AND (B) OF SECTION 1, AND OF SECTIONS 23, 24, 25, AND 27 OF THIS ACT, THE TRAVEL AND TRANSPORTATION EXPENSES, INCLUDING STORAGE OF HOUSEHOLD GOODS AND PERSONAL EFFECTS, AND OTHER RELOCATION ALLOWANCES SHALL NOT BE ALLOWED THEREUNDER WHEN A CIVILIAN OFFICER OR EMPLOYEE IS TRANSFERRED WITHIN THE CONTINENTAL UNITED STATES, EXCLUDING ALASKA, UNLESS AND UNTIL SUCH OFFICER OR EMPLOYEE SHALL AGREE IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR TWELVE MONTHS FOLLOWING HIS TRANSFER, UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE DEPARTMENT OR AGENCY CONCERNED. IN CASE OF VIOLATION OF SUCH AGREEMENT, ANY MONEYS EXPENDED BY THE UNITED STATES UNDER SAID SECTIONS OF THIS ACT ON ACCOUNT OF SUCH OFFICER OR EMPLOYEE SHALL BE RECOVERABLE FROM HIM AS A DEBT DUE THE UNITED STATES.'

THAT SECTION REQUIRES AN EMPLOYEE TO EXECUTE AN AGREEMENT TO REMAIN IN GOVERNMENT SERVICE FOR 12 MONTHS AFTER A TRANSFER ONLY IF HE IS TRANSFERRED BETWEEN DUTY STATIONS "WITHIN THE CONTINENTAL UNITED STATES.' THE REQUIREMENT OF THE IMPLEMENTING REGULATION, SECTION 1.3C (1) OF BUREAU OF THE BUDGET CIRCULAR NO. A-56 IS SIMILAR.

AT THE TIME MR. NUELSEN ACCOMPLISHED THE TRANSFER FROM A POINT OUTSIDE THE CONTINENTAL UNITED STATES HE WAS NOT REQUIRED BY LAW OR ADMINISTRATIVE REGULATION TO AGREE TO REMAIN IN GOVERNMENT SERVICE FOR A PERIOD OF 12 MONTHS AFTER HIS TRANSFER IN ORDER TO BE ELIGIBLE FOR REIMBURSEMENT OF ALLOWABLE EXPENSES AND PAYMENT OF APPLICABLE ALLOWANCES. FURTHERMORE, BUREAU OF THE BUDGET CIRCULAR NO. A-56 DOES NOT GIVE THE DEPARTMENT OF DEFENSE DISCRETIONARY AUTHORITY TO DENY PAYMENT OF THE IMMEDIATE FAMILY'S PER DIEM OR THE $200 MISCELLANEOUS EXPENSE ALLOWANCE WHEN SUCH PAYMENTS WOULD BE PROPER UNDER THE REGULATIONS CONTAINED THEREIN. THEREFORE, NO EFFECT IS TO BE GIVEN TO THE INCOMPLETE AGREEMENT AND MR. NUELSEN IS ENTITLED TO PAYMENT OF THE ALLOWANCES IN QUESTION.

THE CONCLUSION REACHED HEREIN IS NOT TO BE VIEWED AS PASSING UPON THE VALIDITY OF THE REQUIREMENT IN CHANGE 19, VOLUME 2, JOINT TRAVEL REGULATIONS, SO FAR AS IT RELATES TO THE EXECUTION OF AN AGREEMENT INCIDENT TO A CHANGE OF DUTY FROM A DUTY STATION OUTSIDE THE UNITED STATES TO A DUTY STATION WITHIN THE CONTINENTAL UNITED STATES.

FOR THE REASONS STATED, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PAID IF OTHERWISE CORRECT.

WHILE THE PRIMARY RESPONSIBILITY FOR THE DETERMINATION THAT AN EMPLOYEE'S SEPARATION PRIOR TO COMPLETION OF AN AGREED PERIOD OF SERVICE WAS FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE DEPARTMENT RESTS WITH ADMINISTRATIVE OFFICIALS OF THE DEPARTMENT, IN CASES OF DOUBT AS TO WHETHER THE NECESSARY CONDITIONS OF THE STATUTE AND REGULATIONS HAVE BEEN MET THE MATTER MAY BE SUBMITTED TO OUR OFFICE FOR DECISION.