B-163138, JAN. 17, 1968

B-163138, JAN. 17, 1968

TRANSPORTATION - DEPENDENTS - DIVORCE DECISION TO DIRECTOR, U.S.I.A., CONCERNING PROPRIETY OF REIMBURSING EMPLOYEE FOR RETURN TRAVEL OF CHILDREN FROM OVERSEAS AFTER EMPLOYEE AND WIFE HAD BEEN DIVORCED. WHERE EMPLOYEE PRIOR TO COMPLETION OF OVERSEAS TOUR WAS DIVORCED BY WIFE WHO OBTAINED CUSTODY OF TWO MINOR CHILDREN BUT EMPLOYEE WAS REQUIRED TO PROVIDE FULL SUPPORT FOR CHILDREN, AND UPON COMPLETION OF DUTY EMPLOYEE RETURNED WITH ONE CHILD, THE OTHER HAVING BEEN RETURNED WITH THE MOTHER MAY BE REIMBURSED FOR COST OF ADVANCE TRAVEL OF CHILD WHO ACCOMPANIED MOTHER AND FOR CHILD WHO RETURNED WITH EMPLOYEE SINCE THE CHILDREN ALTHOUGH IN CUSTODY OF MOTHER WERE STILL A PART OF EMPLOYEE'S FAMILY SINCE HE IS RESPONSIBLE FOR THEIR FULL SUPPORT. UNLIKE SEC. 1.2D OF BOB CIRCULAR A-56, FOREIGN SERVICE TRAVEL REGS. DO NOT REQUIRE THE LISTED RELATIVES TO BE MEMBERS OF THE EMPLOYEES HOUSEHOLD.

TO MR. MARKS:

WE REFER TO YOUR LETTER OF DECEMBER 20, 1967, CONCERNING THE ENTITLEMENT OF AN EMPLOYEE OF THE UNITED STATES INFORMATION AGENCY TO BE REIMBURSED FOR THE TRAVEL OF HIS CHILDREN FROM HIS OVERSEAS POST TO THE UNITED STATES IN CONNECTION WITH HIS AUTHORIZED RETURN TO THE UNITED STATES AFTER HE AND HIS WIFE HAD BEEN DIVORCED.

THE FACTS OF THE CASE PRESENTED ARE THAT THE EMPLOYEE'S WIFE AND ONE OF HIS CHILDREN RETURNED TO THE UNITED STATES FROM HIS OVERSEAS POST BEFORE HE BECAME ELIGIBLE FOR RETURN TO THE UNITED STATES AT GOVERNMENT EXPENSE. THE EMPLOYEE AND ANOTHER CHILD REMAINED AT THE OVERSEAS POST UNTIL THE COMPLETION OF HIS TOUR OF DUTY THERE. PRIOR TO THE COMPLETION OF SUCH TOUR OF DUTY THE EMPLOYEE'S WIFE OBTAINED AN ABSOLUTE DIVORCE INCIDENT TO WHICH SHE WAS AWARDED CUSTODY OF BOTH CHILDREN BUT THE EMPLOYEE WAS REQUIRED TO PROVIDE FULL SUPPORT FOR THEM.

WE AGREE THAT THE DECISION IN 44 COMP. GEN. 443, CITED BY YOU IS NOT DIRECTLY APPLICABLE TO THE CASE PRESENTED BECAUSE THE EMPLOYEE INVOLVED IN THAT CASE WAS TRAVELING UNDER THE PROVISIONS OF SECTIONS 1 AND 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 (NOW 5 U.S.C. 5721 ET. SEQ.) AS IMPLEMENTED BY BUREAU OF THE BUDGET CIRCULAR NO. A-56, WHEREAS THE EMPLOYEE OF YOUR AGENCY DERIVES HIS TRAVEL BENEFITS FROM SECTION 911 OF THE FOREIGN SERVICE ACT OF 1946 (22 U.S.C. 1136) AS IMPLEMENTED BY THE FOREIGN SERVICE TRAVEL REGULATIONS (6 FAM 100).

6 FAM 126.2 PROVIDES IN PERTINENT PART:

"A. THE EMPLOYEE MAY ARRANGE FOR ADVANCE TRAVEL OF HIS FAMILY,PAYING THE COST INITIALLY HIMSELF AND CLAIMING REIMBURSEMENT AFTER HE HAS BEEN ISSUED TRAVEL AUTHORIZATION WHICH COVERS THE TRAVEL OF HIS FAMILY AND AFTER HE HAS REACHED HIS ELIGIBILITY DATE. REIMBURSEMENT WILL BE LIMITED TO THE AMOUNTS PAYABLE HAD THE FAMILY TRAVELED AT THE SAME TIME AS THE EMPLOYEE. * * *" THE DEFINITION OF FAMILY AS CONTAINED IN 6 FAM 117K INCLUDES THE EMPLOYEE'S WIFE AND MINOR UNMARRIED CHILDREN. UNLIKE THE DEFINITION OF "IMMEDIATE FAMILY" AS THAT TERM IS DEFINED IN SECTION 1.2D OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, THE FOREIGN SERVICE TRAVEL REGULATIONS DO NOT REQUIRE THAT THE LISTED RELATIVES OF THE EMPLOYEE BE MEMBERS OF HIS HOUSEHOLD.

SINCE THE EMPLOYEE WAS DIVORCED AT THE TIME HE BECAME ELIGIBLE FOR RETURN TRANSPORTATION HE IS NOT ELIGIBLE FOR REIMBURSEMENT OF THE COST OF THE ADVANCE RETURN TRAVEL OF HIS FORMER WIFE. HOWEVER, HIS CHILDREN, THOUGH IN THE CUSTODY OF HIS FORMER WIFE, WERE STILL A PART OF HIS FAMILY SINCE HE IS RESPONSIBLE FOR THEIR FULL SUPPORT.

THEREFORE, WE WOULD NOT OBJECT TO YOUR REIMBURSING THE EMPLOYEE FOR THE COST OF THE ADVANCE TRAVEL OF THE CHILD WHO ACCOMPANIED HIS FORMER WIFE TO THE UNITED STATES. OF COURSE, THE COST OF RETURN TRAVEL OF THE CHILD WHO REMAINED WITH THE EMPLOYEE AND ACCOMPANIED HIM TO THE UNITED STATES UPON HIS RETURN IS ALSO REIMBURSABLE.