B-166357, APR. 17, 1969

B-166357, APR. 17, 1969

TO MR. R. J. SCHULLERY:

YOUR LETTER OF MARCH 4, 1969, MS-430, REQUESTS OUR DECISION ON WHETHER IT IS LEGALLY REQUIRED UPON THE FACTS SET FORTH BELOW TO EFFECT COLLECTION OF $576 FROM FRANCIS W. WEEKS, A FORMER AIR TRAFFIC CONTROL SPECIALIST OF THE FEDERAL AVIATION ADMINISTRATION.

YOU STATE THAT IN JUNE 1968 MR. WEEKS UNDER THE AUTHORITY PROVIDED IN PUBLIC LAW 83-737 WAS ISSUED VACATION TRAVEL ORDERS FROM HONOLULU, HAWAII, TO ASHTABULA, OHIO, AND RETURN. THE TRAVEL ORDERS SHOWED THAT MR. WEEKS HAD EXECUTED ON JUNE 12, 1968, A NEW WRITTEN AGREEMENT FOR OVERSEAS SERVICE.

THE EMPLOYEE'S DEPENDENTS TOOK THEIR VACATION IN FLORIDA AND RETURNED TO HONOLULU IN AUGUST 1968. BECAUSE OF HIS WORK SCHEDULE, MR. WEEKS WAS UNABLE TO TRAVEL WITH HIS DEPENDENTS. HE DID, HOWEVER, PAY THE EXCESS COST OF THE DEPENDENTS' FARES FROM ASHTABULA, OHIO (HIS PLACE OF ACTUAL RESIDENCE) TO DAYTONA BEACH, FLORIDA, WHERE THEY SPENT THEIR VACATION. MR. WEEKS HAD PLANNED TO TRAVEL AT A LATER DATE; HOWEVER, HE WAS SEPARATED FROM THE SERVICE ON DECEMBER 6, 1968, BECAUSE OF DISABILITY RETIREMENT BEFORE TAKING HIS VACATION TRAVEL. HIS DISABILITY RETIREMENT RESULTED FROM HIS FAILURE TO PASS THE ANNUAL PHYSICAL EXAMINATION, A JOB REQUIREMENT FOR ALL TRAFFIC CONTROL SPECIALISTS WITH THE FEDERAL AVIATION ADMINISTRATION.

NORMALLY THE EMPLOYEE HIMSELF MUST RETURN TO THE CONTINENTAL UNITED STATES FOR THE PURPOSE OF TAKING LEAVE IN ORDER TO BE ENTITLED TO PAYMENT UNDER 5 U.S.C. 5728 (A) FOR THE TRANSPORTATION OF HIS DEPENDENTS FROM THE OVERSEAS POST OF DUTY TO THE ACTUAL PLACE OF RESIDENCE IN THE CONTINENTAL UNITED STATES AND RETURN. 35 COMP GEN. 101. WHERE, HOWEVER, AS HERE, THE EMPLOYEE IS PRECLUDED FROM SO TRAVELING FOR REASONS BEYOND HIS CONTROL AND HIS SERVICES ARE TERMINATED IN THE INTERESTS OF THE GOVERNMENT, THE PREVIOUSLY PAID COSTS OF THE VACATION TRANSPORTATION FOR HIS DEPENDENTS NEED NOT BE RECOVERED. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.