B-172078, MAR 30, 1971

B-172078, MAR 30, 1971

CIVILIAN EMPLOYEES - OVERSEAS STATION - RETURN TRAVEL DENYING CLAIM OF EUGENE R. SHY FOR PER DIEM IN LIEU OF SUBSISTENCE INCIDENT TO THE EARLY RETURN OF HIS DEPENDENT SON FROM RIYADH, SAUDI ARABIA, TO SACRAMENTO, CALIFORNIA. WHERE A DEPENDENT IS RETURNED TO THE UNITED STATES IN THE PUBLIC INTEREST PRIOR TO THE EMPLOYEE BECOMING ELIGIBLE TO BE RETURNED AT GOVERNMENT EXPENSE THERE IS NO LIABILITY OF THE EMPLOYEE FOR REPAYMENT OF THE EXPENSE THEREOF EVEN THOUGH THE EMPLOYEE FAILS TO FULFILL HIS EMPLOYMENT AGREEMENT. HOWEVER, THE STATUTE UNDER WHICH RETURN OF DEPENDENTS IN THE PUBLIC INTEREST IS AUTHORIZED MAKES NO PROVISION FOR PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE (ONLY TRANSPORTATION).

TO MR. EUGENE R. SHY:

THIS REFERS TO YOUR LETTER OF FEBRUARY 24, 1971, REQUESTING RECONSIDERATION OF OUR OFFICE SETTLEMENT OF FEBRUARY 19, 1971, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM IN LIEU OF SUBSISTENCE INCIDENT TO THE EARLY RETURN OF YOUR DEPENDENT SON, BRIAN D. SHY, FROM RIYADH, SAUDI ARABIA, TO SACRAMENTO, CALIFORNIA.

YOUR CLAIM WAS DISALLOWED BECAUSE THE RECORD INDICATED THAT YOUR OWN RETURN TO THE UNITED STATES WAS DUE TO SEPARATION RATHER THAN A TRANSFER OF OFFICIAL STATION (NO PER DIEM BEING ALLOWABLE FOR SEPARATION TRAVEL). HOWEVER, EVEN IF YOU NOW BE REGARDED AS TRANSFERRED BACK TO THE UNITED STATES AS ALLEGED THERE APPEARS NO AUTHORITY FOR ALLOWANCE OF PER DIEM FOR YOUR SON'S TRAVEL AS HEREINAFTER INDICATED.

TRAVEL ORDER NO. MDD 68-73, DATED JUNE 28, 1969, AUTHORIZED THE EARLY RETURN OF YOUR SON FROM RIYADH, SAUDIA ARABIA, TO SACRAMENTO, CALIFORNIA, IN ACCORDANCE WITH THE PROVISIONS OF C 7003-4(A)2 OF VOLUME II OF THE JOINT TRAVEL REGULATIONS IN EFFECT AT THE TIME THE TRAVEL WAS PERFORMED IN PART AS FOLLOWS:

"A. EARNED OR PUBLIC INTEREST TRANSPORTATION. TRANSPORTATION FOR THE RETURN OF ONE OR MORE OF AN EMPLOYEE'S DEPENDENTS PRIOR TO THE RETURN OF THE EMPLOYEE MAY BE AUTHORIZED TO THE PLACE OF ACTUAL RESIDENCE IN THE UNITED STATES, UNDER EITHER OF THE FOLLOWING CIRCUMSTANCES:

"2. WHEN IT IS DETERMINED BY THE OVERSEAS COMMAND CONCERNED THAT THE BEST INTERESTS OF THE GOVERNMENT WILL BE SERVED BY THE RETURN OF ONE OR MORE OF THE DEPENDENTS FOR COMPELLING PERSONAL REASONS OF A HUMANITARIAN OR COMPASSIONATE NATURE, SUCH AS PHYSICAL OR MENTAL HEALTH, DEATH OF ANY MEMBER OF THE IMMEDIATE FAMILY, OR OBLIGATIONS IMPOSED BY AUTHORITY OR CIRCUMSTANCES OVER WHICH THE EMPLOYEE HAS NO CONTROL."

THE OTHER CIRCUMSTANCE IN WHICH AN EMPLOYEE MAY BE REIMBURSED FOR THE TRAVEL OF A DEPENDENT BACK TO THE UNITED STATES IS WHEN AN EMPLOYEE ELECTS TO RETURN A DEPENDENT PRIOR TO THE TIME HE WOULD BE ELIGIBLE ON HIS OWN TO COME BACK TO THE UNITED STATES AT GOVERNMENT EXPENSE. IN THIS SITUATION THE EMPLOYEE MUST PAY THE EXPENSES HIMSELF AND SEEK REIMBURSEMENT WHEN HE BECOMES ELIGIBLE FOR RETURN. IF AT THAT TIME THE EMPLOYEE'S RETURN IS BECAUSE OF TRANSFER HE IS ENTITLED TO PER DIEM FOR HIMSELF AND FAMILY INCLUDING ANY DEPENDENTS SENT BACK TO THE UNITED STATES AS PREVIOUSLY INDICATED.

WHERE A DEPENDENT IS RETURNED TO THE UNITED STATES IN THE PUBLIC INTEREST PRIOR TO THE EMPLOYEE BECOMING ELIGIBLE TO BE RETURNED AT GOVERNMENT EXPENSE THERE IS NO LIABILITY OF THE EMPLOYEE FOR REPAYMENT OF THE EXPENSES THEREOF EVEN THOUGH THE EMPLOYEE FAILS TO FULFILL HIS EMPLOYMENT AGREEMENT. HOWEVER, THE STATUTE UNDER WHICH RETURN OF DEPENDENTS IN THE PUBLIC INTEREST IS AUTHORIZED MAKES NO PROVISION FOR PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE (ONLY TRANSPORTATION). SEE 5 U.S.C. 5729; ALSO B- 164948, OCTOBER 18, 1968, COPY HEREWITH.

ACCORDINGLY, WE MUST SUSTAIN THE ACTION TAKEN IN OUR SETTLEMENT OF FEBRUARY 19, 1971, IN DISALLOWING YOUR CLAIM.