B-176471, SEP 5, 1972

B-176471, SEP 5, 1972

CIVILIAN EMPLOYEE - FOREIGN STATION - DEPENDENT VISITATION TRAVEL DECISION DENYING THE CLAIM OF JOSEPH FERNANDEZ FOR REIMBURSEMENT OF TRAVEL EXPENSES TO THE UNITED STATES FOR HIS WIFE IN CONNECTION WITH VISITATION TRAVEL. THE LEGISLATIVE HISTORY OF 22 U.S.C. 1136(11) DOES NOT INDICATE THAT CONGRESS INTENDED TO PROVIDE AUTHORITY FOR VISITATION TRAVEL TO OTHER THAN OFFICERS AND EMPLOYEES. SINCE THE REGULATIONS, 3 FAM 699, ARE IN ACCORD WITH THE STATUTE AND DO NOT AUTHORIZE VISITATION TRAVEL OF A DEPENDENT, THERE IS NO BASIS FOR PAYMENT OF THE CLAIM.

TO MR. JOSEPH FERNANDEZ:

REFERENCE IS MADE TO YOUR LETTER OF JULY 3, 1972, ENCLOSING A CLAIM FOR REIMBURSEMENT OF TRAVEL EXPENSES TO THE UNITED STATES FOR YOUR WIFE IN CONNECTION WITH VISITATION TRAVEL AND VARIOUS DOCUMENTS REGARDING THE DISALLOWANCE OF THE CLAIM BY THE DEPARTMENT OF STATE.

THE RECORD INDICATES THAT YOUR WIFE WAS PERMITTED TO ACCOMPANY YOU TO SAIGON, VIETNAM, BUT THAT YOUR TWO MINOR SONS WERE NOT. YOU WERE AUTHORIZED TRAVEL FOR THE PURPOSE OF VISITING YOUR DEPENDENT CHILDREN IN ACCORDANCE WITH THE PROVISIONS OF SECTION 699, VOLUME 3, FOREIGN AFFAIRS MANUAL, WHICH IMPLEMENT PUBLIC LAW 90-221, APPROVED DECEMBER 23, 1967, 22 U.S.C. 1136(11). YOUR WIFE, WHO WAS NOT AUTHORIZED TO TRAVEL AT GOVERNMENT EXPENSE, ACCOMPANIED YOU. YOUR CLAIM FOR $1,283.30 REPRESENTING TRAVEL EXPENSES INCURRED BY YOUR WIFE, WAS DISALLOWED BY THE DIRECTOR GENERAL OF THE FOREIGN SERVICE ON JUNE 23, 1972, BECAUSE A REVIEW OF THE LEGISLATIVE HISTORY OF PUBLIC LAW 90-221 INDICATED A CONGRESSIONAL INTENT TO AUTHORIZE VISITATION TRAVEL TO ONLY OFFICERS AND EMPLOYEES. YOU STATE THAT AT THE TIME OF PASSAGE OF THE VISITATION TRAVEL LEGISLATION DEPENDENTS WERE NOT PERMITTED TO RESIDE IN VIETNAM, THEREFORE, THE INCLUSION OF A PROVISION TO ALLOW SPOUSES VISITATION TRAVEL WOULD HAVE BEEN IRRELEVANT. SUBSEQUENT TO THE PASSAGE OF PUBLIC LAW 90-221 WORKING AND KEY WIVES ARE ALLOWED TO RESIDE IN SAIGON. YOU BELIEVE THAT SINCE YOUR WIFE WAS PERMITTED TO ACCOMPANY YOU TO SAIGON SHE SHOULD ALSO BE AUTHORIZED TO PERFORM VISITATION TRAVEL AT GOVERNMENT EXPENSE. MOREOVER, YOU EXPRESS THE OPINION THAT SUBSECTION 911(2) OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, 22 U.S.C. 1136(2), PERMITS THE SECRETARY OF STATE TO AUTHORIZE A SPOUSE TO ACCOMPANY THE EMPLOYEE WHENEVER A LEGITIMATE PURPOSE CAN BE ACCOMPLISHED BY SUCH TRAVEL.

SECTION 1136 OF TITLE 22, U.S.C. PROVIDES IN PERTINENT PART AS FOLLOWS:

"THE SECRETARY MAY, UNDER SUCH REGULATIONS AS HE SHALL PRESCRIBE, PAY -

"(11) THE TRAVEL EXPENSES OF OFFICERS AND EMPLOYEES OF THE SERVICE FOR UP TO TWO ROUND TRIPS EACH YEAR FOR PURPOSES OF FAMILY VISITATION IN SITUATIONS WHERE THE FAMILY OF THE OFFICER OR EMPLOYEE IS PREVENTED BY OFFICIAL ORDER FROM ACCOMPANYING SUCH OFFICER OF EMPLOYEE TO, OR HAS BEEN ORDERED EVACUATED FROM, HIS ASSIGNED POST BECAUSE OF DANGER FROM HOSTILE ACTIVITY ***"

THE SECRETARY IN PROMULGATING THE REGULATIONS IN 3 FAM 699 TO IMPLEMENT 22 U.S.C. 1136(11) PROVIDED FOR VISITATION TRAVEL OF OFFICERS AND EMPLOYEES ONLY. WE HAVE EXAMINED THE LEGISLATIVE HISTORY OF THE STATUTE CITED ABOVE AND FOUND NOTHING THEREIN TO INDICATE THAT THE CONGRESS INTENDED TO PROVIDE AUTHORITY FOR VISITATION TRAVEL TO OTHER THAN OFFICERS AND EMPLOYEES. SINCE THE REGULATIONS ARE IN ACCORD WITH THE STATUTE AND DO NOT AUTHORIZE VISITATION TRAVEL OF A DEPENDENT, THERE IS NO BASIS FOR PAYMENT OF YOUR CLAIM. IT IS IMMATERIAL THAT WIVES ARE NOW, IN CERTAIN CASES, PERMITTED TO ACCOMPANY THEIR HUSBANDS TO SAIGON WHEREAS THEY WERE NOT PERMITTED TO DO SO AT THE TIME OF ENACTMENT OF PUBLIC LAW 90-221. THIS IS SO SINCE NEITHER OUR OFFICE NOR AN EXECUTIVE AGENCY IS EMPOWERED TO PERFORM ACTS WHICH ARE NOT AUTHORIZED BY THE CONGRESS.

REGARDING YOUR CONTENTION THAT THE SECRETARY MAY AUTHORIZE THE TRAVEL OF DEPENDENTS WHENEVER HE AUTHORIZES THE TRAVEL OF AN OFFICER OR EMPLOYEE, 22 U.S.C. 1136(2) PROVIDES AS FOLLOWS:

"THE SECRETARY MAY, UNDER SUCH REGULATIONS AS HE SHALL PRESCRIBE, PAY -

"(2) THE TRAVEL EXPENSES OF THE MEMBERS OF THE FAMILY OF AN OFFICER OR EMPLOYEE OF THE SERVICE WHEN PROCEEDING TO OR RETURNING FROM HIS POST OF DUTY; ACCOMPANYING HIM ON AUTHORIZED HOME LEAVE; ACCOMPANYING HIM FOR REPRESENTATIONAL PURPOSES ON AUTHORIZED TRAVEL WITHIN THE COUNTRY OF HIS ASSIGNMENT OR, AT THE DISCRETION OF THE SECRETARY, OUTSIDE THE COUNTRY OF HIS ASSIGNMENT, BUT IN NO CASE TO EXCEED ONE MEMBER OF HIS FAMILY; OR OTHERWISE TRAVELING IN ACCORDANCE WITH AUTHORITY GRANTED PURSUANT TO THE TERMS OF THIS CHAPTER OR ANY OTHER ACT;"

THE ABOVE STATUTE CLEARLY LIMITS THE AUTHORITY OF THE SECRETARY TO PAY TRAVEL EXPENSES OF DEPENDENTS FOR THE PURPOSES SPECIFIED IN SUCH STATUTE OR OTHER ACTS. THE TRAVEL OF YOUR WIFE FOR VISITATION PURPOSES IS NOT AUTHORIZED SPECIFICALLY BY THE CITED STATUTE OR 22 U.S.C. 1136(11). MOREOVER, WE ARE UNAWARE OF ANY OTHER ACT AUTHORIZING THE PAYMENT OF SUCH TRAVEL. WE ALSO POINT OUT THAT 22 U.S.C. 1136(11) WAS ENACTED BECAUSE THERE WAS DOUBT THAT THE SECRETARY HAD THE AUTHORITY TO PAY FOR VISITATION TRAVEL OF ANY KIND WITHOUT SPECIFIC LEGISLATION. SEE PAGE 3 OF SENATE REPORT NO. 235, 90TH CONG., 1ST SESS., AND PAGE 2 OF HOUSE REPORT NO. 993, 90TH CONG., 1ST SESS. THEREFORE, IT IS OUR OPINION THAT 22 U.S.C. 1136(2) LIKEWISE DOES NOT AUTHORIZE THE SECRETARY TO PAY THE VISITATION TRAVEL EXPENSES OF DEPENDENTS.

IN VIEW OF THE ABOVE YOUR CLAIM IS DENIED.