B-193311, APRIL 3, 1979

B-193311, APRIL 3, 1979

DIGEST: FOREIGN SERVICE OFFICER STATIONED IN WARSAW TAKES LEAVE WITHOUT PAY DUE TO PREGNANCY. SHE RETURNS TO THE U.S. AS A DEPENDENT ON HER FOREIGN SERVICE OFFICER HUSBAND'S ORDERS EFFECTING A PERMANENT CHANGE OF STATION FOR LONG-TERM TRAINING IN CALIFORNIA. SHE IS RETURNED TO ACTIVE DUTY IN WASHINGTON, D.C., INCIDENT TO CONTINUING LONG-TERM TRAINING IN CALIFORNIA PARALLEL IN DURATION TO THAT OF HER HUSBAND. ON THE RECORD, WASHINGTON, D.C., IS NOT HER OFFICIAL DUTY STATION FOR PURPOSE OF GIVING HER TEMPORARY DUTY FOR LONG-TERM TRAINING WHICH IS AVAILABLE ONLY TO EMPLOYEES ASSIGNED IN THE UNITED STATES.

SUZANNE BUTCHER - FOREIGN SERVICE OFFICER - LONG-TERM TRAINING - TRAVEL ENTITLEMENTS:

ROGER B. FELDMAN, DEPUTY ASSISTANT SECRETARY FOR BUDGET AND FINANCE, DEPARTMENT OF STATE, REQUESTS AN OPINION ON THE AGENCY DECISION TO OFFER MRS. SUZANNE BUTCHER THE OPTION OF BEING ASSIGNED TO LONG-TERM TRAINING AT STANFORD UNIVERSITY ON TEMPORARY DUTY (TDY) WITH PAYMENT OF PER DIEM OR ON A PERMANENT CHANGE OF STATION.

MR. FELDMAN STATES THE PERTINENT FACTS AS FOLLOWS:

"MRS. BUTCHER IS A FOREIGN SERVICE OFFICER WHO WAS INITIALLY ISSUED SEPARATE TRAVEL ORDERS ASSIGNING HER TO AMEMBASSY, WARSAW, POLAND FROM THE DEPARTMENT (WASHINGTON, D.C.). HER HUSBAND IS ALSO A FOREIGN SERVICE OFFICER, WHO ALSO WAS ASSIGNED TO WARSAW FROM THE DEPARTMENT AND TRAVELED TO WARSAW ON HIS OWN TRAVEL ORDERS.

"AFTER APPROXIMATELY 14 MONTHS ON DUTY IN WARSAW, MRS. BUTCHER REQUESTED THAT SHE BE PLACED ON LEAVE WITHOUT PAY (LWOP) FOR PERSONAL REASONS (PREGNANCY).

"MRS. BUTCHER'S HUSBAND WAS SUBSEQUENTLY ASSIGNED FROM WARSAW TO STANFORD UNIVERSITY IN CALIFORNIA AND HIS TRAVEL ORDERS AUTHORIZED HOME LEAVE IN PONCA CITY, OKLAHOMA AND CONSULTATION IN THE DEPARTMENT EN ROUTE TO STANFORD UNIVERSITY. MRS. BUTCHER REQUESTED THAT SHE NOT BE RETURNED TO DUTY IN WARSAW SO THAT SHE COULD TRAVEL TO THE U.S. AS A DEPENDENT ON HER HUSBAND'S TRAVEL ORDERS AND AVAIL HERSELF OF TRAVEL TO THE HOME LEAVE LOCATION. (MRS. BUTCHER WAS NOT ELIGIBLE FOR HOME LEAVE AS AN EMPLOYEE BECAUSE SHE HAD NOT COMPLETED 18 MONTHS IN A DUTY STATUS IN WARSAW.)

"MRS. BUTCHER SUBSEQUENTLY TRAVELED TO WASHINGTON ON HER HUSBAND'S TRAVEL ORDERS. WHILE IN WASHINGTON SHE WAS RETURNED TO DUTY STATUS.

"BOTH OF THE BUTCHER'S COMPETED AS EMPLOYEES AND WERE SELECTED FOR UNIVERSITY TRAINING ON THEIR INDIVIDUAL MERITS, THE SAME AS WHEN BOTH WERE ASSIGNED TO WARSAW."

OUR OPINION IS REQUESTED SPECIFICALLY ON THE FOLLOWING QUESTIONS:

" * * * (1) IS MRS. BUTCHER ELIGIBLE TO RECEIVE THE TDY ORDERS AND THE PAYMENT OF PER DIEM DURING THE PERIOD SHE IS AT STANFORD UNIVERSITY? (2) IF SHE IS NOT, WOULD SHE BE ENTITLED TO PAYMENT OF SUBSISTENCE/PER DIEM DURING THE PERIOD OF CONSULTATION IN THE DEPARTMENT (WASHINGTON, D.C.)?"

ONE OF THE ENCLOSURES SHOWS THAT THE AGENCY, AS OF FEBRUARY 24, 1978, HAD ASSIGNED MRS. BUTCHER TO A YEAR OF TRAINING STARTING IN SEPTEMBER 1978, PRECEDED BY A 4-WEEK PRE-UNIVERSITY COURSE AT "FSI/WASHINGTON" BEGINNING JULY 17, 1978. ON APRIL 27, 1978, THE AGENCY SET FORTH THE PROPOSED PERSONNEL ACTION AND TRAVEL FOR MR. BUTCHER. AFTER HOME LEAVE AND 5 DAYS OF CONSULTATION IN WASHINGTON HE WAS TO BE ASSIGNED TO 33 DAYS' TRAINING IN WASHINGTON BEGINNING JULY 17, 1978, BEFORE COMPLETION OF TRANSFER TO STANFORD FOR LONG-TERM TRAINING.

THE ISSUE PRESENTED REQUIRES A DETERMINATION OF WHETHER WASHINGTON, D.C., IN FACT IS MRS. BUTCHER'S PERMANENT DUTY STATION. ON THE RECORD PRESENTED WE CANNOT SO CONCLUDE FOR THE REASONS SET FORTH BELOW.

THE APPLICABLE AGENCY REGULATIONS PROVIDE THAT FOREIGN SERVICE OFFICERS ASSIGNED IN THE UNITED STATES WHO HAVE BEEN SELECTED FOR LONG TERM UNIVERSITY TRAINING OUTSIDE THE WASHINGTON, D.C. AREA ARE GIVEN THE CHOICE BETWEEN BEING TRANSFERRED TO THEIR TRAINING ASSIGNMENT OR BEING DETAILED ON TDY. THE TDY OPTION INCLUDES TRAVEL AND PER DIEM FOR THE EMPLOYEE. UNDER THE TDY OPTION, TRAVEL FOR THE EMPLOYEE'S FAMILY AND SHIPMENT OR STORAGE OF HOUSEHOLD EFFECTS IS NOT AUTHORIZED. UPON COMPLETION OF TRAINING, EMPLOYEES CHOOSING TDY ARE PAID TRAVEL AND TRANSPORTATION FOR THEIR FAMILIES AND EFFECTS FROM THEIR LAST POST OF ASSIGNMENT (NOT THE TRAINING FACILITY) TO THE LOCATION OF THE NEXT ASSIGNMENT. 3 FOREIGN AFFAIRS MANUAL (FAM) 817 (FEBRUARY 27, 1976).

THERE IS NOTHING IN THE RECORD WITH RESPECT TO NATURE OF DUTY STATION THAT DISTINGUISHES THE RETURNING OF MRS. BUTCHER TO ACTIVE STATUS IN WASHINGTON, D.C., FROM THAT OF MR. BUTCHER. AS SET FORTH ABOVE, MRS. BUTCHER'S OFFICIAL DUTY STATION WAS WARSAW WHEN SHE TOOK LEAVE WITHOUT PAY. WHILE IN WARSAW, SHE WAS SELECTED FOR THE EXTENDED TRAINING AT STANFORD AND THE DETERMINATION TO RETURN HER TO DUTY IN WASHINGTON, D.C., RATHER THAN WARSAW WAS TO PERMIT HER TO TRAVEL TO THE HOME LEAVE LOCATION WITH HER HUSBAND.

WE HAVE CONSISTENTLY HELD THAT AN EMPLOYEE MAY NOT PROPERLY BE TRANSFERRED TO A PLACE AT WHICH HE IS NOT EXPECTED TO REMAIN FOR AN EXTENDED PERIOD OF TIME FOR THE PURPOSE OF INCREASING HIS ENTITLEMENT TO TRAVEL, TRANSPORTATION, AND RELOCATION EXPENSES. B-192199, JANUARY 31, 1979; B-171594, MARCH 27, 1974; AND B-166181, APRIL 1, 1969. THE OFFICIAL DUTY STATION OF AN EMPLOYEE IS A MATTER OF FACT AND NOT MERELY ONE OF ADMINISTRATIVE DESIGNATION. IT HAS CONSISTENTLY BEEN HELD THAT AN EMPLOYEE'S OFFICIAL DUTY OR PERMANENT DUTY STATION IS THE PLACE AT WHICH HE ACTUALLY IS STATIONED; THAT IS, THE PLACE WHERE THE EMPLOYEE EXPECTS, AND IS EXPECTED, TO SPEND THE GREATER PART OF HIS TIME. 32 COMP.GEN. 87, 88 (1952).

ON THE BASIS OF THE FACTS PRESENTED WE CANNOT CONCLUDE THAT WASHINGTON, D.C., IS MRS. BUTCHER'S OFFICIAL DUTY STATION. THUS, THE AGENCY COULD NOT GRANT HER THE OPTION AVAILABLE TO FOREIGN SERVICE OFFICERS ASSIGNED IN THE UNITED STATES WHO HAVE BEEN SELECTED FOR LONG TERM TRAINING TO LOCATIONS OUTSIDE THE WASHINGTON AREA. QUESTION 1 IS ANSWERED IN THE NEGATIVE.

IN ANSWER TO QUESTION NUMBER 2, SINCE WASHINGTON, D.C., IS NOT MRS. BUTCHER'S PERMANENT DUTY STATION, SHE WOULD, IF OTHERWISE PROPER, BE ENTITLED TO PAYMENT OF SUBSISTENCE/PER DIEM DURING THE PERIOD OF CONSULTATION IN WASHINGTON, D.C., PRIOR TO HER TRANSFER TO STANFORD UNIVERSITY FOR LONG-TERM TRAINING.