B-62938, FEBRUARY 3, 1947, 26 COMP. GEN. 554

B-62938, FEBRUARY 3, 1947, 26 COMP. GEN. 554

TRAVELING EXPENSES; TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD EFFECTS - EMPLOYEE TRANSFERRED FROM ONE DEPARTMENT TO ANOTHER FOR OVERSEAS DUTY - ACT OF AUGUST 2, 1946 AN EMPLOYEE TRANSFERRED FROM ONE DEPARTMENT TO ANOTHER FOR OVERSEAS DUTY, PRIOR TO THE EFFECTIVE DATE ( NOVEMBER 1, 1946) OF SECTION 1 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, AUTHORIZING PAYMENT OF THE EXPENSES OF EMPLOYEES' TRAVEL AND TRANSPORTATION OF THEIR DEPENDENTS AND HOUSEHOLD EFFECTS UPON SUCH TRANSFER, BUT SUBSEQUENT TO THE EFFECTIVE DATE ( AUGUST 2, 1946) OF SECTION 7 OF SAID ACT, AUTHORIZING SUCH EXPENSES FOR "NEW APPOINTEES" FOR OVERSEAS DUTY, IS TO BE REGARDED AS A NEW APPOINTEE AND, THEREFORE, ENTITLED BY VIRTUE OF SAID SECTION 7 TO REIMBURSEMENT FOR THE EXPENSES OF HIS TRAVEL AND TRANSPORTATION OF HIS FAMILY AND HOUSEHOLD EFFECTS TO HIS OVERSEAS STATION.

COMPTROLLER GENERAL WARREN TO W. R. DILLON, DEPARTMENT OF THE INTERIOR, FEBRUARY 3, 1947:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 24, 1946, AS FOLLOWS:

ENCLOSED FOR AN ADVANCE OPINION, IN ACCORDANCE WITH SECTION 3 OF THE ACT APPROVED DECEMBER 29, 1941, 55 STAT. 876, IS REIMBURSEMENT ACCOUNT IN FAVOR OF ROBERT V. TERHUNE, ADMINISTRATIVE ASSISTANT, IN THE AMOUNT OF $50.13. MR. TERHUNE'S CLAIM REPRESENTS A PORTION OF THE TRAVEL EXPENSE INCURRED BY HIM IN REPORTING FOR PERMANENT DUTY AT MANILA, LUZON, PHILIPPINE ISLANDS.

MR. TERHUNE WAS APPOINTED ON SEPTEMBER 26, 1946, EFFECTIVE OCTOBER 1, 1946, FOR DUTY IN CONNECTION WITH WORK IN THE PHILIPPINE ISLANDS PURSUANT TO SECTION 309 OF THE PHILIPPINE REHABILITATION ACT OF 1946 ( PUBLIC LAW 370, 79TH CONGRESS), BY TRANSFER FROM THE WAR DEPARTMENT, CORPS OF ENGINEERS. MR. TERHUNE'S PERMANENT OFFICIAL DUTY STATION UNDER THIS APPOINTMENT WAS DESIGNATED AS MANILA, LUZON, PHILIPPINE ISLANDS, AND TRAVEL EXPENSES OF HIMSELF AND TRANSPORTATION OF MEMBERS OF HIS IMMEDIATE FAMILY AND HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS WAS AUTHORIZED FROM SEATTLE, WASHINGTON, TO MANILA. A SIGNED STATEMENT OF MR. TERHUNE AGREEING TO REMAIN IN THE GOVERNMENT SERVICE FOR ONE YEAR FOLLOWING HIS ARRIVAL IN THE PHILIPPINE ISLANDS IS ON FILE IN THIS OFFICE. A COPY OF THE APPOINTMENT REFERRED TO ABOVE IS ATTACHED TO THE CLAIM.

MR. TERHUNE WAS AUTHORIZED TO PROCEED FROM SEATTLE, WASHINGTON, TO SAN FRANCISCO, CALIFORNIA, BY LETTER OF TRAVEL INSTRUCTIONS, DATED SEPTEMBER 30, 1946, FOR A PERIOD OF TEMPORARY DUTY TO LAST UNTIL ABOUT DECEMBER 1, 1946. THIS PERIOD OF TEMPORARY DUTY WAS EXTENDED TO ABOUT MARCH 15, 1947, BY AMENDMENT DATED NOVEMBER 25, 1946, TO THE SAID LETTER OF TRAVEL INSTRUCTIONS. SAN FRANCISCO IS THE ASSEMBLY POINT FOR THE STAFF BEING RECRUITED FOR DUTY IN THE PHILIPPINE ISLANDS AND MR. TERHUNE, AS WELL AS OTHERS, WAS ASSIGNED TO TEMPORARY DUTY AT THAT PLACE WHILE EN ROUTE TO MANILA FOR THE PURPOSE OF PURCHASING SUPPLIES AND EQUIPMENT, HANDLING VESSEL RECONVERSION CONTRACTS, RECRUITING OF OFFICERS AND CREWS FOR THE VESSELS, AND PERFORMING OTHER MATTERS INCIDENT TO THE PROPOSED OPERATIONS IN THE PHILIPPINE ISLANDS. UPON COMPLETION OF THIS TEMPORARY DUTY, MR. TERHUNE WILL BE GIVEN ADDITIONAL INSTRUCTIONS DIRECTING THAT HE PERFORM TRAVEL TO HIS PERMANENT DUTY STATION AT MANILA. COPIES OF THE LETTER OF TRAVEL INSTRUCTIONS AND AMENDMENT THERETO ARE ATTACHED TO THE CLAIM.

SECTION 7 OF THE ACT OF AUGUST 2, 1946 ( PUBLIC LAW 600--- 79TH CONGRESS) PROVIDES THAT APPROPRIATIONS FOR THE DEPARTMENTS SHALL BE AVAILABLE, IN ACCORDANCE WITH THE REGULATIONS PRESCRIBED BY THE PRESIDENT, FOR EXPENSES OF TRAVEL OF NEW APPOINTEES, AND TRANSPORTATION OF MEMBERS OF THEIR IMMEDIATE FAMILIES AND HOUSEHOLD GOODS AND PERSONAL EFFECTS, FROM THE PLACES OF THEIR ACTUAL RESIDENCE IN THE UNITED STATES TO THE PLACES OF PERMANENT DUTY OUTSIDE THE CONTINENTAL UNITED STATES. THE REGULATIONS OF THE PRESIDENT ARE STATED IN EXECUTIVE ORDER 9778, DATED SEPTEMBER 10, 1946.

SECTION 1 OF THE ACT OF AUGUST 2, 1946 ( PUBLIC LAW 600--- 79TH CONGRESS) AUTHORIZED, UNDER REGULATIONS TO BE PRESCRIBED BY THE PRESIDENT, THE PAYMENT OF TRAVEL EXPENSES OF EMPLOYEES, AND TRANSPORTATION OF MEMBERS OF THEIR IMMEDIATE FAMILIES AND HOUSEHOLD GOODS AND PERSONAL EFFECTS, WHEN TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER, INCLUDING TRANSFER FROM ONE DEPARTMENT TO ANOTHER, FOR PERMANENT DUTY. THE REGULATIONS OF THE PRESIDENT ARE STATED IN EXECUTIVE ORDER 9805, DATED NOVEMBER 25, 1946. THESE REGULATIONS WERE MADE EFFECTIVE NOVEMBER 1, 1946, AS TO TRANSFERS ORDERED ON AND AFTER THAT DATE.

IT SEEMS CLEAR THEREFORE THAT EMPLOYEES IN THE STATUS OF THAT OF MR. TERHUNE, I.E. THOSE WHO WERE APPOINTED BY TRANSFER FROM ANOTHER DEPARTMENT, WERE (1) ENTITLED TO THE EXPENSES ALLOWED BY SECTION 1 OF THE ACT OF AUGUST 2, 1946, SUPRA, IF THE APPOINTMENT WAS MADE ON AND AFTER NOVEMBER 1, 1946, AND (2) NOT ENTITLED TO SUCH EXPENSES IF APPOINTED PRIOR TO AUGUST 2, 1946, UNDER THE REGULATIONS GOVERNING TRANSFERS OF OFFICIAL STATIONS THEN IN EFFECT ( EXECUTIVE ORDER 8588, AS AMENDED, AND EXECUTIVE ORDER 9587) ON THE BASIS OF THE COMPTROLLER GENERAL'S DECISION A-54484, DATED MAY 25, 1934, (13 COMP. GEN. 390), AND LATER ONES TO THE SAME EFFECT, THAT A TRANSFER OF AN EMPLOYEE BETWEEN DEPARTMENTS WAS TO BE REGARDED AS A "NEW APPOINTMENT.'

AS MR. TERHUNE'S APPOINTMENT BY TRANSFER FROM ANOTHER DEPARTMENT WAS EFFECTIVE OCTOBER 1, 1946, IT WOULD SEEM THAT NEITHER THE AUTHORIZATION, EFFECTIVE NOVEMBER 1, 1946, NOR THE PROHIBITION APPLICABLE PRIOR TO AUGUST 2, 1946, AS MENTIONED IN THE PRECEDING PARAGRAPH IS APPLICABLE TO HIS CLAIM. RATHER IT WOULD SEEM THAT ACTION ON HIS CLAIM MUST BE DECIDED UPON THE DEFINITION OF THE WORDS "NEW APPOINTEES" AS USED IN SECTION 7 OF THE ACT OF AUGUST 2, 1946, SUPRA.

THE DECISION OF YOUR OFFICE, DATED MAY 25, 1934 (13 COMP. GEN. 390), HOLDING THAT AN EMPLOYEE APPOINTED BY TRANSFER FROM ANOTHER DEPARTMENT IS TO BE REGARDED AS A "NEW APPOINTEE" WOULD APPEAR TO PERMIT THE PAYMENT OF MR. TERHUNE'S CLAIM UNDER THE PROVISIONS OF SECTION 7 OF THE ACT OF AUGUST 2, 1946, SUPRA. HOWEVER, I AM IN DOUBT AS TO THE PROPRIETY OF CERTIFYING THE ACCOUNT FOR PAYMENT ON THIS BASIS INASMUCH AS YOUR DECISIONS WERE MADE PRIOR TO APPROVAL OF THE ABOVE-MENTIONED ACT OF AUGUST 2, 1946.

THIS OFFICE PROPOSES IN THE NEAR FUTURE TO DIRECT MR. TERHUNE TO TRAVEL FROM SAN FRANCISCO, HIS PRESENT PLACE OF TEMPORARY DUTY, TO MANILA, LUZON, PHILIPPINE ISLANDS, HIS PERMANENT DUTY STATION. IT IS ASSUMED THAT YOUR DECISION ON THE ENCLOSED CLAIM WILL APPLY EQUALLY TO THE TRAVEL AND OTHER EXPENSES WHICH MAY BE PAID FROM GOVERNMENT FUNDS TO MR. TERHUNE FOR SUCH TRAVEL.

YOUR OPINION WILL BE APPRECIATED.

SECTION 1 OF THE ACT OF AUGUST 2, 1946, PUBLIC LAW 600, 60 STAT. 806, EFFECTIVE NOVEMBER 1, 1946, EXTENDS THE RULES THERETOFORE IN EFFECT RELATING TO THE PAYMENT OF AN EMPLOYEE'S OWN TRANSPORTATION AND TRAVELING EXPENSES INCIDENT TO A TRANSFER OF OFFICIAL STATION, AND, AMONG OTHER THINGS, IT AUTHORIZES THE PAYMENT OF SUCH EXPENSES IN CASES OF TRANSFERS FROM ONE GOVERNMENT DEPARTMENT TO ANOTHER. SECTION 7 OF THE SAID ACT, 60 STAT. 808, EFFECTIVE ON THE DATE OF ITS APPROVAL ( AUGUST 2, 1946), PROVIDES FOR THE PAYMENT OF SUCH EXPENSES TO NEW APPOINTEES FROM THE PLACES OF THEIR ACTUAL RESIDENCE IN THE UNITED STATES TO THE PLACES OF PERMANENT DUTY OUTSIDE THE CONTINENTAL UNITED STATES. THEREFORE, AS AUTHORITY FOR THE PAYMENT OF TRAVELING AND TRANSPORTATION EXPENSES TO TRANSFEREES AND NEW APPOINTEES IS PROVIDED FOR SEPARATELY IN THE SAID ACT, IT CLEARLY APPEARS THAT, FROM THE EFFECTIVE DATES OF THE RESPECTIVE PROVISIONS, TRANSFERS (INCLUDING INTERAGENCY TRANSFERS WHERE MADE PURSUANT TO THE PROCEDURE PRESCRIBED IN CONNECTION WITH THE ADMINISTRATION OF THE CIVIL SERVICE LAWS AND REGULATIONS) MUST BE CONSIDERED SEPARATE AND APART FROM NEW APPOINTMENTS AS CONTEMPLATED BY THE PROVISIONS OF SECTION 7. THAT CONNECTION, SEE ANSWER TO QUESTION 13 IN DECISION OF JANUARY 15, 1947, B-62267, 26 COMP. GEN. 488. HOWEVER, AS THE PROVISIONS OF SECTION 1, SUPRA, DID NOT BECOME OPERATIVE UNTIL NOVEMBER 1, 1946, THE LEGALITY OF PAYMENTS FROM GOVERNMENT FUNDS OF EXPENSES INCURRED INCIDENT TO TRANSFER, EFFECTED PRIOR TO THAT DATE, MUST BE DETERMINED IN ACCORDANCE WITH THE LAWS AND REGULATIONS IN FORCE AT THE TIME SUCH TRANSFERS WERE COMPLETED.

WITH REFERENCE TO THE FACTS RECITED IN YOUR LETTER, THE EMPLOYEE INVOLVED WAS APPOINTED BY TRANSFER FROM THE WAR DEPARTMENT, EFFECTIVE OCTOBER 1, 1946, AND, SUBJECT TO DECISION BY THE GENERAL ACCOUNTING OFFICE AS TO "THE LEGALITY OF THE AUTHORIZATION TO PAY TRANSPORTATION AND PER DIEM BETWEEN SEATTLE, WASHINGTON AND MANILA, PHILIPPINE ISLANDS," AS WELL AS "THE TRANSPORTATION OF YOUR IMMEDIATE FAMILY AND YOUR HOUSEHOLD GOODS AND PERSONAL EFFECTS," HE WAS AUTHORIZED TO TRAVEL AND TRANSPORT HIS FAMILY AND HOUSEHOLD EFFECTS FROM HIS HOME IN SEATTLE, WASHINGTON, TO HIS FIRST PERMANENT DUTY STATION IN MANILA, PHILIPPINE ISLANDS. THE GENERAL RULE RESPECTING SUCH TRANSFERS IN EFFECT AT THAT TIME IS SET FORTH IN DECISION OF MAY 25, 1934, 13 COMP. GEN. 390, AS FOLLOWS:

A TRANSFER BETWEEN DEPARTMENTS IS TO BE REGARDED AS A NEW APPOINTMENT IN APPLYING LAWS AND REGULATIONS CONTROLLING THE PAYMENT OF TRAVELING EXPENSES, AND AN EMPLOYEE, UPON SUCH TRANSFER, MAY NOT BE REIMBURSED FOR TRAVELING EXPENSES FROM GOVERNMENT FUNDS IN REPORTING TO THE NEW POSITION, EVEN THOUGH THE TRAVEL WAS PERFORMED PURSUANT TO A CONTRACT ENTERED INTO BETWEEN THE DEPARTMENT AND THE EMPLOYEE, THE TERMS OF WHICH PROVIDED FOR THE PAYMENT OF THE TRAVELING EXPENSES BY THE DEPARTMENT.

BY THAT RULE, THE RECITED TRANSACTION MUST BE VIEWED AS A NEW APPOINTMENT. GENERALLY, PRIOR TO AUGUST 2, 1946, TRAVEL BY A NEW APPOINTEE TO A NEW DUTY STATION AT GOVERNMENT EXPENSE WAS NOT AUTHORIZED, BUT BY SECTION 7 OF THE ACT OF AUGUST 2, 1946, SUPRA, IT WAS PROVIDED, SO FAR AS HERE MATERIAL, AS FOLLOWS:

SEC. 7. APPROPRIATIONS FOR THE DEPARTMENTS SHALL BE AVAILABLE, IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT, FOR EXPENSES OF TRAVEL OF NEW APPOINTEES, EXPENSES OF TRANSPORTATION OF THEIR IMMEDIATE FAMILIES AND EXPENSES OF TRANSPORTATION OF THEIR HOUSEHOLD GOODS AND PERSONAL EFFECTS FROM PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT TO PLACES OF EMPLOYMENT OUTSIDE CONTINENTAL UNITED STATES * * *.' (ITALICS SUPPLIED.)

HENCE, IT BEING A REQUIREMENT OF LAW AND REGULATION IN FORCE ON OCTOBER 1, 1946, THE DATE MR. TERHUNE'S TRANSFER WAS EFFECTED, THAT SUCH TRANSACTIONS BE REGARDED AS NEW APPOINTMENTS, THE ABOVE-QUOTED PROVISIONS- -- EFFECTIVE AUGUST 2, 1946--- CLEARLY ARE APPLICABLE TO HIS CASE. THAT CONNECTION, HOWEVER, IT SHOULD NOT BE OVERLOOKED THAT THE LAWS CONTROLLING THE PAYMENT OF TRAVELING EXPENSES INCIDENT TO INTER-AGENCY TRANSFERS WERE AMENDED BY SECTION 1 OF PUBLIC LAW 600, AND FROM THE DATE THAT SECTION BECAME OPERATIVE--- NOVEMBER 1, 1946--- EMPLOYEES SO TRANSFERRED NO LONGER MAY BE REGARDED AS NEW APPOINTEES WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 7, SUPRA.

IN VIEW OF THE FOREGOING, IT APPEARS REASONABLE TO CONCLUDE THAT MR. TERHUNE IS ENTITLED TO BE REIMBURSED FOR THE EXPENSES OF HIS OWN TRAVEL, TOGETHER WITH THE TRANSPORTATION EXPENSES OF HIS IMMEDIATE FAMILY AND HOUSEHOLD EFFECTS FROM SEATTLE, WASHINGTON, TO HIS OFFICIAL DUTY STATION IN MANILA, PHILIPPINE ISLANDS. ACCORDINGLY, THE SUBMITTED VOUCHER, IF OTHERWISE CORRECT, MAY BE CERTIFIED FOR PAYMENT.