B-86698, OCTOBER 6, 1949, 29 COMP. GEN. 160

B-86698, OCTOBER 6, 1949, 29 COMP. GEN. 160

TRANSPORTATION - DEPENDENTS - RETURN TO U.S. INASMUCH AS THE AUTHORITY IN SECTION 7 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, TO RETURN DEPENDENTS OF EMPLOYEES STATIONED OVERSEAS IS INSEPARABLE FROM THE AUTHORITY TO RETURN THE EMPLOYEE HIMSELF, THERE CAN BE NO VALID TRAVEL AUTHORITY ISSUED FOR DEPENDENTS ALONE, SO THAT IF RETURN TRAVEL OF DEPENDENTS OCCURS PRIOR TO THE ISSUANCE OF PROPER ORDERS DIRECTING THE RETURN OF THE EMPLOYEE AND HIS DEPENDENTS--- REGARDLESS OF THE REASONS FOR SUCH PRIOR TRAVEL--- EXPENSES INCIDENT THERETO ARE NOT PAYABLE; HOWEVER, WHERE THE EMPLOYEE PERSONALLY HAS PAID SUCH EXPENSES, REIMBURSEMENT MAY BE MADE UPON THE BASIS THAT THE RETURN OF THE DEPENDENTS WAS INCIDENT TO OR IN REASONABLE ANTICIPATION OF ORDERS SUBSEQUENTLY ISSUED TO THE EMPLOYEE AUTHORIZING SUCH RETURN TRAVEL.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS AFFAIRS, OCTOBER 6, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 25, 1949, SETTING FORTH A GENERAL FACTUAL SITUATION AND PRESENTING SEVERAL SPECIFIC QUESTIONS HEREINAFTER SET FORTH INVOLVING THE AUTHORITY OF YOUR ADMINISTRATION, UNDER SECTION 7 OF THE ACT OF AUGUST 2, 1946, PUBLIC LAW 600 (60 STAT. 806, 808), TO PAY TRANSPORTATION EXPENSES INCIDENT TO THE RETURN TO THE UNITED STATES OF ITS EMPLOYEES AND THEIR DEPENDENTS FROM POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES.

IT IS STATED THAT ALL EMPLOYEES OF YOUR ADMINISTRATION ASSIGNED TO FOREIGN POSTS OF DUTY OCCUPY CLASSIFIED POSITIONS; THAT THEY INCLUDE BOTH NEW APPOINTEES AND TRANSFEREES FROM OTHER OFFICIAL STATIONS; THAT SOME HAVE EXECUTED AGREEMENTS TO REMAIN IN THE SERVICE FOR AT LEAST 24 MONTHS FOLLOWING THEIR INITIAL ASSIGNMENTS AND THAT OTHERS, WHO WERE OVERSEAS PRIOR TO THE ENACTMENT OF PUBLIC LAW 600, HAVE NOT EXECUTED SUCH AGREEMENTS. ALSO, IT IS STATED THAT A VARIETY OF REASONS HAVE BEEN GIVEN BY EMPLOYEES AS TO THE NECESSITY FOR RETURNING MEMBERS OF THEIR IMMEDIATE FAMILY TO THE UNITED STATES, E.G., SICKNESS OR DEATH IN THE FAMILY, TO ATTEND SCHOOL, OR TO ENTER THE ARMED SERVICES. IN SOME CASES IT IS STATED THAT THE EMPLOYEE, AFTER HIS AGREED PERIOD OF SERVICE, IS WILLING TO REMAIN FOR COMPLETION OF CERTAIN WORK IF HIS FAMILY IS RETURNED TO THE UNITED STATES IMMEDIATELY AT GOVERNMENT EXPENSE--- THE EMPLOYEE INTENDING TO RETURN TO THE UNITED STATES AT THE COMPLETION OF THE WORK. IT IS STATED FURTHER THAT, IN OTHER CASES, THE EMPLOYEES PLAN TO SEEK OTHER EMPLOYMENT ABROAD AND DO NOT INTEND TO RETURN FOR MANY YEARS BUT DESIRE TO HAVE THEIR FAMILIES RETURNED TO THE UNITED STATES NOW. YOU ALSO POINT OUT THAT SOME EMPLOYEES HAVE, AT THEIR PERSONAL EXPENSE, RETURNED TO THE UNITED STATES ON ANNUAL LEAVE AT THE EXPIRATION OF THE 24-MONTH CONTRACT PERIOD; THAT OTHERS HAVE REQUESTED SUCH TRANSPORTATION AT GOVERNMENT EXPENSE AND THEIR REQUESTS HAVE BEEN REFUSED; AND THAT STILL OTHERS FAILED TO REQUEST TRAVEL ORDERS IN THE BELIEF THAT THEIR REQUESTS WOULD BE REFUSED.

IN THE LIGHT OF THE FOREGOING GENERAL STATEMENT OF FACTS, YOU REQUEST DECISION WITH RESPECT TO THE AUTHORITY OF THE VETERANS ADMINISTRATION TO ALLOW AND PAY EXPENSES OF THE CHARACTER COVERED BY YOUR SEVERAL QUESTIONS, AS FOLLOWS:

1. (A) THE EXPENSES OF TRANSPORTATION TO THE UNITED STATES OF THE IMMEDIATE FAMILY OF VETERANS' ADMINISTRATION EMPLOYEES OCCUPYING CLASSIFIED POSITIONS AT OFFICIAL STATIONS, OR PLACES OF EMPLOYMENT, OUTSIDE CONTINENTAL UNITED STATES PRIOR TO THE COMPLETION BY THE EMPLOYEE OF A TWO-YEAR TOUR OF DUTY.

(B) IF YOUR ANSWER TO THE FOREGOING IS IN THE NEGATIVE, AND AN EMPLOYEE PAYS THE EXPENSES OF TRANSPORTATION OF HIS IMMEDIATE FAMILY TO PLACE OF ACTUAL RESIDENCE AT TIME OF ACTUAL ASSIGNMENT TO DUTY OUTSIDE THE UNITED STATES PRIOR TO THE COMPLETION OF A TWO-YEAR TOUR, MAY THE VETERANS' ADMINISTRATION REIMBURSE SUCH EMPLOYEE FOR SUCH EXPENSES UPON THE SATISFACTORY COMPLETION BY SUCH EMPLOYEE OF A TWO-YEAR TOUR?

(C) IF THE ANSWER TO (B) ABOVE IS IN THE AFFIRMATIVE AS TO VETERANS' ADMINISTRATION EMPLOYEES WHO HAVE ENTERED INTO THE ABOVE DESCRIBED EMPLOYMENT, BUT IN THE NEGATIVE AS TO EMPLOYEES WHO HAVE NOT ENTERED INTO SUCH AGREEMENTS, AND IF EMPLOYEES NOT HAVING SUCH AGREEMENTS ENTER INTO THEM AT THIS TIME, WHAT WILL BE THE EFFECTIVE DATE OF THEIR ENTITLEMENT TO THE RETURN OF THEMSELVES AND THEIR IMMEDIATE FAMILIES TO THE UNITED STATES?

2. THE EXPENSES OF TRANSPORTATION TO THE UNITED STATES OF THE IMMEDIATE FAMILY OF SUCH EMPLOYEES AFTER THE COMPLETION OF A TWO-YEAR TOUR OF DUTY BUT PRIOR TO THE ISSUANCE OF ANY ORDERS TRANSFERRING OR RETURNING SUCH EMPLOYEES TO THE UNITED STATES.

3. THE EXPENSES OF THE TRANSPORTATION OF THE IMMEDIATE FAMILIES OF SUCH EMPLOYEES, UPON THE EXPIRATION OF A TWO-YEAR TOUR OF DUTY, TO THE UNITED STATES AND RETURN TO THE FOREIGN STATION, SUCH EMPLOYEES HAVING ENTERED INTO AGREEMENTS FOR A FURTHER TWO-YEAR TOUR OF DUTY.

(A) WHEN THE EMPLOYEE INTENDS TO ACCOMPANY HIS IMMEDIATE FAMILY FOR THE PURPOSE OF TAKING ANNUAL LEAVE.

(B) IF THE ANSWER TO (A) ABOVE IS IN THE AFFIRMATIVE, AND SUCH EMPLOYEE HAS PAID THE EXPENSE OF TRANSPORTATION OF HIMSELF AND HIS IMMEDIATE FAMILY TO THE UNITED STATES AND RETURN TO FOREIGN STATION, MAY THE VETERANS' ADMINISTRATION REIMBURSE SUCH EMPLOYEE FOR SUCH EXPENSES?

(C) WHEN THE EMPLOYEE DOES NOT INTEND TO ACCOMPANY, PRECEDE OR FOLLOW HIS IMMEDIATE FAMILY WITHIN A REASONABLE TIME.

(D) IF THE ANSWER TO (A) IS IN THE AFFIRMATIVE, IS THERE ANY PERIOD OF TIME DURING WHICH THE EMPLOYEE AND HIS IMMEDIATE FAMILY MUST MAKE THE TRIP TO THE UNITED STATES AND RETURN TO FOREIGN DUTY FOR THE PURPOSE OF TAKING ANNUAL LEAVE IF THE TRIP OF THE EMPLOYEE IS DELAYED- -

(1) FOR HIS OWN CONVENIENCE, OR

(2) FOR THE CONVENIENCE OF THE GOVERNMENT ( VETERANS ADMINISTRATION/?

4. IF SUCH AN EMPLOYEE DOES NOT REQUEST TRANSPORTATION FOR HIMSELF AND HIS IMMEDIATE FAMILY TO THE UNITED STATES AND RETURN TO THE FOREIGN STATION UNTIL THE END OF TWO TOURS OF DUTY OF A DURATION OF TWO YEARS EACH, IS HE THEN ENTITLED TO BE SO TRANSPORTED WITH HIS IMMEDIATE FAMILY AT GOVERNMENT EXPENSE ON TWO OCCASIONS FOR THE PURPOSE OF TAKING ANNUAL LEAVE? IN OTHER WORDS, MAY AN EMPLOYEE ACCUMULATE ENTITLEMENTS TO BE TRANSPORTED FOR THE PURPOSE OF TAKING ANNUAL LEAVE?

APPARENTLY THE FOREGOING QUESTIONS ARE PREDICATED UPON THE GROUND THAT PERFORMANCE OF AN AGREED TWO-YEAR PERIOD OF SERVICE ABROAD IS THE DETERMINING FACTOR WHEREBY AN EMPLOYEE EITHER ACQUIRES OR FAILS TO ACQUIRE A RIGHT TO BE RETURNED TO THE UNITED STATES AT GOVERNMENT EXPENSE AND TO HAVE HIS DEPENDENTS SO RETURNED. HOWEVER, UNDER THE PROVISIONS OF SECTION 7 OF PUBLIC LAW 600, NEW APPOINTEES ARE THE ONLY EMPLOYEES WHO ARE REQUIRED TO EXECUTE AN AGREEMENT TO REMAIN AT A FOREIGN DUTY POST FOR A SPECIFIED PERIOD AND THE AGREEMENTS IN THOSE INSTANCES ARE TO BE VIEWED PRIMARILY AS LIMITING A NEW APPOINTEE'S ELIGIBILITY TO BE GRANTED ALL THE BENEFITS AUTHORIZED BY THE SAID SECTION WITH RESPECT TO RETURN TRANSPORTATION UNTIL HE COMPLETES THE AGREED PERIOD OF SERVICE OR UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL.

WHILE IT GENERALLY HAS BEEN HELD THAT THE PROVISIONS OF SECTION 7 AUTHORIZED THE RETURN TRANSPORTATION OF EMPLOYEES FROM ASSIGNMENTS OUTSIDE CONTINENTAL UNITED STATES, SUCH HOLDINGS ARE CONFINED IN THEIR APPLICATION TO THOSE CASES WHERE THE EMPLOYEE CONCERNED IS TO BE SEPARATED FROM HIS POSITION OVERSEAS FOR THE PURPOSES OF THE GOVERNMENT AND WHERE THERE IS NO POSITION AVAILABLE IN THE UNITED STATES TO WHICH HE MAY BE TRANSFERRED UNDER SECTION 1 OF THE SAID ACT, 60 STAT. 806. SEE DECISION OF MAY 19, 1949, B-84159 (28 COMP. GEN. 651). HOWEVER, HAVING IN MIND THE CURRENT DIFFICULTIES CONFRONTING YOUR ADMINISTRATION IN RETAINING QUALIFIED PERSONNEL IN OVERSEAS POSITIONS, AND IN VIEW OF THE UNDERSTANDINGS OR AGREEMENTS HAD WITH SUCH EMPLOYEES TO THE EFFECT THAT THEY AND THEIR DEPENDENTS WOULD BE RETURNED TO THE UNITED STATES AT GOVERNMENT EXPENSE AT THE EXPIRATION OF A SPECIFIED PERIOD OF SERVICE, THIS OFFICE WILL NOT OBJECT TO PAYMENTS MADE IN ANY CASE WHERE THE RETURN TRAVEL IS ADMINISTRATIVELY AUTHORIZED IN DISCHARGE OF ANY SUCH COMMITMENTS WHICH AROSE PRIOR TO THE DATE HEREOF. IN THAT CONNECTION, WHILE THERE IS NO AUTHORITY OF LAW UNDER SECTION 7 OR OTHERWISE FOR RETURNING CAREER EMPLOYEES OF THE VETERANS ADMINISTRATION TO THE UNITED STATES AT GOVERNMENT EXPENSE FOR THE PURPOSE OF TAKING ANNUAL LEAVE, EXISTING COMMITMENTS IN THAT RESPECT ALSO MAY BE DISCHARGED. HOWEVER, WITH RESPECT TO FUTURE TRANSACTIONS, THE RETURN TRANSPORTATION OF EMPLOYEES FOR LEAVE PURPOSES MAY NOT BE AUTHORIZED IN THE ABSENCE OF SPECIFIC LEGISLATION PROVIDING THEREFOR. SEE DECISION B 84159 OF TODAY, 29 COMP. GEN. 157, TO THE SECRETARY OF AGRICULTURE, A COPY OF WHICH IS ATTACHED.

SINCE THE QUESTIONS PRESENTED IN YOUR LETTER PRIMARILY INVOLVE THE RETURN TRANSPORTATION OF AN EMPLOYEE'S DEPENDENTS, IT SHOULD BE POINTED OUT THAT THE AUTHORITY TO RETURN DEPENDENTS NECESSARILY IS INSEPARABLE FROM THE AUTHORITY TO RETURN THE EMPLOYEE HIMSELF. THUS, THERE CAN BE NO VALID TRAVEL AUTHORITY ISSUED FOR DEPENDENTS ALONE, AND IN ANY CASE WHERE THE RETURN TRAVEL OF DEPENDENTS OCCURS PRIOR TO THE ISSUANCE OF PROPER ORDERS DIRECTING THE RETURN OF THE EMPLOYEE AND HIS DEPENDENTS-- REGARDLESS OF THE REASONS FOR SUCH PRIOR TRAVEL--- THE EXPENSES INCIDENT THERETO MAY NOT BE PAID FROM APPROPRIATED FUNDS. HOWEVER, WHERE THE EMPLOYEE HAS PAID SUCH EXPENSES FROM HIS PERSONAL FUNDS, NOTHING HEREIN IS TO BE REGARDED AS PRECLUDING REIMBURSEMENT THEREOF UPON THE BASIS OF A PROPER SHOWING THAT THE RETURN OF THE DEPENDENTS WAS INCIDENT TO OR IN REASONABLE ANTICIPATION OF ORDERS SUBSEQUENTLY ISSUED TO THE EMPLOYEE AUTHORIZING RETURN TRAVEL BOTH FOR HIMSELF AND HIS IMMEDIATE FAMILY.

SINCE THE VARIOUS QUESTIONS PRESENTED APPEAR TO CONTEMPLATE A DECISION BASED UPON THE MUTUAL OBLIGATIONS ARISING OUT OF THE TWO-YEAR AGREEMENTS ENTERED INTO WITH THE EMPLOYEES RATHER THAN UPON A PROPER EXERCISE OF ADMINISTRATIVE DISCRETION UNDER THE AUTHORITY GRANTED BY SECTION 7 OF PUBLIC LAW 600, THIS OFFICE WILL NOT UNDERTAKE SPECIFIC ANSWER THERETO. ALSO, WHILE IT IS BELIEVED THAT, UNDER THE FOREGOING, MOST OF THE FACTUAL SITUATIONS GIVING RISE TO THE QUESTIONS MAY BE DISPOSED OF ADMINISTRATIVELY, YET IF THERE BE DOUBT AS TO THE ACTION TO BE TAKEN IN ANY PARTICULAR CASE, THE QUESTION MAY BE MADE THE BASIS FOR A SEPARATE SUBMISSION IN WHICH ALL THE PERTINENT FACTS ARE SET FORTH.