B-127528, MAY 9, 1956

B-127528, MAY 9, 1956

TO MR. EDWIN L. MAXWELL:

YOUR RECENT LETTER REQUESTS REVIEW OF OUR SETTLEMENT DATED MARCH 5, 1956, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF COMMERCIAL AIR TRAVEL OF YOUR DEPENDENT SON FROM SAN FRANCISCO, CALIFORNIA, TO ANCHORAGE, ALASKA, AND RETURN, IN 1955, FOR THE PURPOSE OF OBTAINING EDUCATION IN DENTISTRY. ALSO, OUR VIEWS ARE REQUESTED AS TO YOUR RIGHT TO HAVE YOUR DAUGHTER TRANSPORTED TO AND FROM BERKELEY, CALIFORNIA, BECAUSE OF THE NEED FOR SPECIAL EDUCATIONAL FACILITIES NOT AVAILABLE IN ALASKA AND AS TO YOUR ENTITLEMENT TO EXERCISE YOUR LEAVE PRIVILEGES UNDER PUBLIC LAW 737, APPROVED AUGUST 31, 1954, 68 STAT. 1008.

THE RECORD DISCLOSES THAT YOU WERE HIRED BY THE DEPARTMENT OF THE ARMY FOR DUTY AT ANCHORAGE, ALASKA, IN JUNE 1953 AND THAT YOUR AGREED PERIOD OF SERVICE UNDER THE EMPLOYMENT AGREEMENT WAS FOR 24 MONTHS BEGINNING WITH THE DATE OF ARRIVAL AT YOUR TERRITORIAL DUTY STATION. WHILE YOU WERE SERVING WITH THE DEPARTMENT OF THE ARMY YOUR SON RETURNED TO THE UNITED STATES ON ONE OCCASION ALTHOUGH THE CIRCUMSTANCES UNDER WHICH HE RETURNED ARE NOT SHOWN IN YOUR LETTER. HOWEVER, ON MARCH 31, 1955, APPARENTLY WITH THE CONSENT OF THE DEPARTMENT OF THE ARMY, YOU TRANSFERRED TO THE DEPARTMENT OF COMMERCE, CIVIL AERONAUTICS ADMINISTRATION AND ENTERED INTO A NEW EMPLOYMENT AGREEMENT WITH THAT AGENCY UNDER THE TERMS OF WHICH YOU AGREED TO REMAIN ON DUTY AT ANCHORAGE, ALASKA, FOR AN ADDITIONAL PERIOD OF 24 MONTHS. YOUR CLAIM FOR REIMBURSEMENT FOR $235.40, REPRESENTING THE COST INCURRED BY YOU INCIDENT TO THE TRANSPORTATION OF YOUR SON IN 1955, WAS DENIED BECAUSE UNDER EXISTING LAW NO APPROPRIATION WAS AVAILABLE TO THE CIVIL AERONAUTICS ADMINISTRATION FOR PAYMENT OF THE TRAVEL EXPENSES OF A MEMBER OF YOUR IMMEDIATE FAMILY BETWEEN ALASKA AND THE UNITED STATES FOR EDUCATIONAL PURPOSES.

WHATEVER AUTHORITY THE CIVIL AERONAUTICS ADMINISTRATION HAS TO PROVIDE EDUCATIONAL BENEFITS TO THE MEMBERS OF THE IMMEDIATE FAMILIES OF ITS OFFICERS AND EMPLOYEES DERIVES FROM SECTION 203 OF PUBLIC LAW 110, 69 STAT. 192, 196, WHICH READS:

"SEC. 203. APPROPRIATIONS OF THE EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS FOR THE CURRENT FISCAL YEAR, AVAILABLE FOR EXPENSES OF TRAVEL OR FOR THE EXPENSES OF THE ACTIVITY CONCERNED, ARE HEREBY MADE AVAILABLE FOR LIVING QUARTERS ALLOWANCES IN ACCORDANCE WITH THE ACT OF JUNE 26, 1930 (5 U.S.C. 118A), AND REGULATIONS PRESCRIBED THEREUNDER, AND COST-OF-LIVING ALLOWANCES SIMILAR TO THOSE ALLOWED UNDER SECTION 901 (2) OF THE FOREIGN SERVICE ACT OF 1946, IN ACCORDANCE WITH AND TO THE EXTENT PRESCRIBED BY REGULATIONS OF THE PRESIDENT, FOR ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT PERMANENTLY STATIONED IN FOREIGN COUNTRIES: PROVIDED, THAT THE AVAILABILITY OF APPROPRIATIONS MADE TO THE DEPARTMENT OF STATE FOR CARRYING OUT THE PROVISIONS OF THE FOREIGN SERVICE ACT OF 1946 SHALL NOT BE AFFECTED HEREBY.'

SECTION 10/B) OF PUBLIC LAW 22, 69 STAT. 24, 27, AMENDS SECTION 901/2) OF THE FOREIGN SERVICE ACT OF 1946 BY ADDING THE FOLLOWING LANGUAGE:

"/IV) THAT EXTRAORDINARY AND NECESSARY EXPENSES, NOT OTHERWISE COMPENSATED FOR, MUST BE INCURRED BY AN OFFICER OR EMPLOYEE OF THE SERVICE, BY REASON OF HIS SERVICE ABROAD, IN PROVIDING FOR ADEQUATE ELEMENTARY AND SECONDARY EDUCATION FOR HIS DEPENDENTS; ALLOWANCES UNDER THIS SUBPARAGRAPH FOR ANY POST SHALL NOT EXCEED THE COST OF OBTAINING SUCH EDUCATIONAL SERVICES AS ARE ORDINARILY PROVIDED WITHOUT CHARGE BY THE PUBLIC SCHOOLS OF THE UNITED STATES PLUS, IN THOSE CASES WHERE ADEQUATE SCHOOLS ARE NOT AVAILABLE AT THE POST, BOARD AND ROOM, AND PERIODIC TRANSPORTATION BETWEEN THE POST AND THE NEAREST LOCALITY WHERE ADEQUATE SCHOOLS ARE AVAILABLE; IF ANY SUCH OFFICER OR EMPLOYEE EMPLOYS A LESS EXPENSIVE METHOD OF PROVIDING SUCH EDUCATION, ANY ALLOWANCE PAID TO HIM SHALL BE REDUCED ACCORDINGLY; NO ALLOWANCE SHALL BE PAID UNDER THIS SUBPARAGRAPH FOR A DEPENDENT FOR WHOM A TRAVEL ALLOWANCE HAS BEEN PAID UNDER SECTION 911 (9); "

THUS THE EDUCATIONAL BENEFITS WHICH ARE LIMITED TO ELEMENTARY AND SECONDARY EDUCATION GRANTED BY PUBLIC LAW 22, CONCERNING THE FOREIGN SERVICE, ARE EXTENDED BY PUBLIC LAW 110 ONLY TO THOSE CIVILIAN OFFICERS AND EMPLOYEES IN THE EXECUTIVE BRANCH OF THE GOVERNMENT WHO ARE PERMANENTLY STATIONED IN FOREIGN COUNTRIES.

THERE IS FOR DETERMINATION, THEREFORE, THE QUESTION WHETHER THE TERRITORY OF ALASKA MAY BE CONSIDERED A FOREIGN COUNTRY.

SECTION 101 OF EXECUTIVE ORDER NO. 10,000, DATED SEPTEMBER 16, 1948, DEFINES THE TERM "FOREIGN AREAS" AS EXCLUSIVE OF (1) THE 48 STATES OF THE UNITED STATES, (2) THE DISTRICT OF COLUMBIA, AND (3) "TERRITORIES" AS DEFINED IN SECTION 201 OF THE ORDER. SECTION 201 DEFINES THE WORD ,TERRITORIES" AS MEANING "ALASKA, HAWAII, THE POSSESSIONS OF THE UNITED STATES, THE TRUST TERRITORY OF THE PACIFIC ISLANDS," AND CERTAIN OTHER AREAS NOT HERE PERTINENT.

FROM THE FOREGOING IT SEEMS APPARENT THAT THE TERRITORY OF ALASKA IS NOT A FOREIGN COUNTRY WITHIN THE MEANING OF PUBLIC LAW 110 SO AS TO ENTITLE YOU TO THE EDUCATIONAL BENEFITS PROVIDED THEREBY. ACCORDINGLY, THE CONCLUSION REACHED IN OUR SETTLEMENT OF MARCH 5, 1956, IS CORRECT AND UPON REVIEW IT MUST BE AND IS SUSTAINED. IT MAY BE ADDED THAT THE ONLY STATUTE PROVIDING COLLEGIATE EDUCATIONAL BENEFITS TO DEPENDENTS IS SECTION 11 OF PUBLIC LAW 22, 69 STAT. 24, WHICH APPLIES ONLY TO OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE ASSIGNED TO FOREIGN POSTS.

CONCERNING YOUR INQUIRY REGARDING THE AVAILABILITY OF TRANSPORTATION AT GOVERNMENT EXPENSE FOR YOUR MINOR DAUGHTER BETWEEN ALASKA AND BERKELEY, CALIFORNIA, IT IS OUR VIEW THAT HER STATUS WITH REFERENCE TO TRANSPORTATION FOR EDUCATIONAL PURPOSES IS THE SAME AS THAT OF YOUR SON.

CONCERNING YOUR INQUIRY AS TO TRANSPORTATION FOR THE PURPOSE OF TAKING LEAVE PRIOR TO SERVING ANOTHER TOUR OF DUTY IN ALASKA, YOU ARE ADVISED THAT SUCH TRANSPORTATION IS GOVERNED BY THE TERMS OF PUBLIC LAW 737, APPROVED AUGUST 31, 1954, 68 STAT. 1008, WHICH PROVIDES AS FOLLOWS:

"THAT SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 (60 STAT. 806; 5 U.S.C. 73B-3), AS AMENDED, IS FURTHER AMENDED BY CHANGING THE PERIOD AT THE END OF THE FIRST SENTENCE TO A COLON AND ADDING THE FOLLOWING: "PROVIDED FURTHER, THAT EXPENSES OF ROUND TRIP TRAVEL OF EMPLOYEE AND TRANSPORTATION OF IMMEDIATE FAMILY BUT EXCLUDING HOUSEHOLD EFFECTS, FROM THEIR POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT OR TRANSFER TO SUCH OVERSEAS POSTS OF DUTY, SHALL BE ALLOWED IN THE CASE OF PERSONS WHO HAVE SATISFACTORILY COMPLETED AN AGREED PERIOD OF SERVICE OVERSEAS AND ARE RETURNING TO THEIR ACTUAL PLACE OF RESIDENCE FOR THE PURPOSE OF TAKING LEAVE PRIOR TO SERVING ANOTHER TOUR OF DUTY AT THE SAME OR SOME OTHER OVERSEAS POST, UNDER A NEW WRITTEN AGREEMENT ENTERED INTO BEFORE DEPARTING FROM THE OVERSEAS POST; PROVIDED FURTHER, THAT EXPENSES OF TRANSPORTATION OF THE IMMEDIATE FAMILY AND SHIPMENT OF HOUSEHOLD EFFECTS OF ANY EMPLOYEE FROM THE POST OF DUTY OF SUCH EMPLOYEE OUTSIDE CONTINENTAL UNITED STATES TO PLACE OF ACTUAL RESIDENCE SHALL BE ALLOWED, NOT IN EXCESS OF ONE TIME, PRIOR TO THE RETURN OF SUCH EMPLOYEE TO THE UNITED STATES, INCLUDING ITS TERRITORIES AND POSSESSIONS, WHEN THE EMPLOYEE HAS ACQUIRED ELIGIBILITY FOR SUCH TRANSPORTATION OR WHEN THE PUBLIC INTEREST REQUIRES THE RETURN OF THE IMMEDIATE FAMILY FOR COMPELLING PERSONAL REASONS OF A HUMANITARIAN OR COMPASSIONATE NATURE, SUCH AS MAY INVOLVE PHYSICAL OR MENTAL HEALTH, DEATH OF ANY MEMBER OF THE IMMEDIATE FAMILY, OR OBLIGATION IMPOSED BY AUTHORITY OR CIRCUMSTANCES OVER WHICH THE INDIVIDUAL HAS NO CONTROL; AND PROVIDED FURTHER, THAT WHEN AN EMPLOYEE RETURNS HIS IMMEDIATE FAMILY AND HOUSEHOLD GOODS TO THE UNITED STATES, INCLUDING ITS TERRITORIES AND POSSESSIONS, AT HIS OWN EXPENSE PRIOR TO HIS RETURN AND FOR OTHER THAN REASONS OF PUBLIC INTEREST, THE GOVERNMENT SHALL REIMBURSE HIM FOR PROPER TRANSPORTATION EXPENSES AT SUCH TIME AS HE ACQUIRES ELIGIBILITY THEREFORE.'"

THAT STATUTE UNDER ITS TERMS, AND PROVIDED YOU ARE TENDERED AND ACCEPT AN AGREEMENT TO SERVE FOR AN ADDITIONAL PERIOD, AUTHORIZES THE TRANSPORTATION AT GOVERNMENT EXPENSE OF YOU AND YOUR IMMEDIATE FAMILY TO THE PLACE OF YOUR APPOINTMENT IN THE CONTINENTAL UNITED STATES AND RETURN TO ALASKA TO SERVE UNDER YOUR NEW AGREEMENT. HOWEVER, THE RIGHT TO SUCH TRANSPORTATION ACCRUES ONLY IN THE CASE OF PERSONS WHO HAVE SATISFACTORILY COMPLETED AN AGREED PERIOD OF SERVICE. CONCERNING YOUR AGREEMENT OF MARCH 31, 1955, WITH THE CIVIL AERONAUTICS ADMINISTRATION, THAT AGENCY REPORTS AS FOLLOWS:

"AT THE TIME OF THE EXECUTION OF THE AGREEMENT WITH THIS AGENCY, IT WAS MADE VERY CLEAR TO MR. MAXWELL THAT HE WOULD BE REQUIRED TO REMAIN WITH THE CAA FOR TWO YEARS FROM THE DATE OF THE AGREEMENT BEFORE HE WOULD BE ELIGIBLE FOR TRANSPORTATION UNDER PUBLIC LAW 737, AND HE SIGNED THE AGREEMENT WITH THAT UNDERSTANDING.'

IN THE LIGHT OF THE STATUTORY PROVISION AND OF YOUR AGREEMENT IT APPEARS THAT YOU WILL NOT BE ENTITLED TO TRANSPORTATION AT GOVERNMENT EXPENSE FOR THE PURPOSE OF TAKING LEAVE UNTIL THE SPRING OF 1957. 31 COMP. GEN. 588.

THE REMAINING PROVISIONS OF PUBLIC LAW 737 WOULD PERMIT THE EARLIER RETURN TRANSPORTATION OF YOUR IMMEDIATE FAMILY AND HOUSEHOLD GOODS WITH THE EXPENSE TO BE BORNE BY THE GOVERNMENT CONTINGENT UPON THE SATISFACTORY COMPLETION OF YOUR AGREED PERIOD OF SERVICE WITH THE CIVIL AERONAUTICS ADMINISTRATION.

WE HOPE THAT THE FOREGOING WILL CLARIFY MATTERS WHICH WERE NOT COVERED BY OUR SETTLEMENT OF MARCH 5, 1956.