B-130618, MAY 26, 1960

B-130618, MAY 26, 1960

TO DR. EDMUND H. SCHWENK:

ON APRIL 11, 1960, YOU SUBMITTED A CLAIM FOR REFUND OF $367, WHICH YOU PAID TO OUR OFFICE ON SEPTEMBER 11, 1958, AS THE RESULT OF YOUR INDEBTEDNESS TO THE GOVERNMENT WHICH AROSE FROM PAYMENT BY THE DEPARTMENT OF STATE FOR THE TRAVEL OF MRS. SELMA SCHWENK, YOUR WIFE, FROM FRANKFURT, GERMANY, TO WASHINGTON, D.C., WHICH TRAVEL BEGAN IN MAY 1954 AND WAS COMPLETED MAY 1955.

THE RECORD SHOWS THAT YOU WERE SEPARATED FROM YOUR POSITION WITH THE DEPARTMENT OF STATE, HIGH COMMISSIONER FOR GERMANY, ON FEBRUARY 26, 1954; THAT, SHORTLY THEREAFTER, YOU TRAVELED TO THE UNITED STATES AT GOVERNMENT EXPENSE WITHOUT MRS. SCHWENK; THAT YOU RETURNED TO GERMANY AND ENTERED EMPLOYMENT WITH THE U.S. ARMY, OFFICE OF THE JUDGE ADVOCATE, IN HEIDELBERG, GERMANY, ON MAY 19, 1954; THAT ON ABOUT MAY 26, 1954, MRS. SCHWENK TRAVELED TO AMSTERDAM, NETHERLANDS, AND RETURNED TO GERMANY; THAT THE AIRLINE TICKET USED BY MRS. SCHWENK FROM FRANKFURT TO AMSTERDAM WAS PART OF A TICKET FROM FRANKFURT TO LOS ANGELES, CALIFORNIA, WHICH HAD BEEN PURCHASED ON A TRANSPORTATION REQUEST; THAT ON MAY 10, 1955, MRS. SCHWENK TRAVELED FROM FRANKFURT TO WASHINGTON USING AN AIRLINE TICKET WHICH HAD BEEN PROCURED INDIRECTLY FROM THE EXCHANGE OF THE UNUSED PORTION OF THE TICKET SHE USED IN TRAVELING TO AMSTERDAM.

YOU CONTEND THAT SINCE MRS. SCHWENK BEGAN HER TRAVEL TO THE UNITED STATES WITHIN 90 DAYS OF THE DATE YOU WERE SEPARATED, AND COMPLETED SUCH TRAVEL WITHIN ONE YEAR YOU ARE ENTITLED TO PAYMENT FOR THAT TRAVEL BY THE GOVERNMENT UNDER 180 FSTR 3.62. THAT PARAGRAPH SPECIFIED THAT ACTUAL DEPARTURE OF DEPENDENTS "SHALL NOT BE DEFERRED MORE THAN 90 DAYS AFTER THE EMPLOYEE'S LAST DAY OF DUTY AT THE POST.' I FSM III, 124 PROVIDED, DURING THE TIME IN QUESTION, THAT THE TIME LIMITATIONS PLACED ON TRAVEL BY 3.6 WOULD NOT BE FORFEITED IF TRAVEL WAS "INTERRUPTED EN ROUTE FOR A REASONABLE PERIOD OF TIME AND FOR REASONS ACCEPTABLE TO THE DEPARTMENT.' ALSO, 180 FSTR 3.64 PROVIDED THAT THE 90 DAY LIMIT WITHIN WHICH AN EMPLOYEE WAS REQUIRED TO BE ON AUTHORIZED TRAVEL COULD BE WAIVED BY THE OFFICER DELEGATED TO AUTHORIZE OR APPROVE THE TRAVEL.

THE POWER TO AUTHORIZE OR APPROVE TRAVEL UPON SEPARATION HAD NOT BEEN DELEGATED TO PERSONNEL STATIONED OVERSEAS BUT WAS RETAINED IN THE DEPARTMENT AT THE TIME IN QUESTION. SEE 180 FSTR 2.2 AND 2.3. THE DEPARTMENT DID NOT WAIVE THE 90-DAY TIME LIMITATION AND HAS NOT APPROVED THE REASON FOR MRS. SCHWENK'S "INTERRUPTION" OF TRAVEL--- THE MAJOR PORTION OF WHICH WAS PERFORMED APPROXIMATELY ONE YEAR AFTER THE COMMENCEMENT OF TRAVEL. MOREOVER, SINCE IT IS NOT ENTIRELY CLEAR FROM THE RECORD, PARTICULARLY BEARING IN MIND THE SUBSTANTIAL PERIOD OF TIME BETWEEN THE FRANKFURT-AMSTERDAM TRAVEL AND THE ACTUAL TRAVEL TO THE UNITED STATES, THAT THE FRANKFURT-AMSTERDAM TRIP CONSTITUTED A DEPARTURE FROM THE POST FOR THE PURPOSE OF RETURN TO THE UNITED STATES INCIDENT TO THE SEPARATION OF THE EMPLOYEE, OUR OFFICE IS UNABLE TO AUTHORIZE ALLOWANCE OF THAT PART OF THE CLAIM.

REGARDING YOUR CONTENTION THAT MRS. SCHWENK PERFORMED THE TRAVEL IN THE MANNER SHE DID BECAUSE YOU WERE ADVISED BY AN EMPLOYEE OF THE DEPARTMENT THAT THE GOVERNMENT WOULD BE LIABLE FOR THE EXPENSES OF SUCH TRAVEL, I FSM III, 131.3 SPECIFICALLY PROVIDES THAT THE ULTIMATE RESPONSIBILITY FOR THE CORRECT PERFORMANCE OF TRAVEL, INCLUDING COMPLIANCE WITH GOVERNING REGULATIONS, RESTS WITH ..END :