B-171876, JUL 13, 1971, 51 COMP GEN 23

B-171876, JUL 13, 1971, 51 COMP GEN 23

OFFICERS AND EMPLOYEES - SERVICE AGREEMENTS - FAILURE TO FULFILL CONTRACT - SERVICE INTERRUPTED BY MILITARY DUTY A CIVILIAN EMPLOYEE SERVING IN HAWAII UNDER A TRANSPORTATION AGREEMENT WHO AS AN ARMY RESERVIST IS ORDERED, EFFECTIVE JULY 29, 1968, TO ACTIVE DUTY FOR TRAINING IN THE UNITED STATES AND IS GRANTED MILITARY LEAVE FROM JULY 18 TO AUGUST 1, 1968 UNDER 5 U.S.C. 5534, WHICH IS APPLICABLE TO RESERVISTS AND NATIONAL GUARDSMEN, MAY BE CARRIED ON CIVILIAN ROLLS BEYOND HIS MILITARY REPORTING DATE; MAY BE REIMBURSED PURSUANT TO 5 U.S.C. 5724 ON THE BASIS OF ADMINISTRATIVE APPROVAL FOR THE TRAVEL OF HIS DEPENDENTS AND THE SHIPMENT OF HIS PRIVATELY OWNED AUTOMOBILE TO THE UNITED STATES; MAY BE ALSO UNDER 5 U.S.C. 5534 REEMPLOYED JUNE 9, 1969, ALTHOUGH RELEASED FROM ACTIVE DUTY JUNE 23, AND THE EMPLOYEE ENTITLED UNDER 5 U.S.C. 6323 TO 15 DAYS MILITARY LEAVE FOR A SINGLE PERIOD OF TRAINING, EXTENDING FROM 1 CALENDAR YEAR INTO THE NEXT, HAVING BEEN GRANTED MILITARY LEAVE FROM JULY 18, TO AUGUST 1, 1968, MAY NOT BE GRANTED MILITARY LEAVE FROM JUNE 9 TO 23, 1969, BUT MAY BE GRANTED ANNUAL LEAVE. OFFICERS AND EMPLOYEES - DUAL BENEFITS - UNDER SEPARATE STATUTES - PROHIBITION A CIVILIAN EMPLOYEE WHO INCIDENT TO THE INTERRUPTION OF HIS SERVICE IN HAWAII UNDER A TRANSPORTATION AGREEMENT FOR A PERIOD OF ACTIVE DUTY TRAINING IN THE UNITED STATES AS AN ARMY RESERVIST RECEIVES A MONETARY ALLOWANCE FOR HIS RETURN TRAVEL TO HAWAII, UPON REEMPLOYMENT UNDER A NEW TRANSPORTATION AGREEMENT IS PRECLUDED BY PARAGRAPH C4007 OF THE JOINT TRAVEL REGULATIONS, PROHIBITING DUPLICATION OF ENTITLEMENT UNDER SEPARATE STATUTES, TO TRANSPORTATION TO HAWAII AS A CIVILIAN AND, THEREFORE, THE EMPLOYEE IS INDEBTED FOR ANY AMOUNTS RECEIVED FOR HIS TRANSPORTATION INCIDENT TO THE REEMPLOYMENT. FURTHERMORE, SINCE THE EMPLOYEE'S REEMPLOYMENT IS REGARDED AS A NEW APPOINTMENT AND NOT A TRANSFER, PAYMENTS MADE ON THE ASSUMPTION A TRANSFER WAS INVOLVED, SUCH AS TEMPORARY QUARTERS SUBSISTENCE AND MISCELLANEOUS EXPENSES UNDER OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, WERE UNAUTHORIZED AND TOO ARE FOR RECOVERY.

TO MAJOR L. E. SHOLTES, DEPARTMENT OF THE ARMY, JULY 13, 1971:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 17, 1970, WITH ENCLOSURE (PDTATAC CONTROL NO. 71-5), CONCERNING THE ENTITLEMENT OF VERNON R. FEGLEY, A CIVILIAN EMPLOYEE, TO MILITARY LEAVE AND DEPENDENT TRAVEL AND TRANSPORTATION ALLOWANCES INCIDENT TO HIS ACTIVE DUTY FOR TRAINING ORDERS DATED JULY 5, 1968, AS AMENDED.

IT APPEARS THAT THE EMPLOYEE WAS SERVING IN HAWAII UNDER A TRANSPORTATION AGREEMENT DATED JULY 11, 1967, UNDER WHICH HE WAS OBLIGATED TO SERVE 24 MONTHS. BY ORDERS DATED JULY 5, 1968, AS AMENDED, HEADQUARTERS, UNITED STATES ARMY ADVISOR GROUP (USAR) HAWAII, HE WAS ORDERED TO REPORT ON JULY 29, 1968, TO ACTIVE DUTY FOR TRAINING (ACDUTRA) AT ARMY WAR COLLEGE, CARLISLE BARRACKS, PENNSYLVANIA, TO ATTEND A COURSE OF INSTRUCTIONS FOR 47 WEEKS.

THE EMPLOYEE PERFORMED HIS TRAVEL AS A MILITARY MEMBER BUT TRANSPORTATION OF DEPENDENTS AND SHIPMENT OF PRIVATELY OWNED VEHICLE WERE AT HIS PERSONAL EXPENSE FOR THE REASON THAT IT WAS BELIEVED HE WAS NOT ENTITLED TO THOSE ALLOWANCES INCIDENT TO HIS CIVILIAN EMPLOYMENT. THEREAFTER IT WAS ADMINISTRATIVELY DETERMINED THAT PROPER ORDERS SHOULD HAVE BEEN ISSUED FOR HIS DEPENDENTS' TRAVEL AND SHIPMENT OF HIS AUTOMOBILE ON THE BASIS OF THE EMPLOYEE HAVING BEEN RELEASED FROM HIS TRANSPORTATION AGREEMENT. HOWEVER, HIS CLAIM FOR REIMBURSEMENT WAS DENIED FOR THE REASON THAT COMPETENT ORDERS HAD NOT BEEN ISSUED BY HIS CIVILIAN EMPLOYER AND IT WAS DOUBTFUL WHETHER ORDERS COULD BE ISSUED AFTER THE TRAVEL WAS PERFORMED. EFFECTIVE JUNE 9, 1969, THE EMPLOYEE WAS REEMPLOYED IN HIS CIVILIAN POSITION AND A NEW TRANSPORTATION AGREEMENT DATED JUNE 3, 1969, WAS SIGNED BY THE EMPLOYEE.

IN YOUR LETTER YOU SAY THAT IT APPEARS THERE IS A POSSIBILITY OF ERRONEOUS PAYMENTS, DUPLICATE PAYMENTS, AND INCORRECT CHARGES TO ANNUAL LEAVE. YOU PRESENT THE FOLLOWING SPECIFIC QUESTIONS FOR CLARIFICATION AND DETERMINATION.

A. MAY A CIVILIAN EMPLOYEE BE AUTHORIZED MILITARY LEAVE BASED ON ORDERS FOR EXTENDED ACTIVE DUTY FOR TRAINING, FOR A PERIOD IMMEDIATELY PRECEDING THE REPORTING DATE AND STILL BE CARRIED ON CIVILIAN PAYROLLS BEYOND THE ORDERS' REPORTING DATE? IN THE CASE IN QUESTION, EMPLOYEE WAS GRANTED MILITARY LEAVE FROM 18 JULY TO 1 AUGUST 1968 AND ANNUAL LEAVE FOR PERIODS 15 JULY THRU 17 JULY AND 2 JULY THRU 6 JULY 1968, NOTWITHSTANDING THE REPORTING DATE TO THE UNITED STATES ARMY WAR COLLEGE OF 29 JULY 1968 AND MILITARY TRAVEL VOUCHER PAYMENT FOR MILITARY TRAVEL STATUS FOR PERIOD 15 JULY THRU 29 JULY 1968.

B. SINCE CIVILIAN PERSONNEL DIVISION REFUSES TO ISSUE DEPENDENT TRAVEL ORDERS FOR TRAVEL OF DEPENDENTS FROM HONOLULU, HAWAII TO DETROIT, MICHIGAN AFTER THE FACT, ON THE BASIS THAT VOLUME II, JOINT TRAVEL REGULATION DOES NOT PROVIDE FOR THE ISSUANCE OF RETROACTIVE ORDERS, WILL THE INDORSEMENTS BY DA, DCSPER DCP P&R AND THE FINANCE CENTER, UNITED STATES ARMY (INCL 12) APPROVING CLAIM, OR WILL TRAVEL ORDERS BE REQUIRED TO SUPPORT PAYMENT THERE OR?

C. MAY A CIVILIAN EMPLOYEE BE REEMPLOYED AFTER PERFORMING MILITARY DUTY WITH AN EFFECTIVE HIRE DATE PRIOR TO DATE RELEASED FROM ACTIVE DUTY? MR. FEGLEY WAS RELEASED FROM EXTENDED ACTIVE DUTY FOR TRAINING ON 22 JUNE 1969, ALLOWED 10 DAYS TRAVEL TIME, AND LAST PAID THRU 2 JULY 1969, YET PICKED UP ON CIVILIAN PAYROLLS EFFECTIVE 9 JUNE 1969.

D. IN CONNECTION WITH PARAGRAPH C ABOVE, MAY AN EMPLOYEE BE AUTHORIZED MILITARY LEAVE AND ANNUAL LEAVE FOR A PERIOD IMMEDIATELY PRECEDING COMMENCEMENT OF OFFICIAL TRAVEL FOR REEMPLOYMENT? IN THE CASE OF MR. FEGLEY, EMPLOYEE WAS HIRED EFFECTIVE 9 JUNE 1969, TOOK MILITARY LEAVE FROM 9 JUNE THRU 23 JUNE 1969, AND ANNUAL LEAVE FROM 24 JUNE THRU 31 JULY 1969.

E. MAY AN EMPLOYEE WHO IS A MEMBER OF THE UNITED STATES ARMY RESERVES BE CREDITED WITH 15 DAYS MILITARY LEAVE AS A CIVILIAN EMPLOYEE AND ALSO BE PAID BASIC PAY AND ALLOWANCES BASED ON HIS RESERVE MILITARY GRADE ON ACTIVE DUTY FOR TRAINING ORDERS, BUT WITHOUT COMPETENT ORDERS CALLING HIM TO ANACDUTRA?

F. MAY AN EMPLOYEE RECEIVE PAY AND ALLOWANCES BASED ON HIS CIVILIAN STATUS ALSO RECEIVE ACTIVE DUTY PAY AND ALLOWANCES AS AN OFFICER WHILE SERVING ON ACTIVE DUTY FOR TRAINING (NOT ANACDUTRA)?

G. MAY AN EMPLOYEE TAKE ANNUAL LEAVE WHILE SERVING ON ACTIVE DUTY?

UNDER THE PROVISIONS OF 5 U.S.C. 6323, MILITARY RESERVISTS AND MEMBERS OF THE NATIONAL GUARD WHO ARE CIVILIAN EMPLOYEES OF THE FEDERAL GOVERNMENT ARE ENTITLED TO NOT IN EXCESS OF 15 DAYS OF LEAVE FOR USE WHEN THEY ARE CALLED TO ACTIVE DUTY OR REQUIRED TO PERFORM CERTAIN TRAINING DUTIES. ALSO THE PROVISIONS OF 5 U.S.C. 5534, APPLICABLE TO RESERVISTS AND NATIONAL GUARDSMEN, AUTHORIZE ANNUAL LEAVE WITH PAY IN KIND AND MILITARY PAY OVER THE SAME PERIOD OF TIME WITHOUT REGARD TO THE DUAL COMPENSATION STATUTES.

WE HAVE HELD (CONSISTENT WITH 5 U.S.C. 5534) THAT IN ADDITION TO MILITARY LEAVE THAT IT IS PROPER TO GRANT ANNUAL LEAVE TO EMPLOYEES ON ACTIVE DUTY AS RESERVISTS OR NATIONAL GUARDSMEN. 37 COMP. GEN. 255 (1957); 47 ID. 761, 762 (1968) AND 49 ID. 233, 238 (1969). THEREFORE, THE EMPLOYEE MAY BE CARRIED ON HIS AGENCY'S ROLLS BEYOND HIS REPORTING DATE FOR MILITARY DUTY. QUESTION (A) IS ANSWERED IN THE AFFIRMATIVE.

QUESTION (B) IS WHETHER ADMINISTRATIVE APPROVAL OF THE EMPLOYEE'S CLAIM FOR DEPENDENT TRAVEL AND SHIPMENT OF VEHICLE WILL CONSTITUTE A VALID AND PROPER DOCUMENTATION TO SUPPORT SUCH CLAIM. SECTION 5724 OF TITLE 5 U.S.C. PERMITS REIMBURSEMENT OF TRANSPORTATION AND TRAVELING EXPENSES WHEN AUTHORIZED OR APPROVED. SINCE THE RETURN TRAVEL OF THE EMPLOYEE'S DEPENDENTS AND SHIPMENT OF PRIVATELY OWNED VEHICLE TO THE UNITED STATES INCIDENT TO HIS RELEASE FROM HIS TRANSPORTATION AGREEMENT ON CALL TO ACTIVE DUTY IN THE ARMED FORCES FOR TRAINING HAS BEEN APPROVED BY THE PROPER AUTHORITY, HE MAY BE REIMBURSED FOR THE EXPENSES OTHERWISE FOUND TO BE PROPER. SEE 41 COMP. GEN. 574 (1962); B-170987, DECEMBER 14, 1970; B- 149648, AUGUST 20, 1962; AND B-109466, JUNE 4, 1952.

REFERRING TO QUESTION (C), THE ANSWER TO QUESTION (A) WOULD LIKEWISE BE APPLICABLE TO A RESERVIST WHO IS REEMPLOYED AFTER PERFORMING MILITARY DUTY WITH AN EFFECTIVE HIRE DATE PRIOR TO DATE OF HIS RELEASE FROM ACTIVE DUTY. QUESTION (C) IS ANSWERED IN THE AFFIRMATIVE.

CONCERNING QUESTION (D), WE HAVE HELD THAT WHEN A SINGLE PERIOD OF TRAINING EXTENDS FROM 1 CALENDAR YEAR INTO THE NEXT YEAR, AN EMPLOYEE IS LIMITED TO 15 CALENDAR DAYS FOR THAT PERIOD. 35 COMP. GEN. 708; 40 ID. 186. IN YOUR LETTER IT IS STATED THAT THE EMPLOYEE WAS IN A MILITARY LEAVE STATUS FROM JULY 18 TO AUGUST 1, 1968. CONSEQUENTLY, HE USED THE MAXIMUM OF 15 DAYS ALLOWED FOR HIS ENTIRE PERIOD OF ACTIVE DUTY FOR TRAINING AND THEREFORE HE MAY NOT BE GRANTED MILITARY LEAVE FOR THE PERIOD FROM JUNE 9 TO 23, 1969. HE MAY, HOWEVER, USE ANNUAL LEAVE FOR THAT PERIOD. QUESTION (D) IS ANSWERED ACCORDINGLY.

WE DO NOT FULLY UNDERSTAND THE SIGNIFICANCE OF QUESTIONS (E), (F) AND (G). HOWEVER, WE POINT OUT THAT THE 15 DAYS OF MILITARY LEAVE AUTHORIZED FOR CIVILIAN EMPLOYEES BY THE PROVISIONS OF 5 U.S.C. 6323, APPLY TO A RESERVIST SERVING ON ACTIVE DUTY, AS WELL AS ACTIVE DUTY FOR TRAINING. MOREOVER, THE ANSWERS TO THE PRIOR QUESTION WOULD APPEAR APPLICABLE TO THESE QUESTIONS.

IN YOUR LETTER YOU QUESTION THE EMPLOYEE'S ENTITLEMENT TO TRAVEL ALLOWANCES FROM CARLISLE BARRACKS, PENNSYLVANIA, TO HAWAII AS BOTH A MILITARY MEMBER AND CIVILIAN EMPLOYEE AFTER COMPLETION OF HIS ACTIVE DUTY. YOU SAY THE EMPLOYEE WAS NOTIFIED OF INDEBTEDNESS TO THE UNITED STATES GOVERNMENT IN THE AMOUNT OF $128 FOR DUPLICATE TRAVEL PAYMENTS.

PARAGRAPH C4007 OF THE JOINT TRAVEL REGULATIONS, VOLUME 2, PROMULGATED PURSUANT TO THE ADMINISTRATIVE EXPENSES ACT OF AUGUST 2, 1946, 60 STAT. 806, AS AMENDED, 5 U.S.C. 5724, PROVIDES AS FOLLOWS:

LOSS OF ENTITLEMENT UNDER AN AGREEMENT

DENIAL OF TRANSPORTATION AND/OR INDEBTEDNESS SUBJECT TO COLLECTION ACTION FOR REIMBURSEMENT OF TRANSPORTATION FURNISHED MAY BE THE RESULT IF THERE IS:

6. DUPLICATION OF ENTITLEMENT UNDER SEPARATE STATUTES.

SINCE THE EMPLOYEE RECEIVED A MONETARY ALLOWANCE FOR TRAVEL TO HAWAII THE PLACE FROM WHICH HE WAS ORDERED TO ACTIVE DUTY AT THE TIME OF HIS RELEASE FROM ACTIVE DUTY, HE IS PRECLUDED BY THE ABOVE REGULATION FROM TRANSPORTATION THERETO AS A CIVILIAN AT GOVERNMENT EXPENSE. THEREFORE HE IS INDEBTED FOR ANY AMOUNTS ALLOWED FOR HIS OWN RETURN TRANSPORTATION TO HAWAII. THE QUESTION IS ANSWERED ACCORDINGLY.

WE NOTE THAT ITEMS 10 AND 11 OF THE TRAVEL ORDERS OF JUNE 9, 1969, AUTHORIZE PAYMENT OF TEMPORARY QUARTERS SUBSISTENCE EXPENSES AND MISCELLANEOUS EXPENSES ALLOWANCE, RESPECTIVELY. THE REEMPLOYMENT OF THE EMPLOYEE AFTER HIS MILITARY SERVICE IN HIS FORMER POSITION WAS NOT A TRANSFER OF OFFICIAL STATION, BUT WE WOULD NOT OBJECT TO SUCH REEMPLOYMENT BEING REGARDED AS A NEW APPOINTMENT TO HAWAII. ON THAT BASIS THERE WAS NO AUTHORITY FOR PAYMENT OF TEMPORARY QUARTERS SUBSISTENCE EXPENSES AND MISCELLANEOUS EXPENSES ALLOWANCE AND APPROPRIATE ACTION SHOULD BE TAKEN TO RECOVER SUCH PAYMENTS AS WELL AS ANY OTHER PAYMENTS MADE - SUCH AS PER DIEM FOR DEPENDENTS - ON THE ASSUMPTION OF A TRANSFER BEING INVOLVED. SEE THE APPLICABLE SECTIONS OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A- 56, REVISED, JUNE 26, 1969.

THE VOUCHERS AND PAPERS TRANSMITTED ARE RETURNED HEREWITH FOR HANDLING AS INDICATED THEREIN.