B-163113, JUN. 27, 1968

B-163113, JUN. 27, 1968

TO MRS. CLARA A. PASTORIUS:

THIS IS IN REPLY TO YOUR LETTER OF DECEMBER 13, 1967, REFERENCE D 311A REQUESTING OUR DECISION ON THE VOUCHER OF MR. LORIN D. ANDERSON, AN EMPLOYEE OF THE DEPARTMENT OF THE INTERIOR, MAKING CLAIM FOR TEMPORARY QUARTERS AND MISCELLANEOUS EXPENSES AND FOR EXPENSES IN CONNECTION WITH A REAL ESTATE TRANSACTION.

THE RECORD INDICATES THAT MR. ANDERSON SIGNED AN EMPLOYMENT AGREEMENT ON NOVEMBER 7, 1965, FOR SERVICE FOR TWO YEARS WITH THE TRUST TERRITORY OF THE PACIFIC ISLANDS, SAIPAN, MARIANA ISLANDS, AN ESTABLISHMENT OPERATING UNDER THE DEPARTMENT OF THE INTERIOR, AS A SYSTEMS ACCOUNTANT, IGS (GG) 510-13. THE AGREEMENT AUTHORIZED EARLY RETURN TO BE GRANTED BY THE HIGH COMMISSIONER IN THE EVENT OF SERIOUS ILLNESS OF ANY MEMBER OF THE EMPLOYEE'S IMMEDIATE FAMILY. HIS WIFE BECAME ILL IN JULY 1967 AND HE ASKED TO BE RELEASED FROM THE AGREEMENT AND RETURNED TO THE UNITED STATES. ALTHOUGH THE RECORD DOES NOT REFLECT HIS REQUEST FOR TERMINATION OF THE AGREEMENT OR THE HIGH COMMISSIONER'S ACTION THEREON, APPARENTLY IT WAS FAVORABLE.

A TRAVEL AUTHORIZATION DATED JULY 20, 1967, AUTHORIZED RETURN TRAVEL EXPENSES TO DENVER, COLORADO, THE POINT OF RECRUITMENT FOR TERMINATION, TRAVEL TO BEGIN ON OR ABOUT JULY 25, 1967, AND TO END ON OR ABOUT AUGUST 25, 1967. UPON MR. ANDERSON'S RETURN TO DENVER ON AUGUST 15, 1967, THE OFFICE OF THE CHIEF ENGINEER, BUREAU OF RECLAMATION, DENVER, ENTERED INTO NEGOTIATIONS WITH HIM AND THE OFFICE OF TRUST TERRITORIES, DEPARTMENT OF THE INTERIOR, WASHINGTON, D.C., FOR HIS ASSIGNMENT. WHILE MR. ANDERSON WAS STILL IN SAIPAN HE HAD ENTERED INTO AN EXCHANGE OF CORRESPONDENCE WITH HIS FORMER SUPERVISOR REGARDING REEMPLOYMENT IN THE DENVER OFFICE. UPON CABLED INSTRUCTIONS FROM THE OFFICE OF TRUST TERRITORIES, THE OFFICE OF THE HIGH COMMISSIONER, TRUST TERRITORY OF THE PACIFIC ISLANDS, CARRIED MR. ANDERSON ON ITS ROLLS THROUGH THE CLOSE OF BUSINESS AUGUST 19, 1967. HOWEVER, AS INDICATED ABOVE, HE WAS PICKED UP BY THE OFFICE IN DENVER WITHOUT A BREAK IN SERVICE BY PERSONNEL ACTION OF AUGUST 18 EFFECTIVE ON AUGUST 20, 1967. A TRAVEL AUTHORIZATION EXECUTED BY THE DENVER OFFICE ON AUGUST 21, 1967, PROVIDED FOR PAYMENT OF 30 DAYS TEMPORARY QUARTERS ALLOWANCE.

ALTHOUGH THE FORM 50, NOTIFICATION OF PERSONNEL ACTION, DATED AUGUST 18, 1967, EXECUTED BY THE DENVER OFFICE COVERING MR. ANDERSON'S TRANSFER THERETO INDICATED THAT THE ACTION WAS EFFECTED AT THE EMPLOYEE'S REQUEST YOU STATE THAT THIS STATEMENT REFERRED ONLY TO THE DEMOTION TO GS-12 AND THAT THE ASSIGNMENT WAS NOT FOR THE CONVENIENCE OF THE EMPLOYEE. THE PERSONNEL ACTION FURTHER PROVIDED FOR PAYMENT OF SUBSISTENCE EXPENSES WHILE IN TEMPORARY QUARTERS FOR MR. ANDERSON AND HIS FAMILY IN ACCORDANCE WITH REGULATIONS BUT IT WAS STATED THAT NO OTHER TRAVEL AND TRANSPORTATION EXPENSES WERE AUTHORIZED SINCE SUCH EXPENSES WERE COVERED UNDER THE OVERSEAS EMPLOYMENT AGREEMENT.

YOUR QUESTIONS ARE (1) WHETHER THE FACT THAT THE TRUST TERRITORY PAID MR. ANDERSON'S RETURN TRAVEL EXPENSES UNDER THE TERMS OF THE EMPLOYMENT AGREEMENT WOULD BAR THE BUREAU OF RECLAMATION FROM APPROVING HIS SUBSISTENCE EXPENSES FOR OCCUPANCY OF TEMPORARY QUARTERS IN DENVER, (2) WHETHER ALLOWANCE OF PER DIEM FOR FAMILY FOR RETURN TRAVEL TO THE UNITED STATES UNDER SEPARATION ORDERS WAS PROPER AND (3) WHETHER THE BUREAU COULD HAVE INITIALLY AUTHORIZED PAYMENT OF THE EXPENSES OF $45.44 IN CONNECTION WITH A REAL ESTATE TRANSACTION AND $200 FOR MISCELLANEOUS EXPENSES NOW CLAIMED BY MR. ANDERSON AND IF THE ANSWER IS AFFIRMATIVE WHAT ACTION CAN NOW BE TAKEN TO ALLOW PAYMENT OF THESE EXPENSES. ADDITIONAL QUESTIONS RAISED ARE (4) WHETHER THE TRANSFER WAS PRIMARILY FOR THE CONVENIENCE OR BENEFIT OF MR. ANDERSON OR AT HIS REQUEST, (5) WHETHER SAIPAN IS A TERRITORY OF THE UNITED STATES WITHIN THE REQUIREMENT OF THE STATUTORY AND REGULATORY PROVISIONS RELATING TO PAYMENT OF EXPENSES IN CONNECTION WITH A REAL ESTATE TRANSACTION. WE REFER YOU, GENERALLY, TO OUR DECISION 46 COMP. GEN. 628, ALSO, SEE B-160565, JUNE 21, 1968, COPY ENCLOSED.

IN ANSWERING THE FOREGOING QUESTIONS WE WILL EXAMINE QUESTION (4) FIRST SINCE IT RAISES THE PRIMARY ISSUE OF OVERALL ELIGIBILITY FOR THE ALLOWANCES INVOLVED IN THE OTHER QUESTIONS. SECTION 1.3A OF THE REGULATIONS CONTAINED IN BUREAU OF THE BUDGET CIRCULAR NO. A-56 PROVIDES THAT THE TRAVEL AND TRANSPORTATION EXPENSES AND ALLOWANCES AUTHORIZED UNDER THE REGULATIONS MAY NOT BE PAID IN ANY CASE IN WHICH THE TRANSFER IS FOR THE BENEFIT OR CONVENIENCE OF THE EMPLOYEE OR AT HIS REQUEST. YOUR LETTER INDICATES THAT WHILE THE RETURN TRAVEL FROM SAIPAN MAY HAVE BEEN INITIATED AT THE EMPLOYEE'S REQUEST THE ACTUAL TRANSFER FROM SAIPAN TO THE OFFICE OF THE CHIEF ENGINEER AT DENVER WAS ARRANGED THROUGH THE OFFICE OF TRUST TERRITORIES IN THE DEPARTMENT AND WAS NOT FOR THE CONVENIENCE OF THE EMPLOYEE. UNDER THE CIRCUMSTANCES WE DO NOT CONSIDER THAT THE TRANSFER WAS PRIMARILY FOR THE EMPLOYEE'S BENEFIT OR CONVENIENCE OR AT HIS REQUEST SO AS TO COME WITHIN THE PROHIBITION CONTAINED IN SECTION 1.3A OF THE REGULATIONS. ACCORDINGLY, THE FOURTH QUESTION IS ANSWERED IN THE NEGATIVE.

RETURNING TO YOUR FIRST QUESTION REGARDING REIMBURSEMENT OF $60 TO MR. ANDERSON FOR SUBSISTENCE EXPENSES WHILE IN TEMPORARY QUARTERS BY THE DENVER OFFICE AFTER THE SAIPAN OFFICE HAD PAID HIS RETURN TRAVEL EXPENSES, THERE IS NO GENERAL PROHIBITION AGAINST SUCH PAYMENT IN SECTION 2.5 OF THE REGULATIONS BECAUSE OF THE EMPLOYEE'S RETURN FROM AN OVERSEAS POST OR BECAUSE PART OF THE TRAVEL EXPENSE WOULD BE BORNE BY TWO OFFICES IN THE SAME DEPARTMENT AS LONG AS THE EMPLOYEE'S NEW STATION IS LOCATED IN THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS (SUBSECTION 2.5B (1) ( AND THE SUBSISTENCE EXPENSES ARE NOT DUPLICATED BY PAYMENTS RECEIVED UNDER OTHER LAWS OR REGULATIONS (SUBSECTION 2.5B (8) ). MOREOVER, SINCE THE TRANSFER ACTION INCURRED ON AUGUST 20, 1967, THE RESTRICTION IN SUBSECTION 2.5C, RELATING TO EXPENSES INCURRED INCIDENT TO SEPARATION ORDERS, IS NOT APPLICABLE TO THE TEMPORARY QUARTERS SUBSISTENCE EXPENSES INCURRED ON AND AFTER THAT DATE. ACCORDINGLY, THERE DOES NOT APPEAR TO BE ANY OBJECTION TO THEIR PAYMENT BY THE DENVER OFFICE IF PROPERLY SUPPORTED UNDER SECTION 2.5 OF THE REGULATIONS. QUESTION (1) IS THEREFORE ANSWERED IN THE NEGATIVE. HOWEVER, SINCE RETURN TRAVEL TO THE UNITED STATES WAS PERFORMED INCIDENT TO SEPARATION ORDERS, PER DIEM FOR THE FAMILY WAS NOT PROPERLY PAID AND SHOULD BE RECOVERED. QUESTION (2) IS ANSWERED ACCORDINGLY.

IN ORDER TO ANSWER THE FIRST PART OF QUESTION (3) RELATING TO ALLOWANCES FOR EXPENSES IN CONNECTION WITH A REAL ESTATE TRANSACTION WE FIRST HAVE TO EXAMINE QUESTION (5) CONCERNING THE STATUS OF THE TRUST TERRITORIES OF THE PACIFIC ISLANDS WHICH INCLUDES THE MARIANA ISLANDS OF WHICH SAIPAN IS ONE. THESE ISLANDS ARE NOT A TERRITORY OR POSSESSION OF THE UNITED STATES BUT ARE ADMINISTERED UNDER THE TRUSTEESHIP OF THE UNITED STATES AS ESTABLISHED BY THE UNITED NATIONS. SEE JOINT RES. JULY 18, 1947, 61 STAT. 397. ACCORDINGLY, QUESTION (5) IS ANSWERED IN THE NEGATIVE.

WITH REGARD TO THE FIRST PART OF QUESTION (3) RELATING TO ENTITLEMENT TO REAL ESTATE EXPENSES SECTION 4.1A OF THE REGULATIONS IN ESTABLISHING THE CONDITIONS UNDER WHICH THE EXPENSES MAY BE PAID REQUIRES THAT BOTH THE OLD AND THE NEW STATION BE LOCATED WITHIN THE 50 STATES, THE DISTRICT OF COLUMBIA, THE TERRITORIES AND POSSESSIONS OF THE UNITED STATES, THE COMMONWEALTH OF PUERTO RICO, OR THE CANAL ZONE, AND THE EMPLOYEE HAS SIGNED AN AGREEMENT AS REQUIRED IN SUBSECTION 1.3C. SINCE, AS INDICATED ABOVE, THE OLD STATION IS NOT LOCATED IN ONE OF THE ABOVE, NO ENTITLEMENT TO EXPENSES IN CONNECTION WITH A REAL ESTATE TRANSACTION ARISES ON MR. ANDERSON'S PART. ACCORDINGLY, THE FIRST PART OF QUESTION (3) IS ANSWERED IN THE NEGATIVE.

WITH REGARD TO THE SECOND PART OF QUESTION (3) CONCERNING PAYMENT OF THE MISCELLANEOUS EXPENSES PROVIDED FOR IN SECTION 3 OF THE REGULATIONS AND ARISING IN CONNECTION WITH DISCONTINUING A RESIDENCE AT ONE LOCATION AND ESTABLISHING A NEW ONE AT ANOTHER THERE IS NO REQUIREMENT THAT THE OLD AND NEW STATIONS BE LOCATED IN THE UNITED STATES. PAYMENT OF SUCH EXPENSES COULD HAVE BEEN AUTHORIZED INITIALLY BY THE DENVER OFFICE AND LACKING THAT PAYMENT, IF OTHERWISE JUSTIFIED UNDER SECTION 3 OF THE REGULATIONS, COULD BE APPROVED AT THIS TIME. THE LAST PART OF YOUR THIRD QUESTION IS ANSWERED ACCORDINGLY.

THE VOUCHER MAY BE CERTIFIED FOR PAYMENT ONLY IN CONFORMANCE WITH THE FOREGOING.