BNUMBER:  B-256704
DATE:  January 26, 1996
TITLE:  James McKibben-Tour Renewal Agreement Travel

**********************************************************************

Matter of:James McKibben-Tour Renewal Agreement Travel

File:     B-256704

Date:January 26, 1996

DIGEST

After reimbursing an employee authorized home leave travel (Overseas 
Tour Renewal Agreement Travel) for transportation between his 
Petersburg, Alaska, duty station and Los Angeles, California, the 
agency learned that the employee and his family actually traveled 
through Los Angeles enroute to Mexico. Upon being queried about the 
travel, the employee claimed to have stopped in Los Angeles for a 4-5 
day visit on the return trip to Alaska. Home leave travel benefits may 
not be used to travel to the United States merely as a stopping off 
point enroute to or from foreign destinations.  Absent evidence from 
the employee that he spent a substantial amount of time in the United 
States, the agency may take action to recoup the travel allowances 
paid to or on behalf of the employee.

DECISION

An authorized certifying officer of the United States Forest Service, 
Department of Agriculture, requests our decision whether it would be 
proper for the agency to seek recovery of costs it incurred for the 
tour renewal agreement travel performed by James McKibben, an agency 
employee assigned to Tongass National Forest, Petersburg, Alaska, in 
1992.  The agency asserts that Mr. McKibben did not perform this 
travel for its authorized purpose, to visit the United States, but 
instead, used it to travel to Mexico to visit property he owned there.  
We agree with the agency that the travel does not appear to have been 
used for the authorized purpose, and it would, therefore, be proper to 
seek recovery from Mr. McKibben for the cost the agency incurred.

BACKGROUND

Overseas tour renewal agreement travel available for an employee such 
as Mr. McKibben, whose post of duty is in Alaska or Hawaii, is 
authorized by 5 U.S.C.  sec.  5728(c), as implemented by the Federal Travel 
Regulation (FTR), 41 C.F.R.  sec.  302-1.3.[1]  Under these provisions, an 
agency may pay the expenses of round-trip transportation for an 
employee and his or her immediate family from the employee's post of 
duty in Alaska or Hawaii to his or her place of actual residence or 
other authorized location in the United States for the purpose of 
returning home to take leave between tours of duty in Alaska or 
Hawaii.

Mr. McKibben's place of actual residence--his residence at the time of 
his selection for the post in Alaska-was McKay, Idaho.  However, when 
Mr. McKibben completed the agency form in January 1992 requesting 
renewal agreement travel for himself and five family members, he 
requested such travel to an alternate location, Los Angeles, 
California.  The travel was to be performed during the period of March 
13 through 29, 1992.  The form he completed contained the statement 
that "I realize that travel is limited to the United States and its 
possessions."  The agency approved the request and issued a 
transportation authorization, dated February 12, 1992, for such travel 
which contained the statement "Travel limited to the United States, 
its territories or possessions, or Puerto Rico."  Incident to this 
authorization, the agency procured commercial air transportation at 
agency expense for Mr. McKibben and his family from Alaska to Los 
Angeles and return.  Upon completion of the travel, Mr. McKibben filed 
a travel voucher stating that he and his family traveled from Alaska 
on March 13 and arrived in Los Angeles on March 14; that they were not 
in a travel status from March 15 through 27; and that they left Los 
Angeles on March 28 and arrived back in Alaska on March 29.  Mr. 
McKibben was allowed $125.50 in per diem for his travel time in 
addition to the $4,470.00 in airline fares the agency had paid the air 
carrier for his and his family's transportation.

The certifying officer states that in July 1993 the agency was 
informed that in fact Mr. McKibben and family had traveled on to 
Mexico during the March 1992 trip.  In response to the agency's 
inquiry, Mr. McKibben furnished a written statement in which he says 
that in February 1991 he and his wife had purchased property in Cabo 
San Lucas, Baja, Mexico,[2] and immediately began planning to take 
their family to visit there in March 1992.  He said their plans 
included visiting Disneyland and friends [apparently in Los Angeles].  
He further states that about a month before departure on the scheduled 
tour renewal trip, he learned of the agency's policy against using 
such travel in conjunction with foreign travel, but after much soul 
searching he and his wife decided to go ahead with the trip, as 
planned, since all the arrangements had been made and because they 
felt "our employer had no right to tell us how we could spend our 
earned leave."  He also furnished an itinerary of the trip in which he 
states that he and his family traveled to Los Angeles on March 13 and 
14, as shown on his travel voucher, but continued on to Cabo San 
Lucas, Mexico, where they arrived on March 14 and remained until March 
23.  They then returned to Los Angeles on the 23rd remaining there 
until departing for Alaska on the 28th and arriving on the 29th.  Mr. 
McKibben states that while in Los Angeles, he and his family visited 
Disneyland and Forest Service friends.  He also states that his 
reservations for the travel to Mexico were made totally separate from 
his government travel and in no way encumbered the government.

The certifying officer states that although Mr. McKibben has furnished 
no receipts covering his travel expenses between Los Angeles and Cabo 
San Lucas, Mexico, there is no reason to question Mr. McKibben's 
statement that the government incurred no expense for this portion of 
his travel.  As to Mr. McKibben's assertion that he and his family 
spent the period between March 23 and 28 in Los Angeles visiting 
friends and Disneyland, the certifying officer notes that no tickets 
or other documentation have been provided to support this assertion.

The certifying officer notes that the FTR requires that to be allowed 
tour renewal travel at government expense, an employee must spend a 
substantial amount of time in the United States (FTR  sec.  302-1.13(b)), 
and he indicates it is Forest Service policy not to authorize tour 
renewal travel that involves travel to locations outside the United 
States, except for the purpose of passing through enroute to the 
United States.  Thus, even if Mr. McKibben and family did in fact 
spend several days in Los Angeles after their return from Mexico, 
under the agency's policy, Mr. McKibben's travel would not have been 
authorized at agency expense had the agency been advised that he 
intended to spend the major portion of the period in Mexico.  The 
certifying officer also notes that it is clear that Mr. McKibben was 
well aware of the Forest Service policy and that he made a conscious 
decision to mislead or deceive the approving official and others by 
stating that his travel was only to Los Angeles when in fact he 
intended to, and did, travel directly to Mexico, with Los Angeles 
being only a connection point enroute to Mexico.

The certifying officer indicates that the agency views its policy as 
conforming to the purpose of tour renewal agreement travel, as 
expressed in the legislative history of the authorizing statute, and 
our decision 41 Comp. Gen. 146 (1961) (response to question 2).  
However, the certifying officer notes that the FTR provision requires 
only that the employee spend a "substantial amount of time" in the 
United States, to qualify for the travel benefit, and we have allowed 
payment in a case in which the employee did not spend his entire leave 
time in the United States.  See 53 Comp. Gen. 468 (1974) in which we 
the employee spent 16 days of a 61-day period in the United States.  
Therefore, in view of the lack of clear guidance on what is meant by a 
substantial amount of time, the certifying officer asks for our views 
in this case before proceeding with collection action against Mr. 
McKibben.

The certifying officer also asks the collateral question of whether 
Mrs. McKibben, who is also a Forest Service employee but not 
personally eligible for tour renewal agreement travel because she was 
locally hired in Alaska, also may be held liable for the cost of the 
travel since she too was aware of the Forest Service's restriction on 
use of such travel.

ANALYSIS

As noted above, the statutory authority for home leave travel entitles 
eligible employees stationed at a post outside the continental United 
States, or in Alaska, or Hawaii, upon completion of a tour of duty, to 
reimbursement for travel for themselves and their families to return 
to their places of actual residence at the time of assignment to their 
posts of duty, provided the employee signs an agreement to complete 
another tour of duty at the current or another qualifying post.  5 
U.S.C.  sec.  5728.[3]  We have noted that the primary purpose of this 
statute, as evidenced by its legislative history, is to bring the 
employee to the United States periodically for what has been termed 
re-Americanization leave.  46 Comp. Gen. 153, 155 (1966).  The statute 
authorizes the President, and by delegation, the General Services 
Administration, to prescribe regulations governing this entitlement.  
Id.; Ex. Order No. 11609, July 22, 1971, 36 F.R. 13747.

Also as noted above, for an employee whose actual residence is in the 
United Sates, the implementing regulations permit the employee to 
travel to an alternate destination within the United States, and our 
decisions have recognized that travel may be included to locations 
outside the United States, provided the employee spends "a substantial 
amount of time" in the United States.  41 C.F.R.  sec.  302-1.13(b)(3);[4] 
and 53 Comp. Gen. 468, supra.  The cost to the government, however, 
may not exceed the amount which would have been allowed for travel 
from the post of duty to the place of actual residence and return to 
the post of duty.  Id.  In addition, we have held that the principle 
that allowable travel, under the statute, is for the purposes of 
returning overseas employees to their homeland for the taking of leave 
there, reasonably could not be extended to the mere stopping off of an 
employee at or near his place of residence as an incidence of a tour 
outside the country.  41 Comp. Gen. 146, supra.  And, in the same 
decision, to which the certifying officer refers as supporting the 
Forest Service policy, we stated that we are not aware of any legal 
prohibition against the issuing of an administrative regulation 
requiring an employee to spend a minimum amount of time at his or her 
actual place of residence or previously indicated [alternate] place 
within the country, territory, or possession of his or her residence.  
41 Comp. Gen. at 148 (response to the second part of question 2).

As the certifying officer notes, while we have not attempted to fix a 
standard for general use in determining what is a sufficient stay to 
meet the requirement of a substantial amount of time in the United 
States, we have held that short stopovers of 1 to 4 days were not 
sufficient where it was apparent that the leave was not taken for the 
purpose of visiting the United States.  See 41 Comp. Gen. 146, supra, 
and B-171174, Dec. 18, 1970.  See also B-148858, May 24, 1962.

In the present case, in Mr. McKibben's statement provided in response 
to the agency's inquiry in July 1993 when agency officials became 
aware that the travel included the trip to Mexico, he stated that the 
original purpose of the trip for which he and his wife began planning 
in 1991 after purchasing the property in Mexico, was to bring their 
family to visit that property, although he also said the plans 
included visiting Disneyland and friends.  While Mr. McKibben 
indicates that he and his family did stop in Los Angeles for 4 or 5 
days for the latter purposes enroute back to Alaska, he has furnished 
no documentary evidence to support that assertion, and no explanation 
is provided as to why none was furnished.  Also, as the certifying 
officer states, Mr. McKibben consciously misled agency officials as to 
the true destination of the travel.  Concerning Mr. McKibben's 
statement that he felt that his employer had no right to tell him how 
he could spend his earned leave, the question is not how he may use 
his leave, it is a question as to under what conditions he is entitled 
to travel for himself and his family at government expense.  In these 
circumstances, it appears that the agency's determination that the 
travel was not for the purpose of visiting a designated location in 
the United States, but was for the purpose of visiting Mexico, a 
purpose for which tour renewal travel at government expense is not 
authorized.  Although the agency may not have incurred expenses in 
addition to what it would have incurred had the travel been for the 
purpose of visiting Los Angeles, as authorized, under the statute and 
regulations discussed above, tour renewal agreement travel at 
government expense is not authorized for employees in Mr. McKibben's 
position for the purpose of traveling to Mexico.

Accordingly, we believe it is appropriate for the Forest Service to 
proceed with the proposed collection action against Mr. McKibben.  As 
to collection action against Mrs. McKibben, although we agree with the 
agency that as a Forest Service employee she had a responsibility not 
to participate in misleading agency officials, since she had no 
entitlement to tour renewal travel in her own right, we believe it 
appropriate to limit the collection action to Mr. McKibben.

/s/Seymour Efros
for Robert P. Murphy
General Counsel

1. 5 U.S.C.  sec.  5728(c) applies to an employee assigned, appointed or 
transferred to a post of duty in Alaska or Hawaii after September 8, 
1982.  The agency states that Mr. McKibben is such an employee.

2. Cabo San Lucas, Baja, Mexico, by highway, is over 1,600 miles south 
of Los Angeles, California.

3. Originally enacted in 1954.  Act of Aug. 31, 1954, 68 Stat. 1008.

4. For this purpose, the "United States" includes the Commonwealth of 
Puerto Rico, the Commonwealth of the Northern Mariana Islands or a 
United States territory or possession.  Id.