B-171969, DEC 21, 1972

B-171969, DEC 21, 1972

CIVILIAN EMPLOYEE - TRAVEL EXPENSES - EMPLOYMENT AGREEMENT - RESIGNATION FROM GOVERNMENT SERVICE DECISION REGARDING THE WAIVER OF INDEBTEDNESS OF RICHARD W. HUTCHISON TO THE AIR FORCE FOR ADVANCED TRAVEL AND PER DIEM EXPENSES INCIDENT TO A TRANSFER FROM PITTSBURGH, PA., TO MONTGOMERY, ALA. SECTION 5724(I) OF TITLE 5, U.S.C. PROVIDES FOR REIMBURSEMENT OF EMPLOYEE'S TRAVEL EXPENSES, PRIOR TO THE COMPLETION OF THE AGREED UPON 12 MONTHS OF SERVICE, ONLY WHEN THE EMPLOYEE IS SEPARATED FOR REASONS BEYOND HIS CONTROL THAT ARE ACCEPTABLE TO THE EMPLOYING AGENCY. SINCE CLAIMANT RESIGNED HIS GOVERNMENT POSITION FOR EMPLOYMENT IN THE PRIVATE SECTOR, THE AIR FORCE'S DETERMINATION THAT THE RESIGNATION WAS NOT BEYOND THE EMPLOYEE'S CONTROL WILL NOT BE DISTURBED. ACCORDINGLY, THE WAIVER OF INDEBTEDNESS IS DISALLOWED.

TO MR. RICHARD W. HUTCHISON:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 25, 1972, WITH ENCLOSURES, REQUESTING A RULING AS TO WHETHER YOU SHOULD BE REQUIRED TO REPAY TRAVEL AND PER DIEM ALLOWANCES ADVANCED TO YOU BY THE DEPARTMENT OF THE AIR FORCE INCIDENT TO YOUR TRANSFER FROM PITTSBURGH, PENNSYLVANIA, TO MONTGOMERY, ALABAMA.

THE ABOVE QUESTION ARISES AS A CONSEQUENCE OF YOUR RESIGNATION FROM YOUR ASSIGNED POSITION AS A COMPUTER SPECIALIST, GS-12, AT THE AIR FORCE DATA SYSTEMS DESIGN CENTER, MAXWELL AIR FORCE BASE, ALABAMA, AFTER WORKING APPROXIMATELY FIVE AND ONE-HALF MONTHS IN SUCH POSITION AFTER YOUR TRANSFER. IT IS YOUR CONTENTION THAT THE AIR FORCE FAILED TO PROVIDE A POSITION EVEN REMOTELY SIMILAR TO THAT OF A COMPUTER SPECIALIST, GS-12, THAT YOU WERE NEVER UTILIZED IN SUCH CAPACITY NOR GIVEN AN OPPORTUNITY TO FUNCTION AT SUCH LEVEL, AND THUS THE AIR FORCE WAS IN DIRECT VIOLATION OF THE BASIC EMPLOYMENT AGREEMENT AND BY EXTENSION OF THE RELATED TRANSPORTATION AGREEMENT.

THE CONTROLLING STATUTORY PROVISION GOVERNING THE MATTER OF YOUR INDEBTEDNESS IS FOUND IN 5 U.S.C. 5724(I) WHICH READS, IN PERTINENT PART, AS FOLLOWS:

"AN AGENCY MAY PAY TRAVEL AND TRANSPORTATION EXPENSES (INCLUDING STORAGE OF HOUSEHOLD GOODS AND PERSONAL EFFECTS) AND OTHER RELOCATION ALLOWANCES UNDER THIS SECTION AND SECTIONS 5724A AND 5726(C) OF THIS TITLE WHEN AN EMPLOYEE IS TRANSFERRED WITHIN THE CONTINENTAL UNITED STATES ONLY AFTER THE EMPLOYEE AGREES IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR 12 MONTHS AFTER HIS TRANSFER, UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL THAT ARE ACCEPTABLE TO THE AGENCY CONCERNED. IF THE EMPLOYEE VIOLATES THE AGREEMENT, THE MONEY SPENT BY THE UNITED STATES FOR THE EXPENSES AND ALLOWANCES IS RECOVERABLE FROM THE EMPLOYEE AS A DEBT DUE THE UNITED STATES."

AS IT MAY BE OBSERVED FROM THE QUOTED LANGUAGE OF THE STATUTE, THE BASIS FOR THE ASSUMPTION BY AN AGENCY OF THE UNITED STATES OF THE EXPENSES OF TRAVEL AND TRANSPORTATION OF AN EMPLOYEE, PRIOR TO THE COMPLETION OF 12 MONTHS OF SERVICE, IS CONFINED TO THE SITUATION WHERE THE EMPLOYEE IS "SEPARATED FOR REASONS BEYOND HIS CONTROL THAT ARE ACCEPTABLE TO THE AGENCY CONCERNED."

THE ACCEPTABILITY OF THE REASONS FOR YOUR PREMATURE RESIGNATION IS PRIMARILY FOR DETERMINATION BY THE DEPARTMENT OF THE AIR FORCE AND ITS DETERMINATION IS REVIEWABLE BY THIS OFFICE ONLY IF THE FACTS ESTABLISH THAT IT IS ARBITRARY OR CAPRICIOUS.

THE RECORD INDICATES, IN PERTINENT PART, THAT THE DEPARTMENT OF THE AIR FORCE CONCLUDED THAT YOUR SEPARATION WAS NOT CAUSED BY REASONS BEYOND YOUR CONTROL BUT WAS OCCASIONED PRIMARILY BY YOUR DESIRE TO "ACCEPT A POSITION WHICH OFFERS AN EXTRAORDINARY OPPORTUNITY FOR PROFESSIONAL DEVELOPMENT," AS STATED IN YOUR LETTER OF RESIGNATION, AND HENCE WAS NOT ACCEPTABLE TO THE AGENCY. YOU NOW STATE THAT AT THE TIME OF YOUR RESIGNATION YOU DID NOT DEEM IT USEFUL OR NECESSARY TO ELABORATE ON YOUR REASONS FOR RESIGNING AS YOU DID NOT INTEND TO CONTEST THE ISSUE OF RELOCATION EXPENSES. THE AGENCY ALSO REPORTS THAT DURING THE RELATIVELY SHORT PERIOD OF YOUR EMPLOYMENT, DUE TO LACK OF KNOWLEDGE OF GOVERNING AIR FORCE PROCUREMENT DIRECTIVES AND DATA SYSTEM PROCEDURES AND PARAMETERS, SIGNIFICANT PORTIONS OF SUCH PERIOD WERE SPENT IN FORMAL AND ON-THE-JOB TRAINING AND SYSTEMS FAMILIARIZATION, WITH WHICH YOU DISAGREE.

WE DO NOT BELIEVE THAT FAILURE OF AN AGENCY TO ASSIGN AN EMPLOYEE TO THE EXACT DUTIES SET FORTH IN HIS JOB DESCRIPTION WOULD ORDINARILY BE A BASIS FOR REGARDING THE EMPLOYEE'S RESIGNATION AS BEING "SEPARATION BEYOND HIS CONTROL." SINCE THE DETERMINATION OF THE DEPARTMENT OF THE AIR FORCE WAS NOT ARBITRARY OR CAPRICIOUS YOU MAY NOT BE RELIEVED OF YOUR INDEBTEDNESS.