B-162442, DEC. 19, 1967

B-162442, DEC. 19, 1967

EMPLOYEES - TRANSFERS - PUBLIC LAW 89-516 - MULTIPLE TRANSFERS DECISION TO EMPLOYEE OF AGRICULTURAL RESEARCH SERVICE CONCERNING CLAIM FOR REAL ESTATE EXPENSES IN SALE OF HOME INCIDENT TO TRANSFERS FROM AUSTIN, TEXAS TO SAN JUAN, P.R. TO PHOENIX, ARIZONA. EMPLOYEE WHO WAS TRANSFERRED FROM AUSTIN TO SAN JUAN ON JUNE 5, 1966, BUT WHO DID NOT MOVE HOUSEHOLD EFFECTS OR SELL HOME UNTIL AFTER NOTICE OF TRANSFER TO PHOENIX IN AUGUST 1966 MAY NOT BE REIMBURSED FOR EXPENSES OF SALE OF HOME BECAUSE IT WAS NOT ACTUAL RESIDENCE AT TIME OF TRANSFER TO PHOENIX. THE ESTABLISHMENT OF A "HOME OF RECORD" UNDER 5 U.S.C. 5722, 5724 (D), AND 5728 WHILE EMPLOYEE WAS OUTSIDE CONTINENTAL U.S. DOES NOT MAKE SUCH PLACE THE EMPLOYEE'S ACTUAL RESIDENCE FOR BENEFITS UNDER PUBLIC LAW 89-516.

TO DR. TED REA:

WE REFER TO YOUR LETTER OF OCTOBER 25, 1967, REQUESTING THAT WE REVIEW THE SETTLEMENT OF THE CLAIMS DIVISION OF THIS OFFICE DATED OCTOBER 4, 1967, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT OF THE COSTS INVOLVED IN THE SALE OF YOUR RESIDENCE IN AUSTIN, TEXAS, INCIDENT TO YOUR TRANSFER OF DUTY STATION AS AN EMPLOYEE OF THE ANIMAL HEALTH DIVISION, AGRICULTURAL RESEARCH SERVICE, U.S. DEPARTMENT OF AGRICULTURE, FROM SAN JUAN, PUERTO RICO, TO PHOENIX, ARIZONA.

YOU WERE TRANSFERRED FROM AUSTIN TO SAN JUAN ON JUNE 5, 1966, HOWEVER, IN AUGUST 1966, BEFORE YOU HAD MOVED YOUR HOUSEHOLD GOODS TO YOUR NEW STATION, YOU WERE TRANSFERRED TO PHOENIX. ON AUGUST 26, 1966, YOU SOLD YOUR RESIDENCE IN AUSTIN AND YOUR CLAIM IS FOR REIMBURSEMENT OF THE COSTS INVOLVED IN THAT SALE UNDER THE AUTHORITY CODIFIED IN 5 U.S.C. 5724A (A) (4), AS ADDED BY THE ACT OF JULY 21, 1966, PUB.L. 89 516, 80 STAT. 323, AND SECTION 4 OF THE BUREAU OF THE BUDGET CIRCULAR NO. A-56. YOUR CLAIM WAS DISALLOWED BY THE CLAIMS DIVISION OF OUR OFFICE BECAUSE THE RESIDENCE YOU SOLD WAS LOCATED IN AUSTIN AND NOT AT YOUR OLD DUTY STATION, SAN JUAN. IN THAT CONNECTION SECTION 4.1 OF CIRCULAR NO. A-56 PROVIDES IN PERTINENT PART:

"4.1 CONDITIONS AND REQUIREMENTS UNDER WHICH ALLOWANCES MAY BE PAID. THE EXTENT ALLOWABLE UNDER THIS PROVISION, THE GOVERNMENT WILL REIMBURSE AN EMPLOYEE FOR EXPENSES REQUIRED TO BE PAID BY HIM IN CONNECTION WITH THE SALE OF ONE RESIDENCE AT HIS OLD OFFICIAL STATION; PURCHASE OF ONE DWELLING AT HIS NEW OFFICIAL STATION; OR THE SETTLEMENT OF AN UNEXPIRED LEASE AT HIS PLACE OF RESIDENCE AT THE OLD OFFICIAL STATION; PROVIDED THAT:

"C. THE DWELLING AT THE OLD OFFICIAL STATION WAS THE EMPLOYEE'S ACTUAL RESIDENCE AT THE TIME HE WAS FIRST DEFINITELY INFORMED THAT HE IS TO BE TRANSFERRED TO THE NEW OFFICIAL STATION.'

YOU BELIEVE THAT THE SALE OF YOUR RESIDENCE IN AUSTIN SHOULD BE CONSIDERED AS QUALIFYING YOU FOR REIMBURSEMENT BECAUSE EMPLOYEES ASSIGNED OUTSIDE THE CONTINENTAL UNITED STATES ARE REQUIRED TO HAVE A "HOME OF RECORD" IN THE CONTINENTAL UNITED STATES. THE ESTABLISHMENT OF A "HOME OF ECORD" FOR OVERSEAS EMPLOYEES IS PREDICATED UPON 5 U.S.C. 5722, 5724 (D) AND 5728. A "HOME OF RECORD" UNDER THOSE PROVISIONS OF LAW IS THE EMPLOYEE'S PLACE OF ACTUAL RESIDENCE AT THE TIME OF HIS ASSIGNMENT TO DUTY OUTSIDE THE CONTINENTAL UNITED STATES. THE EMPLOYEE'S ELIGIBILITY FOR TRAVEL AND TRANSPORTATION EXPENSES UPON SEPARATION AND HIS RIGHT TO HOME LEAVE TRAVEL ARE LIMITED BY THE LOCATION OF HIS "ACTUAL PLACE OF RESIDENCE" OR "HOME OF RECORD". THERE IS NO REQUIREMENT THAT THE EMPLOYEE MAINTAIN A HOME AT SUCH PLACE WHILE HE IS OVERSEAS. FURTHER, THE "HOME OF RECORD" IS NOT CONSIDERED TO BE THE EMPLOYEE'S ACTUAL RESIDENCE WHILE HE IS OVERSEAS. ACCORDINGLY, THE FACT THAT YOU DESIGNATED AUSTIN AS YOUR "HOME OF RECORD" WHILE YOU WERE IN SAN JUAN DOES NOT ENTITLE YOU TO REIMBURSEMENT OF THE AMOUNT CLAIMED.

WE NOTE ALSO THAT YOU DID NOT QUALIFY FOR REIMBURSEMENT OF THE EXPENSES INVOLVED IN THE SALE OF YOUR RESIDENCE IN AUSTIN AT THE TIME YOU WERE TRANSFERRED TO SAN JUAN BECAUSE THE REIMBURSEMENT OF SUCH EXPENSES WAS AUTHORIZED ONLY IN CONNECTION WITH TRANSFERS WHICH OCCURRED ON OR AFTER JULY 21, 1966, THE EFFECTIVE DATE OF PUB. L. 89 516. SEE 46 COMP. GEN. 595.

FOR THE REASONS STATED, THE SETTLEMENT OF THE CLAIMS DIVISION DATED OCTOBER 4, 1967, IS SUSTAINED.