B-164200, MAY 24, 1968

B-164200: May 24, 1968

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YOUR TRANSFER TO FORT IRWIN APPEARS FROM THE RECORD TO HAVE BEEN EFFECTIVE UPON YOUR ARRIVAL THERE ON OCTOBER 19. REIMBURSEMENT OF THE RELOCATION EXPENSES INCURRED BY YOU WAS DENIED ADMINISTRATIVELY BECAUSE OF THE ALLEGED BREACH OF YOUR TRANSPORTATION AGREEMENT AND THE GENERAL ACCOUNTING OFFICE SETTLEMENT OF APRIL 11. YOU URGE (1) THAT YOU WERE NOT AFFORDED AN OPPORTUNITY TO VISIT FORT IRWIN FOR AN ORIENTATION VISIT AND PERSONAL INTERVIEW AND (2) THAT YOU WERE MISLED OR MISINFORMED CONCERNING THE CONDITIONS UNDER WHICH QUARTERS WOULD BE FURNISHED YOU AT THE FORT. WE ARE AWARE OF NO BASIS OF LAW FOR HOLDING THAT THE LACK OF AN ORIENTATION VISIT AND PERSONAL INTERVIEW MAY SERVE AS A BASIS FOR PAYMENT OF TRANSFER EXPENSES THAT ARE OTHERWISE PROHIBITED.

B-164200, MAY 24, 1968

TO MR. RAYMOND C. CHARITON:

WE REFER TO YOUR LETTER OF APRIL 22, 1968, IN WHICH YOU REQUEST RECONSIDERATION OF GENERAL ACCOUNTING OFFICE SETTLEMENT OF APRIL 11, 1968, DISALLOWING YOUR CLAIM FOR REIMBURSEMENT OF RELOCATION EXPENSES INCURRED BY YOU AS A CIVILIAN EMPLOYEE OF THE ARMY INCIDENT TO THE TRANSFER OF YOUR OFFICIAL STATION TO FORT IRWIN, CALIFORNIA.

YOUR TRANSFER TO FORT IRWIN APPEARS FROM THE RECORD TO HAVE BEEN EFFECTIVE UPON YOUR ARRIVAL THERE ON OCTOBER 19, 1967. SOME TWO WEEKS LATER YOU TERMINATED YOUR EMPLOYMENT AT FORT IRWIN IN APPARENT CONTRAVENTION OF THE TERMS OF THE TRANSPORTATION AGREEMENT EXECUTED BY YOU INCIDENT TO YOUR TRANSFER IN WHICH YOU AGREED TO REMAIN IN THE SERVICE OF THE GOVERNMENT FOR A PERIOD OF ONE YEAR.

REIMBURSEMENT OF THE RELOCATION EXPENSES INCURRED BY YOU WAS DENIED ADMINISTRATIVELY BECAUSE OF THE ALLEGED BREACH OF YOUR TRANSPORTATION AGREEMENT AND THE GENERAL ACCOUNTING OFFICE SETTLEMENT OF APRIL 11, 1968, DISALLOWED YOUR CLAIM FOR THE SAME REASON.

IN JUSTIFICATION OF THE PREMATURE TERMINATION OF YOUR EMPLOYMENT AT FORT IRWIN AND AS A BASIS FOR THE FAVORABLE RECONSIDERATION OF YOUR CLAIM FOR REIMBURSEMENT, YOU URGE (1) THAT YOU WERE NOT AFFORDED AN OPPORTUNITY TO VISIT FORT IRWIN FOR AN ORIENTATION VISIT AND PERSONAL INTERVIEW AND (2) THAT YOU WERE MISLED OR MISINFORMED CONCERNING THE CONDITIONS UNDER WHICH QUARTERS WOULD BE FURNISHED YOU AT THE FORT.

CONCERNING YOUR FIRST REASON, WE ARE AWARE OF NO BASIS OF LAW FOR HOLDING THAT THE LACK OF AN ORIENTATION VISIT AND PERSONAL INTERVIEW MAY SERVE AS A BASIS FOR PAYMENT OF TRANSFER EXPENSES THAT ARE OTHERWISE PROHIBITED. SECTION 2 OF PUBLIC LAW 89-516, APPROVED JULY 21, 1966, NOW CODIFIED IN 5 U.S.C. 5724A DOES AUTHORIZE, INCIDENT TO THE TRANSFER OF OFFICIAL STATION, THE ALLOWANCE OF THE EXPENSES OF TRANSPORTATION TO SEEK PERMANENT RESIDENCE QUARTERS AT A NEW OFFICIAL STATION. HOWEVER, SECTION 2.4A OF BUREAU OF THE BUDGET CIRCULAR NO. A 56, REVISED OCTOBER 12, 1966, THE STATUTORY REGULATIONS WHICH IMPLEMENT PUBLIC LAW 89-516, PROVIDES THAT REIMBURSEMENT OF TRANSPORTATION EXPENSES FOR TRIPS TO SEEK PERMANENT QUARTERS SHALL NOT BE AUTHORIZED:

"/1) WHEN AN EMPLOYEE WILL BE ASSIGNED TO GOVERNMENT OR OTHER PREARRANGED RESIDENCE QUARTERS AT THE NEW OFFICIAL STATION LOCATION.'

SINCE, AS CONTENDED BY YOU AND AS SHOWN BY THE RECORD, YOUR EMPLOYMENT AT FORT IRWIN CONTEMPLATED THE OCCUPANCY BY YOU OF GOVERNMENT QUARTERS, A PRELIMINARY TRIP BY YOU AT GOVERNMENT EXPENSE UNDER THAT AUTHORITY WOULD NOT HAVE BEEN JUSTIFIED OR AUTHORIZED.

WITH REFERENCE TO THE SECOND REASON PRESENTED BY YOU AS A JUSTIFICATION FOR TERMINATING YOUR EMPLOYMENT, OUR OFFICE HAS NO INFORMATION RELATIVE TO THE REPRESENTATIONS MADE TO YOU CONCERNING THE FURNISHING OF GOVERNMENT QUARTERS OTHER THAN THAT FURNISHED IN YOUR LETTER OF APRIL 22, 1968, AND IN YOUR EARLIER CORRESPONDENCE WITH THE DEPARTMENT OF THE ARMY REGARDING YOUR CLAIM.

YOUR TRAVEL AUTHORIZATION SHOWS THAT GOVERNMENT QUARTERS WERE TO BE FURNISHED AT FORT IRWIN. HOWEVER, IN VIEW OF THE STATUTORY AND REGULATORY PROVISIONS OF LAW CONTROLLING THE FURNISHING OF GOVERNMENT QUARTERS TO EMPLOYEES IN THE UNITED STATES, IT SEEMS IMPROBABLE -- NOTWITHSTANDING YOUR BELIEF TO THE CONTRARY -- THAT OFFICIALS OF THE DEPARTMENT WOULD DELIBERATELY MISINFORM YOU AS TO THE RENTAL REQUIREMENT FOR SUCH QUARTERS.

PUBLIC LAW 88-459, APPROVED AUGUST 20, 1964, 5 U.S.C. 5911, PROVIDES IN PERTINENT PART AS FOLLOWS:

"/B) THE HEAD OF AN AGENCY MAY PROVIDE * * * AN EMPLOYEE STATIONED IN THE UNITED STATES WITH QUARTERS * * * WHEN CONDITIONS OF EMPLOYMENT OR OF AVAILABILITY OF QUARTERS WARRANT THE ACTION.

"/C) RENTAL RATES FOR QUARTERS PROVIDED FOR AN EMPLOYEE UNDER SUBSECTION (B) OF THIS SECTION * * * SHALL BE BASED ON THE REASONABLE VALUE OF THE QUARTERS * * * TO THE EMPLOYEE * * * IN THE CIRCUMSTANCES UNDER WHICH THE QUARTERS * * * ARE PROVIDED, OCCUPIED, OR MADE AVAILABLE. THE AMOUNTS OF THE RATES SHALL BE PAID BY, OR DEDUCTED FROM THE PAY OF THE EMPLOYEE * * * OR OTHERWISE CHARGED AGAINST HIM IN ACCORDANCE WITH LAW * * *.'

SUBSECTION (F) OF THE STATUTE AUTHORIZES THE PRESIDENT TO ISSUE REGULATIONS GOVERNING, AMONG OTHER THINGS, THE DETERMINATION OF RENTAL RATES. UNDER A DELEGATION OF AUTHORITY FROM THE PRESIDENT THE STATUTE IS IMPLEMENTED BY BUREAU OF THE BUDGET CIRCULAR NO. 45, REVISED OCTOBER 31, 1964. THE CIRCULAR PRESCRIBES IN DETAIL THE GUIDE LINES TO BE FOLLOWED BY AGENCIES IN FIXING RENTAL RATES OF GOVERNMENT FURNISHED QUARTERS. THE CIRCULAR EXPRESSLY PROVIDES THAT RENTS MAY NOT BE SET SO AS TO PROVIDE AN INDUCEMENT IN THE RECRUITMENT OR RETENTION OF EMPLOYEES.

THUS, WHILE IT SEEMS EVIDENT FROM YOUR LETTERS THAT YOU WERE UNAWARE OF THE RENTAL REQUIREMENT OF LAW IT IS EQUALLY EVIDENT THAT NO OFFICER OR EMPLOYEE OF THE GOVERNMENT WAS CLOTHED WITH AUTHORITY TO OFFER YOU RENTAL- FREE GOVERNMENT QUARTERS IN THE UNITED STATES.

PUBLIC LAW 88-459 REPEALED SECTION 3 OF THE ACT OF MARCH 5, 1928, 45 STAT. 193, A STATUTE OF SIMILAR IMPORT, WHICH REQUIRED THAT THE REASONABLE VALUE OF QUARTERS BE DETERMINED AND BE CONSIDERED AS PART OF THE COMPENSATION IN FIXING SALARY RATES OF CIVILIAN EMPLOYEES. THAT ACT CONSISTENTLY HAD BEEN CONSTRUED BY OUR OFFICE AS REQUIRING THE PAYMENT OR WITHHOLDING OF THE REASONABLE VALUE OF QUARTERS FURNISHED. SEE 42 COMP. GEN. 386, COPY HEREWITH. B-140003, 1-17-63

SINCE WE ARE CHARGEABLE WITH NOTICE OF THE PUBLIC LAWS OF THE UNITED STATES, PARTICULARLY THOSE OF LONG STANDING, IT IS EVIDENT WHY WE MAY NOT ACCEPT YOUR PLEA OF UNAWARENESS OF THE RENTAL REQUIREMENT AS A LEGAL JUSTIFICATION FOR THE BREACH OF AGREEMENT MADE BY YOU PURSUANT TO SECTION 1.3C OF CIRCULAR NO. A-56.

MOREOVER, WE MUST POINT OUT THAT UNDER APPLICABLE LAW, 5 U.S.C. 5724, AN EMPLOYEE WHO DOES NOT COMPLETE THE AGREED PERIOD OF SERVICE IS NOT ENTITLED TO OTHERWISE PROPER EXPENSES OF TRANSFER UNLESS "SEPARATED FOR REASONS BEYOND HIS CONTROL WHICH ARE ACCEPTABLE TO THE AGENCY CONCERNED.' YOUR EMPLOYING AGENCY, THE DEPARTMENT OF THE ARMY, HAS MADE NO SUCH DETERMINATIONS.

IT FOLLOWS THAT WE ARE WITHOUT AUTHORITY TO DIRECT ALLOWANCE OF THE EXPENSES INCURRED BY YOU INCIDENT TO TRANSFER AND THAT OUR OFFICE SETTLEMENT OF APRIL 11, 1968, MUST BE SUSTAINED.

CONCERNING THE REQUEST IN THE CONCLUDING PARAGRAPH OF YOUR LETTER AS TO FURTHER REVIEW OR APPEAL, YOU ARE INFORMED THAT SETTLEMENTS OF THE GENERAL ACCOUNTING OFFICE ARE CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. THEY DO NOT PRECLUDE A CLAIMANT FROM ANY REMEDY HE MAY HAVE IN THE COURTS.