B-164905, AUG. 27, 1968

B-164905, AUG. 27, 1968

TO MR. D. H. SHELTON:

YOUR LETTER DATED JULY 22, 1968, YOUR REFERENCE MC:CAW, REQUESTS OUR DECISION CONCERNING THE PAYMENT OF EXPENSES INCURRED UPON AN OFFICIAL CHANGE OF STATION FROM CHATTANOOGA, TENNESSEE, TO OAK RIDGE, TENNESSEE. THE EXPENSES IN QUESTION REPRESENT COSTS OF SELLING A RESIDENCE IN KNOXVILLE, TENNESSEE. THE AMOUNT CLAIMED, $1,028.81, HAS ALREADY BEEN PAID BUT YOU STATE THAT THERE HAS ARISEN SOME DOUBT WHETHER THIS PAYMENT WAS PROPER.

HARRISON N. CULVER WAS AN EMPLOYEE OF THE TENNESSEE VALLEY AUTHORITY WHO WORKED IN OAK RIDGE UNTIL MID-MARCH OF 1966; DURING THIS PERIOD HE COMMUTED DAILY TO OAK RIDGE FROM HIS RESIDENCE IN KNOXVILLE, SOME 20 MILES AWAY. IN MARCH OF 1966, TVA TRANSFERRED MR. CULVER TO CHATTANOOGA, WHICH IS APPROXIMATELY 100 MILES FROM KNOXVILLE, APPARENTLY BECAUSE HIS CHILDREN WERE IN THE MIDDLE OF THE SCHOOL YEAR, MR. CULVER CHOSE NOT TO RELOCATE HIS FAMILY IN CHATTANOOGA IMMEDIATELY UPON TRANSFER. HE DECIDED, INSTEAD, TO OCCUPY BACHELOR QUARTERS IN CHATTANOOGA DURING THE WORKWEEK AND TO SPEND HIS WEEKENDS IN KNOXVILLE, WITH THE INTENTION OF MOVING THE REST OF HIS FAMILY TO CHATTANOOGA UPON CLOSE OF SCHOOL.

BEFORE THE END OF THE SCHOOL YEAR, HOWEVER, MR. CULVER BEGAN NEGOTIATING WITH THE ATOMIC ENERGY COMMISSION FOR A TRANSFER TO THAT AGENCY WITH HIS DUTY STATION TO BE OAK RIDGE. IN VIEW OF THE PROSPECTIVE TRANSFER, THE PLANS TO MOVE HIS FAMILY TO CHATTANOOGA WERE CHANGED AND HE CONTINUED TO LIVE IN RENTED BACHELOR QUARTERS IN THAT CITY THROUGH THE SUMMER UNTIL AUGUST 21, 1966, THE EFFECTIVE DATE OF HIS TRANSFER TO THE AEC STATION IN OAK RIDGE. VERY SHORTLY AFTERWARD, AEC ASSIGNED MR. CULVER TO TEMPORARY DUTY IN PUERTO RICO. IN DECEMBER 1966, WHILE HE WAS ON THIS TEMPORARY ASSIGNMENT, HE SOLD HIS HOUSE IN KNOXVILLE THROUGH A REAL ESTATE AGENT. WHEN MR. CULVER RETURNED FROM PUERTO RICO, HE TOOK UP RESIDENCE IN OAK RIDGE.

THE QUESTION PRESENTED IS WHETHER AN EMPLOYEE WHO IS TRANSFERRED FROM AN OFFICIAL DUTY STATION IN CHATTANOOGA TO A NEW STATION IN OAK RIDGE MAY BE REIMBURSED FOR EXPENSES INCURRED INCIDENT TO THE SALE OF HIS KNOXVILLE HOME, WHEN THE KNOXVILLE HOME WAS NOT HIS ACTUAL RESIDENCE AT THE TIME OF THE TRANSFER.

BUREAU OF THE BUDGET CIRCULAR NO. A-56 ISSUED IN IMPLEMENTATION OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED BY PUB.L. 89-516, APPROVED JULY 21, 1966, 80 STAT. 323, CONSTITUTES THE CONTROLLING REGULATIONS. SECTION 4.1 THEREOF PROVIDES IN PART, AS FOLLOWS:

"* * * TO 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.'

YOUR LETTER REFERS TO TWO DECISIONS OF THIS OFFICE WHICH INVOLVED SITUATIONS SIMILAR TO THIS ONE. ONE OF THE DECISIONS, 46 COMP. GEN. 703, CONCLUDED THAT THE EXPENSES WERE NOT REIMBURSABLE SINCE THE RESIDENCE SOLD WAS NOT THE EMPLOYEE'S ACTUAL RESIDENCE AT THE TIME OF HIS TRANSFER. THE OTHER DECISION, 47 COMP. GEN. 109, NOTED THE GENERAL RULE THAT TO HAVE AN ACTUAL RESIDENCE AT THE OLD DUTY STATION THE EMPLOYEE MUST COMMUTE BETWEEN THE RESIDENCE AND THE STATION ON A DAILY BASIS. HOWEVER, AN EXCEPTION TO THE RULE WAS FASHIONED AND REIMBURSEMENT WAS PERMITTED IN THAT CASE BECAUSE OF THE UNAVAILABILITY OF SUITABLE HOUSING WITHIN COMMUTING DISTANCE OF THE OLD OFFICIAL STATION. IN YOUR LETTER YOU ASK WHETHER THE ABOVE EXCEPTION SHOULD APPLY IN MR. CULVER'S SITUATION SINCE HIS CHILDREN WERE COMPLETING A SCHOOL TERM, A CIRCUMSTANCE WHICH YOU SAY WAS BEYOND HIS CONTROL, AND THUS HOUSING FACILITIES WHICH WOULD HAVE BEEN OTHERWISE SUITABLE FOR HIM AND HIS FAMILY COULD NOT REASONABLY BE UTILIZED.

A REVIEW OF THE FACTS CONSIDERED IN 47 COMP. GEN. 109 DISCLOSES THAT THE EMPLOYEE HAD FIVE DEPENDENTS. THE EMPLOYEE ATTEMPTED TO RELOCATE NEAR GRAND FORKS AIR FORCE BASE BUT COULD FIND NO SUITABLE HOUSING. THERE WAS, THEREFORE, A PRESENT INTENTION TO RELOCATE WHICH WAS UNFULFILLED BECAUSE OF ACTUAL UNAVAILABILITY OF HOUSING. ON THE OTHER HAND, MR. CULVER'S SITUATION DOES NOT INVOLVE ACTUAL UNAVAILABILITY; INSTEAD, THE FAILURE TO RELOCATE STEMMED FROM AN INTENTION TO MOVE HIS FAMILY IN THE FUTURE, SUCH INTENTION BEING THE RESULT OF PERSONAL REASONS HE FELT TO BE COMPELLING. THUS HIS CASE CLEARLY DOES NOT COME WITHIN THE EXCEPTION ENUNCIATED IN 47 COMP. GEN. 109. IN THIS REGARD, YOUR ATTENTION IS INVITED TO TWO MORE RECENT DECISIONS INVOLVING THIS SAME GENERAL QUESTION. B-163788, JUNE 7, 1968; B-164318, JUNE 21, 1968; COPIES ENCLOSED. BOTH SUCH CASES HELD AGAINST REIMBURSEMENT. THE FORMER IS OF PARTICULAR INTEREST BECAUSE THE EMPLOYEE'S MOTIVES IN NOT LOCATING HIS FAMILY AT THE OLD OFFICIAL STATION WERE SIMILAR TO MR. CULVER-S, THAT IS, ANTICIPATION OF A FURTHER TRANSFER AND A DESIRE NOT TO HAVE THE CHILDREN CHANGE SCHOOLS IN THE MIDDLE OF A SCHOOL YEAR.

FOR THE REASONS INDICATED ABOVE, MR. CULVER WAS NOT ENTITLED TO REIMBURSEMENT UNDER SECTION 4 OF BUREAU OF BUDGET CIRCULAR NO. A-56 AND DEMAND SHOULD BE MADE UPON MR. CULVER FOR REFUND OF THE IMPROPER PAYMENT.