B-167276, AUG. 15, 1969

B-167276: Aug 15, 1969

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WHEN HE TRANSFERRED FROM DEFENSE SUPPLY AGENCY TO THE DEPARTMENT OF LABOR IS NOT CONSIDERED TO HAVE VIOLATED THE REQUIREMENT THAT HE REMAIN IN THE GOVERNMENT SERVICE FOR 1 YEAR WHICH WAS THE ONLY SERVICE OBLIGATION REQUIREMENT AT THE TIME OF TRANSFER AND THE MORE RESTRICTIVE REGULATION REQUIRING EMPLOYEES TO REMAIN IN THE SERVICE OF A DEPARTMENT OF DEFENSE COMPONENT FOR A SPECIFIED PERIOD. WHICH REGULATION WAS PUBLISHED OCT. 1. MAY NOT BE INVOKED AGAINST EMPLOYEES WHO WERE TRANSFERRED PRIOR TO PROMULGATION OF THE REGULATIONS. RELOCATION PAYMENTS IS NOT REQUIRED. USAF: THIS WILL REFER TO YOUR REQUEST OF MAY 21. AYCOCK AS A REFUND OF TRAVEL EXPENSES AND RELOCATION ALLOWANCES HE WAS PAID IN ACCORDANCE WITH PROVISIONS OF 5 U.S.C. 5724 AND 5724A AND BUREAU OF THE BUDGET CIRCULAR NO.

B-167276, AUG. 15, 1969

CIVIL PAY - TRANSFERS - EMPLOYMENT AGREEMENT DECISION TO DEFENSE SUPPLY AGENCY FINANCE AND ACCOUNTING OFFICER CONCERNING WHETHER EMPLOYEE BREACHED EMPLOYMENT AGREEMENT FOR LIABILITY TO REFUND TRAVEL AND RELOCATION PAYMENTS. EMPLOYEE WHO, AFTER REPORTING TO DUTY AT NEW STATION ON JULY 15, 1967, IN ACCORDANCE WITH TRANSFER DATED JULY 1, 1967, REMAINED UNTIL JUNE 1, 1968, WHEN HE TRANSFERRED FROM DEFENSE SUPPLY AGENCY TO THE DEPARTMENT OF LABOR IS NOT CONSIDERED TO HAVE VIOLATED THE REQUIREMENT THAT HE REMAIN IN THE GOVERNMENT SERVICE FOR 1 YEAR WHICH WAS THE ONLY SERVICE OBLIGATION REQUIREMENT AT THE TIME OF TRANSFER AND THE MORE RESTRICTIVE REGULATION REQUIRING EMPLOYEES TO REMAIN IN THE SERVICE OF A DEPARTMENT OF DEFENSE COMPONENT FOR A SPECIFIED PERIOD, WHICH REGULATION WAS PUBLISHED OCT. 1, 1967 PURPORTING TO BE EFFECTIVE FROM JULY 1, 1967, MAY NOT BE INVOKED AGAINST EMPLOYEES WHO WERE TRANSFERRED PRIOR TO PROMULGATION OF THE REGULATIONS. THEREFORE REFUND OF TRAVEL, TRANSPORTATION, AND RELOCATION PAYMENTS IS NOT REQUIRED.

TO CAPTAIN G. B. BURLINGAME, USAF:

THIS WILL REFER TO YOUR REQUEST OF MAY 21, 1969 (REFERENCE DPSC-KC F), FORWARDED TO THIS OFFICE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE ON JUNE 18, 1969, FOR AN ADVANCE DECISION OF THIS OFFICE AS TO THE LEGALITY OF PAYMENT OF TWO VOUCHERS SUBMITTED BY MR. JAMES R. AYCOCK, A FORMER EMPLOYEE OF THE DEFENSE SUPPLY AGENCY. THE CLAIMS IN QUESTION, TOTALING $341.36, REPRESENT AN AMOUNT COLLECTED FROM MR. AYCOCK AS A REFUND OF TRAVEL EXPENSES AND RELOCATION ALLOWANCES HE WAS PAID IN ACCORDANCE WITH PROVISIONS OF 5 U.S.C. 5724 AND 5724A AND BUREAU OF THE BUDGET CIRCULAR NO. A-56 INCIDENT TO A PERMANENT CHANGE OF STATION FROM FORT WORTH, TEXAS, TO KANSAS CITY, MISSOURI, IN JULY 1967. THE ALLOWANCES HE RECEIVED AND WAS REQUIRED TO REPAY INCLUDED (1) EXPENSES OF AN ADVANCE TRIP FOR THE EMPLOYEE AND HIS WIFE TO KANSAS CITY TO SEEK PERMANENT HOUSING; (2) TRAVEL EXPENSES INCIDENT TO PERMANENT CHANGE OF STATION; AND (3) $100 MISCELLANEOUS EXPENSE ALLOWANCE. REFUND OF THESE PAYMENTS WAS REQUIRED PURSUANT TO YOUR DETERMINATION THAT THE EMPLOYEE HAD BREACHED AN EMPLOYMENT AGREEMENT ENTERED INTO AT THE TIME OF HIS CHANGE OF STATION.

ALTHOUGH BOTH YOUR LETTER AND MR. AYCOCK'S LETTER OF DECEMBER 23, 1968, REFER TO JULY 1, 1967, AS THE EFFECTIVE DATE OF TRANSFER, WE NOTE THE TRANSPORTATION AGREEMENT THE EMPLOYEE SIGNED SHOWS A DATE OF JULY 15 AS THE DATE OF TRANSFER. ALSO, THE EMPLOYEE INDICATES THAT DURING THE PERIOD JULY 1-12 HE WAS ON ANNUAL LEAVE AND TEMPORARY DUTY AT SAN ANTONIO, TEXAS, AND DID NOT PHYSICALLY LEAVE FORT WORTH UNTIL JULY 12, 1967. HIS TRAVEL VOUCHER INDICATES HE WAS IN TRAVEL STATUS ON JULY 12 AND 13. THUS IT WOULD APPEAR JULY 15 WAS THE DATE UPON WHICH HE ACTUALLY ENTERED ON DUTY AT KANSAS CITY. (AT THE TIME OF TRANSFER, SECTION C4006, VOLUME 2, JOINT TRAVEL REGULATIONS, DATE TOURS OF DUTY BEGIN, AS STATED IN CHANGE 10, EFFECTIVE APRIL 1, 1966, MADE NO SPECIFIC PROVISION AS TO THE EFFECTIVE DATE OF TRANSFERS WITHIN THE CONTINENTAL UNITED STATES.) IN ANY EVENT, THE DATE THE EMPLOYEE WAS DETERMINED TO HAVE BREACHED HIS TRANSPORTATION AND EMPLOYMENT AGREEMENT WAS JUNE 1, 1968, WHEN HE TRANSFERRED TO THE DEPARTMENT OF LABOR.

THE FINDING THAT THE AGREEMENT WAS BROKEN IS BASED ON THE WORDING OF THE DOCUMENT MR. AYCOCK SIGNED. THE TEXT PROVIDED THAT THE EMPLOYEE WOULD REMAIN IN THE "EMPLOYEE (SIC) OF THE SUBSISTENCE REGIONAL HEADQUARTERS, KANSAS CITY, DEFENSE PERSONNEL SUPPORT CENTER FOR AT LEAST 12 MONTHS BEGINNING WITH THE EFFECTIVE DATE OF MY TRANSFER * * *.'

THE QUESTION TO BE DETERMINED IS WHETHER UNDER REGULATIONS EFFECTIVE AT THE TIME OF HIS TRANSFER THE EMPLOYEE WAS REQUIRED TO SIGN AND FULFILL AN AGREEMENT PROHIBITING TRANSFER TO ANOTHER AGENCY OF THE GOVERNMENT FOR A PERIOD OF ONE YEAR IN ORDER TO ESTABLISH ENTITLEMENT TO TRAVEL EXPENSES AND RELOCATION ALLOWANCES INCIDENT TO A TRANSFER OF STATION WITHIN THE CONTINENTAL UNITED STATES. SUBSECTION 1.3C (1) OF BUREAU OF THE BUDGET CIRCULAR NO. A-56 REQUIRES AN EMPLOYEE TO SIGN AN AGREEMENT "TO REMAIN IN THE SERVICE OF THE GOVERNMENT FOR TWELVE MONTHS FOLLOWING THE EFFECTIVE DATE OF TRANSFER.' DECISIONS OF THIS OFFICE HAVE HELD THAT AN AGENCY MAY REQUIRE A TRANSFERRING EMPLOYEE TO SIGN A MORE RESTRICTIVE AGREEMENT PROVIDING THAT THE EMPLOYEE WILL REMAIN IN THE SERVICE OF THE PARTICULAR AGENCY FOR ONE YEAR AND WE HAVE UPHELD THE AUTHORITY OF AN AGENCY TO RECOVER ALLOWANCES PREVIOUSLY PAID WHEN THE EMPLOYEE TRANSFERS WITHOUT A BREAK IN SERVICE TO ANOTHER AGENCY OF THE GOVERNMENT BEFORE EXPIRATION OF THE TERM COVERED BY THE AGREEMENT. B-138928, MAY 12, 1959, AND JUNE 23, 1960; B-160092, NOVEMBER 21, 1966; B-164605, AUGUST 22, 1968.

IN OTHER CASES, WHILE RECOGNIZING THE AUTHORITY OF AN AGENCY TO SPECIFY THAT AN EMPLOYEE MUST REMAIN IN THE SERVICE OF THAT PARTICULAR AGENCY FOR ONE YEAR TO ESTABLISH A RIGHT TO PAYMENT OF TRAVEL, TRANSPORTATION AND RELOCATION ALLOWANCES, WE HAVE HELD THAT UNLESS SUCH A RESTRICTIVE REQUIREMENT WAS IN EFFECT AT THE TIME THE TRANSFER OCCURRED AN EMPLOYEE DOES NOT BREAK AN AGREEMENT TO REMAIN IN THE GOVERNMENT SERVICE IF A SUBSEQUENT TRANSFER IS MADE TO ANOTHER AGENCY OF THE GOVERNMENT BEFORE EXPIRATION OF THE ONE-YEAR PERIOD OF TIME. (31 COMP. GEN. 588; B-145657, MAY 16, 1961; B-161860, SEPTEMBER 5, 1967; B-160981, APRIL 14, 1967.)

IN B-163153, FEBRUARY 6, 1968, CARBON COPY ENCLOSED, WE DISCUSSED THE RELATIONSHIP BETWEEN ENTITLEMENT TO TRAVEL EXPENSES AND RELOCATION ALLOWANCES INCIDENT TO A TRANSFER WITHIN THE CONTINENTAL UNITED STATES UNDER THE PROVISIONS OF SECTION C4103.2A OF VOLUME 2 OF THE DEPARTMENT OF DEFENSE JOINT TRAVEL REGULATIONS, WHICH, TOGETHER WITH SECTIONS C4001, C4007, AND C4009, IS FOR CONSIDERATION IN THIS CASE. OUR COMMENT WAS AS FOLLOWS:

"* * * PARAGRAPH C4103.2A OF VOLUME 2 OF THE DEPARTMENT OF DEFENSE JOINT TRAVEL REGULATIONS PROVIDES THAT THE EMPLOYEE MUST SIGN AN AGREEMENT TO REMAIN IN THE SERVICE OF THE DEPARTMENT OF DEFENSE COMPONENT CONCERNED FOR 12 MONTHS FOLLOWING HIS REPORTING FOR DUTY. THIS PARAGRAPH WAS ISSUED AS A PART OF CHANGE 29, TO VOLUME 2, JTR, WHICH WAS SIGNED BY THE SEVERAL EXECUTING AUTHORITIES ON OCTOBER 1, 1967, BUT PURPORTED TO MAKE CERTAIN PARAGRAPHS INCLUDING C4103 EFFECTIVE JULY 1, 1967. WE HAVE BEEN INFORMALLY ADVISED THAT CHANGE 29 WAS NOT PUBLISHED UNTIL OCTOBER 1, 1967, AND THAT THE DEFENSE SUPPLY AGENCY HAD NOT REGULATED ON THE SUBJECT OF SERVICE AGREEMENTS PRIOR TO THAT TIME. PARAGRAPH C4103.2A AS PROMULGATED ON OCTOBER 1, 1967, CANNOT BE MADE RETROSPECTIVELY EFFECTIVE SO AS TO REQUIRE A MORE RESTRICTIVE AGREEMENT IN AUGUST 1967 THAN PROVIDED FOR IN THE BUREAU OF THE BUDGET REGULATIONS, THE ONLY ONES THEN IN EFFECT. SEE 32 COMP. GEN. 315; 33 COMP. GEN. 174. IN THIS REGARD IT IS NOTED THAT ON PAGE 3 OF CHANGE 19 OF VOLUME 2, JTR, EFFECTIVE DECEMBER 1, 1966, A FORMAT FOR AN AGREEMENT PROVIDING FOR 12 MONTHS SERVICE WITH THE DEPARTMENT OF DEFENSE COMPONENT CONCERNED IS SET FORTH. HOWEVER, PENDING APPROVAL AND ISSUANCE OF APPROVED FORMS IT IS INDICATED IN CHANGE 19 THAT THE ONE SET FORTH THEREIN WAS ONLY A SUGGESTED FORMAT.'

IT IS NOTED THAT SECTION C4001, WHICH ALSO DEFINES AN AGREEMENT FOR TRANSPORTATION ENTITLEMENT TO REQUIRE AN AGREEMENT "TO REMAIN IN THE SERVICE OF THE DEPARTMENT OF DEFENSE COMPONENT FOR A SPECIFIED PERIOD OF TIME" WAS ALSO PUBLISHED IN CHANGE 29, OCTOBER 1, 1967, WITH A PURPORTED EFFECTIVE DATE OF JULY 1, 1967.

WHILE SECTIONS C4007 AND C4009 ESTABLISH CRITERIA UNDER WHICH A DETERMINATION WILL BE MADE AS TO WHETHER OR NOT A TRANSPORTATION AGREEMENT HAS BEEN VIOLATED, IT IS NECESSARY ALSO TO EXAMINE THE VALIDITY OF THE AGREEMENT TO DETERMINE WHETHER ITS TERMS ARE ENFORCEABLE. SINCE, AS POINTED OUT IN B-163153 SUPRA, THE RESTRICTIVE REQUIREMENT THAT AN EMPLOYEE REMAIN FOR ONE YEAR IN A DEFENSE DEPARTMENT COMPONENT TO ESTABLISH ENTITLEMENT TO TRAVEL EXPENSES AND RELOCATION ALLOWANCES UPON TRANSFERS OF STATION WITHIN THE CONTINENTAL UNITED STATES DID NOT BECOME EFFECTIVE UNTIL AFTER THE EFFECTIVE DATE OF MR. AYCOCK'S TRANSFER, THE DEFENSE SUPPLY AGENCY LACKED AUTHORITY TO REQUIRE HIM TO DO MORE THAN THAT REQUIRED BY THE ONLY REGULATIONS THEN EFFECTIVE WHICH WERE FOUND IN BUREAU OF THE BUDGET CIRCULAR NO. A-56. SINCE HIS TRANSFER TO THE LABOR DEPARTMENT ON JUNE 1, 1968, WAS TO ANOTHER AGENCY OF THE GOVERNMENT, HE DID NOT VIOLATE THE REQUIREMENT OF THE EFFECTIVE REGULATION THAT HE REMAIN IN THE SERVICE OF THE GOVERNMENT FOR ONE YEAR. THEREFORE, THE VOUCHERS, RETURNED HEREWITH, MAY BE PAID IF OTHERWISE CORRECT.