B-169704, OCT. 20, 1970

B-169704: Oct 20, 1970

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WHERE EVIDENCE PRESENTED BY EMPLOYEE IS INSUFFICIENT TO ESTABLISH A BONA FIDE RESIDENCE IN THE U.S. HE WAS PROPERLY DENIED REIMBURSEMENT FOR RENEWAL TRIP AND ANY SIMILIAR TRIPS PREVIOUSLY ALLOWED WERE ERRONEOUSLY REIMBURSED. DETERMINED THAT YOU WERE NOT ELIGIBLE FOR THE TRANSPORTATION AND RELATED ALLOWANCES AS SET FORTH IN THE INITIAL AND SUBSEQUENT TRANSPORTATION AGREEMENTS IN YOUR PERSONNEL FILE. AS PROPER SINCE IN ITS VIEW YOU WERE ERRONEOUSLY GRANTED A TRANSPORTATION AGREEMENT SUBSEQUENT TO BEING HIRED IN A PERMANENT POSITION. WHEN THE TEMPORARY APPOINTMENT WAS CONVERTED TO A CAREER CONDITIONAL APPOINTMENT. INTEND TO RETURN TO MY HOME THERE WHEN MY WORK HERE IS COMPLETED. DURING THIS PERIOD OF TIME I WAS REFERRED.

B-169704, OCT. 20, 1970

TRANSPORTATION EXPENSES - RENEWAL TRAVEL DECISION DENYING CLAIM OF EMPLOYEE OF THE DEPARTMENT OF THE ARMY FOR TRANSPORTATION EXPENSES FOR RENEWAL TRAVEL ON THE BASIS THAT HE DID NOT SUPPLY PROOF OF A BONA FIDE RESIDENCE IN THE U.S. WHERE EVIDENCE PRESENTED BY EMPLOYEE IS INSUFFICIENT TO ESTABLISH A BONA FIDE RESIDENCE IN THE U.S., HE WAS PROPERLY DENIED REIMBURSEMENT FOR RENEWAL TRIP AND ANY SIMILIAR TRIPS PREVIOUSLY ALLOWED WERE ERRONEOUSLY REIMBURSED.

TO MR. RICHARD SMITH:

WE REFER FURTHER TO YOUR LETTER OF MARCH 10, 1970, WHICH FORWARDED TO US YOUR APPEAL FROM THE DECISION OF THE DEPARTMENT OF THE ARMY, ALASKA DISTRICT, CORPS OF ENGINEERS, PERTAINING TO YOUR ENTITLEMENT TO CERTAIN TRANSPORTATION EXPENSES DISCUSSED BELOW.

THE DISTRICT ENGINEER, CORPS OF ENGINEERS FOR THE ALSKA DISTRICT, ON MAY 13, 1969, DETERMINED THAT YOU WERE NOT ELIGIBLE FOR THE TRANSPORTATION AND RELATED ALLOWANCES AS SET FORTH IN THE INITIAL AND SUBSEQUENT TRANSPORTATION AGREEMENTS IN YOUR PERSONNEL FILE.

AS YOU KNOW WE ASKED FOR A REPORT FROM THE DEPARTMENT OF THE ARMY ON YOUR CLAIM. THE DEPARTMENT OF THE ARMY AFFIRMS THE DECISION OF THE ALASKA DISTRICT, CORPS OF ENGINEERS, AS PROPER SINCE IN ITS VIEW YOU WERE ERRONEOUSLY GRANTED A TRANSPORTATION AGREEMENT SUBSEQUENT TO BEING HIRED IN A PERMANENT POSITION.

IN REACHING ITS DECISION, THE CORPS OF ENGINEERS STATES THAT ACCORDING TO YOUR APPLICATION FOR GOVERNMENT EMPLOYMENT YOU CAME TO ALASKA IN OCTOBER 1962 ON A 2-YEAR CONTRACT WITH THE STATE OF ALASKA WITH TRAVEL EXPENSES PAID BY THE STATE; YOU ABORTED YOUR AGREEMENT WITH THE STATE IN MAY 1964 GIVING AS YOUR REASONS FOR LEAVING STATE EMPLOYMENT AS "ADVANCEMENT"; YOU THEN WORKED FOR NOREEAST CONSTRUCTION COMPANY IN ALASKA IN MAY 1964 LEAVING IN NOVEMBER 1964 FOR THE REASON, "I DID NOT WANT TO LEAVE THE STATE"; YOU HELD A TEMPORARY POSITION WITH THE ALASKA DISTRICT, CORPS OF ENGINEERS, FROM NOVEMBER 2, 1964, TO MAY 30, 1965, WHEN THE TEMPORARY APPOINTMENT WAS CONVERTED TO A CAREER CONDITIONAL APPOINTMENT. ON APRIL 27, 1967, YOU REQUESTED A "TURN AROUND CONTRACT" GIVING AS YOUR REASONS THE FOLLOWING:

"A. I OWN PROPERTY IN ANOTHER STATE, AND INTEND TO RETURN TO MY HOME THERE WHEN MY WORK HERE IS COMPLETED.

"B. I ATTEMPTED TO OBTAIN EMPLOYMENT WITH THE FEDERAL GOVERNMENT FROM THE TIME I ARRIVED IN ALASKA UNTIL 1964. DURING THIS PERIOD OF TIME I WAS REFERRED, IN JANUARY 1963, BY THE CIVIL SERVICE COMMISSION, TO THE CORPS OF ENGINEERS FOR A SURVEYOR'S POSITION; AND IN MAY 1963 I WAS REFERRED TO USARAL FOR A CONSTRUCTION TECHNICIAN POSITION. ON THREE OTHER OCCASIONS I CONTACTED THE CORPS OF ENGINEERS FOR EMPLOYMENT. IN FEBRUARY 1964, I CONTACTED THE LOCAL PERSONNEL OFFICE FOR EMPLOYMENT, BUT AT THIS TIME THE CORPS PROGRAM WAS DECLINING AND NO POSITIONS WERE AVAILABLE. SHORTLY AFTER THE EARTHQUAKE I AGAIN CONTACTED THE CORPS FOR EMPLOYMENT, AND I WAS ASSURED THERE WOULD BE POSITIONS AVAILABLE, BUT DUE TO THE HECTIC TIMES AND MANY UNCERTAINTIES NOTHING EVER CAME OF THIS. ABOUT 15 OCTOBER 1964, I WAS ABLE TO SECURE A TEMPORARY POSITION. I ACCEPTED THIS POSITION, KNOWING THAT IT MIGHT LAST ONLY FOR A THREE-MONTH PERIOD.

"C. GRANTED - ALASKA IS MY VOTING RESIDENCE - THIS IS ONLY DONE FOR CONVENIENCE. I DO NOT OWN ANY REAL PROPERTY IN THIS STATE OR PAY ANY TAXES OTHER THAN ON PERSONAL INCOME AND PERSONAL PROPERTY TAXES."

THE CORPS OF ENGINEERS STATES THAT APPARENTLY WITHOUT FURTHER CHECKING YOU WERE GRANTED A TRANSPORTATION AGREEMENT ON THE BASIS OF THE STATEMENT SET FORTH ABOVE. THE CORPS IN ITS REVIEW DURING FISCAL YEAR 1969 OF ALL LOCAL HIRES CONCLUDED THAT NEITHER SUCH STATEMENT NOR SUBSEQUENT INFORMATION FURNISHED BY YOU PROVIDED CONCLUSIVE PROOF OF BONA FIDE RESIDENCE IN THE CONTINENTAL UNITED STATES SO AS TO PROVIDE VALID ENTITLEMENT TO FURTHER TRANSPORTATION AT GOVERNMENT EXPENSE. ACCORDINGLY YOU WERE NOTIFIED THAT THE AGREEMENTS IN YOUR PERSONNEL FILE WERE CONSIDERED TO BE NULL AND VOID.

THE APPLICABLE REGULATIONS ARE SET FORTH IN JTR, VOLUME 2, PARAGRAPHS C 4001, C 4002, C 4003, AND C 4004. (SEE COPIES INCLUDED IN YOUR SUBMISSION AND RETURNED HEREWITH.) PARAGRAPH C 4002.3 PROVIDES THAT AN OVERSEAS LOCAL HIRE, SUCH AS YOU WERE, TO QUALIFY FOR A TRANSPORTATION AGREEMENT MUST HAVE A BONA FIDE PLACE OF RESIDENCE IN THE UNITED STATES. PARAGRAPH C 4002.3B(2) LISTS THE VARIOUS SITUATIONS THAT ESTABLISH A QUALIFYING PRESENCE IN THE AREA.

THE DEPARTMENT OF THE ARMY IN ITS REVIEW OF THE DECISION OF THE ALASKA DISTRICT, CORPS OF ENGINEERS, POINTS OUT THAT YOU DO NOT MEET ANY OF THE SIX CONDITIONS SET FORTH IN PARAGRAPH C 4002-3B(2) FOR ESTABLISHING QUALIFYING PRESENCE IN THE AREA. THE DEPARTMENT OF THE ARMY THEREFORE, AND AFTER CONSIDERATION OF EVIDENCE YOU HAVE SUBMITTED TO OTHERWISE ESTABLISH THAT YOU HAVE A BONA FIDE RESIDENCE IN THE UNITED STATES, HAS DETERMINED THAT YOU ARE NOT ENTITLED TO THE TRANSPORTATION CLAIMED UNDER THE PROVISIONS OF THE CITED PARAGRAPH.

YOU CONTEND THAT YOU HAVE A CONTRACT WITH THE GOVERNMENT WHICH YOU HAVE FULFILLED AND THEREFORE YOU ARE ENTITLED TO THE SUBJECT TRANSPORTATION BENEFITS. APPARENTLY YOU HAVE BEEN REIMBURSED FOR ONE "TURN-AROUND" OR RENEWAL AGREEMENT TRIP. WE CAN FIND NO REQUIREMENT IN THE REGULATIONS THAT AN AGENCY MUST CONTINUE TO GRANT RENEWAL TRAVEL. ACCORDINGLY, WE SEE NO CONTRACTUAL RIGHTS ACCRUING TO YOU FOR SUCH TRAVEL BENEFITS ARISING FROM THE SUBJECT TRANSPORTATION AGREEMENT. IN FACT, A RENEWAL AGREEMENT IN EFFECT PROVIDES FOR THE EMPLOYEE TO PERFORM ANOTHER TOUR OF DUTY BEGINNING AFTER RETURN FROM RENEWAL TRAVEL. SEE JOINT TRAVEL REGULATIONS, C-4006.3(B).

WITH RESPECT TO SEPARATION TRAVEL, OUR JURISDICTION IS SUCH THAT WE CAN ONLY RENDER A DECISION TO A CLAIMANT WHO HAS FILED A MONETARY CLAIM WITH OUR OFFICE OR ON PAYMENT MATTERS TO HEADS OF DEPARTMENTS AND AGENCIES, OR DISBURSING OR CERTIFYING OFFICERS. SEE 31 U.S.C. 74 AND 82D. AS YOU HAVE NOT YET BEEN SEPARATED AND ESTABLISHED A BASIS FOR CLAIM AGAINST THE GOVERNMENT, WE MAY NOT AT THIS TIME RENDER A DECISION ON THE QUESTION INVOLVED. HOWEVER, IF YOU SHOULD SEPARATE FROM THE DEPARTMENT OF THE ARMY AND ARE REFUSED SEPARATION TRAVEL BENEFITS, YOU MAY FILE A CLAIM WITH THIS OFFICE FOR REIMBURSEMENT OF YOUR ACTUAL EXPENSES FOR RETURN TRAVEL TO YOUR PLACE OF PERMANENT RESIDENCE IN THE CONTINENTAL UNITED STATES AND A DECISION ON SUCH CLAIM WILL BE RENDERED AT THAT TIME.