B-172049, JUL 13, 1971, 51 COMP GEN 27

B-172049: Jul 13, 1971

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OFFICERS AND EMPLOYEES - TRANSFERS - RELOCATION EXPENSES - BREAK IN SERVICE - ENTITLEMENT TO EXPENSES EFFECT AN EMPLOYEE OF THE NATIONAL PARK SERVICE IN CALIFORNIA WHO REFUSING TO RELOCATE WITH TRANSFERRED FUNCTIONS WAS SEPARATED AND GRANTED SEVERANCE PAY. WHICH WAS SOLD WITHIN 2 MONTHS. IS ENTITLED PURSUANT TO 5 U.S.C. 5724(A) TO THE SAME BENEFITS HE WOULD HAVE BEEN ENTITLED TO HAD HE TRANSFERRED WITHOUT A BREAK IN SERVICE. BORGSTEDE WAS SEPARATED FROM HIS POSITION WITH THE SOUTHWEST DIVISION. WHEN THAT DIVISION WAS BEING DISESTABLISHED EFFECTIVE JUNE 27. TO WHICH THE FUNCTIONS WERE BEING TRANSFERRED. HE WAS THEN GRANTED SEVERANCE PAY IN ACCORDANCE WITH EXISTING LAW AND REGULATIONS. IT IS REPORTED THAT HIS NAME WAS PLACED ON A DISPLACED PERSONS LIST AND CONSEQUENTLY HE RECEIVED SIX INQUIRIES AS TO INTEREST IN POSITIONS IN WASHINGTON.

B-172049, JUL 13, 1971, 51 COMP GEN 27

OFFICERS AND EMPLOYEES - TRANSFERS - RELOCATION EXPENSES - BREAK IN SERVICE - ENTITLEMENT TO EXPENSES EFFECT AN EMPLOYEE OF THE NATIONAL PARK SERVICE IN CALIFORNIA WHO REFUSING TO RELOCATE WITH TRANSFERRED FUNCTIONS WAS SEPARATED AND GRANTED SEVERANCE PAY, AND WHO AFTER PLACING HIS RESIDENCE ON THE MARKET, WHICH WAS SOLD WITHIN 2 MONTHS, AND STORING HIS HOUSEHOLD EFFECTS, DEPARTED FOR WASHINGTON, D.C., IN HIS PRIVATELY OWNED AUTOMOBILE, TOWING HIS HOUSETRAILER, UPON REINSTATEMENT IN THE PARK SERVICE IN WASHINGTON WITHIN 4 MONTHS, IS ENTITLED PURSUANT TO 5 U.S.C. 5724(A) TO THE SAME BENEFITS HE WOULD HAVE BEEN ENTITLED TO HAD HE TRANSFERRED WITHOUT A BREAK IN SERVICE, AND UNDER PUBLIC LAW 89-516, THE EMPLOYEE MAY BE REIMBURSED FOR THE SALE OF HIS HOUSE, THE STORAGE OF HOUSEHOLD EFFECTS, THE EXPENSES INCURRED TO TRAVEL TO WASHINGTON WITH HIS WIFE PRIOR TO HIS REINSTATEMENT, AND OTHER PROPER RELOCATION EXPENSES. HOWEVER, REIMBURSEMENT FOR THE STORAGE AND SHIPMENT OF THE EMPLOYEE'S EFFECTS, PRECLUDES THE ALLOWANCE OF MILEAGE FOR THE HOUSETRAILER.

TO FLOYD P. HOUGH, UNITED STATES DEPARTMENT OF THE INTERIOR, JULY 13, 1971:

WE AGAIN REFER TO YOUR LETTER DATED FEBRUARY 25, 1971, FILE REFERENCE F5023-NCPABF) IN WHICH YOU REQUESTED OUR DECISION ON A CLAIM SUBMITTED BY MR. ROBERT BORGSTEDE, AN EMPLOYEE OF THE DEPARTMENT OF THE INTERIOR, NATIONAL PARK SERVICE, EASTERN SERVICE CENTER, WASHINGTON, D.C., FOR REIMBURSEMENT OF TRAVEL AND TRANSPORTATION EXPENSES AND APPLICABLE ALLOWANCES INCIDENT TO HIS MOVE FROM SAN DIEGO, CALIFORNIA, TO WASHINGTON, D.C.

THE PAPERS WHICH ACCOMPANIED THE CLAIM SHOW THAT MR. BORGSTEDE WAS SEPARATED FROM HIS POSITION WITH THE SOUTHWEST DIVISION, NAVAL FACILITIES ENGINEERING COMMAND, SAN DIEGO, CALIFORNIA, ON JUNE 5, 1970, WHEN THAT DIVISION WAS BEING DISESTABLISHED EFFECTIVE JUNE 27, 1970, AND AFTER HE HAD DECLINED TO RELOCATE WITH THE WESTERN DIVISION OF THAT COMMAND, LOCATED AT SAN BRUNO, CALIFORNIA, TO WHICH THE FUNCTIONS WERE BEING TRANSFERRED. HE WAS THEN GRANTED SEVERANCE PAY IN ACCORDANCE WITH EXISTING LAW AND REGULATIONS. IT IS REPORTED THAT HIS NAME WAS PLACED ON A DISPLACED PERSONS LIST AND CONSEQUENTLY HE RECEIVED SIX INQUIRIES AS TO INTEREST IN POSITIONS IN WASHINGTON, D.C.

IT IS ALSO REPORTED THAT SINCE MR. BORGSTEDE WAS INTERESTED IN MOVING TO SOME OTHER PART OF THE COUNTRY FOR EMPLOYMENT HE HAD HIS RESIDENCE IN CHULA VISTA, CALIFORNIA, LISTED FOR SALE AND HIS FURNITURE PLACED IN STORAGE IN SAN DIEGO. THE RESIDENCE WAS ULTIMATELY SOLD AND SETTLEMENT WAS EFFECTED ON SEPTEMBER 15, 1970.

ON AUGUST 5, 1970, MR. BORGSTEDE AND HIS DEPENDENT (WIFE) DEPARTED FROM SAN DIEGO BY PRIVATELY OWNED AUTOMOBILE AND ARRIVED IN WASHINGTON ON SEPTEMBER 21, 1970. APPARENTLY MR. BORGSTEDE TOWED HIS PERSONALLY OWNED HOUSETRAILER AT THAT TIME.

IN CULMINATION OF NEGOTIATIONS FOR EMPLOYMENT WITH THE NATIONAL PARK SERVICE, EASTERN SERVICE CENTER, MR. BORGSTEDE WAS OFFICIALLY NOTIFIED OF HIS SELECTION ON OCTOBER 28, 1970, AND ON NOVEMBER 1, 1970, A TRAVEL AUTHORIZATION WAS ISSUED AUTHORIZING TRAVEL BY PRIVATELY OWNED AUTOMOBILE FROM SAN DIEGO TO WASHINGTON, D.C., PER DIEM FOR SELF AND DEPENDENT, SHIPMENT OF HOUSEHOLD GOODS AND PERSONAL EFFECTS, AND OTHER BENEFITS UNDER PUBLIC LAW 89-516, APPROVED JULY 21, 1966, 80 STAT. 323, 5 U.S.C. 5724, INCLUDING $0.11 PER MILE FOR HOUSETRAILER. ON NOVEMBER 2, 1970, HE WAS REINSTATED IN ACCORDANCE WITH CIVIL SERVICE REGULATIONS. THE FOLLOWING DAY HE SIGNED THE REQUISITE 12-MONTHS SERVICE AGREEMENT. THEREAFTER HE ARRANGED FOR THE SHIPMENT OF HIS STORED HOUSEHOLD EFFECTS BY COMMERCIAL VAN TO HIS RESIDENCE IN BETHESDA, MARYLAND, DELIVERY BEING EFFECTED ON OR ABOUT DECEMBER 4, 1970.

MR. BORGSTEDE HAS SUBMITTED TWO EXECUTED VOUCHERS IN WHICH HE HAS CLAIMED $4,319.95, THE AGGREGATE AMOUNT OF THE FOLLOWING ITEMS:

REIMBURSEMENT OF CERTAIN EXPENSES INCIDENT TO

SALE OF RESIDENCE $1,534.87

MILEAGE (2,613 MILES $0.08) 209.04

MILEAGE FOR HOUSE TRAILER (2,613 MILES $0.11) 287.43

PER DIEM (FOR SELF) 140.00

PER DIEM (FOR DEPENDENT) 105.00

TEMPORARY QUARTERS 185.70

SHIPMENT OF HOUSEHOLD GOODS PLUS SURCHARGE 1,335.72

STORAGE 322.19

MISCELLANEOUS EXPENSE ALLOWANCE 200.00

$4,319.95

YOU SAY IN YOUR LETTER OF FEBRUARY 25, 1971, THAT MR. BORGSTEDE FEELS THAT DUE TO THE CIRCUMSTANCES IN HIS CASE HE IS ENTITLED TO REIMBURSEMENT FOR ALL OF THE INVOLVED EXPENSES WHETHER OR NOT THEY WERE INCURRED PRIOR TO HIS APPOINTMENT BY YOUR OFFICE. HOWEVER, IN EXPRESSING THE VIEW THAT UNDER SECTION 1.3(7) OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED JUNE 26, 1969, THE ONLY ALLOWABLE REIMBURSABLE ITEMS ARE THOSE WHICH WERE INCURRED AFTER NOVEMBER 2, 1970, THE EFFECTIVE DATE OF MR. BORGSTEDE'S REINSTATEMENT, YOU ASK FOR OUR OPINION AS TO WHETHER, BECAUSE OF THE NATURE OF HIS SEPARATION DUE TO TRANSFER OF FUNCTION AND THE REINSTATEMENT BY YOUR OFFICE, HE WOULD BE ENTITLED TO REIMBURSEMENT OF THE EXPENSES OTHER THAN THOSE INCURRED AFTER NOVEMBER 2, 1970.

SINCE MR. BORGSTEDE WAS SEPARATED BECAUSE OF A TRANSFER OF FUNCTION AND SINCE THERE WAS A BREAK IN SERVICE BEFORE HE WAS APPOINTED BY YOUR OFFICE, HIS CASE FALLS WITHIN THE PURVIEW OF THE PROVISIONS OF 5 U.S.C. 5724AC) WHICH READS, AS FOLLOWS:

UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, A FORMER EMPLOYEE SEPARATED BY REASON OF REDUCTION IN FORCE OR TRANSFER OF FUNCTION WHO WITHIN 1 YEAR AFTER THE SEPARATION IS REEMPLOYED BY A NONTEMPORARY APPOINTMENT AT A DIFFERENT GEOGRAPHICAL LOCATION FROM THAT WHERE THE SEPARATION OCCURRED MAY BE ALLOWED AND PAID THE EXPENSES AUTHORIZED BY SECTION 5724, 5725, 5726(B), AND 5727 OF THIS TITLE, AND MAY RECEIVE THE BENEFITS AUTHORIZED BY SUBSECTIONS (A) AND (B) OF THIS SECTION, IN THE SAME MANNER AS THOUGH HE HAD BEEN TRANSFERRED IN THE INTEREST OF THE GOVERNMENT WITHOUT A BREAK IN SERVICE TO THE LOCATION OF REEMPLOYMENT FROM THE LOCATION WHERE SEPARATED.

THE ABOVE PROVISION OF LAW IS IMPLEMENTED BY SECTION 1.3A(7) OF CIRCULAR NO. A-56 AND READS AS FOLLOWS:

A FORMER EMPLOYEE SEPARATED BY REASON OF REDUCTION IN FORCE OR TRANSFER OF FUNCTION WHO, WITHIN ONE YEAR OF THE DATE OF SEPARATION, IS REEMPLOYED BY A DEPARTMENT FOR A NONTEMPORARY APPOINTMENT EFFECTIVE ON OR AFTER JULY 21, 1966, AT A DIFFERENT PERMANENT DUTY STATION FROM THAT WHERE THE SEPARATION OCCURRED, MAY BE ALLOWED AND PAID THE EXPENSES AND OTHER ALLOWANCES (EXCLUDING NONTEMPORARY STORAGE WHEN ASSIGNED TO AN ISOLATED PERMANENT DUTY STATION WITHIN THE CONTINENTAL UNITED STATES) IN THE SAME MANNER AS THOUGH HE HAD BEEN TRANSFERRED IN THE INTEREST OF THE GOVERNMENT TO THE PERMANENT DUTY STATION WHERE REEMPLOYED, FROM HIS PERMANENT DUTY STATION WHERE SEPARATED, WITHOUT A BREAK IN SERVICE, AND SUBJECT TO THE ELIGIBILITY LIMITATIONS AS PRESCRIBED IN THESE REGULATIONS.

OUR DECISION OF MAY 28, 1971, B-172824, INVOLVED A SIMILAR CASE IN WHICH AN EMPLOYEE WHO WAS INVOLUNTARILY SEPARATED ON SEPTEMBER 6, 1969, BY THE DEPARTMENT OF THE ARMY BECAUSE OF REDUCTION IN FORCE AND WHO AFTER THE RECEIPT OF SEVERANCE PAY FOR 16 WEEKS WAS APPOINTED TO A POSITION IN THE FEDERAL AVIATION ADMINISTRATION ON MAY 25, 1970, IN ANOTHER STATE CLAIMED REIMBURSEMENT FOR REAL ESTATE AND OTHER BENEFITS UNDER CIRCULAR NO. A-56 AS AUTHORIZED IN THE TRAVEL ORDERS. IN INTERPRETING AND APPLYING THE ABOVE-QUOTED PROVISIONS OF LAW AND REGULATIONS TO THE FACTS IN THAT CASE, WE SAID THAT WE ARE UNAWARE OF ANY REASON WHY PAYMENT OF RELOCATION EXPENSES OTHERWISE PROPER INCIDENT TO THE EMPLOYMENT WITH THE FEDERAL AVIATION ADMINISTRATION WOULD BE PRECLUDED.

WHILE THE PRESENT CASE IS DISTINGUISHED FROM THAT COVERED BY B 172824, SUPRA, IN THAT MR. BORGSTEDE INCURRED CERTAIN RELOCATION EXPENSES (SALE OF RESIDENCE, STORAGE OF HOUSEHOLD GOODS, ETC.) AND TRAVELED WITH HIS DEPENDENTS TO WASHINGTON PRIOR TO HIS APPOINTMENT, WE FIND NOTHING IN THE ABOVE-QUOTED PROVISION OF LAW OR THE LEGISLATIVE HISTORY TO JUSTIFY A CONCLUSION THAT THE BENEFITS PROVIDED THEREIN ARE REQUIRED TO BE GRANTED TO A FORMER EMPLOYEE ONLY WHEN HE INCURS RELOCATION EXPENSES SUBSEQUENT TO HIS REEMPLOYMENT AT A DIFFERENT GEOGRAPHICAL LOCATION.

IT IS OUR VIEW THAT THE EFFECT OF THE SUBJECT PROVISION OF LAW IS TO CONSIDER FOR ITS PURPOSES THE DATE OF ANY APPOINTMENT, WHICH WAS MADE WITHIN 1 YEAR AFTER THE SEPARATION OF AN EMPLOYEE BECAUSE OF REDUCTION IN FORCE OR TRANSFER OF FUNCTIONS, AS OF THE DATE FOLLOWING THE DATE OF HIS SEPARATION IN ORDER THAT THERE WOULD BE NO "BREAK IN SERVICE." OBVIOUSLY, HOLDING TO THE CONTRARY WOULD SERVE TO DEFEAT THE PURPOSES OF THE LAW. ACCORDINGLY, AND SINCE A VALID TRAVEL AUTHORIZATION - ONE WHICH PROVIDED NOT ONLY FOR TRAVEL AND TRANSPORTATION ALLOWANCES BUT OTHER BENEFIT UNDER PUBLIC LAW 89-516 - WAS PROPERLY ISSUED IN THIS CASE IT IS OUR OPINION THAT UNDER THE INVOLVED CIRCUMSTANCES MR. BORGSTEDE IS ENTITLED TO THE SAME BENEFITS AUTHORIZED BY THE LAW AND REGULATIONS AS IF HE HAD BEEN TRANSFERRED TO YOUR OFFICE WITHOUT A BREAK IN SERVICE.

YOUR UNDERSTANDING IS CORRECT THAT IN ANY EVENT THE MILEAGE CLAIMED IN CONNECTION WITH THE HOUSETRAILER IS NOT ALLOWABLE. WE HAVE HELD THAT UNDER THE STATUTORY AUTHORITY (5 U.S.C. 5924(B)) AND IMPLEMENTING REGULATIONS (SECTION 9.3 OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A -56, REVISED OCTOBER 12, 1966) THE PAYMENT FOR THE TRANSPORTATION OF A HOUSETRAILER FOR USE AS A RESIDENCE IS IN LIEU OF ANY PAYMENT FOR TRANSPORTING AND STORING HOUSEHOLD GOODS. SEE B-170183, AUGUST 14, 1970; B-169402, MAY 14, 1970; AND B-165688, JANUARY 17, 1969. IT IS APPARENT, THEREFORE, THAT UNDER THE LAW AND REGULATION AN EMPLOYEE MAY RECEIVE A PAYMENT IN CONNECTION WITH THE SHIPMENT AND STORAGE OF HIS HOUSEHOLD GOODS OR FOR THE TRANSPORTATION OF A HOUSETRAILER, BUT NOT FOR BOTH. SINCE MR. BORGSTEDE, ARRANGED FOR THE STORAGE OF HIS HOUSEHOLD GOODS IN SAN DIEGO AND SHIPMENT THEREOF TO BETHESDA AND IS CLAIMING THE AGGREGATE AMOUNT OF $1,657.91 INCIDENT THERETO, AN ALLOWANCE FOR SUCH SHIPMENT AND STORAGE WOULD PRECLUDE THE ALLOWANCE OF THE MILEAGE OF $287.43 CLAIMED FOR THE TRANSPORTATION OF THE HOUSETRAILER.

THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED HEREWITH FOR CERTIFICATION OF THE ALLOWABLE AMOUNT ON THE BASIS INDICATED ABOVE.