B-176408, OCT 12, 1972

B-176408, OCT 12, 1972

CIVILIAN PERSONNEL - REAL ESTATE EXPENSES - PERMANENT DUTY STATION - TRANSFER - DELAY IN MOVE DECISION ALLOWING THE CLAIM OF HERMAN L. BRASFIELD, AN EMPLOYEE OF THE DEFENSE SUPPLY AGENCY, FOR REIMBURSEMENT OF REAL ESTATE COSTS INCURRED INCIDENT TO HIS TRANSFER FROM CASTLE AFB, CALIF., TO UNION CITY, CALIF. WHERE AN EMPLOYEE IS GIVEN DEFINITE AND OFFICIAL INFORMATION THAT HE WAS TO BE PERMANENTLY TRANSFERRED AND SOLD HIS RESIDENCE IN RELIANCE THEREON, HE IS ELIGIBLE FOR REIMBURSEMENT OF REAL ESTATE EXPENSES INCIDENT TO THIS SALE EVEN IF IT TOOK PLACE OVER A YEAR PRIOR TO THE DATE OF THE ORDERS TRANSFERRING HIM TO A NEW DUTY STATION.

TO LT. CMDR. L. R. STILGEBOUER:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 11, 1972, WITH ENCLOSURES, WHICH REQUESTS AN ADVANCE DECISION AS TO WHETHER THE CLAIM OF MR. HERMAN L. BRASFIELD, AN EMPLOYEE OF THE DEFENSE SUPPLY AGENCY, FOR REIMBURSEMENT OF REAL ESTATE COSTS INCURRED INCIDENT TO HIS TRANSFER FROM CASTLE AIR FORCE BASE, CALIFORNIA, TO UNION CITY, CALIFORNIA, MAY BE CERTIFIED FOR PAYMENT UNDER THE CIRCUMSTANCES HEREINAFTER DESCRIBED. YOUR LETTER WAS FORWARDED HERE JUNE 21, 1972, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, PDTATAC CONTROL NO. 72-24.

THE RECORD INDICATES THAT ON OR ABOUT MARCH 27, 1970, WHILE STATIONED AT CASTLE AIR FORCE BASE, CALIFORNIA, MR. BRASFIELD WAS OFFICIALLY NOTIFIED THAT THE PROGRAM IN WHICH HE WAS WORKING, THE PACER SPEED PROGRAM, WOULD BE TERMINATED ON APPROXIMATELY JULY 15, 1970. ACCORDINGLY, MR. BRASFIELD AND OTHER CONCERNED PERSONNEL WERE ADVISED THAT THEY WOULD BE SUBJECT TO A CHANGE OF THEIR OFFICIAL DUTY STATION IN VIEW OF THE PLANNED CURTAILMENT OF ACTIVITY AT CASTLE AIR FORCE BASE.

THE RECORD FURTHER SHOWS THAT ON JUNE 15, 1970, DUE TO AN INCREASED WORKLOAD ON A PRODUCTION CONTRACT WITH GUERDON INDUSTRIES LOCATED AT PATTERSON, CALIFORNIA, MR. BRASFIELD WAS ASSIGNED TO WORK THERE FOR WHAT WAS SUPPOSED TO BE APPROXIMATELY A 90-DAY PERIOD. IT HAS BEEN STATED THAT IN VIEW OF THE NEARBY PROXIMITY OF PATTERSON TO CASTLE AIR FORCE BASE AND THE TEMPORARY NATURE OF THE ASSIGNMENT, THAT RATHER THAN UTILIZING TEMPORARY DUTY FUNDS, MR. BRASFIELD WAS AUTHORIZED THE USE OF A GOVERNMENT CAR FOR COMMUTING PURPOSES. INSTEAD OF LASTING ONLY 90 DAYS AND BECAUSE OF PROBLEMS ENCOUNTERED, THE WORK AT PATTERSON WAS EXTENDED TO ABOUT 1 YEAR. AS A RESULT MR. BRASFIELD DID NOT RECEIVE HIS CHANGE OF DUTY STATION ORDERS UNTIL JULY 30, 1971, WHEN HE WAS REASSIGNED FROM CASTLE AIR FORCE BASE TO UNION CITY, CALIFORNIA.

THE EVIDENCE OF RECORD INDICATES THAT ON JULY 15, 1970, SETTLEMENT TOOK PLACE ON THE SALE OF MR. BRASFIELD'S HOME AT THE OLD DUTY STATION. YOU HAVE QUESTIONED THE PROPRIETY OF CERTIFYING THE VOUCHER FOR THOSE REAL ESTATE EXPENSES HE ALLEGEDLY INCURRED IN CONNECTION THEREWITH. THE BASIS FOR SUCH DOUBT IS APPARENTLY BECAUSE THE SALE TOOK PLACE OVER A YEAR PRIOR TO THE DATE OF THE ORDERS TRANSFERRING MR. BRASFIELD TO THE NEW DUTY STATION.

THE REGULATIONS IN EFFECT DURING THE PERIOD HERE INVOLVED, SECTION 4.1D OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED JUNE 26, 1969, REQUIRES THAT IN ORDER FOR AN EMPLOYEE TO BE ELIGIBLE FOR THE REIMBURSEMENT OF REAL ESTATE EXPENSES RELATED TO THE SALE OF A HOME, THE DWELLING SOLD MUST HAVE BEEN THE EMPLOYEE'S ACTUAL RESIDENCE AT THE TIME HE WAS FIRST DEFINITELY INFORMED THAT HE WAS TO BE TRANSFERRED.

IN CONNECTION WITH THE CLAIM HERE INVOLVED, WE NOTE A STATEMENT BY MR. JOHN F. HARRELL DATED AUGUST 2, 1972, THAT -

"3. DURING THIS PERIOD (AFTER OFFICIAL NOTICE WAS GIVEN THAT THE PACER SPEED PROGRAM WOULD BE CLOSED DOWN) I DISCUSSED WITH THE INDIVIDUALS ASSIGNED AND ADVISED THEM THAT THEY WOULD BE SUBJECT TO PCS REASSIGNMENT SINCE THERE WAS NO OTHER WORKLOAD WITHIN THEIR GEOGRAPHICAL COMMUTING AREA. ALTHOUGH SPECIFIC ASSIGNMENTS OF THE INDIVIDUALS HAVE NOT BEEN COMPLETELY RESOLVED, HOWEVER, IT WAS UNDERSTOOD THAT AN EVENTUAL REASSIGNMENT WOULD BE NECESSARY."

IT IS OUR POSITION THAT IN VIEW OF THE DEFINITE AND OFFICIAL INFORMATION GIVEN TO MR. BRASFIELD THAT THE PACER SPEED PROGRAM AT CASTLE AIR FORCE BASE WOULD BE CLOSED AS WELL AS THE DISCUSSION (NOTED ABOVE) INVOLVING MR. HARRELL, THAT MR. BRASFIELD SOLD HIS RESIDENCE AT MERCED, CALIFORNIA, ONLY BECAUSE HE BELIEVED THAT HIS TRANSFER FROM CASTLE AIR FORCE BASE HAD DEFINITELY BEEN DECIDED. THE SALE MAY THEREFORE BE VIEWED AS INCIDENT TO THE TRANSFER. SEE B-163043, JANUARY 31, 1968, COPY ENCLOSED, INVOLVING A SOMEWHAT SIMILAR CASE.

IN VIEW OF THE FOREGOING, THE VOUCHER, WITH ACCOMPANYING PAPERS, IS RETURNED HEREWITH, AND MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE PROPER.