B-204286, JUN 12, 1984

B-204286, JUN 12, 1984

DIGEST: ALTHOUGH AN EMPLOYEE SEPARATED IN PANAMA MUST RETURN TO GUAM, HIS ACTUAL PLACE OF RESIDENCE, IN ORDER TO QUALIFY FOR SEPARATION TRAVEL AND TRANSPORTATION UNDER 5 U.S.C. SEC. 5722(A), IF HE DOES RETURN TO GUAM HE MAY BE REIMBURSED FOR SHIPPING HIS HOUSEHOLD GOODS TO AN ALTERNATE LOCATION IN AN AMOUNT NOT TO EXCEED THE COST OF SHIPMENT TO GUAM. WHERE THE EMPLOYEE CLAIMS TO HAVE TRAVELED AND SHIPPED HIS HOUSEHOLD GOODS TO COSTA RICA TO ESTABLISH A RESIDENCE FOR HIS DAUGHTER, THE EMPLOYEE'S 4-MONTH STAY IN COSTA RICA DOES NOT NECESSARILY REQUIRE THE CONCLUSION THAT HE INTENDED TO ESTABLISH HIS OWN RESIDENCE IN COSTA RICA INSTEAD OF GUAM. THE AGENCY SHOULD DETERMINE WHETHER HE INTENDED TO RETURN TO GUAM FOR THE PURPOSE OF ESTABLISHING HIS RESIDENCE THERE AND WHETHER HIS CASE INVOLVED UNUSUAL EXTENUATING CIRCUMSTANCES THAT WARRANTED A DELAY IN HIS RETURN TO GUAM BEYOND THE 90-DAY PERIOD ORDINARILY REQUIRED BY AGENCY REGULATIONS.

CLARENCE L. AIU:

THIS DECISION DEALS WITH THE ENTITLEMENTS OF AN EMPLOYEE WHO SEPARATED FROM GOVERNMENT SERVICE OVERSEAS AFTER HAVING COMPLETED THE PERIOD OF SERVICE NECESSARY TO QUALIFY FOR RETURN TRAVEL AND TRANSPORTATION TO HIS PLACE OF ACTUAL RESIDENCE. FN1 THE CLAIM IS RETURNED TO THE AGENCY CONCERNED FOR FULL CONSIDERATION OF WHETHER THE EMPLOYEE MAY BE GRANTED AN EXCEPTION FROM THE RETURN TIME LIMIT IMPOSED BY THEIR REGULATIONS.

BACKGROUND

MR. CLARENCE L. AIU, FORMERLY AN EMPLOYEE OF THE FEDERAL AVIATION ADMINISTRATION (FAA) WHOSE DUTY STATION WAS IN THE REPUBLIC OF PANAMA, SEPARATED FROM GOVERNMENT SERVICE IN PANAMA ON JUNE 18, 1981. UNDER 5 U.S.C. SEC. 5722(A) MR. AIU WAS ENTITLED TO TRAVEL EXPENSES FOR HIMSELF AND HIS FAMILY AND TO TRANSPORTATION OF HOUSEHOLD GOODS FROM PANAMA TO GUAM, HIS PLACE OF ACTUAL RESIDENCE AT THE TIME OF ASSIGNMENT TO DUTY OUTSIDE THE UNITED STATES. ON JUNE 8, 1981, HE WAS ISSUED A PERMANENT CHANGE-OF-STATION TRAVEL ORDER AUTHORIZING TRAVEL AND TRANSPORTATION BETWEEN PANAMA AND GUAM. HOWEVER, IN AUGUST OF 1981 MR. AIU SHIPPED HIS HOUSEHOLD GOODS TO COSTA RICA. ON AUGUST 23, 1981, MR. AIU, HIS WIFE, AND DAUGHTER TRAVELED FROM PANAMA TO COSTA RICA WHERE HE ESTABLISHED A RESIDENCE FOR HIS DAUGHTER. ON DECEMBER 17, 1981, MR. AIU AND HIS WIFE LEFT COSTA RICA FOR GUAM. ON DECEMBER 28, 1981, HE FILED A VOUCHER FOR REIMBURSEMENT OF THE COST OF MOVING HIS HOUSEHOLD GOODS TO COSTA RICA. THE FAA'S ACCOUNTING OPERATIONS BRANCH RETURNED HIS VOUCHER ON JANUARY 27, 1982, STATING IT WAS UNPAID SINCE IT HAD NOT BEEN APPROVED BY AN AUTHORIZING OFFICIAL. IN ADDITION, THE FAA REQUESTED REIMBURSEMENT OF $2,702.50 FOR MR. AIU'S AND HIS WIFE'S AIRFARE TO GUAM STATING THE TICKETS HAD NOT BEEN USED WITHIN 90 DAYS FROM HIS SEPARATION DATE.

ON APRIL 26, 1982, MR. AIU FILED A CLAIM WITH THE GENERAL ACCOUNTING OFFICE APPEALING THE ACTION OF THE FAA. IN RESPONSE TO A REQUEST FROM OUR CLAIMS GROUP FOR AN ADMINISTRATIVE REPORT, THE FAA INDICATED THAT MR. AIU'S VOUCHER WAS NOT PAID BECAUSE IT HAD NOT BEEN SIGNED BY THE APPROVING OFFICIAL AND BECAUSE MR. AIU HAD NOT SUPPLIED WEIGHT TICKETS FOR HIS HOUSEHOLD GOODS. IN ADDITION, THE FAA TOOK THE POSITION THAT MR. AIU HAD NOT RETURNED TO GUAM, HIS PLACE OF ACTUAL RESIDENCE, BUT HAD ESTABLISHED A RESIDENCE IN COSTA RICA BY VIRTUE OF HIS 4-MONTH STAY THERE FROM AUGUST TO DECEMBER 1981 AND CONSEQUENTLY WAS NOT ENTITLED TO RETURN TRAVEL AND TRANSPORTATION EXPENSES. IN SUPPORT OF THIS POSITION, THE FAA RELIED UPON COMPTROLLER GENERAL DECISIONS, INCLUDING 31 COMP.GEN. 389 (1952), HOLDING THE LAW DOES NOT AUTHORIZE PAYMENT OF RETURN TRAVEL AND TRANSPORTATION EXPENSES BETWEEN POINTS OUTSIDE THE CONTINENTAL UNITED STATES WHERE THE EMPLOYEE, UPON SEPARATION, DOES NOT RETURN TO THE COUNTRY IN WHICH HIS PLACE OF ACTUAL RESIDENCE IS LOCATED. FN2

IN ITS ADMINISTRATIVE REPORT THE FAA STATED THAT, IN ANY CASE, MR. AIU HAD FORFEITED HIS ENTITLEMENT TO SEPARATION TRAVEL UNDER DEPARTMENT OF TRANSPORTATION (DOT) REGULATION 1500.6, PARA. 522.C, BY DELAYING HIS RETURN TO GUAM FOR MORE THAN 90 DAYS. THAT REGULATION PROVIDES:

"WHEN THE EMPLOYEE IS BEING RETURNED FOR SEPARATION, TRANSPORTATION OF EMPLOYEE AND DEPENDENTS MUST BE ACCOMPLISHED WITHIN A REASONABLE TIME AFTER SEPARATION OR THE TRANSPORTATION ENTITLEMENT IS FORFEITED. THE AUTHORIZING OFFICIAL MAY AUTHORIZE DELAYED TRAVEL FOR A REASONABLE PERIOD NOT TO EXCEED 90 CALENDAR DAYS FROM DATE OF SEPARATION. UNDER UNUSUAL EXTENUATING CIRCUMSTANCES WHICH, IN THE OPINION OF THE AUTHORIZING OFFICIAL CONCERNED, WARRANT A LONGER PERIOD OF DELAY, SUCH TRANSPORTATION MAY BE DELAYED UP TO TWO YEARS FROM THE DATE OF SEPARATION."

OUR CLAIMS GROUP AFFIRMED THE FAA'S ACTION IN SETTLEMENT CERTIFICATE NO. Z-2843192, ISSUED AUGUST 30, 1983. IN HIS APPEAL FROM THAT DETERMINATION MR. AIU CONTENDS THAT THERE IS AUTHORITY TO SHIP HIS HOUSEHOLD GOODS TO AN ALTERNATE DESTINATION OUTSIDE THE UNITED STATES INASMUCH AS HE, IN FACT, RETURNED TO GUAM, HIS PLACE OF ACTUAL RESIDENCE. HE CITES OUR LETTER, B-204286 OF AUGUST 19, 1981, IN SUPPORT OF HIS POSITION. HE FURTHER STATES THAT THE DIFFICULTIES HE EXPERIENCED IN GETTING HIS HOUSEHOLD GOODS THROUGH CUSTOMS AND INTO COSTA RICA AND IN ESTABLISHING HIS DAUGHTER'S RESIDENCE THERE CAUSED THE DELAY. SINCE FAA REGULATIONS PROVIDE FOR AN EXTENSION OF THE 90 DAY PERIOD FOR SEPARATION TRAVEL UNDER UNUSUAL EXTENUATING CIRCUMSTANCES, HE CONTENDS THAT HE QUALIFIES FOR REIMBURSEMENT FOR TRANSPORTATION OF HIS HOUSEHOLD GOODS AND THAT HE IS NOT REQUIRED TO PAY BACK THE COST OF HIS AND HIS WIFE'S AIRFARE TO GUAM.

ANALYSIS

PAYMENT FOR TRAVEL AND TRANSPORTATION EXPENSES INCIDENT TO SEPARATION FROM A POSITION OUTSIDE THE CONTINENTAL UNITED STATES IS AUTHORIZED BY 5 U.S.C. SEC. 5722 (1976) IN ACCORDANCE WITH THE IMPLEMENTING REGULATIONS CONTAINED IN THE FEDERAL TRAVEL REGULATIONS (FTR) (FPMR 101-7). AS IN EFFECT AT THE TIME OF MR. AIU'S SEPARATION AND CURRENTLY, FTR PARA. 2- 1.5A(2) STATES:

"ALL TRAVEL, INCLUDING THAT FOR THE IMMEDIATE FAMILY, AND TRANSPORTATION, INCLUDING THAT FOR HOUSEHOLD GOODS ALLOWED UNDER THESE REGULATIONS, SHALL BE ACCOMPLISHED AS SOON AS POSSIBLE. THE MAXIMUM TIME FOR BEGINNING ALLOWABLE TRAVEL AND TRANSPORTATION SHALL NOT EXCEED 2 YEARS FROM THE EFFECTIVE DATE OF THE EMPLOYEE'S TRANSFER OR APPOINTMENT ***"

WITH RESPECT TO SEPARATION TRAVEL, WE HAVE LONG ADHERED TO THE POSITION THAT THE EMPLOYEE'S TRAVEL MUST BE CLEARLY INCIDENTAL TO THE TERMINATION OF AN ASSIGNMENT AND THAT THE TRAVEL SHOULD COMMENCE WITHIN A REASONABLE TIME AFTER THE ASSIGNMENT HAS BEEN TERMINATED IN ORDER FOR RETURN EXPENSES TO BE REIMBURSABLE. 28 COMP.GEN. 285, 289 (1948). WE HAVE RECOGNIZED THAT AN AGENCY MAY, BY REGULATION, DEFINE A PERIOD SHORTER THAN 2 YEARS WITHIN WHICH SEPARATION TRAVEL SHOULD NORMALLY BEGIN. 52 COMP.GEN. 407 (1973). THE FAA HAS EXERCISED ITS ADMINISTRATIVE AUTHORITY BY SPECIFYING THAT DELAYS IN SEPARATION TRAVEL BEYOND 90 DAYS WILL BE AUTHORIZED ONLY IN "UNUSUAL EXTENUATING CIRCUMSTANCES." WE NOTED IN ALMA B. COBB, B-134348, JANUARY 27, 1975, THAT A SIMILAR PROVISION IN DEPARTMENT OF DEFENSE REGULATIONS GRANTED DISCRETION TO OVERSEAS COMMANDERS TO AUTHORIZE DELAYS OF MORE THAN 90 DAYS.

DOT REGULATION 1500.6 AT PARA. 522.C REQUIRES THAT RETURN TRAVEL BE ACCOMPLISHED WITHIN 90 DAYS OF SEPARATION EXCEPT WHEN, IN THE OPINION OF THE AUTHORIZING OFFICIAL, UNUSUAL EXTENUATING CIRCUMSTANCES WARRANT A LONGER PERIOD OF DELAY UP TO 2 YEARS. THE DOCUMENTATION IN MR. AIU'S CASE INDICATES THAT THE AGENCY HAS NOT CONSIDERED WHETHER THERE WERE UNUSUAL EXTENUATING CIRCUMSTANCES WHICH WOULD HAVE WARRANTED A DELAY BEYOND THE NORMAL 90-DAY PERIOD FOR ACCOMPLISHING RETURN TRAVEL. IN ITS ADMINISTRATIVE REPORT TO OUR CLAIMS GROUP THE FAA NOTED ONLY THAT MR. AIU HAD NOT REQUESTED AN EXTENSION OF THE 90-DAY PERIOD.

SINCE MR. AIU IN FACT TRAVELED TO GUAM AND SINCE HE HAS EXPLAINED THE REASON FOR HIS DELAY IN ACCOMPLISHING THAT TRAVEL, THE APPROVING OFFICIAL SHOULD NOW CONSIDER WHETHER HIS CASE INVOLVED UNUSUAL EXTENUATING CIRCUMSTANCES THAT WARRANT AN EXTENSION.

THE DETERMINATION OF WHETHER MR. AIU SHOULD BE GRANTED AN EXTENSION OF THE 90-DAY LIMIT NECESSARILY INVOLVES THE RELATED QUESTION OF WHETHER MR. AIU, UPON SEPARATION, ESTABLISHED A RESIDENCE IN COSTA RICA RATHER THAN GUAM. UNDER 31 COMP.GEN. 389 MR. AIU WOULD NOT BE ELIGIBLE FOR SEPARATION ENTITLEMENTS IF HE RETURNED TO COSTA RICA WITH THE INTENT OF ESTABLISHING HIS RESIDENCE THERE RATHER THAN IN GUAM. HOWEVER, IF HE RETURNED INSTEAD TO GUAM WITH THE PURPOSE OF ESTABLISHING HIS RESIDENCE THERE, THE HOLDING IN 31 COMP.GEN. 389 WOULD NOT PRECLUDE REIMBURSEMENT FOR THE COST OF HIS AND HIS WIFE'S TRAVEL TO GUAM OR FOR THE COST OF SHIPPING HIS HOUSEHOLD GOODS TO AN ALTERNATE LOCATION, SUCH AS COSTA RICA, IN AN AMOUNT NOT TO EXCEED THE COST OF SHIPMENT TO GUAM.

IN VIEW OF MR. AIU'S CLAIM THAT HE TRAVELED AND SHIPPED HIS HOUSEHOLD GOODS TO COSTA RICA FOR THE PURPOSE OF ESTABLISHING HIS DAUGHTER'S RESIDENCE THERE, IT DOES NOT APPEAR THAT HE ESTABLISHED HIS OWN RESIDENCE BY REMAINING THERE FOR A 4-MONTH PERIOD BEFORE DEPARTING FOR GUAM. FOR THIS REASON AND BECAUSE THE AGENCY INCORRECTLY ASSUMED THAT MR. AIU WOULD NOT HAVE BEEN ENTITLED TO REIMBURSEMENT FOR SHIPPING HIS HOUSEHOLD GOODS TO COSTA RICA UNDER ANY CIRCUMSTANCES, WE ARE RETURNING THE MATTER TO THE FAA IN ORDER THAT THE APPROPRIATE OFFICIAL MAY CONSIDER WHETHER MR. AIU IS ELIGIBLE FOR AN EXTENSION OF THE 90-DAY LIMIT FOR RETURN TRAVEL AND WHETHER HE RETURNED TO GUAM WITHIN A REASONABLE PERIOD FOLLOWING HIS SEPARATION WITH THE INTENT OF ESTABLISHING HIS RESIDENCE THERE.

WITH REGARD TO THE AGENCY'S COMMENT THAT MR. AIU DID NOT PROVIDE WEIGHT TICKETS FOR HIS HOUSEHOLD GOODS, WE POINT OUT THAT THE BILL OF LADING STATES THE WEIGHT OF THE GOODS SHIPPED FOR WHICH REIMBURSEMENT IS REQUESTED.

ACCORDINGLY, THE MATTER IS RETURNED TO THE AGENCY FOR FURTHER CONSIDERATION.

FN1 THIS DECISION RESULTS FROM THE REQUEST OF MR. CLARENCE L. AIU THROUGH SENATOR DANIEL K. INOUYE FOR RECONSIDERATION OF SETTLEMENT CERTIFICATE NO. Z-2843192, ISSUED AUGUST 30, 1983, BY OUR CLAIMS GROUP, AFMD, WHICH SUSTAINED THE DETERMINATION OF MR. AIU'S FORMER EMPLOYER, THE FEDERAL AVIATION ADMINISTRATION, THAT HE HAD FORFEITED HIS ENTITLEMENT TO RETURN TRAVEL AND TRANSPORTATION AT GOVERNMENT EXPENSE.

FN2 THE LINE OF DECISIONS INCLUDING 31 COMP.GEN. 389 DENYING EXPENSES FOR TRAVEL AND TRANSPORTATION BETWEEN POINTS OUTSIDE THE UNITED STATES, WHEN THE SEPARATED EMPLOYEE DOES NOT RETURN TO THE UNITED STATES OR TO THE COUNTRY OF HIS PLACE OF ACTUAL RESIDENCE WAS OVERRULED PROSPECTIVELY IN B-211490, APRIL 10, 1984, 63 COMP.GEN. . THAT LINE OF DECISIONS IS NOT APPLICABLE IN THE CASE OF SEPARATIONS EFFECTED AFTER APRIL 10, 1984.