B-205020.OM, MAY 18, 1982

B-205020.OM: May 18, 1982

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PRECIS-UNAVAILABLE THE COMPTROLLER GENERAL: WE ARE FORWARDING THE FILE RELATIVE TO THE CLAIM OF AIRCRAFT MAINTENANCE MANAGER ALLEN H. THE RECORD SHOWS THAT THE CLAIMANT WAS ORDERED IN AUGUST 1978 TO ACTIVE DUTY IN THE AIR FORCE TO ATTEND THE U. HE WAS PLACED ON LEAVE WITHOUT PAY STATUS FROM HIS CIVIL SERVICE POSITION WITH RETURN RIGHTS. HE STATES THAT HE WAS ADVISED BY HIS CIVILIAN PERSONNEL OFFICER AT DOVER. IN JUNE 1979 WHILE ATTENDING THE TRAINING SCHOOL HE WAS ADVISED THAT THE AIR FORCE RESERVE (?). WAS GOING TO TRANSFER HIM TO KEESLER AIR FORCE BASE. HE WAS THEN ADVISED THAT THE REAL ESTATE EXPENSES FROM THE SALE OF HIS DOVER HOUSE WOULD NOT BE PAID BECAUSE HE WAS NOT IN RESIDENCE AT THAT ADDRESS WHEN HE RECEIVED TRANSFER ORDERS TO KEESLER.

B-205020.OM, MAY 18, 1982

PRECIS-UNAVAILABLE

THE COMPTROLLER GENERAL:

WE ARE FORWARDING THE FILE RELATIVE TO THE CLAIM OF AIRCRAFT MAINTENANCE MANAGER ALLEN H. BRUCE. MR. BRUCE REQUESTS REIMBURSEMENT OF REAL ESTATE EXPENSES INCURRED INCIDENT TO THE SALE OF HIS HOME IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION (PCS) AS A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE.

THE RECORD SHOWS THAT THE CLAIMANT WAS ORDERED IN AUGUST 1978 TO ACTIVE DUTY IN THE AIR FORCE TO ATTEND THE U. S. AIR COMMAND AND STAFF COLLEGE AT MAXWELL AIR FORCE BASE, MONTGOMERY, ALABAMA. DURING THE TEN MONTH PERIOD, HE WAS PLACED ON LEAVE WITHOUT PAY STATUS FROM HIS CIVIL SERVICE POSITION WITH RETURN RIGHTS. HE STATES THAT HE WAS ADVISED BY HIS CIVILIAN PERSONNEL OFFICER AT DOVER, DELAWARE THAT IF HE ELECTED TO SELL HIS HOUSE IN DOVER BEFORE HE WENT TO SCHOOL, THE REAL ESTATE COMMISSION COSTS WOULD BE PAID. HOWEVER, HE HAS NOT BEEN ABLE TO PROVE THIS. NEVERTHELESS, HE THEN SOLD HIS HOUSE IN DOVER AND MOVED HIS FAMILY NEAR HIS AIR FORCE TRAINING SCHOOL IN ALABAMA. IN JUNE 1979 WHILE ATTENDING THE TRAINING SCHOOL HE WAS ADVISED THAT THE AIR FORCE RESERVE (?) WAS GOING TO TRANSFER HIM TO KEESLER AIR FORCE BASE, MISSISSIPPI TO RESUME HIS CIVILIAN CAREER WITH THE AIR FORCE AT THAT LOCATION IN A SIMILAR POSITION TO THE ONE HE HELD IN DOVER. HE WAS THEN ADVISED THAT THE REAL ESTATE EXPENSES FROM THE SALE OF HIS DOVER HOUSE WOULD NOT BE PAID BECAUSE HE WAS NOT IN RESIDENCE AT THAT ADDRESS WHEN HE RECEIVED TRANSFER ORDERS TO KEESLER, MISSISSIPPI. THE ACCOUNTING AND FINANCE OFFICE AT DOVER AFB HAS RECOMMENDED DISALLOWANCE OF THIS CLAIM SINCE THE CLAIMANT SOLD HIS RESIDENCE PRIOR TO NOTIFICATION OF HIS PCS MOVE.

IN B-161795, JUNE 29, 1967, IT WAS STATED THAT WHERE THERE IS LITTLE LIKELIHOOD THAT A TRAINEE WILL RETURN TO HIS FORMER OFFICIAL STATION AFTER HE COMPLETES A PERIOD OF TRAINING, THE PURPOSE OF THE REGULATION THAT THE DWELLING AT THE OLD OFFICIAL STATION BE THE EMPLOYEE'S ACTUAL RESIDENCE AT THE TIME HE WAS FIRST DEFINITELY INFORMED THAT HE WAS TO BE TRANSFERRED TO A NEW OFFICIAL STATION IS MET WHEN A SELECTEE PARTICIPATES IN A TRAINING PROGRAM.

IN CONTRAST, COMPTROLLER GENERAL DECISION B-199042, DATED MARCH 3, 1981, STATES: "THE EMPLOYEE IS 'DEFINITELY INFORMED' OF A RELOCATION WITHIN THE MEANING OF FTR PARAGRAPH 2-6.1D WHEN, AT THE TIME OF SELECTION FOR TRAINING, THE EMPLOYEE IS VIRTUALLY ASSURED THAT HIS PERMANENT DUTY STATION WILL BE CHANGED UPON COMPLETION OF TRAINING." THE CRITICAL ISSUE IN THIS CLAIM APPEARS TO BE WHETHER THE EMPLOYEE AT THE TIME OF HIS SELECTION FOR TRAINING WAS "VIRTUALLY" OR SUFFICIENTLY ASSURED THAT HIS PERMANENT DUTY STATION WOULD BE CHANGED UPON COMPLETION OF TRAINING.

IN VIEW OF THE FACT THAT THERE IS CONSIDERABLE RESISTANCE WITHIN THE AIR FORCE ACCOUNTING AND FINANCE OFFICE TO THE ALLOWANCE OF THIS CLAIM IN THAT IT MAY SET A PRECEDENCE FOR PAYMENT OF LIKE CLAIMS WITHIN THE AGENCY, IT IS FELT THIS IS A MATTER OF SUFFICIENT IMPORTANCE TO WARRANT A COMPTROLLER GENERAL DECISION. THERE IS INCOMPLETE INFORMATION AVAILABLE AS TO WHAT PERCENTAGE OF EMPLOYEE RETURN TO THEIR OLD DUTY STATIONS AFTER COMPLETION OF TRAINING SCHOOL VERSUS THE NUMBER THAT ARE TRANSFERRED TO NEW OFFICIAL STATIONS ELSEWHERE. ACCORDING TO THE CLAIMANT, THE LIKELIHOOD IS THAT UPON THE COMPLETION OF TRAINING, THE EMPLOYEE WILL BE TRANSFERRED TO OTHER STATIONS.

DUE TO THE DOUBTFUL ASPECTS OF THE QUESTIONS RAISED, THE MATTER IS SUBMITTED FOR YOUR CONSIDERATION AND INSTRUCTIONS. THE ADJUDICATOR HANDLING THIS CASE IS GEORGE TANSEY. CONGRESSMAN TRENT LOTT IS INTERESTED IN THIS MATTER.

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858)

THIS CLAIM INVOLVES TWO RELATED RULES. FIRST, ENTITLEMENT TO REAL ESTATE EXPENSES FOR SALE OF A RESIDENCE AT THE OLD DUTY STATION REQUIRES THE DWELLING SOLD TO HAVE BEEN THE "EMPLOYEE'S RESIDENCE AT THE TIME HE WAS FIRST DEFINITELY INFORMED BY COMPETENT AUTHORITY OF HIS TRANSFER TO THE NEW OFFICIAL STATION." PARAGRAPH 2-6.1D OF THE FEDERAL TRAVEL REGULATIONS AND PARAGRAPH C1400-1 OF VOLUME II OF THE JOINT TRAVEL REGULATIONS. SECOND, THERE MUST HAVE BEEN AN "ADMINISTRATIVE INTENTION TO TRANSFER THE EMPLOYEE CLEARLY EVIDENT AT THE TIME THE REAL ESTATE EXPENSES WERE INCURRED." MATTER OF WHITE, 58 COMP.GEN. 208 (1979). AS INDICATED BY YOUR SUBMISSION, WE HAVE RECOGNIZED THAT THESE PREREQUISITES TO REIMBURSEMENT ARE MET WHEN AN EMPLOYEE SELLS HIS RESIDENCE AT HIS OLD DUTY STATION AFTER HAVING BEEN ASSIGNED TO TRAINING UNDER CIRCUMSTANCES WHERE THERE IS A VIRTUAL CERTAINTY THAT HE WILL BE TRANSFERRED TO A DIFFERENT PERMANENT DUTY STATION UPON COMPLETION OF TRAINING. MATTER OF WHISNANT, B-183597, SEPTEMBER 3, 1975, AND CASES CITED THEREIN. THESE HOLDINGS ARE CURRENTLY REFLECTED IN PARAGRAPH C4502-3 OF VOLUME II OF THE JOINT TRAVEL REGULATIONS.

THE RECORD DOES NOT ESTABLISH THAT MR. BRUCE'S TRAINING ASSIGNMENT WAS UNDERTAKEN WITH THE UNDERSTANDING THAT HE WOULD BE TRANSFERRED TO A NEW PERMANENT DUTY STATION UPON ITS COMPLETION. BECAUSE THE ONLY ISSUE IN HIS CASE IS ONE OF PROOF, THE DENIAL OF HIS CLAIM SHOULD BE THE SUBJECT OF A SETTLEMENT BY THE CLAIMS GROUP RATHER THAN A DECISION BY THE COMPTROLLER GENERAL.

IN HIS LETTER OF AUGUST 4, 1980, TO THE COMPTROLLER GENERAL, MR. BRUCE ASSERTS THAT THE CIVILIAN PERSONNEL OFFICER AT DOVER, AS WELL AS COUNSELORS AT AIR FORCE RESERVE HEADQUARTERS, HAD INFORMED HIM THAT REAL ESTATE SELLING EXPENSES WOULD BE PAID. HE SUGGESTS IN THE LETTER THAT THIS ADVICE PROMPTED HIM TO SELL THE RESIDENCE NEAR DOVER. HOWEVER, BY LETTER OF JULY 24, 1979, TO THE CIVILIAN PERSONNEL OFFICER, DOVER AIR FORCE BASE, HE STATED:

"IT IS A COMMONLY RECOGNIZED FACT WITHIN THE AIR FORCE RESERVE THAT MANY AIR RESERVE TECHNICIANS THAT ATTEND THE AIR COMMAND AND STAFF COLLEGE ARE ADMINISTRATIVELY ASSIGNED TO NEW DUTY LOCATIONS BEFORE THE SCHOOLING IS COMPLETE. ARMED WITH THIS KNOWLEDGE, I SOLD MY HOME BEFORE LEAVING DOVER."

THE CLEAR IMPORT OF THIS STATEMENT IS THAT ONE REASON HE SOLD THE RESIDENCE WAS HIS BELIEF THAT "MANY" BUT NOT ALL PERSONS IN HIS SITUATION WOULD BE TRANSFERRED BEFORE COMPLETING TRAINING AT THE AIR COMMAND AND STAFF COLLEGE. SIMILAR STATEMENT APPEARS IN HIS LETTER OF AUGUST 22, 1979, TO THE BASE FINANCE OFFICER, DOVER AIR FORCE BASE:

"*** FEW TECHNICIANS ATTENDING ACSC ARE RETURNED TO THEIR OLD DUTY STATIONS. THIS IS THE CRUX OF MY ENTIRE CLAIM. ***"

FINALLY, IN HIS LETTER OF OCTOBER 3, 1979, HE STATED:

"I WAS TOLD BY MY WING COMMANDER THAT IN ALL LIKELIHOOD I WOULD NOT RETURN TO DOVER, BUT WOULD BE REASSIGNED UPON GRADUATION FROM ACSC. ***

"I WAS TOLD I WOULD PROBABLY NOT RETURN TO DOVER, SO I SOLD MY HOUSE. ***"

BASED ON THESE STATEMENTS, WE CONCLUDE THAT MR. BRUCE BELIEVED THAT HIS CHANCES FOR TRANSFERRING TO A NEW DUTY STATION WERE GOOD, BUT MUCH LESS THAN DEFINITE, WHEN HE SOLD HIS HOME, AND THERE IS NOTHING IN THE RECORD TO ESTABLISH THAT TRAINING ASSIGNMENTS TO THE AIR COMMAND AND STAFF COLLEGE WERE MADE BY THE AIR FORCE UNDER CIRCUMSTANCES THAT PROVIDED ANY GREATER ASSURANCE OF TRANSFER. THE TRAVEL ORDERS SPECIFYING MR. BRUCE'S RETURN AFTER TEMPORARY TRAINING TO THE DUTY STATION WHERE THE RESIDENCE WAS LOCATED FURTHER SUPPORT OUR CONCLUSION BECAUSE THOSE ORDERS REMAINED IN EFFECT SEVERAL MONTHS AFTER HE SOLD HIS HOME. FOR THE PURPOSE OF ENTITLEMENT TO REAL ESTATE EXPENSES WE DO NOT FIND THAT THE DWELLING WAS HIS RESIDENCE AT THE TIME HE WAS DEFINITELY INFORMED OF HIS TRANSFER OR THAT HE INCURRED SELLING COSTS WHEN THERE WAS A CLEARLY EVIDENT INTENT TO TRANSFER HIM.

TO AVOID ANY MISUNDERSTANDING YOU SHOULD ADVISE THE AIR FORCE THAT IF AN EMPLOYEE IS ASSURED THAT HIS PERMANENT DUTY STATION WILL BE CHANGED UPON COMPLETION OF TRAINING, THE EMPLOYEE MAY VACATE AND SELL HIS HOME IMMEDIATELY AFTER NOTICE AND SELECTION FOR TRAINING. MATTER OF WHISNANT, B-183597, SEPTEMBER 3, 1975. IN CASES OF THAT TYPE, THE PROCEDURES SET FORTH AT PARAGRAPH C4502-3 OF VOLUME II OF THE JOINT TRAVEL REGULATIONS SHOULD BE FOLLOWED.