Matter of: Wayne H. Palmer File: B-247585 Date: July 29, 1992
B-247585: Jul 29, 1992
The Claims Group denial was based on a finding that those expenses were not incurred incident to his separation from federal service overseas in May 1989. He was given a transportation agreement providing for return travel and transportation expenses to the United States upon completion of a specified period of service. Palmer was offered a position in Korea with the overseas operations of the United Services of America Federal Credit Union. He asserts that he was informed that he could request a 2-year transportation delay and if approved. He would have 2 years following separation from the service within which to perform travel and transportation to the United States at government expense.
Matter of: Wayne H. Palmer File: B-247585 Date: July 29, 1992
CIVILIAN PERSONNEL Relocation Overseas personnel Return travel Eligibility Return travel to the continental United States by an employee or former employee from an overseas location must be clearly incident to separation from that assignment in order to be reimbursed by the government. Where an employee at an overseas location separated from the service there for the purpose of accepting private employment at that location, he does not qualify under paragraph C4202-2 of Volume 2, Joint Travel Regulations for delayed return travel.
Mr. Wayne H. Palmer has appealed our Claims Group's Settlement Z-2867260, September 12, 1991, which sustained his former agency's denial of his claim for return travel and transportation expenses, losses experienced on the sale of household items and a privately owned vehicle, and temporary lodging costs. The Claims Group denial was based on a finding that those expenses were not incurred incident to his separation from federal service overseas in May 1989. We sustain that settlement action for the following reasons.
On January 15, 1988, Mr. Palmer, who had been an employee of the San Diego Navy Federal Credit Union in Taegu, Korea, accepted employment with the Department of the Army as a civilian employee assigned to the 257th Signal Company, also in Korea. He was given a transportation agreement providing for return travel and transportation expenses to the United States upon completion of a specified period of service. In February 1989, Mr. Palmer was offered a position in Korea with the overseas operations of the United Services of America Federal Credit Union. Prior to accepting that position, he contacted his agency's Technical Services Officer (TSO) to determine his options if he resigned and thereafter sought reemployment in the federal government if his plans did not work out. He also inquired as to the effect on his rights to return travel to the continental United States under this transportation agreement. He asserts that he was informed that he could request a 2-year transportation delay and if approved, he would have 2 years following separation from the service within which to perform travel and transportation to the United States at government expense.
On May 11, 1989, Mr. Palmer notified his local commander, in writing, of his impending resignation and requested approval of a 2-year delay of his return travel and transportation. However, Mr. Palmer stated in that written notice neither his reasons for resigning nor the basis for requesting a protracted return travel delay. Notwithstanding that, his request was endorsed by his commanding officer and was approved on May 17, 1989, by the deputy commander of the 257th Signal Company's parent organization, the 1st Signal Brigade.
On or about May 18, 1989, Mr. Palmer left federal service and accepted the offered position with the United Services of America Federal Credit Union in Korea, where he remained until approximately 2 years later, when he was offered a position with the Valley Credit Union in San Jose, California. He accepted that position and submitted a request for permanent change-of-station orders to his former Army employer based on the May 17, 1989, approval for delayed travel and transportation. In response, his request was denied and he was informed that his May 1989 travel delay request should not have been approved since there was no authority in the Joint Travel Regulations to do so in the circumstances.
He thereafter performed travel and made claim for the expenses incurred and losses sustained when he disposed of personal goods overseas, arguing that his request for delayed travel had been approved and that he should not be required to suffer financial hardship because the Army erred when it granted him a 2-year travel and transportation delay. His claim was disallowed by various offices within the Department of the Army. On appeal here, our Claims Group sustained those disallowance actions.
Paragraph C4202 of Volume 2, Joint Travel Regulations (2 JTR) entitled "LOSS OF TRAVEL AND TRANSPORTATION ENTITLEMENT," provides, in part, in subparagraph C4202-2 that overseas commanders may authorize delay of return travel for a reasonable period based on a written request, with 90 days stated as being the maximum reasonable period. That subsection also permits commanding officer approval of delays up to 2 years where the request sets forth "unusual extenuating circumstances." However, that provision goes on to state, in part:
". . . written requests for delayed travel overseas from employees separating overseas to accept private overseas employment . . . will not be accepted."
Thus, under these provisions, a commanding officer may not legally approve a written request for delayed return travel where the delay is to permit the employee to separate overseas to accept private overseas employment.
This Office has long held that return travel from an overseas location must be clearly incidental to the termination of the overseas assignment. Where an individual has separated from service overseas for the purpose of accepting private employment at the overseas location, return travel performed thereafter is not reimbursable by the government as incident to the separation. Consuelo K. Wassink, 62 Comp.Gen. 200 (1983) and decision cited. See also Bertha D. Ackerman, B-245649, Apr. 30, 1992.
In the present case, Mr. Palmer did not intend to return to the continental United States when he separated in May 1989. His sole purpose for leaving government service was to accept a position with a private employer in Korea. The reason he left Korea and returned to the continental United States in April 1991 was to accept a private position in San Jose, California. With regard to his claim that he was given erroneous advice by the TSO, it is well settled that the government is not bound by the erroneous acts or advice of its agents. See OPM v. Richmond, 110 S. Ct. 2465 (1990); Schweiker v. Hansen, 450 U.S. 785 (1981); and Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947).
In the circumstances, it is our view that such travel as Mr. Palmer and his family performed in April 1991 was not incidental to termination of his federal service and our Claims Group action denying his claim is sustained.
To: Director, Claims Group - GGD From: General Counsel - James F. Hinchman
Subject: Wayne H. Palmer - Return Travel from Overseas - B-247585-O.M.
We are returning Claim File Z-2867260 in the case of Mr. Wayne H. Palmer. By decision B-247585, dated today, copy attached, we have sustained your disallowance of Mr. Palmer's claim.