B-166930, JUL. 22, 1969

B-166930, JUL. 22, 1969

CIVIL PAY - OVERSEAS EMPLOYMENT AGREEMENT BREACH TRAVEL EXPENSE LIABILITY DECISION HOLDING CLAIMANT INDEBTED FOR VIOLATION OF TRANSPORTATION AGREEMENT IN FIRST YEAR AFTER ARRIVAL AT POST IN GERMANY. NAVY DEPARTMENT EMPLOYEE WHO RESIGNED PRIOR TO YEAR'S SERVICE AND THEN POSITION WAS ABOLISHED MAY NOT HAVE THE ABOLITION OF THE POSITION CONSIDERED AS WAIVING DEBT. SINCE ADMINISTRATIVE DETERMINATION HELD THAT REASONS FOR RESIGNATION WERE NOT ACCEPTABLE, SUCH DETERMINATION IS NOT REVIEWABLE UNLESS ARBITRARY AND CAPRICIOUS AND THERE IS NO BASIS FOR SO FINDING. THEREFORE DEBT MUST BE RECOVERED.

TO MR. KEITH VON HAESLER:

THIS REFERS TO YOUR LETTER OF APRIL 14, 1969, CONCERNING YOUR INDEBTEDNESS TO THE DEPARTMENT OF THE NAVY IN THE AMOUNT OF $1,323.30 BECAUSE OF THE VIOLATION OF A TRANSPORTATION AGREEMENT IN THE FIRST YEAR AFTER ARRIVAL AT YOUR POST OF DUTY IN BREMERHAVEN, GERMANY.

THE INFORMATION OF RECORD SHOWS THAT YOU WERE APPOINTED BY THE DEPARTMENT OF THE NAVY AS AN ENGINEERING TECHNICIAN. BY TRAVEL ORDER NO. T-190-67, DATED MARCH 14, 1967, YOU WERE AUTHORIZED TO TRAVEL FROM SAN FRANCISCO, CALIFORNIA, TO BREMERHAVEN, GERMANY, YOUR DUTY STATION. IN THE LOWER LEFT HAND CORNER OF THE TRAVEL ORDER THERE IS THE FOLLOWING STATEMENT SIGNED BY YOU ON APRIL 15, 1967, WHICH READS AS FOLLOWS:

"I, THE UNDERSIGNED, DO HEREBY ACCEPT EMPLOYMENT, WITH THE DEPARTMENT OF THE NAVY, AND IN CONSIDERATION OF THE TRANSPORTATION AND SUBSISTENCE PROVIDED BY THE DEPARTMENT OF THE NAVY FROM BEGINNING POINT OF TRAVEL TO DUTY STATION, I AGREE TO FULFILL THE TERMS OF THIS EMPLOYEMNT AGREEMENT. I HAVE READ, FULLY UNDERSTAND, AND HAVE SIGNED A STATEMENT OF LIVING AND WORKING CONDITIONS. FURTHER, I, THE UNDERSIGNED, DO HEREBY AGREE THAT IF, BEFORE THE EXPIRATION OF TWELVE MONTHS FROM THE EFFECTIVE DATE OF THE TOUR OF DUTY SHOWN IN BLOCK 4, ABOVE, I FAIL TO FULFILL THE TERMS OF THIS EMPLOYMENT AGREEMENT BY RESIGNING, VACATING THE POSITION WITHOUT AUTHORITY, OR IF I AM REMOVED FOR CAUSE, I WILL, UPON DEMAND REPAY TO THE GOVERNMENT A SUM OF MONEY EQUIVALENT TO THAT EXPENDED BY THE GOVERNMENT FOR MY TRANSPORTATION AND SUBSISTENCE AND TRANSPORTATION OF DEPENDENTS AND COST OF SHIPMENT OF HOUSEHOLD GOODS AND EFFECTS, *IF INVOLVED, FROM BEGINNING POINT OF TRAVEL TO DUTY STATION, AND I AUTHORIZE THE DEPARTMENT OF THE NAVY TO WITHHOLD ANY FINAL PAY DUE ME TO APPLY AGAINST OR LIQUIDATE ANY INDEBTEDNESS ARISING FROM A VIOLATION OF THIS EMPLOYMENT AGREEMENT. FURTHER, I UNDERSTAND AND AGREE THAT IF I DO NOT COMPLETE THE PERIOD OF SERVICE STATED IN BLOCK 4, ABOVE, RETURN TRAVEL AND TRANSPORTATION AT GOVERNMENT EXPENSE TO THE PLACE OF ACTUAL RESIDENCE WILL NOT BE FURNISHED. *INCLUDING SHIPMENT OF A PRIVATELY OWNED VEHICLE.' BLOCK 4, PERIOD OF AGREEMENT PROVIDES FOR "THIRTY SIX (36) MONTHS.'

YOU RESIGNED FROM THE POSITION IN BREMERHAVEN, GERMANY, LESS THAN 12 MONTHS AFTER YOUR ASSIGNMENT. PARAGRAPH C4009-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT AN EMPLOYEE SERVING UNDER A TRANSPORTATION AGREEMENT AT A PERMANENT DUTY STATION OVERSEAS MAY BE RELEASED FROM THE PERIOD OF SERVICE REQUIREMENT SPECIFIED IN THE AGREEMENT FOR REASONS BEYOND HIS CONTROL WHICH ARE ACCEPTABLE TO THE DEPARTMENT OF DEFENSE COMPONENT IN WHICH THE EMPLOYEE IS ASSIGNED. THE DETERMINATION OF ACCEPTABILITY WILL BE MADE BY THE COMMANDING OFFICER OR AN OFFICIAL DESIGNATED BY HIM AT THE ACTIVITY WHERE THE EMPLOYEE IS ASSIGNED. AS YOU CAN SEE FROM THE FOREGOING, THE DETERMINATION AS TO ACCEPTABILITY FOR THE REASONS FOR THE RELEASE FROM THE EMPLOYMENT AGREEMENT HAS TO BE MADE BY THE EMPLOYING AGENCY AND NOT THE EMPLOYEE. YOUR REASONS FOR RESIGNING WERE NOT ACCEPTABLE TO COMSTSELM.

YOU ALLEGE THAT BY RESIGNING YOU SAVED THE GOVERNMENT MONEY BECAUSE THE POSITION FROM WHICH YOU RESIGNED WAS SUBSEQUENTLY ABOLISHED. APPARENTLY THE OFFICIAL OF THE DEPARTMENT OF THE NAVY CONSIDERED THIS ASPECT OF THE MATTER AT THE TIME THE DETERMINATION WAS MADE THAT YOU SHOULD BE HELD LIABLE FOR THE EXPENSES IN QUESTION. WE POINT OUT THAT EVEN IF THE POSITION HAD BEEN ABOLISHED WHILE YOU WERE STILL SERVING THEREIN IT DOES NOT NECESSARILY MEAN THAT YOU WOULD HAVE BEEN RELIEVED OF YOUR OBLIGATION TO SERVE THE AGREED PERIOD OF TIME SINCE PARAGRAPH 6 (C) OF THE TRAVEL AUTHORIZATION AND EMPLOYMENT AGREEMENT (TRAVEL ORDER NO. T-190-67) PROVIDED THAT WHILE SERVING UNDER THE AGREEMENT, YOU WERE SUBJECT TO TRANSFER OR REASSIGNMENT TO ANY POSITION FOR WHICH YOU WERE QUALIFIED AND ELIGIBLE WITHIN THE GEOGRAPHIC AREA AT ANY TIME DURING THE PERIOD OF THE AGREEMENT PROVIDED THERE WAS NO REDUCTION IN YOUR PAY AT THAT TIME.

YOU SAY THAT IN OUR LETTER OF APRIL 4, 1969, TO YOU, WE MADE REFERENCE TO SUBSISTENCE BUT THAT YOU NEVER MADE APPLICATION FOR SUBSISTENCE RELATIVE TO YOUR MOVE TO GERMANY. BLOCK 11 OF YOUR TRAVEL ORDER (SUBSISTENCE EXPENSES) PROVIDED FOR THE PAYMENT OF APPROPRIATE PER DIEM RATE FOR THE TRAVEL INVOLVED. THE INFORMATION FURNISHED BY THE DEPARTMENT OF THE NAVY SHOWS THAT $14.50 OF YOUR INDEBTEDNESS REPRESENTS PER DIEM AND ALLOWANCES APPARENTLY FOR TIME EN ROUTE TO GERMANY.

THE DETERMINATION MADE IN YOUR CASE BY THE DEPARTMENT OF THE NAVY IS NOT REVIEWABLE BY OUR OFFICE UNLESS THE FACTS ESTABLISH THAT IT WAS ARBITRARY AND CAPRICIOUS. WE ARE UNABLE TO SAY THAT THE DEPARTMENT DID NOT HAVE A REASONABLE BASIS FOR SUCH DETERMINATION.

CONCERNING YOUR QUESTION AS TO WHERE YOU MAY APPEAL THE ACTION TAKEN BY OUR OFFICE, IT MAY BE STATED THAT UNDER EXISTING LAW DECISIONS OF THE COMPTROLLER GENERAL ARE BINDING UPON THE EXECUTIVE DEPARTMENTS AND AGENCIES BUT NOT UPON THE COURTS. SEE 28 U.S.C. 1491 AND 1346 AS TO ACTIONS COGNIZABLE BY THE UNITED STATES DISTRICT COURTS AND THE UNITED STATES COURT OF CLAIMS, WHICH APPARENTLY WOULD EMBRACE A CLAIM FOR REFUND OF THE AMOUNTS ($122.56 AND $161.90) WITHHELD IN PARTIAL LIQUIDATION OF YOUR INDEBTEDNESS.

THE BALANCE OF YOUR INDEBTEDNESS ($1,323.30) SHOULD BE TRANSMITTED TO THIS OFFICE BY CHECK OR MONEY ORDER MADE PAYABLE TO THE "UNITED STATES GENERAL ACCOUNTING OFFICE" AND ADDRESSED TO POST OFFICE BOX 2610, WASHINGTON, D.C. 20013.