B-181891, JUL 21, 1976

B-181891, JUL 21, 1976

THIS OFFICE WILL RECONSIDER ITS DECISION IF MATERIAL MISTAKE OF LAW OR OF FACT IS ALLEGED OR PROVEN. RECONSIDERATION IS NOT POSSIBLE, HOWEVER, WHERE DECISION RECIPIENT MERELY INDICATES GENERAL DISAGREEMENT WITH THE RESULT REACHED IN A DECISION.

JOSEPH S. HENDERSON - HOME SERVICE TRANSFER ALLOWANCE - RECONSIDERATION:

THIS DECISION IS IN RESPONSE TO A REQUEST FOR RECONSIDERATION OF OUR DECISION B-181891, JULY 16, 1975, WHICH SUSTAINED THE DISALLOWANCE OF OUR TRANSPORTATION AND CLAIMS DIVISION OF MR. JOSEPH S. HENDERSON'S CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED FOR TEMPORARY QUARTERS AND SUBSISTENCE IN CONNECTION WITH A PERMANENT CHANGE OF STATION PERFORMED AS A STATE DEPARTMENT FOREIGN SERVICE OFFICER, FOLLOWING HIS RETURN TO THE UNITED STATES FROM AN OVERSEAS ASSIGNMENT IN MEXICO CITY, MEXICO. THE FACTS IN THIS CASE WERE FULLY STATED IN OUR DECISION OF JULY 16, 1975, AND NEED NOT BE REPEATED EXCEPT AS PERTINENT TO THE PRESENT DISCUSSION OF THE CASE. ASKING FOR A RECONSIDERATION OF OUR JULY 16, 1975 DECISION, MR. HENDERSON STATES ALLEGED MISUNDERSTANDING OF THE FACTS BY OUR OFFICE UPON WHICH THE DISALLOWANCE OF HIS CLAIM RESTED. HOWEVER, HE POINTS TO NO FACTUAL ERROR AND HAS CITED NO LEGAL PRECEDENT WHICH WOULD INDICATE A MISTAKE OF LAW.

MR. HENDERSON CLAIMS THAT OUR DECISION "RESTS ON A FALSE PREMISE THAT I WAS 'ASSIGNED' TO WASHINGTON, AND/OR THAT I 'ENTERED ON DUTY' THERE, IF EVEN FOR A SHORT PERIOD. *** I NEVER WAS GIVEN AN ASSIGNMENT IN WASHINGTON, NOR DID I PERFORM ANY DUTY DURING THE PERIOD IN QUESTION (90 DAYS)." WHETHER MR. HENDERSON RECEIVED AN "ASSIGNMENT" WHILE STATIONED IN WASHINGTON OR PERFORMED ANY OFFICIAL DUTIES OR FUNCTIONS IS NOT DETERMINATIVE OF THE QUESTION AT ISSUE.

THE OPERATIVE FACT FROM WHICH THE DISALLOWANCE MUST RESULT IS THAT DURING THE PERIOD IN QUESTION MR. HENDERSON WAS ASSIGNED TO WASHINGTON REGARDLESS OF THE FACT THAT HE MAY NOT HAVE BEEN REQUIRED NOR EXPECTED TO PERFORM ANY FUNCTIONS WHILE SO ASSIGNED. FOR REASONS NOT IN DISPUTE, THE EXPENSES INCURRED COULD NOT QUALIFY FOR PAYMENT UNDER THE HOME SERVICE TRANSFER ALLOWANCE.

ALTHOUGH MR. HENDERSON TAKES ISSUE WITH THE CATEGORIZATION OF HIS TIME SPENT IN WASHINGTON, D.C., AS BEING "ASSIGNED" THERE, HE DOES NOT SUGGEST THAT HE WAS IN FACT ASSIGNED SOMEWHERE ELSE DURING THE PERIOD IN QUESTION. FURTHER, AS POINTED OUT IN OUR EARLIER DECISION, THE CLAIMANT WAS TRANSFERRED TO WASHINGTON, D.C., PURSUANT TO RECEIPT OF OFFICIAL TRAVEL AUTHORIZATION NO. 0-63111, DATED FEBRUARY 18, 1970. THEREFORE, MR. HENDERSON WAS NOT ELIGIBLE FOR PER DIEM IN LIEU OF SUBSISTENCE AT WASHINGTON, D.C., DURING THE PERIOD IN QUESTION SINCE IT IS PAYABLE ONLY WHEN THE TRAVELER IS AWAY FROM HIS POST OF DUTY ON OFFICIAL BUSINESS.

UPON REVIEW WE FIND NO BASIS THAT WOULD WARRANT CHANGING THE CONCLUSION REACHED IN OUR DECISION OF JULY 16, 1975.