B-164084, MAY 29, 1968

B-164084, MAY 29, 1968

TO MR MAURICE F. ROW:

WE REFER TO YOUR LETTERS OF APRIL 18 AND MAY 9, 1968, IN WHICH YOU REQUEST OUR DECISION CONCERNING THE POSSIBLE INDEBTEDNESS OF MR. MERWIN E. MELLOR TO THE UNITED STATES ARISING FROM THE PAYMENT TO HIM OF RELOCATION ALLOWANCES AS AN EMPLOYEE OF THE BUREAU OF INVESTIGATION INCIDENT TO THE TRANSFER OF HIS OFFICIAL STATION FROM SAN JUAN, PUERTO RICO, TO NEWARK, NEW JERSEY, EFFECTIVE AUGUST 9, 1967. WE NOTE THAT YOU ARE WITHHOLDING PAYMENT OF AMOUNTS OTHERWISE DUE MR. MELLOR PENDING RECEIPT OF OUR DECISION.

THE RECORD REFLECTS THAT MR. MELLOR WAS ASSIGNED TO SAN JUAN, PUERTO RICO, FROM JULY 1965 UNTIL THE EFFECTIVE DATE OF HIS TRANSFER TO NEWARK. UPON COMPLETION OF HIS TOUR IN SAN JUAN -- SERVED UNDER A TRANSPORTATION AGREEMENT TO REMAIN THERE TWO YEARS -- MR. MELLOR AT HIS ELECTION BECAME ENTITLED TO RETURN TRANSPORTATION FOR HIMSELF, HIS FAMILY AND HIS HOUSEHOLD GOODS AT GOVERNMENT EXPENSE INCIDENT TO SEPARATION TO A PLACE IN THE CONTINENTAL UNITED STATES NOT EXCEEDING THE COST OF SUCH TRANSPORTATION TO MADISON, WISCONSIN, HIS DESIGNATED PLACE OF ACTUAL RESIDENCE IN THE CONTINENTAL UNITED STATES.

MR. MELLOR, IN LIEU OF SEPARATION, ACCEPTED A TENDERED TRANSFER OF OFFICIAL STATION TO NEWARK, NEW JERSEY, AND WAS ALLOWED TRANSPORTATION AT GOVERNMENT EXPENSE IN THE AMOUNT OF $2,274.16 FOR HIMSELF, HIS FAMILY AND HOUSEHOLD GOODS FROM SAN JUAN TO NEWARK. IN ADDITION, SINCE MR. MELLOR SIGNED AN AGREEMENT TO SERVE WITH THE BUREAU FOR ONE YEAR FOLLOWING THE EFFECTIVE DATE OF HIS TRANSFER TO NEWARK, HE WAS PAID A TEMPORARY QUARTERS ALLOWANCE OF $1,780.64, MISCELLANEOUS EXPENSES OF $200 IN CONNECTION WITH ESTABLISHMENT OF A PERMANENT RESIDENCE AND CERTAIN REAL ESTATE EXPENSES INCURRED IN THE PURCHASE OF A DWELLING AT NEWARK IN THE AMOUNT OF $660. THE ADDITIONAL ALLOWANCES GRANTED MR. MELLOR IN CONSIDERATION OF HIS AGREEMENT TO SERVE ONE YEAR AGGREGATED $2,640.64. 8 MR. MELLOR RESIGNED FROM THE BUREAU OF INVESTIGATION ON MARCH 27, 1968, IN CONTRAVENTION OF HIS AGREEMENT TO SERVE ONE YEAR. THE BUREAU HAS DETERMINED THAT THE REASON SUBMITTED BY MR. MELLOR FOR HIS RESIGNATION IS NOT ACCEPTABLE TO THE BUREAU AS BEING BEYOND HIS CONTROL. THUS, IT IS THE BUREAU'S VIEW THAT THE EMPLOYEE IS INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $2,640.64, REPRESENTING THE COST OF THE ADDITIONAL ALLOWANCES.

YOUR LETTER, HOWEVER, RAISES THE QUESTION OF WHETHER MR. MELLOR IS ENTITLED TO AN OFFSET AGAINST THE INDEBTEDNESS OF THE DIFFERENCE BETWEEN THE ACTUAL COST OF THE TRAVEL AND TRANSPORTATION FURNISHED INCIDENT TO HIS TRANSFER TO NEWARK AND THE EXPENSE WHICH WOULD HAVE BEEN INCURRED BY THE GOVERNMENT HAD HE BEEN FURNISHED TRANSPORTATION TO HIS PLACE OF ACTUAL RESIDENCE IN MADISON, WISCONSIN. THE DIFFERENCE IS SAID TO AMOUNT TO $1,410.93 AND IF AUTHORIZED AS A SETOFF WOULD REDUCE THE INDEBTEDNESS TO $1,229.71.

WHEN AN EMPLOYEE IS RETURNED TO THE CONTINENTAL UNITED STATES FOR SEPARATION HE IS ENTITLED TO RECEIVE AND IS ALLOWED THE EXPENSE OF TRAVEL AND TRANSPORTATION FOR HIMSELF, HIS FAMILY AND HOUSEHOLD GOODS EITHER TO HIS PLACE OF ACTUAL RESIDENCE IN THE UNITED STATES OR AT HIS ELECTION THE ACTUAL COSTS OF TRAVEL AND TRANSPORTATION TO SOME ALTERNATE POINT, THE COST OF WHICH DOES NOT EXCEED THAT TO HIS PLACE OF ACTUAL RESIDENCE. EITHER EVENT THE GOVERNMENT'S OBLIGATION INCIDENT TO THE SEPARATION IS FULLY SATISIFIED AND DISCHARGED WHEN IT ALLOWS AND PAYS THE EMPLOYEE SUCH BENEFITS.

IF THE EMPLOYEE PRIOR TO DEPARTURE FROM HIS OVERSEAS DUTY STATION ACCEPTS A TRANSFER OF OFFICIAL STATION FROM A POINT OUTSIDE THE CONTINENTAL UNITED STATES TO ONE WITHIN THE CONTINENTAL UNITED STATES, HE IS ENTITLED TO THE TRAVEL AND TRANSPORTATION EXPENSES TO HIS NEW OFFICIAL STATION REGARDLESS OF THE LOCALITY OF THE PLACE OF ACTUAL RESIDENCE. WE HAVE RULED THAT IN SUCH CASES THE ACCEPTANCE AND CONSUMMATION OF A TRANSFER OF OFFICIAL STATION EXTINGUISHES PREEXISTING RIGHTS TO TRANSPORTATION TO AN EMPLOYEE'S PLACE OF ACTUAL RESIDENCE. SEE B-163997, MAY 10, 1968, AND B-139298, APRIL 30, 1959, COPIES HEREWITH. THUS, THE AMOUNT OF $1,410.93 REPRESENTING THE VALUE OF THE ADDITIONAL TRANSPORTATION TO WHICH MR. MELLOR WOULD HAVE BEEN ENTITLED HAD HE ELECTED TO BE SEPARATED FROM THE SERVICE AT MADISON, WISCONSIN, RATHER THAN TRANSFER TO NEWARK, IS NOT AVAILABLE FOR SETOFF TO REDUCE ANY INDEBTEDNESS THAT MAY HAVE ARISEN BY VIRTUE OF THE AGREEMENT EXECUTED BY HIM INCIDENT TO HIS TRANSFER.

IN OUR DECISION 47 COMP. GEN. 122 WE RULED THAT IN THE ABSENCE OF AN EXPRESS REQUIREMENT IN THE APPLICABLE STATUTES OR IN THE STATUTORY REGULATIONS (CIRCULAR NO. A-56) THAT A TRANSPORTATION AGREEMENT BE EXECUTED BY EMPLOYEES WHO ARE TRANSFERRED FROM STATIONS OUTSIDE THE CONTINENTAL UNITED STATES TO STATIONS WITHIN THE CONTINENTAL UNITED STATES, SUCH EMPLOUEES ARE ENTITLED TO BE PAID TRAVEL AND TRANSPORTATION BENEFITS IN ACCORDANCE WITH CIRCULAR NO. A-56 EVEN THOUGH NO TRANSPORTATION AGREEMENT IS SIGNED.

IN THAT DECISION, HOWEVER, WE EXPRESSED THE OPINION THAT AN AGENCY OF THE GOVERNMENT HAS AUTHORITY TO REFUSE TO AUTHORIZE OR APPROVE PAYMENT OF ANY EXPENSE INVOLVED IN THE TRAVEL OR TRANSPORTATION OF AN EMPLOYEE IN CONNECTION WITH A CHANGE OF AN OFFICIAL STATION FROM AN OVERSEAS POST TO ONE IN THE CONTINENTAL UNITED STATES UNLESS AND UNTIL THE EMPLOYEE CONCERNED EXECUTES AN AGREEMENT TO REMAIN IN THE GOVERNMENT SERVICE OR IN THE SERVICE OF THE PARTICULAR AGENCY FOR A SPECIFIED PERIOD OF TIME.

THE RULES AND REGULATIONS OF THE BUREAU OF INVESTIGATION, A PRINTED MANUAL, PROVIDES IN PART AS FOLLOWS:

"B. WRITTEN AGREEMENT

"NO ALLOWANCE SHALL BE PAID TO OR ON BEHALF OF AN EMPLOYEE OR HIS FAMILY IN CONNECTION WITH A TRANSFER UNTIL THE EMPLOYEE SIGNS A WRITTEN AGREEMENT, 3-34B, TO REMAIN WITH THE GOVERNMENT FOR ONE YEAR FOLLOWING THE EFFECTIVE DATE OF THE TRANSFER. THE EFFECTIVE DATE OF A TRANSFER IS THE DATE THE EMPLOYEE REPORTS FOR DUTY AT THE NEW OFFICIAL STATION. AGREEMENT IS VIOLATED FOR PERSONAL REASONS WITHIN THE CONTROL OF THE EMPLOYEE, ALL EXPENSES PAID TO HIM OR ON HIS BEHALF ARE TO BE REFUNDED TO THE GOVERNMENT.' IT IS UNDERSTOOD THAT TRANSPORTATION AGREEMENTS EXECUTED BY MR. MELLOR AND OTHER EMPLOYEES OF THE BUREAU SPECIFICALLY PROVIDE THAT THEY WILL REMAIN IN THE SERVICE OF THE BUREAU OF INVESTIGATION.

WHILE THE TRAVEL AND TRANSPORTATION EXPENSES ALLOWED MR. MELLOR FOR TRANSPORTATION BETWEEN SAN JUAN AND NEWARK MAY BE REGARDED AS ALLOWANCES TO WHICH HE WAS ENTITLED AS AN INCIDENT TO HIS RETURN TO A POINT IN THE CONTINENTAL UNITED STATES SELECTED BY HIM UPON COMPLETION OF HIS AGREED TOUR AT THE OVERSEAS POST, THE ADDITIONAL ALLOWANCES PAID IN CONSIDERATION OF HIS ACCEPTANCE OF THE TENDERED TRANSFER AND HIS AGREEMENT TO REMAIN IN THE EMPLOYMENT OF THE BUREAU FOR ONE YEAR ARE SUBJECT TO THE TERMS OF THE AGREEMENT.

YOUR LETTER OF MAY 23, 1968, ENCLOSED A COPY OF MR. MELLOR'S LETTER OF MAY 17, 1968, TO THE BUREAU IN WHICH HE REQUESTS OUR CONSIDERATION OF THE STATED REASON FOR HIS RESIGNATION. HE POINTS OUT THAT HIS RESIGNATION "WAS BASED ON THE HEALTH OF MY DAUGHTER WHICH HAD TO BE MY MOST IMPORTANT CONSIDERATION.'

THE BUREAU'S REGULATION CONCERNING TRANSPORTATION OR RELOCATION ALLOWANCE AGREEMENTS AND STATUTORY PROVISIONS OF SIMILAR IMPORT CONTEMPLATE EXCEPTIONS TO THE TERMS OF THE AGREEMENT WHEN AN EMPLOYEE IS SEPARATED FOR REASONS BEYOND HIS CONTROL THAT ARE ACCEPTABLE TO THE AGENCY CONCERNED. THUS, THE RESPONSIBILITY FOR THE DETERMINATION OF THE SUFFICIENCY OF THE REASON IN MR. MELLOR'S CASE IS THAT OF THE BUREAU. THAT DETERMINATION WOULD BE REVIEWABLE BY THE COURTS OR BY OUR OFFICE ONLY IF THE FACTS SUPPORTED A CONCLUSION THAT THE ADMINISTRATIVE DETERMINATION WAS ARBITRARY OR CAPRICIOUS.

ON THE FACTS PRESENTED WE MUST ACCEPT THE BUREAU'S DETERMINATION. ACCORDINGLY, WE CONCLUDE THAT HE IS INDEBTED TO THE UNITED STATES IN THE REPORTED AMOUNT OF $2,640.64.