B-165910, FEB. 10, 1969

B-165910, FEB. 10, 1969

TO MR. MATT N. MARX:

WE REFER TO YOUR LETTER OF DECEMBER 9, 1968, YOUR REFERENCE 6540, RECEIVED HERE JANUARY 6, 1969, BY WHICH YOU ASK WHETHER MR. ERNEST W. BRICKNER, A FORMER EMPLOYEE OF THE FOREST SERVICE, UNITED STATES DEPARTMENT OF AGRICULTURE, HAS PROPERLY BEEN PLACED IN DEBT FOR THE AMOUNT PAID BY THE GOVERNMENT IN CONNECTION WITH HIS TRANSFER FROM ISABELLA, MINNESOTA, TO MARIENVILLE, PENNSYLVANIA, IN VIEW OF THE FACT THAT HE FAILED TO FULFILL HIS AGREEMENT TO SERVE 12 MONTHS WITH THE FEDERAL GOVERNMENT AFTER SUCH TRANSFER AS REQUIRED BY 5 U.S.C. 5724 (I) AND SECTION 1.3C OF BUREAU OF THE BUDGET CIRCULAR NO. A-56.

MR. BRICKNER HAS PRESENTED SOME EVIDENCE WHICH TENDS TO SHOW THAT FOR MEDICAL REASONS HIS WIFE WAS REQUIRED TO LIVE IN WISCONSIN, NOT IN PENNSYLVANIA. ADDITIONALLY, MR. BRICKNER HAS STATED THAT HIS WIFE FOUND IT NECESSARY TO LIVE NEAR HER AGING MOTHER IN WISCONSIN. YOU QUESTION WHETHER THOSE CIRCUMSTANCES MAY BE CONSIDERED AS SUFFICIENT TO SUSTAIN A DETERMINATION THAT THE EMPLOYEE'S RESIGNATION WAS BEYOND HIS CONTROL SO AS TO PERMIT YOUR DEPARTMENT TO RELIEVE HIM OF LIABILITY UNDER HIS AGREEMENT TO SERVE 12 MONTHS.

WE CONSIDER THE MATTER OF WHETHER AN EMPLOYEE HAS SEPARATED FOR REASONS BEYOND HIS CONTROL TO BE ONE PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY CONCERNED AND WE WOULD QUESTION AN AGENCY'SDETERMINATION IN THAT REGARD ONLY IF NO REASONABLE BASIS EXISTS THEREFOR.

IN VIEW OF THE EVIDENCE CONTAINED IN THE RECORD REFERRED TO ABOVE WE WOULD NOT OBJECT IN THE EVENT YOUR DEPARTMENT SHOULD NOW DETERMINE THAT MR. BRICKNER WAS SEPARATED FOR REASONS BEYOND HIS CONTROL WHICH ARE ACCEPTABLE TO THE DEPARTMENT.