B-172594, MAR 27, 1974

B-172594, MAR 27, 1974

TWO EMPLOYEES TRANSFERRED FROM THEIR RESPECTIVE RESIDENCES IN CALIFORNIA AND MISSISSIPPI TO SAIGON MAY NOT BE REIMBURSED FOR REAL ESTATE EXPENSES RELATED TO SALE OF THEIR RESIDENCES IN UNITED STATES OR PURCHASE OF NEW HOMES IN WASHINGTON INCIDENT TO SUBSEQUENT TRANSFERS FROM SAIGON TO THEIR RESPECTIVE RESIDENCES IN UNITED STATES FOLLOWED SHORTLY THEREAFTER BY TRANSFERS TO WASHINGTON SINCE AN EMPLOYEE MAY NOT BE TRANSFERRED TO PLACE WHERE HE IS NOT EXPECTED TO REMAIN FOR AN EXTENDED TIME IN ORDER TO INCREASE HIS RELOCATION ALLOWANCES.

TO DEPARTMENT OF DEFENSE:

THE DEPARTMENT OF DEFENSE SEEKS A DECISION AS TO WHETHER TWO EMPLOYEES TRANSFERRED FROM THEIR RESPECTIVE RESIDENCES IN CALIFORNIA AND MISSISSIPPI TO SAIGON, REPUBLIC OF SOUTH VIETNAM, MAY BE REIMBURSED FOR THE REAL ESTATE EXPENSES AUTHORIZED BY PART H OF CHAPTER 8, VOLUME 2, JOINT TRAVEL REGULATIONS (JTR), IN CONNECTION WITH THE SALE OF SUCH RESIDENCES AND THE PURCHASE OF NEW HOMES IN WASHINGTON, D.C., IF AT THE COMPLETION OF THEIR DUTIES IN SAIGON THE EMPLOYEES ARE TRANSFERRED FROM SAIGON TO THEIR RESPECTIVE RESIDENCES IN THE UNITED STATES AND SHORTLY THEREAFTER TRANSFERRED TO WASHINGTON.

IT APPEARS THAT TWO EMPLOYEES OF THE ARMY AUDIT AGENCY WERE TRANSFERRED ON PERMANENT CHANGE OF STATION ORDERS FROM THEIR RESPECTIVE RESIDENCES IN CALIFORNIA AND MISSISSIPPI TO SAIGON. IN SAIGON THEY WERE DETAILED TO THE OFFICE OF DEFENSE ATTACHE WITH REEMPLOYMENT RIGHTS WITH THE ARMY AUDIT AGENCY UPON COMPLETION OF THEIR DUTIES IN THE REPUBLIC OF VIETNAM.

BOTH EMPLOYEES HAVE BEEN OFFERED PERMANENT POSITIONS IN WASHINGTON WHICH WILL BE EFFECTIVE UPON THE COMPLETION OF THEIR DUTIES IN THE REPUBLIC OF VIETNAM. BOTH EMPLOYEES HAVE INDICATED THAT THEY WOULD ACCEPT THE POSITIONS IN WASHINGTON IF THEY WILL BE REIMBURSED FOR THE REAL ESTATE EXPENSES THEY WOULD INCUR IN SELLING THEIR RESIDENCES IN THE UNITED STATES AND IN PURCHASING NEW HOMES IN WASHINGTON. IN THIS REGARD THE LETTER FROM THE DEPARTMENT OF DEFENSE NOTES THAT PARAGRAPHS C8350-C8353 OF VOLUME 2, JTR, INDICATE THAT REIMBURSEMENT OF SUCH REAL ESTATE EXPENSES IS NOT AUTHORIZED IF THE EMPLOYEES ARE TRANSFERRED DIRECTLY FROM SAIGON TO WASHINGTON. ACCORDINGLY, A DECISION HAS BEEN REQUESTED AS TO WHETHER REIMBURSEMENT OF THE REAL ESTATE EXPENSES IN QUESTION WOULD BE PROPER IF THE EMPLOYEES ARE TRANSFERRED FROM SAIGON TO THEIR RESPECTIVE PLACES OF RESIDENCE IN THE UNITED STATES AND SHORTLY THEREAFTER TRANSFERRED TO WASHINGTON.

SUBSECTION 5724AA)(4) OF TITLE 5, U.S.C. PROVIDES THAT AN EMPLOYEE TRANSFERRED IN THE INTEREST OF THE GOVERNMENT FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY MAY BE REIMBURSED THE EXPENSES OF THE SALE OF HIS RESIDENCE AT THE OLD STATION AND THE PURCHASE OF A HOME AT THE NEW OFFICIAL STATION WHEN THE OLD AND NEW OFFICIAL STATIONS ARE LOCATED WITHIN THE UNITED STATES. SEE ALSO SECTION 2-6.1A OF FEDERAL PROPERTY MANAGEMENT REGULATIONS (FPMR) 101-7 AND PARAGRAPHS C8350-1, ITEM 1, AND C8351, ITEM 2, OF VOLUME 2, JTR.

IN THE PRESENT CASE THE EMPLOYEES COULD NOT PROPERLY BE REIMBURSED FOR THE REAL ESTATE EXPENSES THEY WOULD INCUR IN CONNECTION WITH THE SALE OF THEIR RESIDENCE IN THE UNITED STATES OR THE PURCHASE OF A HOME IN WASHINGTON INCIDENT TO A TRANSFER DIRECTLY FROM SAIGON TO WASHINGTON SINCE THEIR OLD OFFICIAL STATION, SAIGON, IS NOT LOCATED WITHIN THE UNITED STATES AS REQUIRED BY 5 U.S.C. 5724AA)(4). 47 COMP. GEN. 93 (1967). MOREOVER, REIMBURSEMENT FOR THE REAL ESTATE EXPENSES THEY WOULD INCUR IN CONNECTION WITH THE SALE OF THEIR RESIDENCES IN THE UNITED STATES WOULD NOT BE PROPER BECAUSE AT THE TIME OF SUCH TRANSFER THEIR RESIDENCES WOULD NOT BE LOCATED AT THEIR OLD DUTY STATION, SAIGON. SECTION 2-6.1 OF FPMR 101-7 AND PARAGRAPH C8350-1, ITEM 1, VOLUME 2, JTR.

IT HAS ALSO BEEN HELD THAT AN EMPLOYEE MAY NOT PROPERLY BE TRANSFERRED TO A PLACE AT WHICH HE IS NOT EXPECTED TO REMAIN FOR AN EXTENDED PERIOD OF TIME FOR THE PURPOSE OF INCREASING HIS ENTITLEMENT TO TRAVEL, TRANSPORTATION AND TRANSFER ALLOWANCES. B-166181, APRIL 1, 1969. THERE IS NO INDICATION IN THE PRESENT RECORD THAT TRANSFERRING THE EMPLOYEES FROM SAIGON TO THEIR RESPECTIVE RESIDENCES IN THE UNITED STATES AND SHORTLY THEREAFTER TO WASHINGTON WOULD BE FOR ANY OFFICIAL PURPOSE OF THE ARMY AUDIT AGENCY. THUS, THE SUCCESSIVE TRANSFERS MAY NOT BE REGARDED AS BEING IN THE INTEREST OF THE GOVERNMENT AS DISTINGUISHED FROM THE PERSONAL INTERESTS OF THE EMPLOYEES IN OBTAINING REIMBURSEMENT FOR THE SALE OF THEIR RESIDENCES. ACCORDINGLY, ON THE FACTS PRESENTED SUCH SUCCESSIVE TRANSFERS MUST BE REGARDED AS A MEANS OF CIRCUMVENTING THE EXPRESS PROVISIONS OF 5 U.S.C. 5724AA)(4) TO OBTAIN BENEFITS FOR THE EMPLOYEES NOT OTHERWISE AUTHORIZED BY LAW.

IN VIEW OF THE ABOVE THE TWO EMPLOYEES MAY NOT BE REIMBURSED FOR THE REAL ESTATE EXPENSES IN QUESTION UNDER 5 U.S.C. 5724AA)(4) IF THEY ARE TRANSFERRED FROM SAIGON TO THEIR RESPECTIVE PLACES OF RESIDENCE IN THE UNITED STATES AND SHORTLY THEREAFTER TRANSFERRED TO WASHINGTON.