B-177292, NOV 22, 1972

B-177292, NOV 22, 1972

CIVILIAN PERSONNEL - PLACE OF RESIDENCE DECISION AFFIRMING DENIAL OF THE CLAIM OF CHARLES H. MCINTIRE, FOR ADDITIONAL REIMBURSEMENT FOR MOVEMENT AND STORAGE OF HOUSEHOLD GOODS AND OTHER MISCELLANEOUS EXPENSES INCIDENT TO HIS EMPLOYMENT WITH THE DEPARTMENT OF THE ARMY. THE FINAL DETERMINATION AS TO THE PLACE OF RESIDENCE OF AN EMPLOYEE IS FOR THE AGENCY'S DETERMINATION THROUGH THE USE OF THE GUIDELINES CONTAINED IN OMB CIRCULAR NO. A-56, SECTION 11.3, AND SUCH DETERMINATION WILL ONLY BE REVERSED IF IT IS UNREASONABLE.

TO MR. CHARLES H. MCINTIRE:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 3, 1972, WITH ENCLOSURES, WHICH WILL BE VIEWED AS CONSTITUTING AN APPEAL FROM THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION IN DENYING YOUR CLAIM FOR ADDITIONAL REIMBURSEMENT FOR MOVEMENT AND STORAGE OF HOUSEHOLD GOODS AND OTHER MISCELLANEOUS EXPENSES INCURRED INCIDENT TO YOUR EMPLOYMENT WITH THE DEPARTMENT OF THE ARMY. YOUR CLAIM IS PREDICATED ON SANTA PAULA, CALIFORNIA, BEING YOUR ACTUAL PLACE OF RESIDENCE AT TIME OF YOUR TRANSFER OVERSEAS RATHER THAN COLORADO SPRINGS, COLORADO.

AS STATED BY SETTLEMENT CERTIFICATE DATED AUGUST 4, 1972, THE RECORD SHOWS THAT YOUR PERMANENT DUTY STATION, IN MAY 1971, WAS CHANGED FROM COLORADO SPRINGS, COLORADO, WHERE YOU HAD BEEN EMPLOYED WITH THE DEPARTMENT OF THE AIR FORCE, TO WORMS, GERMANY, WHERE YOU WERE EMPLOYED WITH THE DEPARTMENT OF THE ARMY. IN PREPARATION FOR YOUR CHANGE OF STATION, YOU SIGNED A TRANSPORTATION AGREEMENT, ON APRIL 13, 1971, WHICH DESIGNATED 434 VALLEY HI CIRCLE, COLORADO SPRINGS, COLORADO, AS YOUR PLACE OF ACTUAL RESIDENCE. FORT CARSON, THE FACILITY AT WHICH YOU EXECUTED THE AGREEMENT, INDICATES THAT THE MATTER WAS DISCUSSED EXTENSIVELY WITH YOU AT THAT TIME.

THE RECORD ALSO REVEALS THAT IN SEPTEMBER 1971 YOU SUFFERED A MYOCARDIAL INFARCTION AND IN OCTOBER 1971 YOU WERE MEDICALLY AIR EVACUATED TO CALIFORNIA. FORT CARSON HAS INDICATED ITS WILLINGNESS TO CHANGE THE DESIGNATED PLACE OF ACTUAL RESIDENCE FROM COLORADO SPRINGS TO SANTA PAULA, CALIFORNIA, ON THE BASIS OF AN ALLEGED ERROR IN ITS ORIGINAL DETERMINATION. HIGHER HEADQUARTERS, HOWEVER, REJECTED THIS REQUEST AND STATED THAT THE COLORADO DESIGNATION WAS PROPER. YOU HAVE OFFERED FOR THE RECORD ITEMS OF EVIDENCE IN SUPPORT OF YOUR PLACE OF ACTUAL RESIDENCE BEING SANTA PAULA.

WE NOTE THAT BEFORE YOUR OVERSEAS ASSIGNMENT WITH THE DEPARTMENT OF THE ARMY IN WORMS, GERMANY, IN MAY 1971, YOUR EMPLOYMENT WITH THE DEPARTMENT OF THE AIR FORCE AT COLORADO SPRINGS, COLORADO, LASTED FROM JANUARY 1970 UNTIL SUCH OVERSEAS TRANSFER. PRIOR THERETO, YOUR LAST TWO ASSIGNMENTS WERE WITH THE DEPARTMENT OF THE AIR FORCE AT RICHARDS GEBAUER AIR FORCE BASE IN MISSOURI AND THE 4TH AIR FORCE AT HAMILTON AIR FORCE BASE IN CALIFORNIA. IN THIS CONNECTION WE CONSIDER IT SIGNIFICANT THAT NONE OF THE ABOVE DUTY STATIONS WERE WITHIN COMMUTING DISTANCE OF SANTA PAULA, CALIFORNIA.

5 U.S.C. 5722(A) STATES AS FOLLOWS -

"(A) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE AND SUBJECT TO SUBSECTIONS (B) AND (C) OF THIS SECTION, AN AGENCY MAY PAY FROM ITS APPROPRIATIONS -

"(1) TRAVEL EXPENSES OF A NEW APPOINTEE AND TRANSPORTATION EXPENSES OF HIS IMMEDIATE FAMILY AND HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS FROM THE PLACE OF ACTUAL RESIDENCE AT THE TIME OF APPOINTMENT TO THE PLACE OF EMPLOYMENT OUTSIDE THE CONTINENTAL UNITED STATES; AND

"(2) THESE EXPENSES ON THE RETURN OF AN EMPLOYEE FROM HIS POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE PLACE OF HIS ACTUAL RESIDENCE AT THE TIME OF ASSIGNMENT TO DUTY OUTSIDE THE UNITED STATES."

SECTION 11 OF OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. A 56, REVISED JUNE 26, 1969, WHICH WAS ISSUED PURSUANT TO THE ABOVE QUOTED STATUTORY PROVISION, STATES IN PERTINENT PART AS FOLLOWS:

"11.3 GUIDANCE IN DETERMINATION OF RESIDENCE. WHILE IT IS NOT FEASIBLE TO ESTABLISH RIGID STANDARDS FOR WHAT CONSTITUTES A PLACE OF RESIDENCE, THE CONCEPT OF RESIDENCE REPRESENTED IN AN EXISTING STATUTORY PROVISION, (8 U.S.C. 1101(33)), MAY BE USED AS GENERAL GUIDANCE. THIS CONCEPT VIEWS RESIDENCE AS THE PLACE OF GENERAL ABODE, MEANING THE 'PRINCIPAL, ACTUAL DWELLING PLACE IN FACT, WITHOUT REGARD TO INTENT.' DETERMINATION OF THE PLACE OF ACTUAL RESIDENCE IS PRIMARILY AN ADMINISTRATIVE RESPONSIBILITY AND THE PLACE CONSTITUTING THE ACTUAL RESIDENCE MUST BE DETERMINED UPON THE FACTUAL CIRCUMSTANCES IN EACH CASE. EXAMPLES OF FACTORS WHICH SHOULD BE CONSIDERED, WHENEVER APPLICABLE, BY AGENCY OFFICIALS CHARGED WITH THIS RESPONSIBILITY ARE:

"C. THE PLACE AT WHICH THE EMPLOYEE PHYSICALLY RESIDED AT TIME OF SELECTION FOR APPOINTMENT OR TRANSFER FREQUENTLY CONSTITUTES THE PLACE OF ACTUAL RESIDENCE, AND MAY BE SO REGARDED IN THE ABSENCE OF CIRCUMSTANCES REASONABLY INDICATING THAT ANOTHER LOCATION IS ENTITLED TO BE DESIGNATED AS THE PLACE OF ACTUAL RESIDENCE.

"D. *** AFTER AN EMPLOYEE HAS BEEN TRANSFERRED OR APPOINTED TO A POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES, THE LOCATION OF THE PLACE OF ACTUAL RESIDENCE INCORPORATED IN THE OFFICIAL RECORDS OF SUCH EMPLOYMENT MAY BE CHANGED ONLY TO CORRECT AN ERROR IN THE DESIGNATION OF RESIDENCE."

THE RESPONSIBILITY FOR THE DETERMINATION OF AN EMPLOYEE'S ACTUAL RESIDENCE AT THE TIME OF HIS TRANSFER TO AN OVERSEAS POST IS PRIMARILY THAT OF THE AGENCY TO WHICH TRANSFERRED. ON THE BASIS OF THE PRESENT RECORD WE CANNOT SAY THAT THE FINAL DETERMINATION OF THE DEPARTMENT OF THE ARMY THAT COLORADO SPRINGS, COLORADO, WAS YOUR ACTUAL PLACE OF RESIDENCE AT THE TIME OF YOUR TRANSFER TO WORMS, GERMANY, WAS UNREASONABLE.

ACCORDINGLY, THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION DENYING YOUR CLAIM IS SUSTAINED.