B-180172, AUG 28, 1974

B-180172, AUG 28, 1974

A DEPARTMENT OF THE ARMY CIVILIAN EMPLOYEE WAS ISSUED PERMANENT CHANGE OF STATION ORDERS TO FORT MACARTHUR, CALIFORNIA, AS A RESULT OF THE CLOSING OF THE STATION AT VAN NUYS. CLOSING OF THE STATION AT VAN NUYS, CALIFORNIA. AFTER CONTRACTING TO SELL HIS HOUSE PRIOR TO MOVING TO FORT MACARTHUR, HE ACCEPTED EMPLOYMENT WITH THE FAA IN LOUISIANA ON CONDITION THAT HE PAY HIS OWN MOVING EXPENSES. SETTLEMENT DISALLOWING CLAIM FOR HOUSE SALE EXPENSES IS SUSTAINED, SINCE EMPLOYEE UNDERSTOOD THAT, UNLIKE MOVE TO FORT MACARTHUR, MOVE TO LOUISIANA WAS AT HIS REQUEST AND NOT IN THE INTEREST OF GOVERNMENT. HOUSE SALE EXPENSES WOULD NOT BE ALLOWABLE IN ANY CASE, SINCE EMPLOYEE DID NOT GO TO SETTLEMENT WITHIN ONE YEAR PERIOD NOR OBTAIN AN EXTENSION OF SETTLEMENT PERIOD.

ROBERT B. BARABIN - RECONSIDERATION OF SETTLEMENT DISALLOWING HOUSE SALE EXPENSES:

THIS ACTION IS IN RESPONSE TO A REQUEST FOR RECONSIDERATION OF SETTLEMENT OF JULY 31, 1972, BY THE TRANSPORTATION AND CLAIMS DIVISION OF OUR OFFICE, WHICH DISALLOWED THE CLAIM OF MR. ROBERT B. BARABIN, FORMERLY AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY AND NOW EMPLOYED BY THE FEDERAL AVIATION ADMINISTRATION (FAA), FOR CERTAIN RELOCATION EXPENSES HE INCURRED IN CONNECTION WITH HIS TRANSFER TO FORT MACARTHUR, CALIFORNIA AS A RESULT OF THE CLOSING OF HIS OLD OFFICIAL STATION AT VAN NUYS, CALIFORNIA. THE SETTLEMENT ALSO SUSTAINED THE CLAIM OF THE UNITED STATES AGAINST MR. BARABIN FOR A TRAVEL ADVANCEMENT IN THE AMOUNT OF $775.

THE RECORD INDICATES THAT PERMANENT CHANGE OF STATION TRAVEL ORDER NO. FMA LO#4-55 WAS ISSUED APRIL 19, 1971, BY THE DEPARTMENT OF THE ARMY, TO MR. BARABIN, REASSIGNING HIM FROM THE VAN NUYS GUIDED MISSILE SHOP, VAN NUYS, CALIFORNIA, TO THE FORT MACARTHUR MISSILE SHOP AT FORT MACARTHUR, CALIFORNIA. THE TRAVEL ORDER AUTHORIZED REIMBURSEMENT OF REAL ESTATE EXPENSES INCIDENT TO THE PROPOSED TRANSFER. MR. BARABIN OBTAINED A TRAVEL ADVANCEMENT OF $775. AT THE SAME TIME HE APPLIED FOR A POSITION LOCATED IN LOUISIANA WITH THE FAA. IN MID-MAY HE ACCEPTED THIS FAA POSITION AND REPORTED FOR DUTY IN LOUISIANA INSTEAD OF COMPLETING HIS MOVE TO FORT MACARTHUR, CALIFORNIA. INASMUCH AS THE EMPLOYEE DID NOT COMPLY HIS PERMANENT CHANGE OF STATION TRAVEL ORDER, THE DEPARTMENT OF THE ARMY BEGAN ACTION TO RECOUP THE $775 TRAVEL ADVANCEMENT BY HOLDING TWO PAYROLL CHECKS DUE MR. BARABIN IN THE AMOUNTS OF $330.28 AND $321.55 PENDING FINAL SETTLEMENT OF THE ADVANCE PAYMENT.

MR. BARABIN HAS PROTESTED THIS ACTION AND CLAIMS THAT HE IS ENTITLED TO REIMBURSEMENT OF EXPENSES INCURRED INCIDENT TO THE SALE OF HIS HOUSE AT THE OLF OFFICIAL STATION SINCE HE HAD NEGOTIATED A HOUSE SALE CONTRACT ON APRIL 19, 1971, INCIDENT TO HIS RELOCATION TO FORT MACARTHUR, CALIFORNIA, AND BEFORE HE HAD ACCEPTED THE FAA POSITION. THE EMPLOYEE MAINTAINS THAT THE REASON HE DID NOT GO TO SETTLEMENT WAS BECAUSE HE WAS UNABLE TO DETERMINE FROM OFFICIALS AT FORT MACARTHUR, DESPITE NUMEROUS INQUIRIES FOR OVER A PERIOD OF A YEAR, WHETHER HIS ORDERS ENTITLED HIM TO REIMBURSEMENT OF HOUSE SALE EXPENSES. MR. BARABIN STATES THAT THIS FACT WAS IMPORTANT BECAUSE THE APPRAISED VALUE OF THE HOUSE WAS REDUCED AS A RESULT OF INTERVENING EARTHQUAKE DAMAGE WHICH WOULD HAVE REQUIRED HIM TO SUSTAIN A LOSS ON THE SALE UNLESS IT COULD BE RECOUPED THROUGH HOUSE SALE EXPENSES.

ELIGIBILITY FOR CHANGE OF STATION TRAVEL EXPENSES IS GOVERNED BY THE PROVISIONS OF PARAGRAPH C 4100, VOLUME 2, DEPARTMENT OF DEFENSE JOINT TRAVEL REGULATIONS (JTR), IN EFFECT AT THE TIME MR. BARABIN'S ORDERS WERE ISSUED, WHICH PROVIDES:

"C 4100 ELIGIBILITY FOR PERMANENT CHANGE-OF-STATION TRAVEL

"1. GENERAL. TRAVEL AND TRANSPORTATION EXPENSES MAY BE ALLOWED ANY EMPLOYEE WHEN IT IS IN THE INTEREST OF THE GOVERNMENT TO FILL A POSITION BY MOVEMENT OF A CURRENT EMPLOYEE FROM ONE DUTY STATION TO ANOTHER WITHIN OR OUTSIDE THE CONTINENTAL UNITED STATES (SEE SUBPAR. 2). THIS AUTHORITY EXTENDS TO MOVEMENT FROM ONE FEDERAL GOVERNMENT DEPARTMENT OR AGENCY TO ANOTHER. WITH THE EXCEPTION OF A FORMER EMPLOYEE SEPARATED BY REASON OF REDUCTION IN FORCE OR TRANSFER OF FUNCTION WHO IS REEMPLOYED, THERE MUST BE NO BREAK IN CONTINUITY OF GOVERNMENT SERVICE IN EFFECTING A PERMANENT CHANGE OF STATION. A PERMANENT CHANGE-OF-STATION MOVEMENT WILL NOT BE AUTHORIZED AT GOVERNMENT EXPENSE WHEN IT IS PRIMARILY FOR THE BENEFIT OF THE EMPLOYEE OR AT HIS REQUEST. IF THE MOVEMENT IS DETERMINED NOT TO BE IN THE INTEREST OF THE GOVERNMENT THE EMPLOYEE WILL BE INFORMED PRIOR TO THE MOVEMENT AS TO HIS RESPONSIBILITY FOR PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES."

THE MOVEMENT OF MR. BARABIN TO FORT MACARTHUR WAS IN THE INTEREST OF THE GOVERNMENT, AND HAD HE COMPLIED FULLY WITH THESE TRAVEL ORDERS, HE WOULD HAVE BEEN ENTITLED TO TRAVEL AND TRANSPORTATION EXPENSES INCIDENT TO THE MOVE. HOWEVER, HE DECIDED NOT TO COMPLY WITH THESE ORDERS AND ELECTED INSTEAD TO ACCEPT ANOTHER POSITION WHICH HE CONCEDES WAS FOR HIS OWN BENEFIT. IN THIS CONNECTION, HE STATED IN AN UNDATED LETTER TO THIS OFFICE, RECEIVED JANUARY 27, 1972, AS FOLLOWS:

"*** I DON'T WANT TO INVOLVE MY PARENT AGENCY (FAA) IN ANY WAY BECAUSE I ASKED FOR THIS JOB AND UNDERSTOOD THAT I WAS TO PAY MY OWN MOVING EXPENSE, MY AGREEING WAS BASED ON FUNDS THAT I FELT I WAS ENTITLED TO THAT WOULD OFF SET THE OVERALL COSTS, MY MOVE WAS CONSIDERED IN MY INTEREST. THIS I CANNOT DENY ANY JOB THAT I GET THAT REPRESENTS AN INCREASE IN PAY AND BERRER SECURITY MUST BE IN MY INTEREST."

IT IS APPARENT FROM THE ABOVE QUOTED STATEMENT THAT HE HAD A FULL UNDERSTANDING THAT TRAVEL AND TRANSPORTATION EXPENSES TO THE LOCATION OF HIS NEW POSITION WITH THE FAA WAS HIS OWN RESPONSIBILITY. HENCE HE WOULD NOT BE ENTITLED TO TRAVEL AND TRANSPORTATION EXPENSES UNDER A TRAVEL ORDER THAT DIRECTED TRAVEL THAT HE DID NOT PERFORM.

IT IS TO BE NOTED THAT EVEN IF MR. BARABIN'S TRAVEL HAD BEEN IN THE INTEREST OF THE GOVERNMENT, AND A TRAVEL ORDER HAD BEEN ISSUED AUTHORIZING REIMBURSEMENT OF REAL ESTATE EXPENSES INCURRED INCIDENT TO THE SALE OF HIS RESIDENCE AT VAN NUYS DUE TO HIS TRANSFER TO LOUISIANA SUCH EXPENSES WOULD NOT BE ALLOWABLE. THE CONDITIONS GOVERNING REIMBURSEMENT OF HOUSE SALE EXPENSES ARE SET FORTH IN PARAGRAPH C 8350 ET. SEQ., VOLUME 2, JTR, EFFECTIVE AT THE TIME OF MR. BARABIN'S TRANSFER TO FAA AND PROVIDED IN PERTINENT PART:

"AN EMPLOYEE WILL BE ENTITLED TO REIMBURSEMENT FOR EXPENSES REQUIRED TO BE PAID BY HIM IN CONNECTION WITH THE SALE OF HIS RESIDENCE AT HIS OLD DUTY STATION *** AFTER HE HAS SIGNED THE REQUIRED TRANSPORTATION AGREEMENT AND PROVIDED THAT:

"4. THE SETTLEMENT DATES FOR THE SALE *** FOR WHICH REIMBURSEMENT IS REQUESTED, ARE NOT LATER THAN 1 (INITIAL) YEAR AFTER THE DATE ON WHICH THE EMPLOYEE REPORTED FOR DUTY AT THE NEW DUTY STATION, EXCEPT THAT AN APPROPRIATE EXTENSION OF TIME MAY BE AUTHORIZED BY THE COMMANDING OFFICER OF THE ACTIVITY BEARING THE COST, OR HIS DESIGNEE, WHEN SETTLEMENT IS NECESSARILY DELAYED BECAUSE OF LITIGATION; OR THAT AN ADDITIONAL PERIOD OF TIME NOT IN EXCESS OF 1 YEAR MAY BE AUTHORIZED OR APPROVED BY THE COMMANDING OFFICER OF THE ACTIVITY BEARING THE COST, OR HIS DESIGNEE WHEN IT IS DETERMINED THAT CIRCUMSTANCES JUSTIFYING THE EXCEPTION EXIST WHICH PRECLUDED SETTLEMENT WITHIN THE INITIAL 1-YEAR PERIOD OF THE SALE/PURCHASE CONTRACTS *** ENTERED INTO IN GOOD FAITH BY THE EMPLOYEE WITHIN THE INITIAL 1-YEAR PERIOD (THE CIRCUMSTANCES ON WHICH THE DETERMINATION IS MADE TO JUSTIFY THE EXCEPTION WILL BE SET FORTH IN WRITING) ***."

IN ACCORDANCE WITH THE PROVISIONS OF THE ABOVE QUOTED REGULATION, THE EMPLOYEE WAS REQUIRED TO EITHER GO TO SETTLEMENT WITHIN ONE YEAR AFTER HIS REPORTING DATE TO HIS NEW OFFICIAL STATION OR OBTAIN AN EXTENSION FROM THE COMMANDING OFFICER OF THE ACTIVITY BEARING THE COST OF HIS MOVEMENT. THE GRANTING OF AN EXTENSION OF THE SETTLEMENT PERIOD WAS DISCRETIONARY WITH THE COMMANDING OFFICER AND, SINCE THE DISCRETION WAS NOT EXERCISED, NO EXTENSION WAS AUTHORIZED. INASMUCH AS SETTLEMENT WAS NOT ACCOMPLISHED WITHIN THE INITIAL YEAR PERIOD, AND NO EXTENSION WAS AUTHORIZED, MR. BARABIN WOULD NOT UNDER ANY CONDITION BE ENTITLED TO REIMBURSEMENT FOR HOUSE SALE EXPENSES. B-178522, JUNE 21, 1973. ACCORDINGLY, THE SETTLEMENT CERTIFICATE OF JULY 31, 1972, ISSUED BY OUR TRANSPORTATION AND CLAIMS DIVISION IS HEREBY SUSTAINED AND MR. BARABIN SHOULD REMIT THE UNLIQUIDATED BALANCE OF $123.17 (REPRESENTING THE BALANCE OF THE $774 TRAVEL ADVANCEMENT AFTER PAYROLL CHECKS IN THE AMOUNT OF $651.83 ARE DEDUCTED) TO THE UNITED STATES GOVERNMENT THROUGH THE FEDERAL AVIATION AGENCY WITHOUT DELAY.