B-180406, JUL 10, 1974

B-180406, JUL 10, 1974

ALTHOUGH EMPLOYEE WAS RELEASED FROM OBLIGATION OF 12 MONTHS GOVERNMENT SERVICE UNDER TRANSPORTATION AGREEMENT SO THAT HE MIGHT RETIRE EARLY HE MAY BE REIMBURSED REAL ESTATE EXPENSES CONNECTED WITH SALE OF RESIDENCE AT OLD STATION WHERE CONTRACT FOR SALE WAS E?ECUTED AFTER EMPLOYEE HAD REQUESTED RELEASE BUT PRIOR TO GRANTING OF RELEASE, EVEN THOUGH SETTLEMENT OCCURRED SUBSEQUENT TO BOTH RELEASE AND RETIREMENT, SINCE RELEASE FROM REQUIRED PERIOD OF SERVICE IS VIEWED AS PRESERVING RIGHTS THE EMPLOYEE HAD WHICH WERE CONTINGENT UPON FULFILLING SERVICE AGREEMENT.

TO MR. FRANK RICHEY

BY LETTER DATED JANUARY 8, 1974, THE PER DIEM, TRAVEL AND TRANSPORTATION TRANSPORTATION ALLOWANCE COMMITTEE (PDTATAC) FORWARDED THE REQUEST OF A DISBURSING OFFICER FOR AN ADVANCE DECISION AS TO THE PROPREITY OF PAYING A VOUCHER IN FAVOR OF MR. FRANK RICHEY FOR REIMBURSEMENT OF EXPENSES OF SALE OF HIS FORMER RESIDENCE IN CONNECTION WITH A PERMANENT CHANGE OF DUTY STATION. THE REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 74-4.

BY TRAVEL ORDERS DATED AUGUST 9, 1972, MR. RICHEY, THEN AN EMPLOYEE OF THE DEFENSE SUPPLY AGENCY, WAS AUTHORIZED A PERMANENT CHANGE OF STATION FROM CRYSTAL LAKE, ILLINOIS, TO INDIANAPOLIS, INDIANA. PRIOR TO THE ISSUANCE OF THE TRAVEL ORDERS HE SIGNED DD FORM 1618, "DOD TRANSPORTATION AGREEMENT-TRASFER OF CIVILIAN EMPLOYEES TO AND WITHIN CONTINENTAL UNITED STATES," AS REQUIRED BY THE PROVISIONS OF 5 U.S.C. 5724(I) AND SUBSECTION 1.5A OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED, AUGUST 17, 1971, IN EFFECT AT THE TIME OF THE TRANSFER. BY THE TERMS OF THAT AGREEMENT, MR. RICHEY AGREED TO REMAIN IN THE SERVICE OF THE GOVERNMENT FOR 12 MONTHS FOLLOWING THE EFFECTIVE DATE OF TRANSFER UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE DEFENSE SUPPLY AGENCY, OR TO REFUND AMOUNTS RECEIVED FOR TRAVEL, TRANSPORTATION AND ALLOWANCES IN CONNECTION WITH THE TRANSFER. THE EFFECTIVE DATE OF HIS TRANSFER WAS AUGUST 22, 1972.

ON JUNE 8, 1973, MR. RICHEY REQUESTED THAT THE 1-YEAR SERVICE REQUIREMENT BE WAIVED IN ORDER THAT HE MIGHT RETIRE EARLY UNDER THE AUTHORITY OF 5 U.S.C. 8336(D)(2). IN ACCORDANCE WITH THAT REQUEST HE WAS RELEASED FROM HIS OBLIGATION OF CONTINUED SERVICE UNDER THE AGREEMENT ON JUNE 19, 1973. DURING THE 11-DAY PERIOD BETWEEN HIS REQUEST TO BE RELEASED AND THE DATE HIS RELEASE WAS GRANTED, MR. RICHEY, ON JUNE 11, 1973, ENTERED INTO A REAL ESTATE SALES CONTRACT FOR THE SALE OF HIS RESIDENCE LOCATED AT HIS OLD STATION. THE SALE WAS FINALIZED ON AUGUST 16, 1973, SUBSEQUENT TO THE DATE OF HIS RETIREMENT ON JUNE 29, 1973. PRIOR TO THE RELEASE, MR. RICHEY RECEIVED PAYMENT IN THE AMOUNT OF $1,251.31 FOR A HOUSE-HUNTING TRIP, TRANSFER TRAVEL FOR HIS SPOUSE AND HIMSELF, MOVEMENT OF HOUSEHOLD GOODS AND FOR MISCELLANEOUS EXPENSES. HE HAD NOW SUBMITTED A VOUCHER FOR REIMBURSEMENT OF REAL EXPENSES ASSOCIATED WITH THE SALE OF HIS RESIDENCE. BECAUSE THE SALE OF THE EMPLOYEE'S RESIDENCE WAS CONSUMMATED AFTER THE DATE OF HIS RELEASE FROM THE TERMS OF THE SERVICE AGREEMENT AND AFTER THE DATE OF HIS RETIREMENT, THE DEFENSE SUPPLY AGENCY IS IN DOUBT AS TO WHETHER THE VOUCHER MAY PROPERLY HE PAID.

IN B-169250, MAY 4, 1970, WE CONSIDERED THE SITUATION OF AN EMPLOYEE WHO, 2 MONTHS AFTER TRANSFERRING FROM WALKER AIR FORCE BASE TO SANDIA BASE AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, WAS RELEASED FROM HER OBLIGATION UNDER THE TERMS OF THE SERVICE AGREEMENT WHICH SHE HAD EXECUTED INCIDENT TO THE TRANSFER. PRIOR TO THE RELEASE, SHE HAD BEEN REIMBURSED TRAVEL AND OTHER RELOCATION EXPENSES IN THE AMOUNT OF $132.92. SUBSEQUENT TO THE RELEASE SHE SUBMITTED A VOUCHER FOR REIMBURSEMENT OF THE $100 MISCELLANEOUS EXPENSES ALLOWANCE AS AUTHORIZED BY THEN SECTION 3.2A(1)(A) OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED, OCTOBER 12, 1966. HELD THAT THE EMPLOYEE'S RIGHT TO THE MISCELLANEOUS EXPENSES ALLOWANCE AND TO RETAIN AMOUNTS WHICH SHE HAD ALREADY RECEIVED VESTED PRIOR TO THE TIME OF HER SEPARATION FROM EMPLOYMENT WITH THE DEPARTMENT OF THE AIR FORCE AND THAT A PROPER ADMINISTRATIVE DETERMINATION TO RELEASE HER FROM REQUIRED SERVICE MUST BE VIEWED AS PRESERVING WHATEVER RIGHTS SHE HAD WHICH WERE CONTINGENT UPON FULFILLING SUCH SERVICE REQUIREMENTS. THUS, WE REGARDED THE RELEASE FROM THE REQUIRED PERIOD OF SERVICE AS OPERATING TO REMOVE ANY CONDITION UPON HER ENTITLEMENT TO REIMBURSEMENT AND TO RETAIN THE AMOUNT OF THE EXPENSES INVOLVED. COMPARE 47 COMP. GEN. 189 (1967), WHEREIN WE STATED THAT CASES SHOULD BE REFERRED TO OUR OFFICE WHEN THE EMPLOYEE HAD NOT ENTERED INTO A BINDING OBLIGATION OR AGREEMENT PRIOR TO HIS SEPARATION.

IN THE INSTANT CASE MR. RICHEY HAD RELOCATED HIS FAMILY INCIDENT TO THE TRANSFER AS EVIDENCED BY THE PAYMENT OF THE TRAVEL AND TRANSPORTATION EXPENSES IN CONNECTION THEREIWTH. THE CONTRACT FOR THE SALE OF HIS OLD RESIDENCE WAS ENTERED INTO PRIOR TO THE APPROVAL OF HIS REQUEST FOR WAIVER OF THE 1-YEAR SERVICE AGREEMENT. UNDER SUCH CIRCUMSTANCES WE CONSIDER THE SALE AS BEING MADE INCIDENT TO MR. RICHEY'S TRANSFER AND THE RELEASE FROM HIS SERVICE AGREEMENT AS OPERATING TO PRESERVE HIS ENTITLEMENT THEREUNDER.

ACCORDINGLY, MR. RICHEY'S VOUCHER MAY BE PAID INSOFAR AS THE EXPENSES CLAIMED ARE OTHERWISE REIMBURSABLE.