B-181901, MAR 17, 1975, 54 COMP GEN 751

B-181901, MAR 17, 1975, 54 COMP GEN 751

OFFICERS AND EMPLOYEES - TRANSFERS - RELOCATION EXPENSES - DISTANCE BETWEEN OLD AND NEW RESIDENCE AN EMPLOYEE TRANSFERRED TO A NEW OFFICIAL DUTY STATION WHO SELLS HIS HOME AND RELOCATES TO A NEW RESIDENCE LOCATED WITHIN THE SAME AREA AS HIS OLD RESIDENCE MAY BE REIMBURSED REAL ESTATE EXPENSES FOR THE SALE OF THE FORMER HOME AND OTHER RELOCATION EXPENSES SINCE THE RECORD SHOWS THE EMPLOYEE TRIED TO RELOCATE IN THE AREA OF HIS NEW STATION, AND COMMUTED DAILY TO THE NEW STATION.

IN THE MATTER OF A CLAIM FOR REIMBURSEMENT OF REAL ESTATE EXPENSES, ETC., MARCH 17, 1975:

THIS RESPONDS TO A REQUEST BY CAPTAIN J.D. TIREY, FC, FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY, IN HIS MEMORANDUM OF FEBRUARY 8, 1974, REFERENCE AMXNC-PF-P, FORWARDED HERE BY 2ND ENDORSEMENT ON JULY 19, 1974, BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE AND ASSIGNED PDTATAC CONTROL NO. 74 30, FOR AN ADVANCE DECISION AS TO THE REIMBURSEMENT OF REAL ESTATE AND OTHER EXPENSES TO MR. GARY A. WARD, A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF DEFENSE, INCIDENT TO A TRANSFER OF STATION.

THE RECORD ACCOMPANYING MR. WARD'S CLAIM SHOWS THAT BY TRAVEL ORDER NO. LO #10-58, DATED OCTOBER 10, 1972, HE WAS AUTHORIZED A CHANGE OF OFFICIAL DUTY STATION FROM FORT BELVOIR, VIRGINIA, TO NEW CUMBERLAND ARMY DEPOT, NEW CUMBERLAND, PENNSYLVANIA. THE TRAVEL ORDERS PROVIDED FOR THE PAYMENT TO MR. WARD OF THOSE REAL ESTATE EXPENSES FOR WHICH REIMBURSEMENT IS AUTHORIZED UNDER THE JOINT TRAVEL REGULATIONS AND VARIOUS OTHER RELOCATION ALLOWANCES. IN THIS REGARD, THE RECORD FURTHER SHOWS THAT, AT THE TIME OF HIS RECEIPT OF THE TRAVEL ORDERS, MR. WARD OWNED AND WAS LIVING IN A RESIDENCE LOCATED AT 14729 N. BIRCHDALE AVENUE, WOODBRIDGE, VIRGINIA; THAT HE ENTERED INTO AN AGREEMENT FOR THE SALE OF THE WOODBRIDGE HOME; AND THAT THIS AGREEMENT WAS CONSUMMATED ON NOVEMBER 8, 1972, WHEN THE SALES TRANSACTION WAS COMPLETED. ON OR ABOUT THIS DATE, MR. WARD LEASED A RESIDENCE AT 14774 BARKSDALE STREET, WOODBRIDGE, VIRGINIA, AND BEGAN COMMUTING DAILY TO HIS NEW DUTY STATION - A DISTANCE OF ABOUT 123 MILES.

BECAUSE MR. WARD'S OLD AND NEW DUTY RESIDENCES WERE ABOUT ONE MILE APART AND WERE BOTH THE SAME DISTANCE FROM HIS NEW DUTY STATION, A QUESTION HAS BEEN RAISED WITH RESPECT TO HIS ENTITLEMENT TO THE REIMBURSEMENT OF REAL ESTATE EXPENSES ARISING OUT OF THE SALE OF HIS FORMER HOME.

IN OUR VIEW, ESSENTIALLY THREE QUESTIONS HAVE BEEN PRESENTED: FIRST, DOES THE FACT THAT MR. WARD'S OLD AND NEW RESIDENCE WERE APPROXIMATELY ONE MILE APART PRECLUDE HIM RECEIVING REIMBURSEMENT OF REAL ESTATE EXPENSES; SECOND, TO BE ELIGIBLE FOR RECEIPT OF SUCH REIMBURSEMENTS MUST AN EMPLOYEE'S CHANGE OF RESIDENCE INCIDENT TO A TRANSFER RESULT IN HIS LIVING IN THE VICINITY OF THE NEW DUTY STATION; AND THIRD, IN LIGHT OF THE FACTS PRESENTED, CAN IT BE SAID THAT THE SALE OF MR. WARD'S HOME OCCURRED INCIDENT TO HIS TRANSFER?

A. DISTANCE BETWEEN OLD AND NEW RESIDENCES

AS TO WHETHER THE SALE OF A RESIDENCE AND PURCHASE OF ANOTHER IN THE SAME CITY CONSTITUTE A CHANGE OF RESIDENCES INCIDENT TO TRANSFER, THE FACT THAT BOTH RESIDENCES ARE WITHIN THE SAME CITY WOULD NOT BE CONTROLLING AS TO ELIGIBILITY FOR REIMBURSEMENT. SO LONG AS THE EMPLOYEE COMMUTES DAILY TO HIS NEW DUTY STATION FROM THE NEW RESIDENCE (AS DID MR. WARD IN THE PRESENT CASE), THE FACT THAT THE NEW RESIDENCE IS LOCATED NEAR THE FORMER RESIDENCE WOULD NOT IN ITSELF PRECLUDE REIMBURSEMENT OF REAL ESTATE EXPENSES. SEE B-175822, JUNE 14, 1972.

B. DISTANCE BETWEEN NEW RESIDENCE AND NEW OFFICIAL DUTY STATION

REVIEW OF THE INSTANT CASE EVIDENCES DOUBT BY MR. WARD'S ADMINISTRATIVE AGENCY AS TO HIS ENTITLEMENT TO REAL ESTATE EXPENSE REIMBURSEMENT BECAUSE HE DID NOT MOVE INTO A RESIDENCE LOCATED WITHIN THE VICINITY OF NEW CUMBERLAND ARMY DEPOT. IN CASES INVOLVING SOMEWHAT SIMILAR CIRCUMSTANCES THIS OFFICE HAS TAKEN THE VIEW THAT "*** IT DOES NOT FOLLOW THAT FOR A RELOCATION TO BE INCIDENT TO A TRANSFER OF DUTY STATION IT MUST INVARIABLY RESULT IN LESS COMMUTING TIME AND DISTANCE." B-172705, MAY 28, 1971; CF. B-167171, AUGUST 8, 1969.

C. WHETHER THE SALE OF THE FORMER HOME WAS INCIDENT TO THE CHANGE OF OFFICIAL DUTY STATIONS

GENERALLY, IN ANY CASE INVOLVING A TRANSFER WITHIN THE SAME LOCAL OR METROPOLITAN AREA WHERE THE AGENCY FINDS THAT AN EMPLOYEE'S MOVE WAS NOT RELATED TO HIS TRANSFER, THE COSTS OF SUCH MOVE MAY NOT BE BORNE BY THE GOVERNMENT. B-175822, SUPRA. HOWEVER, IN THE INSTANT CASE, THE ONLY REASON GIVEN BY ANY AGENCY OFFICIAL FOR CONCLUDING THAT THE MOVE WAS NOT RELATED TO THE TRANSFER WAS THE FACT THAT THE OLD AND NEW RESIDENCES WERE APPROXIMATELY THE SAME DISTANCE AWAY FROM THE NEW DUTY STATION. (MEMORANDUM FROM CHIEF, PERSONNEL DIVISION, DATED OCTOBER 26, 1973.) WE STATED IN B., SUPRA, THIS FACTOR ALONE DOES NOT CREATE SUCH A PRESUMPTION. WE NOTE THAT MR. WARD SIGNED A CONTRACT TO SELL HIS OLD RESIDENCE ON OCTOBER 8, 1972, AFTER RECEIVING HIS NOTIFICATION OF THE PENDING TRANSFER SCHEDULED FOR OCTOBER 22, 1972. ON OCTOBER 14, 1972, HE SPENT SOME TIME HUNTING FOR A NEW RESIDENCE IN THE AREA OF HIS NEW STATION - APPARENTLY WITHOUT SUCCESS - SINCE HE AND HIS FAMILY THEN OCCUPIED TEMPORARY QUARTERS IN THE NEW AREA FOR 26 DAYS WHILE HIS CHILDREN ATTENDED PENNSYLVANIA PUBLIC SCHOOLS. THERE IS NO EVIDENCE THAT THESE EXPENSES WERE NOT INCURRED IN A GOOD FAITH EFFORT TO RELOCATE IN THE VICINITY OF THE NEW CUMBERLAND ARMY DEPOT INCIDENT TO HIS PERMANENT CHANGE OF DUTY STATION. THE FACT THAT HE ENDED BY MOVING INTO A HOME ONLY ONE MILE AWAY FROM HIS FORMER RESIDENCE - FOR WHATEVER REASON - DOES NOT CHANGE THE PURPOSE FOR WHICH THESE EXPENSES WERE INCURRED NOR THE GOVERNMENT'S OBLIGATION TO REIMBURSE HIM. THE TRANSFER WAS APPARENTLY CONSUMMATED AS SCHEDULED AND MR. WARD COMMUTED TO AND REPORTED DAILY TO HIS NEW DUTY STATION AS REQUIRED.

IN LIGHT OF THE ABOVE, WE WOULD NOT OBJECT TO AN ADMINISTRATIVE DETERMINATION THAT THE SALE OF THE BIRCHDALE AVENUE RESIDENCE WAS MADE INCIDENT TO HIS TRANSFER. CONSISTENT WITH SUCH VIEW, WE WOULD NOT INTERPOSE ANY OBJECTION TO THE REIMBURSEMENT TO MR. WARD OF REAL ESTATE EXPENSES INCURRED INCIDENT TO THE SALE OF HIS FORMER HOME AND PAYMENT OF OTHER RELOCATION EXPENSES CLAIMED IF THEY ARE OTHERWISE PROPER.