B-182013, MAY 14, 1975

B-182013, MAY 14, 1975

EMPLOYEE OF DEFENSE LANGUAGE INSTITUTE, EAST COAST (DLIEC), WASHINGTON, D.C., WHO, ON BASIS OF PUBLIC ANNOUNCEMENT THAT DLIEC WAS TO RELOCATE AND CONSOLIDATE WITH DEFENSE LANGUAGE INSTITUTE, WEST COAST, PRESIDIO OF MONTEREY, CALIFORNIA, MOVED HIS DEPENDENTS TO CALIFORNIA IN ANTICIPATION OF ORDERS AFTER BEING WARNED THAT SUCH RELOCATION WAS UNAUTHORIZED AND AT HIS OWN RISK MAY NOT BE REIMBURSED TRAVEL, TRANSPORTATION, HOUSEHOLD GOODS SHIPMENT EXPENSES, AND REAL ESTATE EXPENSES SINCE THERE WAS NO CLEAR ADMINISTRATIVE INTENT TO TRANSFER HIM AT THE TIME OF HIS MOVE AND TRAVEL ORDERS ISSUED APPROXIMATELY 18 MONTHS LATER FAILED TO INDICATE EARLIER DEPENDENT TRAVEL WAS AUTHORIZED, PURSUANT TO PROVISIONS OF PARAGRAPHS C2050 AND C2051, JOINT TRAVEL REGULATIONS.

JOSEPH C. HUTCHINSON - RELOCATION EXPENSES IN ANTICIPATION OF ORDERS:

THIS ACTION INVOLVES A REQUEST FOR AN ADVANCE DECISION FROM THE DEPARTMENT OF THE ARMY REGARDING THE PROPRIETY OF CERTIFYING FOR PAYMENT VOUCHERS SUBMITTED BY DR. JOSEPH C. HUTCHINSON, A DEPARTMENT OF THE ARMY CIVILIAN EMPLOYEE, FOR (1) REAL ESTATE EXPENSES, (2) DEPENDENT TRAVEL EXPENSES, MISCELLANEOUS EXPENSES, EXPENSES INCURRED ON SCHOOL CONTRACTS FOR DEPENDENTS, TEMPORARY QUARTERS ALLOWANCES, AND HOUSEHOLD GOODS SHIPMENT EXPENSES FOR THE PERIOD JANUARY 7, 1973, THROUGH JANUARY 10, 1973, HEREINAFTER REFERRED TO AS DEPENDENT RELOCATION EXPENSES, AND (3) FOR HIS OWN TRAVEL EXPENSES, WHICH INCLUDE MILEAGE, LODGING EN ROUTE, TURNPIKE TOLL COSTS, TRAVELERS CHEQUE COSTS, FOR THE PERIOD AUGUST 31, 1974, THROUGH SEPTEMBER 9, 1974, HEREINAFTER REFERRED TO AS EMPLOYEE TRAVEL EXPENSES INCURRED IN CONNECTION WITH A CHANGE OF OFFICIAL STATION FROM THE DEFENSE LANGUAGE INSTITUTE, EAST COAST BRANCH (DLIEC), WASHINGTON, D.C., TO THE DEFENSE LANGUAGE INSTITUTE, WEST COAST BRANCH (DLIWC), PRESIDIO OF MONTEREY, CALIFORNIA.

THE FACTS IN THIS CASE ARE SUMMARIZED AS FOLLOWS. IN EARLY 1972, THE DEPARTMENT OF THE ARMY BEGAN MAKING PLANS TO CONSOLIDATE THE DLIEC WITH THE DLIWC AT THE PRESIDIO OF MONTEREY, CALIFORNIA, AT SOME FUTURE UNDERTERMINED DATE. DR. HUTCHINSON WAS INVOLVED IN THIS PLANNING PHASE WHICH WAS SPREAD OVER SEVERAL MONTHS. ON SEPTEMBER 18, 1972, HE WROTE A MEMORANDUM TO THE DIRECTOR, DEFENSE LANGUAGE INSTITUTE (DLI), REQUESTING THAT HE BE PLACED ON ORDERS, "*** TO MOVE TO MONTEREY AS SOON AS POSSIBLE SO THAT MY FAMILY CAN GO AHEAD AND MAKE THE MOVE WITH APPROPRIATE FUNDING INVOLVED WITH A PCS MOVE OF DEPENDENTS AND HOUSEHOLD GOODS." APPARENTLY, DR. HUTCHINSON HAD FOR SOME TIME BEEN ATTEMPTING TO SELL HIS HOUSE IN BETHESDA, MARYLAND, FOR ON SEPTEMBER 25, 1972, HE SIGNED A CONTRACT OF SALE ON HIS RESIDENCE. HOWEVER, ON THAT SAME DATE THE DIRECTOR, DLI, PREPARED A MEMORANDUM TO THE DEPUTY DIRECTOR, DLI, DIRECTING THAT DR. HUTCHINSON BE ADVISED THAT HE "*** CAN MOVE HIS FAMILY AS SOON AS IT IS PROPER TO DO SO. HOWEVER, HIS ACTUAL TRANSFER TO MONTEREY WILL BE CONSISTENT WITH THE NEEDS OF THE DLI. AT THE PRESENT TIME, I DO NOT ANTICIPATE HIS ACTUAL TRANSFER PRIOR TO JUNE, 1973." THE DIRECTOR WENT ON TO SAY THAT, "UNDER NO CIRCUMSTANCES WILL ANYONE BE GIVEN A 'MOVE DATE' UNTIL I HAVE PERSONALLY APPROVED THE OVERALL PLAN FOR RELOCATION OF THE HEADQUARTERS." ALSO, ON SEPTEMBER 25, 1972, A PUBLIC ANNOUNCEMENT WAS MADE THAT DLIEC WAS BEING TRANSFERRED TO MONTEREY, CALIFORNIA. HOWEVER, SHORTLY THEREAFTER THE DEPARTMENT OF THE ARMY BEGAN TO RECONSIDER ITS DECISION AND ON NOVEMBER 30, 1972, ALL PERSONNEL OF THE DLIEC WERE INFORMED THAT THE MOVE HAD BEEN POSTPONED. LATER IN NOVEMBER AND DECEMBER 1972, DR. HUTCHINSON WAS PERSONALLY INFORMED THAT HEADQUARTERS, DLI, WAS DEVELOPING PLANS FOR RELOCATION OF THE DLIEC TO FORT MONMOUTH, NEW JERSEY. FURTHERMORE, PRIOR TO HIS PURCHASE OF A HOME IN CALIFORNIA AND HIS FAMILY'S SUBSEQUENT MOVE TO THAT LOCATION IN JANUARY 1973, DR. HUTCHINSON WAS WARNED THAT ANY MOVE OF HIS FAMILY TO CALIFORNIA WOULD BE HIS OWN RESPONSIBILITY AND WITHOUT AUTHORITY FROM DLI OR THE DEPARTMENT OF THE ARMY. DESPITE THIS WARNING AND WITH FULL KNOWLEDGE THAT PLANS WERE BEING DEVELOPED TO MOVE THE DLIEC TO NEW JERSEY, DR. HUTCHINSON ENTERED INTO A CONTRACT ON DECEMBER 11, 1972, TO PURCHASE A HOUSE IN CALIFORNIA AND WENT TO SETTLEMENT ON HIS MARYLAND HOUSE ON DECEMBER 13, 1972. MOVED HIS FAMILY INTO THE CALIFORNIA RESIDENCE ON JANUARY 10, 1973.

DR. HUTCHINSON SUBMITTED A CLAIM ON JUNE 8, 1973, FOR REAL ESTATE EXPENSES. THE CLAIM WAS FORWARDED TO OUR TRANSPORTATION AND CLAIMS DIVISION (TCD) WHICH DISALLOWED IT ON THE BASIS THAT THERE WAS NO AUTHORITY UNDER WHICH THE EXPENSES COULD BE PAID INASMUCH AS THE MOVE HAD BEEN MADE FOR HIS OWN PERSONAL CONVENIENCE.

SUBSEQUENTLY, THE DEPARTMENT OF THE ARMY DECIDED TO IMPLEMENT ITS EARLIER PLAN AND RELOCATE THE EAST COAST BRANCH OF DLI TO MONTEREY, CALIFORNIA, AND ISSUED A TRAVEL AUTHORIZATION TO DR. HUTCHINSON ON JULY 19, 1974, AUTHORIZING TRAVEL, RELOCATION AND REAL ESTATE EXPENSES FOR DR. HUTCHINSON AND HIS DEPENDENTS. THIS AUTHORIZATION, HOWEVER, CONTAINED THE FOLLOWING RESTRICTION UNDER THE REMARKS COLUMN. "REIMBURSEMENT FOR ANY EXPENSES INCURRED PRIOR TO THE DATE OF THIS ORDER, IN CONNECTION WITH MOVEMENT OF DEPENDENTS OR SALE AND PURCHASE OF RESIDENCE, WILL NOT BE MADE UNLESS COVERED BY APPLICABLE COMP GEN DECISION." DR. HUTCHINSON MADE THE MOVE AUTHORIZED BY HIS ORDERS AND SUBMITTED THE VOUCHERS IN QUESTION COVERING DEPENDENT RELOCATION EXPENSES FOR THE PERIOD JANUARY 7 THROUGH JANUARY 10, 1973, IN ADDITION TO EMPLOYEE TRAVEL EXPENSES FOR THE PERIOD AUGUST 31 THROUGH SEPTEMBER 9, 1974. THE AGENCY HAS SUBMITTED THE VOUCHERS (WHICH CONTAIN THE CLAIM FOR REAL ESTATE EXPENSES PREVIOUSLY DISALLOWED) TO THIS OFFICE FOR A DETERMINATION AND HAS RECOMMENDED THAT THE DEPENDENT RELOCATION EXPENSES NOT BE PAID IN THAT THE MOVE AT THAT TIME WAS FOR THE EMPLOYEE'S CONVENIENCE. DR. HUTCHINSON CONTENDS THAT THE CLAIM FOR PREVIOUS DEPENDENT TRAVEL EXPENSES, ETC., SHOULD BE ALLOWED ON THE BASIS THAT IN DECEMBER 1972, JUST PRIOR TO THE TIME HIS DEPENDENTS PERFORMED THE TRAVEL IN QUESTION, THE DIRECTOR, DLI, ADVISED HIM THAT THE MOVEMENT OF HIS DEPENDENTS PRIOR TO THE ISSUANCE OF ORDERS WOULD BE AT HIS OWN RISK AND EXPENSE, BUT THAT IF TRAVEL ORDERS COVERING THIS TRANSFER WERE EVER ISSUED, HE WOULD BE REIMBURSED.

RELOCATION EXPENSES OF EMPLOYEES AND THEIR DEPENDENTS TRANSFERRED FROM ONE STATION TO ANOTHER IS GOVERNED BY 5 U.S.C. SEC. 5724A (1970). REGULATIONS IMPLEMENTING THIS STATUTE IN FORCE DURING JANUARY 1973, WHEN DR. HUTCHINSON'S DEPENDENTS PERFORMED THE TRAVEL FOR WHICH HE CLAIMS EXPENSES, WERE CONTAINED IN OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. A-56, REVISED, AUGUST 17, 1971, AND THE DEPARTMENT OF DEFENSE JOINT TRAVEL REGULATIONS (JTR), VOLUME II. IN THIS CONNECTION 2 JTR PARA. C2050- 1 (CHANGE 83, SEPTEMBER 1, 1972) PROVIDES:

"C2050 AUTHORIZATION IN WRITING

"1. PURPOSE. A TRAVEL ORDER ESTABLISHES THE CONDITIONS, IN WRITING, UNDER WHICH OFFICIAL TRAVEL AND TRANSPORTATION IS AUTHORIZED AT GOVERNMENT EXPENSE. TRAVEL ORDERS WILL BE ISSUED BEFORE THE PERFORMANCE OF TRAVEL UNLESS AN URGENT OR UNUSUAL SITUATION PREVENTS PRIOR ISSUANCE."

ALSO, 2 JTR PARA. C2051 (CHANGE 83, SEPTEMBER 1, 1972) PROVIDES:

"C2051 CONFIRMATORY TRAVEL ORDER

"IF OFFICIAL TRAVEL BEGINS OR IS PERFORMED BEFORE A TRAVEL ORDER IS ISSUED, SUCH ACTION WILL BE SUPPORTED BY PROPER ORAL, LETTER, OR MESSAGE AUTHORITY. THE ISSUANCE OF A CONFIRMATORY TRAVEL ORDER AS PROMPTLY AS POSSIBLE IS NECESSARY IN THOSE INSTANCES. A CONFIRMATORY TRAVEL ORDER WILL INCLUDE APPROPRIATE STATEMENTS REGARDING THE PRIOR AUTHORIZATION AND JUSTIFICATION FOR ANY UNUSUAL DELAY IN ISSUANCE. THE OFFICIAL WHO DIRECTED THE TRAVEL IS RESPONSIBLE FOR INITIATING ACTION FOR ISSUANCE OF A CONFIRMATORY TRAVEL ORDER."

THE THRUST OF THE ABOVE-QUOTED REGULATIONS IS THAT OFFICIAL TRAVEL IS NOT TO BE PERFORMED PRIOR TO THE ISSUANCE OF WRITTEN TRAVEL ORDERS EXCEPT IN EXTREMELY UNUSUAL SITUATIONS. FURTHERMORE, IN UNUSUAL SITUATIONS, WHEN OFFICIAL TRAVEL IS PERFORMED PRIOR TO THE ISSUANCE OF A WRITTEN TRAVEL ORDER, IT MUST BE PROPERLY AUTHORIZED. THE OFFICIAL AUTHORIZING TRAVEL TO BE PERFORMED IN ADVANCE OF WRITTEN ORDERS IS RESPONSIBLE FOR INITIATING ACTION FOR ISSUANCE OF CONFIRMATORY TRAVEL ORDERS WHICH MUST INCLUDE STATEMENTS REGARDING THE PRIOR AUTHORIZATION AND A JUSTIFICATION FOR ANY UNUSUAL DELAY IN ISSUANCE OF THE ORDERS.

CONSISTENT WITH THE ABOVE-QUOTED REGULATIONS WE HAVE HELD THAT REIMBURSEMENT OF MOVING AND RELOCATION EXPENSES INCURRED PRIOR TO AND IN ANTICIPATION OF A TRANSFER OF OFFICIAL DUTY STATION MAY BE ALLOWED IF THE TRAVEL ORDER SUBSEQUENTLY ISSUED INCLUDES AUTHORIZATION FOR THE EXPENSES ON THE BASIS OF A "PREVIOUSLY EXISTING" ADMINISTRATIVE INTENTION, CLEARLY EVIDENT AT THE TIME THE EXPENSES WERE INCURRED BY THE EMPLOYEE. 48 COMP. GEN. 395 (1968), AND 53 ID. 836 (1974).

IN THE PRESENT CASE, PERFORMANCE OF TRAVEL BY DR. HUTCHINSON'S DEPENDENTS WAS NOT AUTHORIZED IN ADVANCE OF THE ISSUANCE OF WRITTEN ORDERS. ON THE CONTRARY, DR. HUTCHINSON WAS WARNED AT THE TIME HE REQUESTED AUTHORITY FOR DEPENDENT TRAVEL THAT ANY TRAVEL HIS DEPENDENTS PERFORMED PRIOR TO ISSUANCE OF ORDERS WOULD BE AT HIS OWN RISK AND EXPENSE. THE RECORD INDICATES THAT THERE WAS CONSIDERABLE ADMINISTRATIVE DOUBT ABOUT WHEN OR EVEN WHETHER THE MOVE TO MONTEREY WOULD TAKE PLACE, WHICH WAS APPARENTLY THE REASON THAT DR. HUTCHINSON WAS TOLD NOT TO ACT PREMATURELY. IT COULD NOT BE SAID, THEREFORE, THAT THE REQUISITE "PREVIOUSLY EXISTING" ADMINISTRATIVE INTENT TO TRANSFER HIM TO MONTEREY WAS PRESENT. FOR THIS REASON, WHEN WRITTEN ORDERS WERE ISSUED IN JULY 1974 COVERING DR. HUTCHINSON'S TRAVEL, THEY INCLUDED AN EXPLICIT STATEMENT THAT REIMBURSEMENT FOR ANY TRAVEL EXPENSES OF DEPENDENTS PERFORMED PRIOR TO THE DATE OF THE ORDERS WOULD NOT BE MADE UNLESS COVERED BY AN APPLICABLE DECISION OF OUR OFFICE.

AUTHORIZATION OF TRAVEL AND THE ISSUANCE OF TRAVEL ORDERS IS THE RESPONSIBILITY OF THE EMPLOYING AGENCY WHICH MUST BE ACCOMPLISHED IN ACCORDANCE WITH APPLICABLE LAW AND REGULATIONS. INASMUCH AS THE DEPARTMENT OF THE ARMY DID NOT AUTHORIZE THE TRAVEL PERFORMED PRIOR TO THE ISSUANCE OF ORDERS AND WARNED HIM THAT SUCH TRAVEL PRIOR TO ISSUANCE OF ORDERS WOULD BE AT HIS OWN RISK, SUCH TRAVEL AND TRANSPORTATION MUST BE CONSIDERED AS BEING FOR THE PERSONAL CONVENIENCE OF THE EMPLOYEE AND THEREFORE NOT REIMBURSABLE.

IN VIEW OF THE ABOVE THE TRAVEL AND TRANSPORTATION EXPENSES INCURRED BY DR. HUTCHINSON PRIOR TO THE ISSUANCE OF ORDERS MAY NOT BE PAID.

EMPLOYEE TRAVEL AND TRANSPORTATION EXPENSES INCURRED SUBSEQUENT TO THE ISSUANCE OF ORDERS, MAY BE ALLOWED CONSISTENT WITH LAW, REGULATIONS, AND DECISIONS OF THIS OFFICE. HOWEVER, WE POINT OUT THAT EXPENSES INCURRED FOR THE PURCHASE OF TRAVELER'S CHEQUES INCIDENT TO TRAVEL WITHIN THE CONTINENTAL UNITED STATES ARE NOT REIMBURSABLE. SEE 4 COMP. GEN. 883 (1925) AND FEDERAL TRAVEL REGULATIONS (FPMR 101-7) PARA. 1-9.1C (MAY 1973). THE DISALLOWANCE OF THE CLAIM FOR REAL ESTATE EXPENSES BY OUR TCD IS SUSTAINED AND THE VOUCHER COVERING SUCH EXPENSES IS RETAINED HERE. THE VOUCHER FOR EMPLOYEE TRAVEL AND TRANSPORTATION EXPENSES IS RETURNED FOR PROCESSING IN ACCORDANCE WITH THIS DECISION.