B-191228, NOVEMBER 28, 1978

B-191228, NOVEMBER 28, 1978

DIGEST: ON RECONSIDERATION, DECISION DENYING EMPLOYEE'S CLAIM FOR TRAVEL AND TRANSPORTATION EXPENSES INCURRED INCIDENT TO TRANSFER REQUESTED BY HIM IS SUSTAINED. EMPLOYEE'S EVIDENCE DOES NOT SHOW THAT AGENCY OFFICIALS ACTED IMPROPERLY IN DENYING REIMBURSEMENT OF THOSE EXPENSES.

DALE W. SHERFEY - TRAVEL AND TRANSPORTATION EXPENSES - RECONSIDERATION:

BY LETTER DATED OCTOBER 12, 1978, MR. DALE W. SHERFEY REQUESTED RECONSIDERATION OF COMPTROLLER GENERAL DECISION B-191228, SEPTEMBER 29, 1978, IN WHICH WE SUSTAINED OUR CLAIMS DIVISION'S DISALLOWANCE OF HIS CLAIM FOR TRAVEL AND TRANSPORTATION EXPENSES INCURRED INCIDENT TO HIS TRANSFER FROM THE NAVAL AIR STATION, SAN DIEGO, CALIFORNIA, TO THE DEPARTMENT OF THE ARMY, FORT CARSON, COLORADO, IN AUGUST OF 1975. MR. SHERFEY HAS ALSO WRITTEN THE PRESIDENT CONCERNING THIS CLAIM. THAT LETTER, DATED JUNE 16, 1978, HAS BEEN REFERRED TO US FOR ACTION.

THE RECORD IN THIS CASE SHOWS THAT OFFICIALS AT FORT CARSON DETERMINED BEFORE MR. SHERFEY'S MOVE THAT HE WOULD NOT BE REIMBURSED FOR THE EXPENSES OF THE MOVE. AS A RESULT OF THAT DETERMINATION ORDERS WERE NOT ISSUED.

THE GOVERNING REGULATIONS REQUIRE THAT IF AN AGENCY DETERMINES THAT A MOVE IS NOT IN THE INTEREST OF THE GOVERNMENT, THE EMPLOYEE MUST BE INFORMED PRIOR TO HIS MOVE THAT HE IS RESPONSIBLE FOR PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES. BOTH THE CIVILIAN PERSONNEL OFFICER AT FORT CARSON AND MR. SHERFEY STATE THAT HE WAS INFORMED ON AT LEAST THREE OCCASIONS THAT HIS TRANSFER WAS NOT AUTHORIZED AT GOVERNMENT EXPENSE. HIS REQUEST FOR RECONSIDERATION, HOWEVER, MR. SHERFEY STATES THAT THESE EXCHANGES OCCURRED AFTER HIS MOVE AND THAT HE HAD NO CONTACT WITH THE CIVILIAN PERSONNEL OFFICE PRIOR TO THAT TIME. IN THE SAME LETTER HE STATES THAT HE DID HAVE CONTACT WITH BUTTS ARMY AIR FIELD, FORT CARSON AND IN AN EARLIER LETTER DATED JANUARY 27, 1976, HE STATES THAT HE WAS INFORMED BY MR. STAMBAUGH, SHOP FOREMAN OF INSTALLATION MAINTENANCE, BUTTS ARMY AIR FIELD, THAT HE WOULD RECEIVE NO TRAVEL OR TRANSPORTATION PAY FOR HIS MOVE.

SECTION 31.7, TITLE 4 OF THE CODE OF FEDERAL REGULATIONS, PROVIDES THAT THE BURDEN IS ON A CLAIMANT TO ESTABLISH THE LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S RIGHT TO PAYMENT. IN LIGHT OF THE EVIDENCE MR. SHERFEY HAS PRESENTED, WE DO NOT FEEL THAT HE HAS MET HIS BURDEN OF SHOWING THAT OFFICIALS AT FORT CARSON FAILED TO COMPLY WITH THE REGULATIONS.

MR. SHERFEY EARLIER CLAIMED THAT HIS SITUATION FELL WITHIN THE PURVIEW OF PARAGRAPH C4100-2.6, VOL. II, OF THE JOINT TRAVEL REGULATIONS WHICH PROVIDES THAT REASSIGNMENT OF A QUALIFIED EMPLOYEE TO AN ACTIVITY WHERE HIS SERVICES ARE NEEDED, INCLUDING THOSE CASES IN WHICH THE EMPLOYEE INITIATES THE REQUEST FOR MOVEMENT BUT SUCH REQUEST IS NOT NECESSARILY THE DECIDING FACTOR, IS MOVEMENT IN THE INTEREST OF THE GOVERNMENT. IN OUR DECISION OF SEPTEMBER 29, 1978, WE EXPLAINED THAT MR. SHERFEY'S SITUATION WAS NOT GOVERNED BY THAT REGULATION SINCE IT REFERRED TO EMPLOYEES REASSIGNED WITHIN THE SAME AGENCY RATHER THAN TO EMPLOYEES TRANSFERRED FROM ONE AGENCY TO ANOTHER.

MR. SHERFEY CLAIMS THAT HE IS FAMILIAR WITH CASES WHERE OTHER TRANSFERRED EMPLOYEES WERE REIMBURSED FOR THE EXPENSES OF THEIR MOVES. HOWEVER, AS WE STATED IN OUR PRIOR DECISION, WE WILL ACCEPT AN AGENCY'S DETERMINATION CONCERNING WHETHER A TRANSFER IS IN THE INTEREST OF THE GOVERNMENT UNLESS THERE IS A SHOWING THAT IT WAS ARBITRARY AND CAPRICIOUS. MR. SHERFEY'S STATEMENT THAT OTHER EMPLOYEES HAVE RECEIVED TRAVEL AND TRANSPORTATION EXPENSES DOES NOT ESTABLISH THAT THE AGENCY WAS ARBITRARY AND CAPRICIOUS WITH REGARD TO HIS CASE.

ACCORDINGLY, ON RECONSIDERATION, WE HEREBY AFFIRM OUR EARLIER DECISION.