B-134348, JAN 27, 1975

B-134348, JAN 27, 1975

DEPARTMENT OF ARMY CIVILIAN EMPLOYEE SEPARATED ON BASIS OF MANDATORY RETIREMENT AT FRANKFURT, GERMANY, IS ENTITLED TO TRAVEL AT GOVERNMENT EXPENSE TO PLACE OF ACTUAL RESIDENCE UNDER JOINT TRAVEL REGULATION (JTR). HOWEVER, EMPLOYEE MAY LOSE TRAVEL ENTITLEMENT BY NONAPPROVED DELAY OF MORE THAN 90 DAYS IN BEGINNING TRAVEL AFTER SEPARATION OR AFTER A REQUEST FOR AN ADDITIONAL DELAY HAS BEEN DISAPPROVED.

ALMA B. COBB - SEPARATION TRAVEL FROM OVERSEAS DUTY STATION:

THIS ACTION IS A REQUEST FOR RECONSIDERATION OF SETTLEMENT OF AUGUST 17, 1973, ISSUED BY THE TRANSPORTATION AND CLAIMS DIVISION OF OUR OFFICE, WHICH DENIED THE CLAIM OF MS. ALMA B. COBB, A RETIRED DEPARTMENT OF THE ARMY EMPLOYEE, FOR TRAVEL ALLOWANCES INCIDENT TO SEPARATION TRAVEL AND FOR REFUND OF $52.75 BELIEVED TO HAVE BEEN ERRONEOUSLY WITHHELD FROM HER PAY AS A RETIREMENT DEDUCTION. IN HER REQUEST FOR REVIEW, THE EMPLOYEE HAS CONTESTED ONLY THE DISALLOWANCE OF SEPARATION TRAVEL ALLOWANCES AND APPARENTLY NOW CONCEDES THAT THE RETIREMENT DEDUCTIONS WERE APPROPRIATE.

THE FACTS IN THIS CASE, ACCORDING TO THE RECORD, ARE SUMMARIZED AS FOLLOWS. ON SEPTEMBER 30, 1971, MS. COBB WAS SEPARATED BY MANDATORY RETIREMENT ACTION WHILE STATIONED AT FRANKFURT, GERMANY. TWO DAYS PRIOR TO RETIREMENT, ON SEPTEMBER 28, 1971, SHE SUBMITTED A REQUEST FOR A DELAY OF 90 DAYS IN SEPARATION TRAVEL. SHE DID NOT RECEIVE A RESPONSE TO THIS REQUEST AND, SUBSEQUENTLY, SUBMITTED A SECOND REQUEST FOR A 90-DAY DELAY, ALTHOUGH THE RECORD DOES NOT SHOW THE DATE OF THE SECOND REQUEST. OCTOBER 29, 1971, SHE SUBMITTED A REQUEST THAT TRAVEL ORDERS BE IMMEDIATELY PREPARED, INASMUCH AS THE BILLETING OFFICER HAD QUESTIONED HER AUTHORITY FOR CONTINUING TO OCCUPY GOVERNMENT QUARTERS. TRAVEL ORDERS NUMBER 11-500, DATED NOVEMBER 1, 1971, WERE ISSUED WHICH AUTHORIZED MS. COBB TO TRAVEL FROM FRANKFURT, GERMANY, TO MORRIS, TENNESSEE, HER PLACE OF ACTUAL RESIDENCE; TEMPORARILY STORE HER HOUSEHOLD GOODS FOR A PERIOD NOT TO EXCEED 60 DAYS; AND INDICATED THAT PORT CALL INSTRUCTIONS WOULD "BE ISSUED AS SOON AS AVAILABLE." ON APRIL 12, 1972, A LETTER WAS FORWARDED TO MS. COBB DISAPPROVING HER REQUEST OR REQUESTS FOR A DELAY OF 90 DAYS IN PERFORMING SEPARATION TRAVEL. MORE THAN 4 MONTHS LATER, BY LETTER DATED AUGUST 31, 1972, MS. COBB REQUESTED THE FRANKFURT AREA CIVILIAN PERSONNEL OFFICE (FACPO) TO ISSUE A PORT CALL FOR HER SEPARATION TRAVEL PURSUANT TO PARAGRAPH C4202-2 OF VOLUME 2 OF THE DEPARTMENT OF DEFENSE JOINT TRAVEL REGULATIONS (JTR). IN THIS LETTER MS. COBB EMPHASIZED THAT "I HAVE NOT PREVIOUSLY BEEN OFFERED RETURN TRANSPORTATION TO WHICH I HAVE EARNED ENTITLEMENT."

THE FACPO RESPONDED TO THIS REQUEST BY LETTER DATED SEPTEMBER 12, 1972, AND ADVISED MS. COBB THAT THE OFFICE HAD DETERMINED THAT SHE WAS NO LONGER ELIGIBLE TO RECEIVE A PORT CALL SINCE HER SEPARATION TRANSPORTATION ENTITLEMENT HAD BEEN WAIVED BY HER FAILURE TO TRAVEL WITHIN A REASONABLE PERIOD OF TIME AFTER SEPARATION. A REASONABLE PERIOD OF TIME WAS DEFINED TO BE A PERIOD NOT TO EXCEED 90 DAYS. THE FACPO THEN PUBLISHED ORDERS DATED SEPTEMBER 14, 1972, WHICH RESCINDED MS. COBB'S ORIGINAL SEPARATION TRAVEL ORDERS DATED NOVEMBER 1, 1971.

AFTER AN EXCHANGE OF LETTERS WITH THE FACPO PROTESTING THE DETERMINATION OF SEPARATION TRAVEL INELIGIBILITY, MS. COBB RETURNED TO NORRIS, TENNESSEE, FROM FRANKFURT, GERMANY, BY COMMERCIAL AIR ON DECEMBER 29, 1972, AND FILED A CLAIM FOR TRAVEL EXPENSES INCIDENT TO THIS TRAVEL WHICH WAS ULTIMATELY DISALLOWED BY OUR TRANSPORTATION AND CLAIMS DIVISION.

IN REQUESTING REVIEW OF THIS DISALLOWANCE, MS. COBB MAKES THE FOLLOWING CONTENTIONS. SHE INDICATES THAT THE STATEMENT IN THE SETTLEMENT CERTIFICATE THAT SHE REQUESTED IMMEDIATE PREPARATION OF HER TRAVEL ORDERS, AROUND THE END OF OCTOBER 1971, IS IN ERROR AND STATES THAT THE BILLETING OFFICER MAY HAVE INITIATED SUCH A REQUEST, BUT THAT SHE DID NOT. A REVIEW OF THE CORRESPONDENCE IN THE RECORD DOES NOT SUPPORT THIS CONTENTION. THE CONTRARY, THE RECORD REVEALS THAT SHE IN FACT DID REQUEST "IMMEDIATE PREPARATION OF ORDERS" IN HER OCTOBER 29, 1971 LETTER.

MS. COBB ALSO CONTENDS THAT, AT THE TIME OF HER SEPARATION, SHE WAS COUNSELED THAT DELAYS IN TRAVEL COULD BE GRANTED FOR A PERIOD OF UP TO 2 YEARS. BASED ON THIS ADVICE, SHE SUBMITTED A REQUEST FOR 90 DAYS DELAY IN BEGINNING HER TRAVEL FROM WHICH SHE HEARD NOTHING. SUBSEQUENTLY, SHE SUBMITTED A REQUEST FOR A SECOND 90 DAYS DELAY WHICH WAS DENIED IN APRIL 1972. SHE CONTENDS THAT SHE WAS NEVER INFORMED OF THE PROVISIONS OF PARAGRAPH C4202, VOLUME 2 OF THE JTR, UNDER WHICH SHE COULD LOSE HER TRANSPORTATION ENTITLEMENT, UNTIL IT WAS TOO LATE.

WE ARE NOT PERSUADED BY THE ARGUMENT THAT RIGHTS AND ENTITLEMENTS OF AN EMPLOYEE CAN BE EXPANDED MERELY BECAUSE THE EMPLOYEE WAS NOT AWARE OF RESTRICTIVE PROVISIONS OF CERTAIN PERTINENT REGULATIONS. ONCE REGULATIONS HAVE BEEN PROMULGATED THAT GOVERN THE RIGHTS AND ENTITLEMENTS OF FEDERAL EMPLOYEES, EACH EMPLOYEE IS CHARGED WITH CONSTRUCTIVE KNOWLEDGE OF THE PROVISIONS OF SUCH REGULATIONS WHETHER HE ACTUALLY HAS SUCH KNOWLEDGE OR NOT. THUS, AT THE TIME OF HER SEPARATION, MS. COBB MAY BE CHARGED WITH HAVING KNOWLEDGE OF PARAGRAPH C4202-2, VOLUME 2, JTR, DESPITE HER DISCLAIMER OF ACTUAL KNOWLEDGE OF THESE PROVISIONS. PARAGRAPH C4202-2 PROVIDES:

"2. REFUSING TO ACCEPT OR USE AUTHORIZATION FOR RETURN TRANSPORTATION WITHIN A REASONABLE TIME AFTER RELEASE FROM DUTY. ENTITLEMENT IS LOST WHEN AN EMPLOYEE REFUSES TO ACCEPT OR USE AUTHORIZATION FOR RETURN TRANSPORTATION FOR PURPOSES OF SEPARATION WHEN OFFERED AFTER RELEASE FROM WORK STATUS IN HIS OVERSEAS POSITION. OVERSEAS ACTIVITY COMMANDING OFFICERS MAY AUTHORIZE DELAY OF RETURN TRAVEL FOR A REASONABLE PERIOD OF TIME UPON RECEIPT OF A WRITTEN REQUEST FOR SUCH DELAY FROM THE EMPLOYEE. NORMALLY, A DELAY OF TRAVEL NOT IN EXCESS OF 90 CALENDAR DAYS WILL BE CONSIDERED A REASONABLE PERIOD OF TIME FOR DELAY OF TRAVEL. UNDER UNUSUAL EXTENUATING CIRCUMSTANCES WHICH, IN THE OPINION OF THE OVERSEAS COMMANDER CONCERNED, WARRANT A LONGER PERIOD OF DELAY, RETURN TRANSPORTATION MAY BE DELAYED UP TO 2 YEARS FROM THE DATE OF SEPARATION. IF A WRITTEN REQUEST FOR DELAYED TRAVEL IS NOT RECEIVED BY THE OVERSEAS COMMANDER, OR IF THE EMPLOYEE REFUSES TO ACCEPT TRANSPORTATION AT THE EXPIRATION OF THE APPROVED PERIOD, HE WILL BE CONSIDERED TO HAVE WAIVED HIS TRANSPORTATION ENTITLEMENT."

IT IS NOTED THAT THE ABOVE-QUOTED PROVISION GRANTS DISCRETION TO THE OVERSEAS ACTIVITY COMMANDING OFFICER TO AUTHORIZE DELAYS IN SEPARATION TRAVEL UPON A WRITTEN REQUEST FROM AN EMPLOYEE. CONSEQUENTLY, NO DELAY IS AUTHORIZED UNTIL SUCH DISCRETION IS EXERCISED. THUS, WHEN APPROVAL OF THE FIRST REQUEST HAD NOT BEEN RECEIVED 90 DAYS AFTER SEPARATION, MS. COBB, NOT HAVING BEEN AUTHORIZED A DELAY, SHOULD HAVE ACCEPTED THE OFFER TO TRAVEL EXTENDED THROUGH THE ISSUANCE OF HER TRAVEL ORDERS DATED NOVEMBER 1, 1971, AND REQUESTED A PORT CALL FOR HER RETURN TRAVEL. HOWEVER, SHE ERRONEOUSLY ASSUMED APPROVAL OF HER INITIAL REQUEST IN THE ABSENCE OF A REPLY AND APPARENTLY SUBMITTED A REQUEST FOR A SECOND 90 DAYS DELAY. AFTER HER REQUEST WAS DISAPPROVED BY LETTER DATED APRIL 12, 1972, WHICH SHE CLAIMS NOT TO HAVE RECEIVED, MS. COBB WAITED UNTIL AUGUST 31, 1972, BEFORE REQUESTING A PORT CALL FOR HER RETURN TRAVEL. HENCE, WITHOUT A DELAY BEING APPROVED, SHE WAITED APPROXIMATELY 10 MONTHS BEFORE REQUESTING A PORT CALL. UNDER THESE CIRCUMSTANCES WE ARE UNABLE TO SAY THAT THE FRANKFURT AREA CIVILIAN PERSONNEL OFFICER ERRED IN HIS DETERMINATION THAT MS. COBB HAD, UNDER THE PROVISIONS OF THE ABOVE-QUOTED REGULATION, WAIVED HER TRANSPORTATION ENTITLEMENT BY NOT RETURNING TO THE UNITED STATES WITHIN A REASONABLE TIME AFTER RECEIPT OF HER TRAVEL ORDERS.

ALSO, MS. COBB ASSERTS THE FACPO AT THE TIME OF HER SEPARATION ERRED IN NOT OBTAINING A WRITTEN STATEMENT FROM HER INDICATING THAT SHE UNDERSTOOD THE CONDITIONS WHICH WOULD CAUSE HER TO LOSE HER TRANSPORTATION ENTITLEMENT. SHE BELIEVES THIS ERROR SHOULD ESTOP THE GOVERNMENT FROM MAKING A SUBSEQUENT DETERMINATION THAT SHE HAD LOST HER TRANSPORTATION ENTITLEMENT.

IN THIS REGARD, MS. COBB RELIES ON PARAGRAPH C4202-1, VOLUME 2, JTR, WHICH PROVIDES:

"1. ELECTING TO BE SEPARATED OVERSEAS FOR PERSONAL REASONS. TRANSPORTATION ENTITLEMENT UPON SEPARATION REQUIRES THAT THE TRAVEL DESTINATION BE THE EMPLOYEE'S PLACE OF ACTUAL RESIDENCE, ESTABLISHED AT THE TIME OF ASSIGNMENT OR APPOINTMENT, OR AN ALTERNATE POINT IN THE COUNTRY OR AREA IN WHICH THE PLACE OF RESIDENCE IS LOCATED. THERE IS NO ENTITLEMENT FOR TRAVEL TO A DESTINATION ELSEWHERE. ENTITLEMENT IS LOST WHEN THE EMPLOYEE SEPARATES OVERSEAS TO ACCEPT PRIVATE OVERSEAS EMPLOYMENT OR FOR THE PURPOSE OF REMAINING OVERSEAS, EXCEPT AS PROVIDED IN PAR. C4203. THE EMPLOYEE'S ELECTION WILL BE MADE A MATTER OF RECORD IN WRITING INCLUDING A STATEMENT THAT THE EMPLOYEE CLEARLY UNDERSTANDS THE CONDITIONS OF LOSS OF TRANSPORTATION ENTITLEMENT."

WE CONSTRUE THIS REGULATION TO REQUIRE A WRITTEN ELECTION AND STATEMENT OF UNDERSTANDING OF TRANSPORTATION ENTITLEMENT LOSS ONLY FROM EMPLOYEES WHO AT THE TIME OF SEPARATION, INDICATE A DESIRE TO REMAIN OVERSEAS EITHER FOR EMPLOYMENT OR PERSONAL REASONS. IT IS NOT APPLICABLE TO EMPLOYEES WHO INDICATE A DESIRE AT SEPARATION TO RETURN TO THEIR ACTUAL PLACE OF RESIDENCE IN THE UNITED STATES. SINCE MS. COBB INDICATED A DESIRE TO RETURN TO THE UNITED STATES AT THE TIME OF HER SEPARATION WHICH WAS DULY REFLECTED IN HER ORDERS, THERE WAS NO REQUIREMENT TO OBTAIN HER WRITTEN ELECTION. MOREOVER, EVEN IF THESE PROVISIONS WERE APPLICABLE TO MS. COBB, THE PRINCIPLES OF EQUITABLE ESTOPPEL CANNOT BE APPLIED TO DEPRIVE THE PUBLIC OF PROTECTION AFFORDED BY STATUTES AND REGULATIONS, BECAUSE OF NONFEASANCE OF PUBLIC OFFICIALS. YELLEN V. HICKEL, 352 F. SUPP. 1300 (1972).

IN VIEW OF THE FOREGOING WE MUST SUSTAIN THE DISALLOWANCE OF MS. COBB'S CLAIM FOR SEPARATION TRAVEL ALLOWANCES.