B-174879, FEB 8, 1972

B-174879, FEB 8, 1972

CIVILIAN EMPLOYEE - RETROACTIVE RECISION OF TRANSFER ORDERS DISALLOWING REVOCATION OF TRANSFER ORDERS ISSUED TO LEWIS W. SHOLLENBERGER, A FORMER EMPLOYEE OF THE SMALL BUSINESS ADMINISTRATION. RETROACTIVE RECISION OR MODIFICATION OF TRAVEL ORDERS IS ONLY ALLOWED WHERE ERROR OR OMISSION OF AN INTENDED PROVISION IS APPARENT. B 168884, MARCH 5, 1970. ACCORDINGLY, UNLESS IT IS DETERMINED THAT THE EMPLOYEE HAS BEEN SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE AGENCY, AS PROVIDED BY 5 U.S.C. 5724(I), MR. SHOLLENBERGER SHOULD BE HELD LIABLE UNDER THE ORIGINAL EMPLOYMENT AGREEMENT.

TO MR. JOHN C. MACKALL:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 30, 1971, REQUESTING AN ADVANCE DECISION AS TO WHETHER TRANSFER ORDERS IN THE CASE OF MR. LEWIS W. SHOLLENBERGER MAY BE CANCELLED UNDER THE CIRCUMSTANCES HEREINAFTER RELATED.

THE RECORD SHOWS THAT MR. SHOLLENBERGER WAS TRANSFERRED FROM WASHINGTON, D.C., TO ATLANTA, GEORGIA, EFFECTIVE NOVEMBER 15, 1970, AND ACTUALLY PERFORMED SERVICES AT THAT LOCATION UNTIL APPROXIMATELY MAY 2, 1971. CONNECTION WITH SUCH TRANSFER, HE SIGNED THE USUAL SERVICE AGREEMENT TO REMAIN IN THE GOVERNMENT SERVICE 12 MONTHS OR ELSE REPAY THE TRANSFER EXPENSES PAID BY THE GOVERNMENT. EFFECTIVE MAY 2, 1971, MR. SHOLLENBERGER RETURNED TO WASHINGTON, D.C., UNDER VERBAL AUTHORIZATION FOR TRANSFER BY A PARTY LACKING AUTHORITY TO GIVE SUCH AUTHORIZATION, AND ABSENT A SERVICE AGREEMENT. EFFECTIVE SEPTEMBER 18, 1971, THE EMPLOYEE APPARENTLY IN HIS OWN BEST INTEREST RESIGNED HIS POSITION TO ACCEPT A POSITION IN PRIVATE INDUSTRY, THUS VIOLATING THE EMPLOYMENT AGREEMENT EXECUTED ON NOVEMBER 15, 1970. YOU REQUEST THAT SINCE THE EMPLOYEE DID NOT MOVE HIS FAMILY OR HOUSEHOLD EFFECTS TO ATLANTA WHEN ORIGINALLY TRANSFERRED AND INCURRED NO EXPENSE OTHER THAN HIS LIVING COSTS AND TRANSPORTATION TO AND FROM ATLANTA, THAT THE ORIGINAL ORDERS FOR TRANSFER BE CANCELLED AND THE EMPLOYEE RETROACTIVELY PLACED ON TEMPORARY DUTY.

WE HAVE HELD THAT TRAVEL ORDERS MAY NOT BE REVOKED OR MODIFIED RETROACTIVELY, SO AS TO INCREASE OR DECREASE RIGHTS WHICH HAVE BECOME FIXED UNDER STATUTE OR REGULATIONS, UNLESS ERROR IS APPARENT ON THE FACE OF THE ORDERS OR AN INTENDED PROVISION WAS OMITTED THROUGH ERROR. SEE B- 168884, MARCH 5, 1970. IN THE INSTANT CASE THE RECORD REVEALS NO ERROR OR OMISSION OF AN INTENDED PROVISION IN THE TRANSFER ORDERS ISSUED TO MR. SHOLLENBERGER.

UNDER THE SERVICE AGREEMENT REQUIRED BY 5 U.S.C. 5724(I), THE EMPLOYEE MUST REMAIN IN GOVERNMENT SERVICE 12 MONTHS FOLLOWING THE EFFECTIVE DATE OF TRANSFER IN ORDER TO BE ENTITLED TO EXPENSES, UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL AND ACCEPTABLE TO THE AGENCY. SECTION 1.5(A)(3) OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56 STATES:

" *** THE AGREEMENT TO REMAIN IN THE SERVICE OF THE GOVERNMENT FOR TWELVE MONTHS FOLLOWING THE EFFECTIVE DATE OF TRANSFER IS NOT VOIDED BY A SUBSEQUENT TRANSFER *** THE LIABILITY OF THE EMPLOYEE FOR ANY MONEYS EXPENDED BY THE UNITED STATES FOR HIS TRAVEL, TRANSPORTATION AND RELOCATION ALLOWANCES IS A SEPARATE LIABILITY FOR EACH SERVICE AGREEMENT. THE LIABILITY IN EACH INSTANCE IS EFFECTIVE FOR THE FULL TWELVE-MONTH PERIOD IN CONNECTION WITH THE TRANSFER FOR WHICH THE SERVICE AGREEMENT WAS MADE."

IN VIEW OF THE FOREGOING, THE RETROACTIVE CANCELLATION OF THE EMPLOYEE'S ORIGINAL TRANSFER ORDERS FROM WASHINGTON, D.C., TO ATLANTA, GEORGIA, WOULD NOT BE APPROPRIATE. IT FOLLOWS THAT HE SHOULD BE HELD LIABLE UNDER THE EMPLOYMENT AGREEMENT OF NOVEMBER 10, 1970, IN THE ABSENCE OF A DETERMINATION OF RELIEF FROM LIABILITY AS INDICATED IN 5 U.S.C. 5724(I) ABOVE.