Board of Contract Appeals
                 General Services Administration
                      Washington, D.C. 20405

                       ____________________

                          July 3, 2002 
                       ____________________

                         GSBCA 15752-RELO

                  In the Matter of CHARLES TASS

     Charles Tass, APO Area Europe, Claimant.

     Elizabeth F. Buchanan, Associate Deputy General Counsel (Fiscal), Office of General
Counsel, Department of Defense, Washington, DC, appearing for Department of Defense.

GOODMAN, Board Judge.

     Claimant, Charles Tass, is a civilian employee of the Air Force.  He has requested that
the agency reimburse certain amounts withheld from his pay and further relieve him of a debt
allegedly owed as the result of his service in the Peace Corps.  The agency has denied his
request.  The agency has requested that this Board render a decision on entitlement.

                       Factual Background
                                
     Claimant signed a transportation agreement on November 30, 1992, incident to a
Government transfer from California to Texas.  This agreement stated in relevant part:

     I will remain in Government service for at least 12 months beginning with the
     date I report for duty at my new duty station, unless separated for reasons
     beyond my control and acceptable to the employing activity.

     If I fail to fulfill the terms of this agreement . . .  I will upon demand repay to
     the Government a sum of money equivalent to that expended [for my
     relocation costs].

     Mr. Tass reported for duty in Texas on January 19, 1993.  He then joined the Peace
Corps on June 4, 1993.  On April 8, 1994, the Defense Finance and Accounting Service
(DFAS) deducted $3340.89 in partial repayment of claimant's moving expenses of $9049.59. 
Claimant served with the Peace Corps until May 26, 1995.  On November 28, 1995, he
asserted a claim for the return of the money that had been deducted in partial repayment of
his moving expenses.  Claimant asserts that his service with the Peace Corps constituted
Government service for purposes of the transportation agreement, and that if Peace Corps
service did not constitute Government service, any overpayment of relocation benefits should
be waived.  [Foot # 1 ]  Claimant also asserts that because he returned to his duty station in
Texas after his Peace Corps service and was reemployed by the Air Force for five additional
years, this additional employment in Government service fulfilled the requirement of the
transportation agreement to remain in Government service for twelve months. 

                                
          ****************** Footnote Begin **********
[Foot # 1 ]         The Defense Finance and Accounting Service (DFAS) sought an
opinion from the General Accounting Office (GAO) in December 1995.  GAO forwarded
the claim to this Board.  This Board forwarded the claim to the Defense Office of
Hearings and Appeals (DOHA) on March 6, 1997, because of a finding that the claim
requested a waiver and not an initial determination of entitlement.  On April 29, 1997,
DOHA requested a final agency decision and administrative file from DFAS.  DFAS
issued a final decision on October 25, 1999, and re-transmitted the file to DOHA for a
decision on waiver of overpayment.  DOHA asked the DOD Office of General Counsel
for a decision on entitlement prior to determining whether a waiver of overpayment was
appropriate.  Accordingly, the agency has asked this Board for a decision regarding
                          entitlement.
                                
          ****************** Footnote End ************
                                
                           Discussion
                                
          At the time claimant entered into his transportation agreement with the agency, the applicable
statute read as follows:

An agency may pay travel and transportation expenses . . .  when an
employee is transferred within the continental United States only after the
employee agrees in writing to remain in the Government service for 12
months after his transfer, unless separated for reasons beyond his control
that are acceptable to the agency concerned.  If the employee violates the
agreement, the money spent by the United States for the expenses and
allowances is recoverable from the employee as a debt due the United States.

5 U.S.C.   5724(i) (1988).

       Claimant's transportation agreement contained the requirement to remain in Government service for
twelve months, and the Government's right to recover the money paid in the event claimant
separated for reasons not beyond his control.

      The agency has asked this Board to determine whether claimant's service with the Peace Corps after
service as a Government employee fulfills the requirements of the law and the transportation
agreement for claimant to "remain in Government service."  [Foot # 2 ]  We determine that
claimant's service with the Peace Corps is not "Government service" as required by the law
and the transportation agreement.

                                                      
****************** Footnote Begin **********
[Foot # 2 ]         The record of this case contains two legal opinions on this issue.  The
opinion of the Brooks Air Force Base (AFB), Office of the Staff Judge Advocate concludes
that claimant's Peace Corps service fulfills the requirements of the transportation agreement,
while the opinion of DFAS offers a legal opinion to the contrary.  Claimant has submitted
detailed comments regarding many of the factual statements in that latter opinion.  While our
determination results in the same legal conclusions as the latter opinion, we do not adopt all
factual findings in that opinion, nor do we find it necessary to address all issues raised in that 
opinion.
****************** Footnote End ************

 Under 22 U.S.C.   2504(a), as it read at the time of claimant's transfer and still reads today,
Peace Corps volunteers "shall not be deemed officers or employees or otherwise in the
service or employment of, or holding office under, the United States for any purpose," except
to the extent otherwise provided in 22 U.S.C.    2501-2523. The President has the authority
to authorize travel, transportation, and other allowances for volunteers if he determines it to
be necessary for their maintenance or to ensure their health and their ability to serve
effectively.  22 U.S.C.   2504(b).  The President is further allowed to detail or assign
volunteers to agencies.  22 U.S.C.    2504(g), 2509(a)(1).  In some circumstances, service as
a Peace Corps volunteer is credited toward some civil service requirements "in the same
manner as a like period of civilian employment by the United States Government."  22 U.S.C. 
 2504(f).

Claimant makes the argument that the Peace Corps volunteer service should be
considered as service for the United States Government for the purpose of fulfilling
transportation agreements.  He bases this argument on 5 U.S.C.   2504(f)(1)(B), under which
periods of volunteer service shall be credited "in connection with subsequent employment"
in the same manner as civil service employment for the purposes of determining seniority,
reduction in force (RIF), lay-off rights, leave entitlement, "and other rights and privileges
based upon length of service under the laws administered by the Director of the Office of
Personnel Management, the Foreign Service Act of 1980, and every other Act establishing
or governing terms and conditions of service of civilian employees of the United States
Government." 
 [Foot # 3 ]  
                                                      
****************** Footnote Begin **********
[Foot # 3 ]         This is the provision relied upon by the Brooks AFB, Office of the
Staff Judge Advocate in taking the position that volunteer Peace Corps service should count
toward the service required under a transportation agreement entered into prior to the Peace
Corps volunteer service.
****************** Footnote End ************

 It is clear that  22 U.S.C.   2504 does not state that Peace Corps volunteer service will be
credited to fulfill requirements which existed under previous federal employment, such as
requirements of a prior transportation agreement entered into under 5 U.S.C.   5724(i). 
The plain language of 22 U.S.C.   2504(f)(1) by its terms applies only to employment
subsequent to Peace Corps volunteer service.  Claimant's prior employment with the Air
Force, and the transportation agreement which preceded that employment, are not within the
scope of 22 U.S.C.   2504(f)(1). 

The legislative history of this section states the purpose of its focus on subsequent
government service.  The House Report on subsection 5(f) of the Peace Corps Act (22 U.S.C. 
2504(f)) states: "This subsection is designed to encourage those Peace Corps volunteers with
service [in the Peace Corps] behind them to consider professional careers in Government
service."  1961 U.S.C.C.A.N. 2851 (emphasis added).  The legislative history further states
that the credit for volunteer service toward such matters as retirement seniority applies "in
the event that they [Peace  Corps volunteers] later become employed in any  civilian
employment system."  Id. at 2851(emphasis added). 

Neither the language of the statute nor its legislative history indicates that Congress
intended that Peace Corps service would fulfill requirements which arose during prior
Government service, such as the requirements of prior transportation agreements.  While
Congress stated that it intended to make it easier for former volunteers to enter Government
service, it said nothing about encouraging employees to leave their positions in order to
volunteer in the Peace Corps. 

Claimant makes an additional argument.  He states:

Even if you claim that the Peace Corps is not Government service, my
reemployment by the Air Force in 1996 after returning from the Peace Corps
has fulfilled the intent of the Transportation Agreement. . . .

The intent of the Transportation Agreement is to require an employee to
continue working for the Federal Government for at least 12 months after the
Government pays for moving expenses to a new location, which is exactly
what I did.  Since moving at Government expense to San Antonio in 1993, I
worked for the Peace Corps for two years before returning and working for the
Air Force for another five years.  My move back to San Antonio after Peace
Corps was at my own expense, not the Government.  Therefore, I have
fulfilled this transportation agreement many times over.

Thus, claimant argues that his return to Government service after the Peace Corps
fulfilled the requirement of the transportation agreement to remain in Government service
for twelve months.  Claimant's argument lacks merit, as his actions were contrary to the plain
meaning of the transportation agreement, which states:

I will remain in Government service for at least 12 months beginning with the
date I report for duty at my new duty station, unless separated for reasons
beyond my control and acceptable to the employing activity.
 [Foot # 4 ] 
                                                      
****************** Footnote Begin **********
[Foot # 4 ]         As noted previously, this language is substantially the same as that
of the applicable statute.
****************** Footnote End ************

 The use of the word "remain" indicates that the twelve-month period should be continuous. 
Claimant did not remain in Government service for twelve months, but separated for reasons
of his own convenience, within his control.  According to the plain language of the
transportation agreement, when claimant failed to fulfill the twelve-month requirement and
left his Air Force employment, he became liable for the return of the travel funds under the
agreement.  This liability was not contingent.  There was no provision that stated that
claimant would not be liable if he returned to Government service in the future.

The fact that claimant did return to Government service by accepting another position
with the Air Force after completing his Peace Corps duties does not relieve claimant of the
liability that attached when he left Government service.  It was claimant's choice to return
to Government service; he was not required to do so. 
                      [Foot # 5 ] Decision

                                                      
****************** Footnote Begin **********
[Foot # 5 ]        Claimant also argues that he was on Leave Without Pay (LWOP) for 
approximately eleven months while in the Peace Corps.  The agency states that claimant was
consistently denied requests for LWOP and any documentation indicating same was a clerical
error.  We need not determine if claimant was on LWOP, as LWOP is not sufficient to fulfill
a transportation agreement once an employee has left federal employment.  71 Comp. Gen.
199 (1992).
****************** Footnote End ************

 The claim is denied. 

                                                                                                                  ______________________________
                                                                                                                 
ALLAN H. GOODMAN
                                                                                                                 
Board Judge