_________________________
 
                           November 19, 1997
                       _________________________
 
 
                            GSBCA 14017-RELO
 
 
                      In the Matter of DANA RISER
 
 
        Dana Riser, Brea, CA, Claimant.
 
        R.  Michael  Imphong,  Chief,  Allowances  Unit,  Air  Force
   Personnel  Operations  Agency,   Washington,  DC,  appearing  for
   Department of Defense.
 
   WILLIAMS, Board Judge.
 
        Claimant  seeks reimbursement  of $20,152.60 in  real estate
   expenses allegedly incurred  incident to her permanent  change of
   station  from the Defense  Contract Audit Agency  (DCAA), Redondo
   Beach  to March  Air  Force Base  (March AFB)  --  a distance  of
   seventy-five  miles.   Prior to  claimant's  relocation, the  Air
   Force authorized  reimbursement of  real estate  expenses in  her
   travel  orders.     However,   in  subsequently   exercising  its
   discretion to  approve claimant's  relocation  expenses, the  Air
   Force  denied reimbursement, concluding that claimant's move to a
   residence only twenty-four miles  closer to her new duty  station
   was  not in the  immediate vicinity of the  new duty station, was
   for her  own personal  convenience, and was  not incident  to her
   transfer.  Because  the travel orders were valid  when issued and
   because  the facts of record support a conclusion that claimant's
   move was incident to her transfer, we grant the claim.
 
                               Background
 
        In January 1995, claimant  accepted a position with the  Air
   Force Audit Agency  (AFAA) as  an audit manager  at March AFB  in
   Moreno Valley, California.  Prior to  that, claimant was employed
   with the DCAA as an auditor in Redondo  Beach, California.  March
   AFB  is  located  approximately  seventy-five   miles  away  from
   claimant's  old duty  station.    Before  relocating,  claimant's
   permanent residence was in Compton, California, a distance of ten
   miles from  her old duty  station and sixty-three miles  from her
   new duty station.
 
        In  claimant's travel  authorization  issued on  February 5,
   1995,  the  Air  Force authorized  reimbursement  of  real estate
   expenses for  the purchase and  sale of  claimant's residence  so
   long  as the  expenses  were  incurred within  two  years of  her
   reporting  date  of   February 21,  1995.    Claimant   was  also
   authorized  to receive  temporary  quarters subsistence  expenses
   (TQSE) for sixty days. 
 
        During February and  March 1995, claimant commuted  to March
   AFB from her old residence, traveling 126 miles per day roundtrip
   with a commuting time of 90 minutes each way.
 
        On May 4, 1995,  claimant sold her residence at the old duty
   station in Compton,  California.  She  is claiming $15,444.80  in
   real  estate  expenses  in  conjunction with  the  sale  of  this
   residence.   During  a TQSE  period between  April 2 and  July 2,
   1995,  claimant  resided  at  the  Residence  Inn  in  Placentia,
   California -- which  was also closer to her new duty station than
   was her old residence.
 
        Claimant intended  to purchase a  new residence as  close as
   possible to her  new duty station.  In  selecting the location of
   her  family's new residence, claimant took into consideration her
   spouse's employment location, which was in El Segundo, California
   -- some seventy-nine miles away from  her new duty station -- the
   travel requirements  of her new position, and  concerns for child
   care.  Specifically,  because her husband had to  take over child
   care when she traveled for her job, claimant required a residence
   which was not too far from El Segundo.
 
        On  June 23, 1995,  claimant purchased a  residence in Brea,
   California,  and  she  seeks $4,707.80  in  real  estate expenses
   arising  from that  purchase.   In  July 1995,  claimant and  her
   family moved  into this home  in Brea, California, a  distance of
   thirty-nine miles from her new  duty station.  By relocating from
   Compton  to Brea,  claimant reduced  her  commute by  twenty-four
   miles and forty-five minutes each way.
 
        Claimant sought  reimbursement of expenses  arising from her
   sale of the Compton residence on May 16, 1995.  On May  21, 1996,
   the agency's personnel management specialist forwarded the claims
   to the Air Force Personnel Operations Agency (AFPOA), Bolling Air
   Force Base, Washington, D.C.,  for determination of  eligibility,
   stating  that  "it  does  not  appear  that  the  relocation   of
   claimant's residence  was incident to her transfer to March AFB."
   The personnel management specialist reasoned as follows: 
 
        [Claimant's] old  residence  was  located  in  Compton,
        approximately  10 miles from  her old duty  station and
        sixty-five  miles  from March.    On  5  May  1995  she
        requested  an extension of  her TQSE and  submitted for
        the reimbursement of the sale of her old residence.  At
        this time her mailing address was located in Gardena, a
        location west  of her  old residence  rather than  east
 
        toward March  AFB.   At this time  she was  planning to
        purchase a residence in Placentia.  In June 1995, a new
        purchase agreement  was signed  for a  home located  in
        Brea, 24 miles  from her old address and  47 miles from
        March AFB.
 
        There  is no  evidence that  [claimant]  ever tried  to
        relocate  in the  immediate vicinity  of  her new  duty
        station,  March AFB.   The  undated  and unsigned  memo
        [claimant] prepared,  cites her childrens  [sic] school
        and   husbands   [sic]    duty   location   as    major
        consideration. . . .   El Segundo,  her husband's  duty
        location is located  4 miles north of  [claimant's] old
        duty station and  more than 75 miles from  her new duty
        station.   In addition,  it appears  that her  children
        have remained in the same school district  and her TQSE
        was utilized in  an area closer  to her husbands  [sic]
        duty  location  in  El Segundo  than  to  her  new duty
        station.
 
        On  June  17,  1996, claimant  submitted  a  rebuttal letter
   factually   disputing  several   statements   in  the   personnel
   management specialist's  recommendation.   Specifically, claimant
   replied that she and her  family were never residents of Gardena;
   the  mailing  address was  simply  a  post  office box  near  her
   husband's  employer.   She submitted her  hotel receipts  to show
   proof of residence during  the TQSE period and demonstrated  that
   TQSE was not in an area closer to her husband's employer, but was
   in Placentia, which was closer to her new duty station.  Claimant
   also submitted a map showing that  her home in Brea is closer  to
   March AFB and that Brea is located between her husband's place of
   employment in El Segundo  and March AFB.   In addition,  claimant
   submitted a report card showing that her child did not remain  in
   the same school district.  She stated:
 
        The  factors  considered  in   the  selection  of   our
        residence were the location of my husband's employment,
        the  accessibility of  our children's  school for  both
        parents,  and the  commuting  rearrangements caused  by
        work  related  audit  travel  required  by  my  auditor
        position  . . .  .   To  conclude,  my  intent  was  to
        relocate as close as possible to March [AFB].
 
        On August 29, 1996, the Chief Allowances Unit, AFPOA, denied
   claimant's claim, reasoning as follows:
 
        [T]he primary issue is whether a short distance move is
        approved   for  the  Los  Angeles  area.    Our  review
        indicates  your move was from Compton, CA, to Brea, CA.
        This  relocation   resulted  in  a  reduction  of  only
 
        approximately        17   miles[[foot #] 1]    of    an
        approximately 63 mile commute.  In order to be incident
        to  a PCS the real estate  transaction should be caused
        by  the PCS.  Your statement indicates several factors,
        to  include  your  spouse's  employment and  children's
        school  location  influenced  your  decision.     These
        factors  appear to  have prevented  you  from making  a
        relocation decision based  primarily upon the  location
        of your new permanent duty station.
 
        Based  upon  our  review  we  do   not  find  that  the
        relocation was incident to your PCS.  This  in addition
        to   our  long  standing  Air  Force  position  of  not
        approving  short distance moves in the Los Angeles area
        prevent us from approving your appeal for reimbursement
        of real estate expenses.
 
        On November  22, 1996,  claimant sought  a determination  by
   this  Board.   In  its submission  to the  Board,  the Air  Force
   further explained:
 
        Although the Air  Force does have a policy  of limiting
        short distance moves in the Los Angeles area as well as
        Washington[,] DC,  and San Antonio[,] Texas,  we review
        each situation  individually.  This  resulted in  these
        three individuals being  authorized PCS expenses  based
        upon the  reasonable assumption  that  they would  move
        their  residence  to the  immediate  vicinity  of March
        [AFB].  There was  never an indication Ms.  Riser would
        relocate to a new residence which would not  reduce her
        commuting distance  by even  50%.  When  this fact  was
        ascertained  during   the  real   estate  reimbursement
        process,  the   Air  Force   representatives  correctly
        determined   the  subsequent   sale   of  Ms.   Riser's
        Compton[,] CA home and purchase of the Brea[,] CA  home
        was not incident to her transfer to March [AFB].
 
             . . . .
 
        Air  Force policy would  not have prevented  payment of
        real estate  expenses if  [claimant] had  moved to  the
        vicinity of March [AFB].
 
        Claimant responded  that there  is no  regulation or  policy
   which required her  to reduce her commute  by 50% in order  to be
   reimbursed for  real estate expenses.   Nor was she  ever advised
   that the Air  Force required her  to move 37.5  miles (50% of  75
   miles).
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1     In  a  letter  to the  Board,  the  Air Force
   subsequently recognized  that claimant's commute  was reduced  by
   twenty-four miles each way.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
                               Discussion
 
        At issue  in this case  is whether the real  estate expenses
   incurred by  claimant were  incident to her  permanent change  of
   station from Redondo  Beach to March AFB, a  distance of seventy-
   five  miles, when she changed  her residence so  as to be twenty-
   four miles closer to her new duty station.
 
        As we  recognized in  Cheryl A.  Cadwell, GSBCA  14148-RELO,
   97-2 BCA    29,066, "[g]enerally when an  employee is transferred
   in the interest  of the  Government from  one official  permanent
   duty  station  to  another, the  Government,  in  accordance with
   regulatory prescriptions,  is to  pay the  expenses the  employee
   incurs in selling  his residence at the old station  and buying a
   home at  the new  one.   5 U.S.C.    5724a(a)(4)  (1988); 41  CFR
   302-1.3(a)(1), pt. 302-6 (1993)."  Further, we noted that "[w]hen
   the  old and  new stations  are within a  short distance  of each
   other, special  rules apply."   Specifically,  we quoted  Federal
   Travel  Regulation (FTR)  302-1.7(a): "[i]f  the  distance is  at
   least  ten  miles  and  is  within  the  same  general  local  or
   metropolitan  area, .  .  . the  applicable allowances  'shall be
   authorized  only when the  agency determines that  the relocation
   was  incident  to  the  change  of official  station.'    41  CFR
   302-1.7(a)."  This regulation also provides:
 
        Ordinarily,  a relocation  of  residence  shall not  be
        considered  as incident to a change of official station
        unless  the  one-way commuting  distance  from  the old
        residence  to  the  new official  station  is  at least
        10 miles greater than from the old residence to the old
        official station.  Even then, circumstances surrounding
        a particular  case (e.g., relative  commuting time) may
        suggest that the move of  residence was not incident to
        the change of official station.
 
   41 CFR 302-1.7.   The FTR and the Joint  Travel Regulations (JTR)
   prescribe factors which an agency  should consider in making such
   a  determination, as  follows:    "commuting  time  and  distance
   between  the employee's residence at the  time of notification of
   transfer  and his/her old  and new posts  of duty as  well as the
   commuting time and  distance between a proposed new residence and
   the new post of duty."  Id.; JTR C4108.
 
        Here, claimant's one-way commuting distance between  her old
   residence  and old  duty post  was  ten miles,  and the  distance
   between her old  residence and new duty  station is approximately
   sixty-three  miles.    In  addition,  claimant's  commuting  time
   between her old residence and new duty station  was approximately
   ninety minutes each  way for a roundtrip commute  of three hours.
   Thus, because claimant's  commute from her  old residence to  the
   new duty  station would have  been fifty-three miles  longer than
   her old commute,  she meets the minimum standard in  the FTR that
   her "one-way commuting distance from the old residence to the new
   official station [be] at least 10 miles greater than from the old
   residence  to  the  old  duty station."    The  distance  between
   claimant's  new residence and  new duty station  is approximately
   thirty-nine miles, and the commuting time forty-five minutes each
   way.  Thus, by moving  to Brea, claimant saved ninety minutes  in
   commuting time and  reduced her commute by twenty-four miles each
   way.
 
 
        Under  the  circumstances,  neither  statute nor  regulation
   prohibited the agency from authorizing or approving reimbursement
   of  claimant's real estate  expenses.  Thus,  claimant's February
   1995  travel  orders  were  valid  and  not  erroneous,  and  the
   particulars  of her  move  did not  warrant  either the  agency's
   revocation  of  its  prior authorization  or  its  disapproval of
   claimant's real  estate expenses due  to the location of  her new
   residence.[foot #] 2          John    Patrick     Pede,     GSBCA
   13862-RELO, 97-2 BCA    29,023, "As a general  rule, legal rights
   and liabilities  with regard  to  travel expenses  vest when  the
   travel is performed,  and valid travel orders may  not be revoked
   or  modified retroactively  so  as to  increase  or decrease  the
   rights  that  have  become  fixed  after   the  travel  has  been
   performed.   John A.  Curtin,  et  al., B-239413  (July 3,  1991)
   (travel orders may  be amended or revoked to  correct an error on
   the face of the  orders or if the orders clearly  are in conflict
   with a  law, regulation, or  agency instruction).  Here,  the Air
   Force  has shown no  basis for  revoking or  modifying claimant's
   valid travel  orders, since  the  facts of  record indicate  that
   claimant's move was incident to her transfer.
 
        Specifically, the  Air Force's  post hoc determination  that
   claimant's  relocation was not "incident to her transfer" because
   claimant  considered  factors  such as  her  spouse's  employment
   location  is unsupported.   Rather,   the  relevant facts  -- the
   timing   of  claimant's  relocation,  the  location  of  her  new
   residence closer to March AFB, and her consistent statements that
   her job transfer was the primary cause of her move -- support the
   conclusion that claimant's move was incident to her transfer.  In
   addition, the Air Force's conclusion  that claimant should not be
   reimbursed her real  estate expenses because she did  not move to
   the  "immediate" vicinity  of her  new duty  station and  did not
   reduce her commute by 50% is not mandated by statute, regulation,
   or  decisions of  this Board  or the  Comptroller General.   See,
   e.g.,  54 Comp. Gen.  751 (1969)  (reimbursement  of real  estate
   expenses allowed where employee moved only one mile away from his
   former   residence);  E.  L.   Carney,  B-172705  (May 28,  1971)
   (expenses  allowed where distance  between old and  new residence
   7/10  mile).  As such, claimant is  entitled to be reimbursed her
   real estate expenses  to the extent  permitted under statute  and
   regulation.
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 2     The Air  Force could have revoked  its travel
   authorization  if claimant's  move did  not  meet the  regulatory
   requirement that her one-way commute be reduced by ten miles.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
                                Decision
 
        Ms. Riser is entitled to real estate transaction expenses on
   the sale of her Compton residence and the purchase of her home in
   Brea.  We direct the agency to  review the specifics of the claim
   and to  reimburse claimant for  all expenses which  are allowable
   under the relevant regulations, FTR 302-6.
 
                                      __________________________
                                      MARY ELLEN COSTER WILLIAMS
                                      Board Judge