Board of Contract Appeals
                    General Services Administration
                         Washington, D.C. 20405
 
 
 
                                                 
 
                             April 7, 1998
                                                 
 
 
                            GSBCA 14176-RELO
 
 
                   In the Matter of ELMER L. GRAFFORD
 
 
        Elmer L. Grafford, Summerville, SC, Claimant.
 
        David E. Kirkpatrick, Counsel, Aircraft  Division, Naval Air
   Warfare Center,  Indianapolis, Indiana, appearing  for Department
   of the Navy.
 
   DANIELS, Board Judge (Chairman).
 
        When the Department of the Navy closed a base in  Panama, it
   transferred  one of the civilian employees stationed there, Elmer
   L. Grafford, to a facility in Indianapolis, Indiana, to which Mr.
   Grafford  had return  rights.   Mr. Grafford  knew that  upon his
   arrival  in Indianapolis, due  to the contracting-out  of various
   activities,  he would  be  placed in  reduction-in-force  status.
   Rather  than  subject his  family  to  further forced  moves,  he
   decided to locate the family  in Charleston, South Carolina,  and
   to remain with the Indianapolis  facility only for the few months
   before he was eligible for retirement.   He would then retire and
   join  his family in  Charleston.  He  informed the  Navy of these
   plans before he left Panama.
 
        In   conjunction  with   the  relocation   from  Panama   to
   Indianapolis, Mr. Grafford  asked  the Navy to  reimburse him for
   expenses he incurred with regard to purchase of a home, temporary
   quarters  subsistence,  and   round-trip  transportation  between
   Indianapolis and Charleston.  He also asked the Navy to reimburse
   him for  expenses he  incurred in  selling the home  in which  he
   lived  in Indianapolis before he was sent  to Panama.  The agency
   denied  the claim.   The  employee has  asked us  to review  this
   decision.
   Real estate transaction expenses
 
 
        In 1993, four  months after having been sent  to Panama, Mr.
   Grafford  sold  the   home  in  which  he  had   been  living  in
   Indianapolis.  He incurred settlement charges in making the sale.
     The Navy denied  his claim for reimbursement of  these costs on
   the ground that he did  not request reimbursement "within the two
   year  period allowed by applicable regulations," which the agency
   identifies  as paragraph C14000-B of the Joint Travel Regulations
   (JTR).  The agency's reading of the law is in error.
 
        When an agency transfers an  employee in the interest of the
   Government, it must pay the  expenses incurred by the employee in
   selling his  residence at his  old duty station and  purchasing a
   home at  his new station,  providing that certain  conditions are
   met.          5     U.S.C.      5724a(a)(4)(A)     (Supp.     III
   1991);[foot #] 1   41   CFR   302-6.1   (1993);   JTR   C14000-A.
   The  JTR  contain  a two-year  limitation  regarding  real estate
   transaction expenses,  but that  limitation does  not impair  Mr.
   Grafford's ability to  make this claim.   The  rule is that  "the
   settlement  dates for the sale and  purchase or lease termination
   transactions for  which reimbursement  is requested  must not  be
   later than  2 years after the date that the employee reported for
   duty   at   the    new   [permanent   duty   station]."       JTR
   C14000-B.[foot #] 2      The   settlement   on   Mr.   Grafford's
   old residence  in Indianapolis occurred much less  than two years
   after he  reported to Panama.  Thus,  the JTR provision relied on
   by  the Navy does not  preclude payment of  this claim.  Congress
   has provided that,  in general,  a claim  against the  Government
   must be  received within six years  after the claim accrues.   31
   U.S.C.A.   3702 (West Supp. 1997).  This restriction is no bar to
   Mr.  Grafford's request for  reimbursement, either; he  filed his
   claim in June 1997, less than four years after it accrued.
 
        Although the claim for reimbursement of expenses incurred in
   the 1993 sale of Mr.  Grafford's residence in Indianapolis is not
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1 If both the old and new official stations are not
   "located   within  the   United   States,   its  territories   or
   possessions, the Commonwealth  of Puerto Rico,  or the areas  and
   installations in  the Republic  of Panama  made available  to the
   United States  pursuant to  the Panama Canal  Treaty of  1977 and
   related   agreements,"   special   rules   apply.      5   U.S.C.
     5724a(a)(4)(A); see  John W.  McCollum, GSBCA  13671-RELO, 97-1
                     ___  _________________
   BCA    28,863; Harry  T.  Teraoka, GSBCA  13641-RELO,   97-1  BCA
                  __________________
     28,796.   Since both  of Mr. Grafford's  duty stations,  at the
   time of the  1993 move, were located within  the named geographic
   areas, we need not concern ourselves with the special rules.
 
        [foot #] 2 The    two-year    period   may,    in    certain
   circumstances,  be extended by  as much  as one  additional year.
   JTR C14000-B; see  Clifford L. Leeson, GSBCA  14354-RELO (Apr. 7,
                 ___  __________________
   1998).
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   associated with the  Navy's transfer of the  employee from Panama
   to Indianapolis, the claim has been presented in a timely manner,
   and  it  is  for  the   sort  of  expenses  which  are  generally
   reimbursable.   We direct the  Navy to examine the  components of
   the  claim in  light of  the regulatory  provisions  which govern
   allowability  of  real  estate    transaction  expenses,  and  to
   reimburse Mr. Grafford appropriately.  See JTR C14002; 41 CFR pt.
   302-6 (1993).
 
 
        After  returning to  the  United  States  from  Panama,  Mr.
   Grafford purchased a home in Summerville, South Carolina, outside
   Charleston.   He  incurred  settlement  charges  in  making  this
   purchase.    The  Navy authorized  reimbursement  of  real estate
   expenses  in  conjunction   with  Mr.   Grafford's  transfer   to
   Indianapolis.  The claimant  maintains that because  Indianapolis
   was  really  his   duty  station  only  temporarily   (until  his
   retirement) and  Charleston was his new permanent  home, the Navy
   should reimburse him  for the settlement charges on  the house in
   Charleston.   This  interpretation of  the facts  and law  is not
   correct.  A transferred employee's costs of purchasing a new home
   are reimbursable  only if the  new home  is at  the new  official
   station.   5  U.S.C.    5724a(a)(4)(A)  (1994);  41  CFR  302-6.1
   (1996);  JTR C14000-A.  An  "official station" is "[t]he building
   or other  place where the  officer or employee  regularly reports
   for   duty"  and,  with  respect  to  entitlement  to  relocation
   benefits,  "the  residence  or  other  quarters  from  which  the
   employee  regularly  commutes  to   and  from  work."    41   CFR
   302-1.4(k).    Indianapolis was  Mr. Grafford's  official station
   upon his transfer from Panama,  and the employee does not contend
   that  he regularly  commuted  to his  job there  from Charleston.
   Because  the home  Mr. Grafford  purchased  upon reassignment  to
   Indianapolis  was not  at his  official station,  the  Navy acted
   properly in denying  the request for reimbursement  of settlement
   charges Mr. Grafford incurred in buying that home.
 
   Temporary quarters subsistence expenses (TQSE)
 
        Another benefit available to  transferred employees is TQSE,
   for a period of sixty days while occupying temporary quarters.  5
   U.S.C.   5724a(a)(3); 41 CFR pt. 302-5  (1996); JTR ch. 13.   The
   Navy  authorized such  reimbursement in  the  orders sending  Mr.
   Grafford to Indianapolis.  Mr.  Grafford claims TQSE for June 19,
   1996  (lodging  location:    Panama); June  20  through  August 2
   (lodging location: Charleston); and August 10 through 15 (lodging
   location:  Indianapolis).   He explains  that after June  19, the
   family  lived in  a motel  in Charleston  and ate  in restaurants
   while they  were looking for  a permanent residence in  the area.
   During most  of  this  time  (apparently until  August  10),  Mr.
   Grafford was in Charleston as well, on leave.  The Navy paid TQSE
   only for the single  day in Panama and the days  when Mr. Grafton
   was in Indianapolis.  The agency refused to pay for the days when
   he was  in Charleston.   It based  this decision on  two factors:
   first,  whatever  he  did  in  Charleston  was  unrelated  to his
   transfer to  Indianapolis; and second,  he was on leave  while in
   South Carolina.
 
 
        The JTR establishes conditions of eligibility for receipt of
   TQSE which include  the place where a transferred employee and/or
   his family may be housed:
 
        As  a  general  rule  the  location  of  the  temporary
        quarters must be within reasonable proximity of the old
        and/or new  official station.   Payment  of subsistence
        expenses for  occupancy of temporary  quarters in other
        locations  will  not  be allowed  unless  justified  by
        circumstances  unique to the individual employee or the
        employee's dependents that  are reasonably related  and
        incident  to the transfer.   Payment for  such expenses
        must be  authorized  or approved  by  the head  of  the
        [Department of Defense] component  concerned or his/her
        designee,  provided the  designee is  at  a level  high
        enough to  ensure adequate review of  the circumstances
        involved and to determine that payment of the temporary
        quarters allowance is justified.
 
   JTR    C13001-A.2   (Mar.   1,    1996);   see   also    41   CFR
   302-5.2(d).[foot #] 3
 
        Under this regulation, the fact that the Grafford family was
   occupying temporary quarters at  a location other than Panama  or
   Indianapolis does  not disqualify them  from receiving TQSE.   It
   does  require,  however, that  a determination  be made  that the
   family's  living   in   Charleston  was   justified   by   unique
   circumstances  that  were  reasonably related  to  the  transfer.
   While we  cannot make such  a determination -- only  a high level
   Department of Defense official may  make it, according to the JTR
   -- we do  observe that the timing  of the transfer, the  need for
   the employee to move again in the near future if he was to remain
   with  the Government, and  the employee's consequent  decision to
   retire to a place of his own choosing constitute a unique  set of
   circumstances, and there  is no apparent  reason other than  this
   conjunction of factors for the  family's living away from the old
   and new duty stations.  Thus, we find that a determination to pay
   TQSE  by   the  appropriate   official   would  be   permissible,
   notwithstanding the fact that the family was living away from the
   employee's old and new duty stations.
 
        We caution,  however, that  if the Navy  decides to  pay the
   Graffords' TQSE for  the time that the family  was in Charleston,
   it should ensure, consistent with statute and regulation, that it
   make such payments only for the time when the family was actually
   occupying  temporary quarters.  We note that Mr. Grafford settled
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 3 Pursuant  to  revisions   of  these  regulations,
   similar  provisions are  now found at  JTR C13110-A.2.f  (Mar. 1,
   1998) and 41 CFR 302-5.9 (1997).
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   on  the house  in  Summerville  on July  15,  1996.   Unless  Mr.
   Grafford  can  demonstrate  that  his  family  actually  occupied
   temporary  quarters even  after  he  had  purchased  a  permanent
   residence,  TQSE should not  be paid for any  date after July 15.
   Under  the  JTR, whenever  any  member  of  a family  moves  into
   permanent quarters, the period of eligibility for TQSE ends.  JTR
   C13005-A; see also 41 CFR 302-5.2(f) (provisions now found at JTR
   C13110-B.3 and 41 CFR 302-5.108).[foot #] 4 
 
 
        The Navy has also questioned  whether it should pay TQSE for
   any days while  Mr. Grafford  was on  leave.  The  record is  not
   clear as  to whether  the employee  was on annual  leave or  sick
   leave during the period in question.  If he was on  vacation, the
   Federal   Travel   Regulation  (FTR)[foot #] 5   is   clear  that
   TQSE  may  not  be  paid for  this  period.    41  CFR 302-5.2(d)
   (provision now found at 41 CFR 302-5.302); Robert E. Jacob, GSBCA
   13792-RELO, 97-2 BCA   29,218.  The FTR does not state explicitly
   whether TQSE may  be paid for days while an employee is on annual
   leave for any purpose other than vacation, or on sick leave.  The
   regulation  says,  on  this  subject,  only that  the  period  of
   consecutive  days of eligibility for TQSE  may be interrupted for
   "non-official  necessary  interruptions such  as  hospitalization
   [or] approved  sick leave."   JTR  C13005-A.1; 41 CFR  302-5.2(a)
   (provisions   now  found  at   JTR  C13110-B.2.a.3  and   41  CFR
   302-5.106(c)).
 
        The  General Accounting Office (GAO), which formerly settled
   claims  against  the  Government  involving  relocation  expenses
   incurred by Federal  civilian employees,  at one  time held  that
   employees who were authorized to receive TQSE could be reimbursed
   for those expenses while on any kind of leave.  GAO believed that
   since the employees were continuing to occupy temporary quarters,
   reimbursement was  appropriate.   Jon C. Wade,  61 Comp.  Gen. 46
   (1981).   GAO  changed its position  when the FTR  was amended to
   prohibit  payment  of TQSE  to  employees who  were  on vacation.
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 4 There is an exception  to this rule: if  a family
   member who is a  dependent moves into a permanent  residence in a
   different  locality  from   the  one  in  which  the   family  is
   temporarily quartered,  the rest  of the  family may continue  to
   receive TQSE.   The most common application of  this exception is
   to college students.  Lee  R. Vickson, GSBCA 13890-RELO, 97-1 BCA
                         _______________
     28,959.  The exception is not relevant to this case.
 
        [foot #] 5 The  FTR, which is issued by the Administrator of
   General  Services, applies  to  all  civilian  employees  of  the
   Government.   5 U.S.C.A.   5738 (West  Supp. 1997) (superseding 5
   U.S.C. subch. II (1994); Exec. Order No. 11,609 (July 22, 1971)).
   The   JTR  supplements  the  FTR  with  application  to  civilian
   employees of the  Department of Defense.   JTR C1000.   Since the
   JTR does not  speak to this particular matter,  the provisions of
   the FTR govern.  See  Lorrie  L. Wood, GSBCA 13705-TRAV, 97-1 BCA
                    ___  _______________
     28,707.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   Larry C. Larson, B-230390 (Sept. 13, 1989).  The Administrator of
   General Services' determination to reverse (through  amendment to
   regulation) GAO's earlier holding as to vacation time, but not as
   to annual leave for other purposes or as to sick leave, persuades
   us that the earlier rule should remain applicable to periods when
   these  other forms  of leave are  taken.   Such a result  is also
   consistent with an FTR rule regarding employees on travel status:
   an  employee who becomes  incapacitated while on  temporary duty,
   and "takes leave  of any kind," shall  continue to receive a  per
   diem allowance.  41 CFR  301-12.5(a).  Consequently, for the days
   that Mr. Grafford  was not on vacation and  otherwise eligible to
   receive  TQSE,  he  should  receive  reimbursement  for  TQSE  he
   incurred.
 
   Round-Trip from Indianapolis to Charleston
 
 
        Mr.  Grafford's travel  orders provide  that the  Government
   will  pay for  three separate  costs relating  to the  vehicle he
   owned while  living in Panama:  (1) shipment of the  vehicle from
   Panama  to a  United States  port  of entry;  (2) the  employee's
   travel from  Indianapolis to that  port of entry  to pick  up the
   car;  and  (3)  a  specified  amount per  mile  involved  in  the
   employee's  driving the  car to  Indianapolis.   The  orders also
   provide that the Government will pay for expenses incurred in the
   travel   of  Mr.  Grafford   and  his   family  from   Panama  to
   Indianapolis.
 
        Evidently, both the  car and the family  went, at Government
   expense, from Panama to Charleston.  Later, Mr. Grafford traveled
   from Charleston to Indianapolis in an automobile he  owned (which
   may or  may not  have been  the one  that had  been shipped  from
   Panama), and the Navy reimbursed him, at a per-mile rate, for the
   expenses he incurred in making this trip.   Later still, he drove
   from Indianapolis back to Charleston, and then he returned, again
   by car, to  Indianapolis.  Mr. Grafford now  claims that pursuant
   to  the portions  of his  orders  dealing with  second and  third
   elements of vehicle  costs listed in the  previous paragraph, the
   Navy must pay  on a per-mile  basis for the  cost of these  three
   automobile trips.
 
        Plainly, the orders  contemplated a very  different sequence
   of  events from  the one  which  actually occurred.   The  orders
   envisioned  that  the  employee   would  report  immediately   to
   Indianapolis, where he would remain on duty, except for a trip to
   Charleston to  pick up his car and bring it back to Indianapolis.
   Instead, upon returning to the United States, Mr. Grafford stayed
   in Charleston for  some weeks and then drove to  Indianapolis.  A
   trip to Charleston for the special purpose of  gaining possession
   of  an   automobile  to   drive  in   Indianapolis  thus   became
   unnecessary.   Mr. Grafford's  later travel from  Indianapolis to
   Charleston  was not  required by  his relocation  from Panama  to
   Indianapolis.  The travel  was for his own benefit, so  we see no
   reason why the Government should pay for it.
 
                                 _________________________
                                 STEPHEN M. DANIELS 
                                 Board Judge