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                               June 27, 1997
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                             GSBCA 13650-RELO


                     In the Matter of REGINA V. TAYLOR


     Regina V. Taylor, Norfolk, VA, Claimant.

     Judy Hughes, Defense Finance and Accounting Service, Columbus,
OH, appearing for Department of Defense.

HYATT, Board Judge.

     Claimant, Regina V. Taylor, requests review of the Department
of Defense's (DOD's) decision denying her claim for temporary
quarters subsistence expenses (TQSE) in connection with her
relocation to New York from an overseas tour in Bermuda.  Ms.
Taylor also challenges the denial of her claim for real estate
transaction expenses associated with her subsequent permanent
change of station (PCS) to Norfolk, Virginia.  DOD asserts that Ms.
Taylor is not entitled to TQSE for the move from Bermuda to New
York because 1) the transfer was not approved by authorized
personnel, 2) Ms. Taylor did not fulfill her obligation to serve
two years under the overseas tour agreement, and 3) Ms. Taylor
owned a home in New York which she should have occupied upon her
return.  For the reasons stated below, we conclude that Ms. Taylor
is entitled to the TQSE benefits authorized, and subsequently 
extended, at the time of her transfer to New York.  We also
conclude that she may recover residential transaction expenses
incurred with respect to the sale of her home in New York in
accordance with applicable regulations.

                                Background

     In October 1993, Ms. Taylor, a budget analyst employed by the
Navy, was stationed at the Bermuda Naval Air Station (NAS) with six
months remaining on her tour agreement there.  She had return
rights to the Naval Station, Staten Island, NY, which was her
official duty station prior to her Bermuda assignment.  Bermuda NAS
had sent several electronic mail messages to the Naval Station in
Staten Island inquiring if Ms. Taylor's tour might be extended. 
These messages were not answered.

     On November 1, 1993, the comptroller at the Naval Station in
Staten Island contacted Ms. Taylor about returning to New York to
her prior position.  In a memorandum dated November 2, 1993, the
comptroller formally requested that Ms. Taylor return earlier to
resume her former position and stated that "it would be in the best
interest of Naval Station New York to have a person with [her]
background and skills on board to assist in the base closure
process," which was to be completed by August 31, 1994.  He advised
her to obtain a waiver of her tour agreement, since the tour was
not due to expire for another six months.  On November 9, 1993, the
commanding officer at the Bermuda NAS approved and signed off on
Ms. Taylor's request for a waiver.  Thereafter, the civilian
personnel office for the Staten Island Naval Station sent a
memorandum to the human resources department in Bermuda with formal
notification that an offer for a position in New York had been
extended to Ms. Taylor. 

     On November 19, 1993, the human resources director in Bermuda
issued PCS orders authorizing Ms. Taylor to move back to New York. 
Various allowances associated with PCS moves, including TQSE, were
authorized in the orders.  Ms. Taylor returned to New York in
December 1993 and moved into the Navy Lodge.  She was unable to
occupy the home she co-owned in the New York City area because it 
had been rented.  Ms. Taylor stayed at the Navy Lodge from December
13, 1993, until April 13, 1994, when she moved to an apartment. 
Ms. Taylor requested TQSE for that entire period.  With extensions,
the commanding officer authorized a total of 100 days.  A request
for an additional 20-day extension was denied.  

     With the pending base closure fast approaching, the Naval
Station began using the human resources office in Philadelphia to
process personnel matters.  That office, upon receiving the
paperwork for Ms. Taylor, informed the Naval Station in Staten
Island that Ms. Taylor's TQSE claim should not be reimbursed.  On
May 18, 1994, the Naval Station in Staten Island notified Ms.
Taylor that her travel orders returning her from Bermuda were
suspended because the Navy had determined that the comptroller and
claimant had not "followed proper channels."  Specifically, the
comptroller did not have the "designated authority to issue orders
or make job offers."  Additionally, Ms. Taylor was deemed to have
exercised her return rights early.  Thus, the Staten Island Naval
Station had been advised that it was not obligated to pay TQSE upon
her return from Bermuda.

     In May 1994, because of the scheduled closure of the New York
base, Ms. Taylor was recruited for a position in Norfolk, Virginia. 
She received official notification of her transfer to Norfolk on
May 11, 1994, with a report date in June 1994.  According to DOD
records, Ms. Taylor apprised the Navy that her house was rented
while she was overseas, with a lease expiring effective May 17,
1994.  She moved back into the house on May 18.  On May 19 she
departed on a house-hunting trip to Norfolk.  Upon returning from
Norfolk she moved into Bachelor Officers Quarters for the remainder
of her time in Staten Island.  In connection with the move to
Norfolk, Ms. Taylor requested reimbursement of real estate expenses
for the house she owned in New York.  This claim was denied because
Ms. Taylor was not deemed to be commuting to work from this address
at the time she was officially notified of her transfer to Norfolk. 
Ms. Taylor requested that the General Accounting Office (GAO)
review the Navy's decisions denying her claims for TQSE and
residential transaction expenses.

                                Discussion

     The Navy maintains that Ms. Taylor is not entitled to any
temporary quarters subsistence expenses in connection with her
return from Bermuda to New York.  Three reasons are given:  1) Ms.
Taylor should have reoccupied her home when she returned; 2) Ms.
Taylor did not complete the two-year period of overseas service 
specified in the transportation agreement she signed; and 3) Ms.
Taylor's return to New York was not formally authorized by the
commanding officer at that base.   

     Under the applicable statute and the implementing regulations
set forth in the Federal Travel Regulation (FTR), when an employee
is transferred from one official duty station to another, the
agency shall pay the subsistence expenses the employee incurs while
occupying temporary quarters, provided certain requirements are
met.  5 U.S.C.  5724a(a)(3) (1994); 41 CFR ch. 302-5 (1994).  The 
Department of Defense (DOD) has supplemented the FTR with its Joint
Travel Regulations (JTR), which apply to civilian employees of DOD. 
Under JTR C13001, TQSE may be authorized when 1) a written
transportation agreement is signed by the employee and 2) a PCS has
been authorized and approved and the new duty station is located in
the United States.  

     Ms. Taylor explains that since she returned to Staten Island
early, at the request of the comptroller, her house was occupied by
tenants and thus not available for her occupancy.  She has supplied
a copy of the lease.  This explanation suffices to rebut the Navy's
contention that Ms. Taylor is not eligible for TQSE because she
already had permanent quarters available to her upon her return to
New York.   

     Similarly, Ms. Taylor's early return does not invalidate her
entitlement to TQSE, which was authorized under her travel orders
and twice extended by the commanding officer at Staten Island.  As
advised by the comptroller, Ms. Taylor requested and was given a
waiver of her two-year commitment.  The document waiving her
obligation was properly approved in writing by the commanding
officer in Bermuda.  Thus, she did not forfeit her right to travel
allowances in connection with her change of station on this basis. 
See Neil Gorter, B-194448 (Apr. 28, 1980).

     Finally, we are not persuaded that Ms. Taylor's entitlement to
TQSE is nullified by the failure of Ms. Taylor or the comptroller
to obtain the prior written approval of the commanding officer in
New York before initiating Ms. Taylor's transfer back to New York. 
Ms. Taylor's TQSE was authorized under travel orders issued by the
Human Resources Director in Bermuda.  The Bermuda human resources
office had been notified in writing of the pending transfer by the
human resources office in New York.  The travel orders are proper
on their face, and there is no allegation that the individual who
signed them had no authority to do so.  Once in New York, Ms.
Taylor reported to work and obtained written approvals for two
extensions of her TQSE.  These extensions were authorized by the
commanding officer at the New York facility.

     We recognize that the JTR provision cited by the Navy refers
to requirements to sign a transportation agreement and to effect a
transfer pursuant to an authorized PCS.  We conclude that both of
these conditions were satisfied here, however.  Although the record
does not show whether Ms. Taylor signed a service or transportation
agreement upon transferring back to New York, it is immaterial. 
She has completed more than the necessary amount of time in
Government service.  It is well settled that the absence of a
signed service agreement is not fatal to a claim for relocation
allowances so long as the employee has remained in Government
service for the required length of time.  See Thomas D. Mulder, 65
Comp. Gen. 900 (1986); Baltazar A. Villarreal, B-214244 (May 22,
1984). Moreover, on this record, the correspondence issued by New
York personnel and the issuance of travel orders is sufficient
evidence of administrative intent to approve a transfer for us to
conclude that this PCS was authorized for the purposes of
reimbursement of relocation expenses. Cf. Mulder; Lawrence C.
Jackson, B-207564 (Nov. 22, 1982).  Thus, under the circumstances
of this claim, the provision of the JTR cited by the Navy does not
bar Ms. Taylor's recovery of TQSE.

     Also at issue is Ms. Taylor's eligibility for payment of
residential transaction expenses, or the cost of selling her home
upon transferring to Norfolk.  The travel orders issued in
conjunction with this transfer authorized reimbursement of real
estate expenses; recovery of these costs, however, is predicated
upon meeting the eligibility requirements of the FTR and JTR.  One
of those requirements is that the residence sold at the old duty
station be the employee's actual residence at the time he or she
was first officially notified of the transfer.  The home sold at
the old duty station must also have been the residence from which
the employee regularly commuted to and from work.  41 CFR 302-
6.1(d) (1994); JTR C14000A (2, 4).  The Navy argues that Ms.
Taylor, who reoccupied her house for a brief time after being
notified of her pending transfer, does not meet these requirements
and that the regulations accordingly do not permit reimbursement of
the allowable costs of selling her house in New York. 

     Although Ms. Taylor was not actually occupying the house in
New York as of the date she was informed of her transfer to
Norfolk, this was a direct consequence of the prior transfer to
Bermuda, under which she had return rights to New York.  Given her
expectation that she would resume a position in New York upon
completing her tour, Ms. Taylor rented her residence for a period
coinciding with her planned tour overseas, rather than sell it. 
The only reason she had not moved back into her house was that her
return to New York occurred prior to the expiration of her tour. 
Her early return was initiated by the Navy to obtain her assistance
in the base closure process.

     Given the circumstances described above, we believe that this
case is closely akin to those in which GAO has held that the
expenses of selling a house may be reimbursed because the employee
would have been resident in the house except for the actions of the
Government.  For example, in Frank M. Lindeen, B-188657 (Dec. 30,
1977), the claimant, who was stationed in Gary, Indiana, was on a
two-year temporary detail in Buffalo, New York, when he was
notified of his transfer to Indianapolis.  GAO reasoned that but
for the Government's interest in detailing him to Buffalo, the
claimant would have been resident at his house in Gary and
authorized reimbursement of real estate expenses assuming all other
conditions  of eligibility were met.  In another case, Charles P.
Ball, B-223407 (June 18, 1987), the employee had been transferred
to Wiesbaden, Germany, from the Baltimore-Washington, DC area in
1981.  Mr. Ball did not sell his Severna Park, Maryland, home while
in Germany.  In 1984, he was transferred from Wiesbaden to Fort
George C. Meade, Maryland, with shipment of his household goods to
Newport, Rhode Island, where he was attending long-term training at
the Naval War College.  The house in Severna Park was in commuting
distance from Fort Meade.  Eleven months later, while still in
training, Mr. Ball's temporary duty assignment in Newport was
converted to a permanent change of station.  GAO reasoned that but
for the temporary assignment Mr. Ball would have reoccupied his
home in Severna Park and have been eligible for the reimbursement
of expenses associated with its sale.  Although here, the inability
to reoccupy the house was a result of her early return from an
overseas tour, Ms. Taylor similarly had returned early to New York
for the convenience of the Government.  We thus find that her
nonoccupancy of the house does not preclude reimbursement of the
expenses of selling the residence.

     To conclude, Ms. Taylor is entitled to payment for the
approved 100 days of TQSE in connection with her move from Bermuda
to New York.  She is also entitled to reimbursement of the expenses
of selling her home in New York so long as all other conditions of
entitlement are met. 





                                   ___________________________
                                   CATHERINE B. HYATT
                                   Board Judge