Board of Contract Appeals

                    General Services Administration

                         Washington, D.C. 20405

 

 

            _______________________________________________

 

                             April 26, 2000

            _______________________________________________

 

 

                            GSBCA 15229-RELO

 

 

                    In the Matter of DAVID MORRELL 

 

 

        David Morrell, Wasco, OR, Claimant.

 

        John S. Minger,  Chief, Real Estate Division,  Department of

   the Army,  Portland District  Corps of  Engineers, Portland,  OR,

   appearing for Department of the Army.

 

   BORWICK, Board Judge.

 

        The Department of the Army, through the Corps of  Engineers,

   agency, denied claimant,  Mr. David A. Morrell,  reimbursement of

   real estate  transaction expenses incurred  from the sale  of his

   residence  in  Paonia,  Colorado, upon  his  permanent  change of

   station  (PCS)  from  Patterson Air  Force  Base  (AFB), Colorado

   Springs, Colorado,  to Rufus, Oregon.  The agency determined that

   reimbursement of those transaction expenses would be  unallowable

   under the Joint Travel Regulations (JTR) because claimant did not

   commute daily between  Patterson AFB and Paonia.   We sustain the

   decision  of the  agency;  its  actions  complied with  both  the

   Federal Travel Regulation (FTR) and the JTR.    

 

        The facts as  indicated by the  record are as follows.   The

   agency  hired claimant to be  a power plant  mechanic at the John

   Jay  Dam, Dalles-John  Jay Project,  Rufus,  Oregon.   Claimant's

   reporting date was  February 19, 1998.  Claimant was transferring

   from Patterson AFB, and the agency granted claimant reimbursement

   of the allowable relocation expenses associated with his PCS.  

 

        While employed at Patterson AFB, claimant rented a room at a

   private residence in Colorado Springs,  while his family  resided

   in Paonia, Colorado, more  than 200 miles from  Colorado Springs.

   Claimant  commuted  daily  between his  rented  room  in Colorado

   Springs and Patterson AFB; he  returned to Paonia on holidays and

   weekends.    Colorado Springs  is  the  second  largest  city  in

   Colorado and is  located fifty miles south of Denver, Colorado.  

 

        On December  15, 1998,   claimant sold his house  in Paonia,

   Colorado  and  incurred  real estate  transaction  expenses.   On

   January 25, 1999, after claimant's PCS to Rufus, Oregon, claimant

   submitted  a claim for  real estate expenses for  the sale of his

   residence in Paonia.  On  September 24, 1999, the agency, relying

   on JTR C14000, denied the claim, advising claimant that:

 

        [The agency] has no  regulatory authority to  reimburse

        you for the expenses incurred  in the sale of your home

        in Paonia because it was not the "dwelling" (residence)

        for which you regularly  commuted to and from  work and

        your official duty station was not located in  a remote

        area.  

 

        Statute  provides for  payment expenses  of the  sale of  an

   employee's   residence  at  the  old  station  when  an  employee

   transfers  in the interest of  the Government.   5 U.S.C.   5724a

   (Supp.  III 1997).  The version of the  FTR in effect at the time

   of  claimant's sale provided that "the Government shall reimburse

   an  employee for  expenses  required  to be  paid  by him/her  in

   connection with the sale of one residence at his/her old official

   station."  41 CFR 302-6.1 (1998).  

 

        For the  purpose of  entitlement to  residence transactions,

   the  FTR defined "official  station" as  "the residence  or other

   quarters from  which the employee regularly commutes  to and from

   work."   In remote  areas where adequate  family housing  was not

   available  within  a  reasonable  commuting  distance,  residence

   includes the dwelling where the family of the employee resides or

   will reside.  41 CFR 302-1.4(k).   The JTR is to the same effect.

   JTR  C14000-A (Dec. 1,  1998).  We  have consistently interpreted

   the regular  commute requirement to  mean a daily commute,  not a

   weekly or monthly commute as  claimant urged.  Richard S. Citron,

   GSBCA  15166-RELO (Jan. 28, 2000); Ezzat Asaad, GSBCA 14484-RELO,

   98-1 BCA   29,667.   Consequently, save for  remote areas, if  an

   employee  sells a  home from which  he or  she  does  not commute

   daily  to  and  from  work,  the  employee  is  not  entitled  to

   reimbursement  of  the  real   estate  transaction  expenses  the

   employee incurred from its sale.   Malcom L. Jowers, GSBCA 13727-

   RELO, 97-1 BCA   28,800.  

 

        Here, claimant's permanent  duty station was Patterson  AFB,

   Colorado Springs, Colorado.  Claimant  commuted daily to work  at

   Patterson AFB  from a  rented  room in  Colorado Springs,  having

   chosen to leave his family  in Paonia.  Since claimant's  home in

   Paonia was  not the dwelling  from which claimant made  his daily

   commute to Patterson AFB, it  can not be considered the residence

   at his official station.  Consequently, he is  not, under the FTR

   or  JTR, entitled to reimbursement of the transaction expenses of

   its  sale,  unless  claimant could  show  that  Colorado Springs,

   Colorado,  is a  remote area.   Claimant  does not  maintain that

   Colorado  Springs is  a remote  area.   Claimant argues  that his

   house in Paonia was his official residence and the place where he

   conducted his  personal business.   Those  facts  are simply  not

   controlling under the applicable regulations.    The agency acted

   correctly in denying the claim.  

 

 

 

 

                                 __________________________

                                 ANTHONY S. BORWICK

                                 Board Judge