Board of Contract Appeals

                    General Services Administration

                         Washington, D.C. 20405

 

 

 

                           _________________

 

                           December 14, 2000

                           _________________

 

 

                            GSBCA 15422-RELO

 

 

                  In the Matter of STEPHEN W. VAN DYKE

 

 

        Stephen W. Van Dyke, Richmond, KY, Claimant.

 

        Barbara  Gaydos,  Supervisor, PCS  &  Extended  TDY Section,

   Defense  Finance  and  Accounting   Service,  Rock  Island,   IL,

   appearing for Department of Defense.

 

   DeGRAFF, Board Judge.

 

        Stephen  W. Van  Dyke is  an employee  of the  Department of

   Defense  (DoD).     In  December   1995,  DoD  issued   a  travel

   authorization  in connection with Mr. Van Dyke s permanent change

   of station  from Indiana to  Germany.  A  box was checked  on the

   travel authorization to show that  Mr. Van Dyke was authorized to

   incur reimbursable  real estate transaction  expenses  per [Joint

   Travel  Regulations  (JTR)].     Mr.   Van  Dyke  says  that  his

   supervisors and his personnel office  encouraged him to sell  his

   house in  Indiana immediately  and assured him  that he  would be

   reimbursed for  his sales expenses.   Consequently, Mr.  Van Dyke

   sold his house in Indiana  in March 1996.  At that time,  DoD had

   not told Mr.  Van Dyke whether  he would be returning  to Indiana

   from Germany.   In November  1999, DoD authorized Mr.  Van Dyke s

   permanent  change  of station  from  Germany  to  Kentucky.   DoD

   decided not to  reimburse Mr. Van Dyke for the  sales expenses he

   incurred when he sold his house  in Indiana in 1996, and Mr.  Van

   Dyke asks us to review DoD s decision.

 

        DoD  correctly determined that  it cannot reimburse  Mr. Van

   Dyke  for the  expenses he  incurred when  he sold  his  house in

   Indiana.  Federal statute provides that  when an agency transfers

   an  employee from a  duty station within  the United  States to a

   duty  station outside  the United  States  and then  back to  the

   United  States, the  agency can  reimburse the  employee  for the

   expenses  of selling  a house  at the  first duty station  in the

   United States only if the sale occurs after the employee receives

   official  notification that  he  will  not  return to  that  duty

   station.      5    U.S.C.       5724a(d)(2),   (3)    (Supp.   IV

   1998).[foot #] 1      The   JTR,   referred   to   in   Mr.   Van

   Dyke s December  1995 travel  authorization, are  consistent with

   the  statute.[foot #] 2     Because   Mr.  Van   Dyke  sold   his

   house before DoD officially notified  him that he would return to

   a duty station  other than the one  that he left in  Indiana, the

   statute and regulations prevent DoD from reimbursing Mr. Van Dyke

   for the expenses he incurred in connection with the sale.

 

 

        It  is  unfortunate that  DoD  provided  Mr. Van  Dyke  with

   incorrect advice when he transferred from Indiana to Germany.  As

   we  have previously explained,  however, DoD cannot  reimburse an

   employee  in   Mr.   Van   Dyke s   circumstances   because   the

   reimbursement  would  be  contrary to  statute  and  regulation. 

   Marilyn A. Whitworth, GSBCA 15174-RELO, 00-1 BCA   30,811.

   ____________________________________

 

                                      MARTHA H. DeGRAFF

                                      Board Judge

 

                                                                    

                   ----------- FOOTNOTE BEGINS ---------

 

        [foot #] 1     The  substance of  the  statute is  the  same

   today as it  was in 1995,  when DoD issued  Mr. Van Dyke s  first

   travel authorization,  and in  1996, when Mr.  Van Dyke  sold his

   house in  Indiana.  5 U.S.C.    5724a(a)(4)(A) (1994); 5 U.S.C.  

   5724a(d)(2), (3) (Supp. III 1997).  

 

        [foot #] 2     The current regulations are substantially the

   same  as  prior regulations.    Compare JTR  C14000-D.2  (Oct. 1,

                                   _______

   2000), with JTR C14000-C.4 (Sept. 1, 1995).  

          ____