Board of Contract Appeals

                 General Services Administration

                      Washington, D.C. 20405





         _______________________________________________

                                 

                         February 4, 2002

         _______________________________________________

                                 



                         GSBCA 15683-RELO

                                 



               In the Matter of DENNIS FIJALKOWSKI               

          



     Dennis Fijalkowski, Yuma, AZ, Claimant.



     David M. England, Office of General Counsel, Defense Commissary Agency, Fort

Lee, VA,  appearing for Department of Defense.

     

BORWICK, Board Judge.



     In this matter, claimant, Dennis Fijalkowski, seeks from the Defense Commissary

Agency reimbursement of real estate transaction expenses related to his transfer from

Lakenheath, England, to Yuma, Arizona.  The agency denied reimbursement because it had

determined that claimant did not meet the eligibility requirements of statute and the

implementing Federal Travel Regulation (FTR) and the Department of Defense Joint Travel

Regulations (JTR) for reimbursement.  We conclude that the agency correctly applied statute

and regulation in denying reimbursement.  



     The facts as indicated by the record are as follows:  Claimant retired from active duty

with the United States Air Force on June 30, 1993, at Lakenheath, England.  Until October

29, 1995, he worked part time at various jobs for the Defense Commissary Agency at

Lakenheath.  On October 29, 1995, the agency appointed claimant to the permanent position

of store worker at Lakenheath.  



     Effective January 28, 2001, the agency reassigned claimant to the agency's

commissary at Yuma Proving Grounds, Arizona.  Claimant's travel authorization originally

authorized reimbursement of real estate expenses, but the agency later issued a corrected

authorization deleting that entitlement.  



     Claimant transferred to Yuma, Arizona, purchased a house there, and incurred

$4145.15 in real estate expenses.  On June 8, 2001, claimant submitted a voucher for

reimbursement of those expenses.  The agency disallowed the requested reimbursement

because he was hired in a foreign area, rather than transferred to the foreign permanent duty

station (PDS) from a domestic PDS.  Claimant appealed the disallowance to this Board.



     Statute provides that: 



          (2) Under regulations prescribed [by the Administrator of General

     Services], an agency shall pay to or on behalf of an employee who transfers in

     the interest of the Government from a post of duty located outside the United

     States to an official station within the United States (other than the official

     station within the United States from which the employee was transferred

     when assigned to the foreign tour of duty) -

     

          (A) expenses required to be paid by the employee of the sale of

          the residence (or the settlement of an unexpired lease) of the

          employee at the old official station from which the employee

          was transferred when the employee was assigned to the post of

          duty located outside the United States; and

     

          (B) expenses required to be paid by the employee of the

          purchase of a residence at the new official station within the

          United States.

     

          (3) Reimbursement of expenses under paragraph (2) of this subsection

     shall not be allowed for any sale (or settlement of an unexpired lease) or

     purchase transaction that occurs prior to official notification that the

     employee's return to the United States would be to an official station other than

     the official station from which the employee was transferred when assigned to

     the post of duty outside the United States.



5 U.S.C.   5724a(d)(2),(3) (2000).  The implementing FTR provides that the real estate

reimbursement allowance applies to employees:



     who have completed an agreed upon tour of duty in a foreign area and instead

     of being returned to the former nonforeign area official station, are reassigned

     or transferred in the interest of the Government to a different nonforeign area

     official station than the official station from which the employee was

     transferred when assigned to the foreign post of duty.



41 CFR 302-6.1(g)(2).  In other words, an employee who is stationed in a foreign area must

have been transferred overseas from a station in the United States to be entitled to real estate

expenses arising from a subsequent transfer to a different station in the United States.  The

JTR is in substance the same.  JTR C14000-C.2 note.  Here, claimant was hired by the

agency at Lakenheath after his retirement from active duty with the United States Air Force. 

Claimant was not transferred by the agency to Lakenheath from a station in the United States;

claimant was a local hire.  Consequently, claimant is not entitled to reimbursement of real

estate transaction expenses upon his transfer from Lakenheath to Yuma, Arizona.  George

S. Page, GSBCA 15114-RELO, 00-1 BCA   30,707.  



     The agency correctly applied statute and regulation in denying the claim.  







                                        __________________________

                                        ANTHONY S. BORWICK

                                        Board Judge