Board of Contract Appeals

                 General Services Administration

                      Washington, D.C. 20405





                         _______________



                         October 5, 2005

                         _______________





                         GSBCA 16725-RELO





               In the Matter of TIMOTHY A. BURGESS





     Timothy A. Burgess, Richfield, MN, Claimant.



     Andrew Stewart, Office of the Staff Judge Advocate, United States Army Reserve

Command, Department of the Army, Fort McPherson, GA, appearing for Department of the

Army.



DeGRAFF, Board Judge.



     A statement made in a vacancy announcement does not provide an agency with the

authority to make permanent change of station benefits available to an employee whose

transfer is not in the Government's interest.  



                            Background



     In 2005, the Department of the Army issued a vacancy announcement for a position

in Minnesota.  In the announcement, the Army said it would pay the permanent change of

station expenses of the person selected to fill the position.  Timothy A. Burgess, an Army

employee in California, applied to fill the vacancy.  



     When the Army offered the position to Mr. Burgess, a personnel office employee

telephoned Mr. Burgess and told him the Army would not reimburse his permanent change

of station expenses because he was transferring to a position with a lower grade than the

position he held in California.  Mr. Burgess accepted the offer, transferred, and submitted a

claim for the expenses he incurred in connection with his transfer.  When the Army did not

pay his claim, Mr. Burgess asked for our review.  



                            Discussion



     By statute, a federal employee who transfers in the interest of the Government from

one permanent duty station to another is entitled to payment of certain relocation expenses. 

An employee who transfers primarily for his or her own convenience or benefit is not eligible

for the payment of such expenses.  5 U.S.C.    5724(a), 5724a (2000).  Ordinarily, when an

employee responds to a vacancy announcement and is selected for a position which results

in a promotion, the transfer is presumed to be in the interest of the Government.  However,

when an employee applies for a position at the same grade with no promotion potential or

for a transfer to a lower-graded position, the transfer is not presumed to be in the interest of

the Government.  This is true even if the employee is selected for the position after

responding to a vacancy announcement.  See Paul C. Martin, GSBCA 13722-RELO, 98-1

BCA   29,412 (1996) (citing cases).  



     The Army adopted a written policy which is consistent with these general rules.  The

policy says permanent change of station benefits are payable only in the case of merit

promotions.  Because Mr. Burgess applied for and accepted a transfer to a position with a

lower grade than the one he held at the time of the transfer, the Army determined his transfer

was not in the interest of the Government and, therefore, determined he was not eligible for

permanent change of station benefits.  



     Mr. Burgess says the Army should reimburse his expenses because the vacancy

announcement said permanent change of station expense would be paid, and also because the

Army did not notify him in writing that such expenses would not be paid.  As we decided in

Armando G. Solis, GSBCA 15713-RELO, 02-2 BCA   31,870, a vacancy announcement

cannot create entitlement to a benefit not authorized by statute.  Even though a vacancy

announcement says benefits will be paid, this does not authorize an agency to pay benefits

to someone whose transfer is not in the interest of the Government because such a payment

would be contrary to statute, and payments from the federal treasury can be made only as

authorized by law.  As for the lack of a written notice, even if the Army should have notified

Mr. Burgess in writing that he would not be reimbursed for his expenses, he knew of the

Army's decision when he accepted the position and was not prejudiced by the lack of a

written notice.  



     Federal agencies have substantial discretion to determine whether a particular transfer

is in the interest of the Government, and we will not overturn an agency's exercise of its

discretion unless we are convinced the determination was arbitrary, capricious, or clearly

erroneous.  Solis.  The Army's decision in Mr. Burgess's case was consistent with its written

policy and the general rules regarding transfers to lower-graded positions.  In addition, we

found nothing in the record which would support a determination that Mr. Burgess's transfer

was in the Government's interest.  We conclude the Army exercised its discretion

appropriately. 



     We deny the claim.









                                   ___________________________________

                                   MARTHA H. DeGRAFF

                                   Board Judge