Board of Contract Appeals

                 General Services Administration

                      Washington, D.C. 20405





                      _____________________



                          March 1, 2006      

                      _____________________       





                         GSBCA 16698-TRAV





                In the Matter of DOUGLAS R. DORRER





     Douglas R. Dorrer, APO Area Europe, Claimant.



     Rick Miller, Travel and Overseas Allowances Policy Manager, Office of the Chief of

Staff, Department of the Air Force, Washington, DC, appearing for Department of the Air

Force.



BORWICK, Board Judge.



     Mr. Douglas Dorrer, claimant, is an employee who was locally hired by the

Department of the Air Force in Germany.  He claims he is entitled to a transportation

agreement (TA) and the travel benefits that accompany the TA because the circumstances

of his initial employment with a government contractor in Germany made him a domestic

hire.  He also claims that he should not have been regarded as a local hire, due to his status

as a technical expert and member of the civilian component under Exchange of Notes

(Article Seventy-Three) of the Supplementary Agreement to the North Atlantic Treaty

Organization (NATO) Status of Forces Agreement (SOFA) while he was a contractor

employee.  



     We deny the claim.  The agency acted correctly in applying statute and regulation in

determining that claimant was not entitled to a TA.  Claimant was a local hire and his status

as a technical expert under the NATO SOFA did not change his status as a local hire.

  

                            Background



     Claimant was employed as a contractor with Scientific Applications International

Corporation (SAIC) in Pirmasens, Germany.  In relocating to Germany from Clarksburg,

West Virginia, claimant traveled under a Defense Information Systems Agency (DISA) travel

authorization issued to SAIC.  The Government's travel authorization provided that all

expenses incurred as a result of claimant's travel would be borne by SAIC under its contract

with DISA.  



     Claimant's initial relocation from Clarksburg, West Virginia, to Germany was

pursuant to an assignment agreement between claimant and SAIC, which provided a

relocation package from the point of origin, Clarksburg, West Virginia, to Germany

(including shipment of personal items and household goods), a cost of living differential

allowance, a cost of living housing allowance, and repatriation benefits.  Under the

assignment agreement, claimant agreed to work for SAIC for at least twelve months to be

eligible for the repatriation benefits.  If claimant voluntarily terminated employment with

SAIC before the expiration of the first twelve-month period, claimant was required to

reimburse SAIC the relocation benefits SAIC had paid.  



     While working for SAIC, claimant was classified as a technical expert as defined by

the Exchange of Notes (Article Seventy-Three) of the Supplementary Agreement to the

NATO SOFA.  Under SAIC's contract with the Government, because claimant was classified

as a technical expert under the SOFA, claimant was eligible for logistical military support

at the discretion of the base commander.  Additionally, as a technical expert under the SOFA

during the term of claimant's assignment, claimant was exempt from payment of certain host

country taxes, immigration requirements, and customs duties.  



     On or about June 3, 2003, the agency advertised for the position of

Telecommunications Specialist at Ramstein Air Force Base (AFB), Germany.  The agency

referred nineteen qualified candidates for selection, fifteen of whom applied from the United

States and four of whom were residing overseas.  



     Claimant does not dispute the agency's contention that claimant resided in Germany

between the time claimant applied for employment with the agency and the time the agency

offered claimant employment, but claimant explains:  



     The only reason I was in the vicinity of Ramstein Air Base, Germany at the

     time of hire was because I was hired from the [United States] and sent there

     to work for another government agency.  That agency, DISA, closed their DoD

     facility and instructed all employees to seek other positions.  



That statement is not entirely accurate.  Before the agency hired him, claimant did not work

"for another government agency."  The record is clear that claimant was employed by SAIC,

under its contract with DISA. 



     On about December 5, 2005, by e-mail message, the agency notified claimant of his

selection for the position at Ramstein Air Base.  In that e-mail message, an agency official

advised claimant that he would be eligible for living quarters allowance (LQA) payments "if

the position is one of the position[s] we would recruit for in the [United States]."



     On December 10, 2005, the agency told claimant that as a local hire he was not

eligible for the LQA, and subsequently told him that we was not entitled to a TA because

negotiation of the TA was not required for recruitment purposes.  The agency explains that

an initial TA with a locally hired employee would only have been negotiated if it was

required for recruitment purposes and if the position was one for which qualified local

applicants were not readily available.  The agency did offer claimant the option of

registration in the priority placement program after completion of three years of employment,

which would have made him eligible for return travel to the United States when he was

selected for a position in the United States.  



                            Discussion



     Statute provides that an agency may pay travel and transportation expenses on the

return of an employee from his post of duty outside the continental United States to the place

of his actual residence "at the time of assignment to duty" outside the continental United

States.  5 U.S.C.   5722(a)(2) (2000).  Under the Joint Travel Regulations (JTR), this

entitlement is memorialized by a transportation agreement.  JTR C4001.  A transportation

agreement is a written understanding between a Department of Defense (DoD) component

and an employee, wherein the component agrees to furnish certain travel benefits in

exchange for the employee agreeing to remain in Government service for at least a specified

period.  JTR C4001-A.  The initial agreement establishes benefits for the employee, the

employee's dependents, and the employee's household goods.  Id.  A transportation

agreement for a locally hired employee is not an entitlement but is specifically intended to

be a recruitment incentive for a civilian employee with an actual residence in the continental

United States to accept federal employment in a foreign or non-foreign area outside the

continental United States (OCONUS).  JTR C4001-B.1.a.

     

     We have held, in light of the limiting language of the statute and the JTR's

implementation of the statute, that a claimant seeking return travel to the United States from

an OCONUS location, must establish that he or she was transferred as a government

employee to the OCONUS location or have been specifically authorized to receive the

benefit by the agency as a local hire.  Rebecca B. Harpole, GSBCA 16589-TRAV, 05-2 BCA 

 33,041.  



     Claimant argues that, in his initial travel from Clarksburg, West Virginia, to Germany,

he was essentially a federal employee:



     The fact that I had already entered into another transportation agreement with

     another agency of the Department of Defense, and its contracted firm, SAIC,

     prior to departing the United States, should not be set aside. 



As further support for that position, claimant argues, "I was hired by SAIC from the [United

States] and traveled to Germany with official travel orders issued by [DISA]."  Claimant's

argument must fail.  Claimant relocated to Germany as an SAIC employee, under an

assignment agreement with SAIC, not the Federal Government.  The "official travel orders"

did not convert claimant from an SAIC employee to an employee of the Federal Government. 

That document was merely DISA's authorization to SAIC for claimant's transportation, with

all costs to be borne by SAIC.  



     Claimant argues that he was a "member of the civilian component" under the NATO

SOFA, and, as such, he should not be considered as a local hire, but as a federal employee

hired from the United States.  To address this argument, we must consider the purposes of

SOFAs.  SOFAs, such as the NATO SOFA, arose out of the principle that a sovereign nation

has exclusive jurisdiction to punish offenses against its laws committed within its borders,

unless it expressly or impliedly consents to surrender its jurisdiction.  Wilson v. Girard, 354

U.S. 524, 529 (1957) (citing Schooner Exchange v. M'Faddon, 7 Cranch 116 (1812)).  



     The broad purpose of SOFAs is to seek relief from local jurisdiction for United States

forces and ancillary personnel based in friendly states.  Colonel Richard J. Erikson, Status

of Forces Agreements: A Sharing of Sovereign Prerogative, 37 Air Force L. Rev. 137, 140

(1994).   In the area of criminal law, for example, under the NATO SOFA, both the sending

state (i.e., the United States) and the receiving state have agreed which nation exercises

primary jurisdiction over criminal offenses depending upon the identity of the offender, the

nature of the offense, and the identity of the victim.  See In Re Extradition of John Burt, 737

F.2d 1477, 1479 n.3 (7th Cir. 1984) (describing sharing of criminal jurisdiction in the NATO

SOFA).  SOFAs may also relieve the members of the sending state of the incidents of foreign

residence.  Thus persons covered by a SOFA may not be required to comply with many local

laws such as military draft, work permits, and taxation while working within the sending

state.  37 Air Force L. Rev. at 140.  



     Claimant's designation as a member of the civilian component under Exchange of

Notes (Article Seventy-Three) to the Supplemental Agreement of the NATO SOFA was to

provide claimant with the protection of the SOFA while working as a technical expert for

SAIC.  Claimant's designation as a technical expert and a member of the civilian component

did not change his employment status from a contractor to a federal employee or make the

agency's hire of claimant a domestic hire.  



     The record is clear that the agency hired claimant locally from his position with SAIC

in Germany.  The agency never sought to negotiate a TA with claimant as a recruitment

incentive.  Given that four qualified candidates residing in the overseas area applied for that 

position, the agency possessed sound reasons for determining that granting claimant a TA

was not necessary as a recruitment incentive to fill the position. [Foot # 1 ]  The Board denies

the claim.  



****************** Footnote Begin **********

[Foot # 1 ]        Claimant argues that the agency hired other technical experts locally and

granted them TAs.  The circumstances of those hires are not in the record; it may be that the

agency determined that a recruitment incentive was necessary for those individuals.  Agency

officials are presumed to act in accordance with law.  Hoffman v. United States, 894 F.2d

380, 385 (Fed. Cir. 1990).  Claimant has not rebutted that presumption.  Moreover, any

erroneous action in those instances would certainly not justify erroneous agency action in this

matter.  

****************** Footnote End ************







__________________________

ANTHONY S. BORWICK

Board Judge