_______________________________ February 28, 1997 _______________________________ GSBCA 13686-RELO In the Matter of MARILYN DATERMAN Marilyn Daterman, Tigard, OR, Claimant. Deanna L. Cutler, Acting Director, Financial Management, Department of Agriculture Forest Service, Portland, OR; and Jeanne DiGange, Authorized Certifying Officer, National Finance Center, Department of Agriculture, New Orleans, LA, appearing for Department of Agriculture. HYATT, Board Judge. Claimant, Marilyn Daterman, challenges two collection notices issued by the National Finance Center (NFC), United States Department of Agriculture (USDA), seeking repayment of amounts she was paid in connection with her relocation from the Washington, DC area to the Portland, Oregon area. The first notice pertains to payments made to Ms. Daterman in connection with a temporary duty (TDY) assignment to return to her former official duty station to supervise the packing of household goods. The second collection matter concerns whether Ms. Daterman was properly reimbursed one hundred percent of her real estate expenses in light of her marital status at the time of the relocation. In the circumstances of this case, we find that both payments were proper. Background In July 1992, Ms. Daterman was officially notified of a transfer at Government expense from Corvallis, Oregon to the Washington, DC area. The travel authorization issued for this transfer named her spouse, Gary Daterman, and her daughter, Heather, as members of her immediate family. After experiencing some delays in selling their residence in Oregon, the Datermans jointly purchased a residence in Fairfax, Virginia in March 1993. On June 23, 1994, Ms. Daterman was issued a new travel authorization transferring her from the Washington, DC area to the Portland, Oregon area. This authorization listed her daughter as the only immediate family member to be moved. At that time, Ms. Daterman explained that Mr. Daterman was already in Oregon. To accommodate the Forest Service, Ms. Daterman reported to her new duty station on June 26, 1994 and occupied temporary quarters. At that time, her daughter remained in the Washington, DC area. On July 15, 1994, Ms. Daterman was authorized a temporary duty assignment at her old official duty station to act as a contracting officer's representative (COR) for the Forest Service to make arrangements and supervise the packing and shipping of her household goods, which were shipped pursuant to a Government Bill of Lading (GBL) under the actual expense method. Once the household goods were packed and shipped, Ms. Daterman and her daughter drove their privately owned vehicle to the new official duty station. Ms. Daterman submitted a travel voucher for payment covering her return to the Washington, DC area for temporary duty. The voucher claimed reimbursement for a one-way airline ticket, nine and one half days of per diem, mileage from the airport to her old residence, parking and toll expenses, and miscellaneous expenses for a total out-of-pocket amount of $529. The voucher was paid, but in a post-audit review was questioned by the NFC. The NFC disallowed the amount claimed and a bill of collection was issued to Ms. Daterman, which she paid. In January 1996, the Forest Service, on behalf of Ms. Daterman, requested a decision from the General Accounting Office (GAO) concerning the validity of the NFC's disallowance of reimbursement for Ms. Daterman's temporary duty. In the meantime, the NFC, continuing to audit Ms. Daterman's relocation expenses, noted that Mr. Daterman was not listed on the travel authorization as an immediate family member to be moved. Since Ms. Daterman had been paid one hundred percent of the eligible real estate expenses associated with the sale of the home in Fairfax, Virginia, the NFC asked the Forest Service to provide additional information as to whether Mr. Daterman was residing with Ms. Daterman at the time of her transfer. Ms. Daterman explained that as a result of her transfer to Washington, D.C. in 1992, they had become a commuting couple and that at the time she received her notice of this transfer, Mr. Daterman was already living in Oregon. In an electronic mail message sent on November 30, 1995, she further elaborated that marital problems had developed in early 1994, and that in March 1994 they "made the 'emotional' split and never lived together after that date." Based on this information, the NFC concluded that Mr. Daterman could not properly be considered a member of Ms. Daterman's immediate family at the time of the transfer and the sale of the house in Virginia. Accordingly, the NFC concluded that Ms. Daterman's recovery of expenses incurred in the sale of the Fairfax, Virginia home should be reduced to fifty percent. The record also reflects that while the Datermans apparently were living apart at the time the relocation occurred, due partly to their careers and partly to marital conflict, no formal legal separation had occurred. The house in Fairfax, Virginia was sold on September 23, 1994. Divorce proceedings were subsequently initiated on September 30, 1994, and a final divorce decree was issued in July 1995. Recognizing that a claim has already been presented on Ms. Daterman's behalf with respect to the expenses of the TDY assignment, the NFC has joined in the request for a decision as to the proper disposition of this issue. The NFC has also presented for our determination the proper extent of payment of residential transaction expenses and has suspended any collection action with respect to those expenses pending issuance of a decision concerning both matters raised by claimant's relocation. Specifically, the NFC has asked us to address the following questions: 1. Is it proper for an agency to authorize a TDY assignment for an employee to return to the old official duty station to supervise the packing of household goods? 2. If the answer to question number one is no, then under what law or regulation would you allow an employee to return to an old official duty station to supervise the packing of household goods if that employee were unable to do so before reporting to the new official station? 3. Since Mr. Daterman was not a member of Ms. Daterman's household at the time she reported for duty at the new permanent duty station, can Ms. Daterman be reimbursed 100% for her real estate claim? 4. Does the marital status at the date of settlement on the sale of the residence have any bearing on the reimbursement of real estate expenses? Discussion The TDY Assignment The NFC suggests that the TDY assignment under which Ms. Daterman supervised the packing of household goods was improper in light of the Comptroller General's decision in 54 Comp. Gen. 301 (1974). In that case, an employee of the Department of Labor accepted a permanent change of station from Los Angeles, California to Washington, D.C. He reported to his new duty station in June. In July, he was sent on a temporary duty assignment to Albuquerque, New Mexico. Upon completion of the TDY assignment, he flew to Los Angeles, where he settled a lease agreement and made arrangements for the shipment of his household goods pursuant to the commuted rate method. The employee argued that he should be reimbursed the additional airfare and associated expenses for the trip from Albuquerque to Los Angeles because he had been unable to complete these matters prior to reporting to the new duty station. The Comptroller General ruled that these expenses were not allowable because once an employee has reported for duty at the new station, "the conclusion is warranted that the change of station authorized in the travel order was accomplished and his travel expense reimbursement thereby became fixed." Id. at 303. The fact that some matters remained uncompleted did not justify a subsequent second trip at Government expense. The Forest Service argues that 54 Comp. Gen. 301 is inapposite to the circumstances of Ms. Daterman's move. Unlike the cited case, which involved a commuted rate move, the Forest Service authorized shipment of Ms. Daterman's household belongings under a GBL. In a commuted rate move, the transferring employee is fully responsible for making arrangements for the transportation of household goods, including selection and payment of a carrier, and is reimbursed by the Government according to schedules of commuted rates. In contrast, when the actual expense method is used, the Government makes all the necessary arrangements for transportation of household goods by GBL. The agency is required to select the carrier; to arrange carrier services including crating and packing; to pay the carrier; and to process claims for loss and damage. 41 CFR 302-8.3 (1996); Jeffrey P. Herman, GSBCA 13832-RELO, 97-1 BCA  28,704, at 143,320 (1996). The Forest Service explains that it is customary for the transferring employee to act as a COR to oversee the packing, shipment, and unpacking of household goods. In this case, Ms. Daterman, for the agency's convenience, reported for duty almost immediately after issuance of the notice of transfer, well before arrangements for the transportation of household goods could reasonably be accomplished. This left the agency with three choices: 1) to have the GBL issuing officer travel to Washington, DC to act as the COR for the movement of household goods; 2) to locate another Forest Service employee already in the Washington, DC area available to act as the COR; or 3) to return the employee on a TDY assignment to perform this function. The Forest Service determined that the first two options were not feasible and that the most reasonable action would be to return the employee to her old duty station to accomplish this task. The agency recognizes that this travel would not ordinarily be authorized as incident to a change of station, but asserts that it is nonetheless a valid "temporary duty" assignment. The Forest Service states that this method and purpose of travel authorization would have been used had the GBL issuing officer been sent to Washington, D.C. as the COR. We find the position and supporting rationale of the Forest Service to be persuasive. The Comptroller General decision relied upon by the NFC is not controlling in this situation. Nothing in the Federal Travel Regulation (FTR) would appear to preclude an agency from authorizing TDY travel for an employee designated to act as COR under a GBL move. The fact that Ms. Daterman, rather than the GBL issuing officer, was so designated does not change the nature of the assignment. Since this travel was authorized to perform a proper TDY assignment, rather than incident to the accomplishment of a PCS move, the voucher may properly be paid. Reimbursement of Residential Transaction Expenses The second issue raised in this claim concerns whether the employee may properly be reimbursed one hundred percent of the expenses incurred in the sale of the jointly-owned residence at the old duty station. The authority to reimburse federal government employees for real estate expenses incurred incident to a transfer is contained in 5 U.S.C.  5724a(a)(4) (1994), which sets forth certain requirements relating to the title of property sold or purchased. These requirements are incorporated in the FTR, which provides that real estate expenses may be reimbursed so long as: The title to the residence or dwelling at the old or new official station . . . is in the name of the employee alone, or in the joint names of the employee and one or more members of his immediate family, or solely in the name of one or more members of his immediate family. 41 CFR 302-6.1(c) (1996). The FTR defines "immediate family" as an employee's spouse, children, and certain dependent relatives who are members of the employee's household at the time he reports to his new duty station. GAO decisions concerning this subject establish a general rule that family members from whom the employee is permanently separated at the time of transfer are not in the same household. William A. Cromer, B-205869 (June 8, 1992); 44 Comp. Gen. 443, 445 (1965). Under such circumstances, the employee may be reimbursed residential transactional costs for property jointly held with such a family member only to the extent of his or her legal interest in the property sold. Thomas G. Neiderman, B-195929 (May 27, 1980). Based on the communications made in Ms. Daterman's electronic mail message, NFC asserts that Mr. Daterman was not a member of Ms. Daterman's household either at the time she reported for duty in Oregon or at settlement. Ms. Daterman disagrees, pointing out that no formal, legal separation had occurred. She argues that until the legal process is initiated, a separation should not be regarded as "permanent" for purposes of the relocation rules because of the potential for reconciliation. The GAO decisions have not addressed this particular situation. Ordinarily, when the spouse has been determined not to be a member of the transferee's household, the evidence supporting a finding of intent to be permanently separated has been more conclusive: a legal separation has been effected prior to transfer (e.g., Cromer) or the spouse has made arrangements to purchase a separate residence (Fitzgerald). Here, Ms. Daterman's statements in the electronic mail message were made long after the move occurred and with benefit of hindsight -- there had been no reconciliation and the couple had proceeded with their divorce. It appears that the separation that existed at the time of Ms. Daterman's transfer was as much attributable to career paths as to marital problems. The transfer returned Ms. Daterman to Oregon. In these circumstances, absent a legal separation at the time of transfer or sale of the house, we are reluctant to conclude that Mr. and Ms. Daterman were permanently separated for purposes of this rule. Accordingly, we find that reimbursement of the full amount of residential transaction costs was proper. _____________________________ CATHERINE B. HYATT Board Judge