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                             December 11, 1996
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                             GSBCA 13722-RELO


                      In the Matter of PAUL C. MARTIN


     Paul C. Martin, Huntington, WV, Claimant.

     Jeffrey D. Beyer, Director, Finance Staff, Veterans Benefits
Administration, Washington, DC, appearing for the Department of
Veterans Affairs.

HYATT, Board Judge.

     Claimant, Mr. Paul C. Martin, a counseling psychologist
employed by the United States Department of Veterans Affairs (VA),
seeks reimbursement of certain relocation expenses incurred in
connection with his permanent change of station (PCS) from
Anchorage, Alaska to Martinsburg, West Virginia.  The agency has
denied his claim on the ground that the move was for Mr. Martin's
personal convenience and not for the convenience of the Government. 
Pursuant to 31 U.S.C.  3702 (1994), Mr. Martin asked that this
determination be reviewed.
  
     As a VA employee, Mr. Martin moved from the Norfolk, Virginia
area to Anchorage, Alaska in May 1991, with an agreement to
complete three years of service as a counseling psychologist in
Alaska.  He completed his three-year stint in May 1994.  A
condition of the transfer to Alaska was that the agency would
reimburse certain expenses incurred in Mr. Martin's return to the
continental United States so long as he completed the agreed-upon
term of service in Anchorage.  Mr. Martin thus had what is commonly
known as limited return rights.

     The position of counseling psychologist, Grade 12, at the VA
facility in Martinsburg, West Virginia was advertised nationwide
under a promotion announcement issued by the VA in February 1995. 
The position was advertised as one for which relocation expenses
would not be paid.  Mr. Martin applied for the advertised position
in Martinsburg and was selected.  The new position involved a
lateral transfer for Mr. Martin, who was already a Grade 12, with
no additional opportunity for promotion.  

     The VA paid the appropriate travel expenses for Mr. Martin's
return to the continental United States under the terms of his
earlier transfer to Alaska from Virginia.  These amounts did not,
however, include the complete complement of expenses reimbursable
under a relocation package when an employee's transfer is deemed to
be in the interest of the Government.  Mr. Martin, who is of the
view that his transfer was in the interest of the Government, seeks
to recover the difference.  The VA, emphasizing that the vacancy
announcement expressly stated that relocation costs were not
authorized, and that Mr. Martin accepted a lateral transfer, has
determined that the transfer was for the convenience of the
employee and has declined to pay the additional amounts sought.

                                Discussion

     By statute, when an employee is transferred in the interest of
the Government from one official duty station or agency to another,
the Government shall pay allowable travel, transportation of
household goods, and other relocation expenses.  5 U.S.C.
 5724(a), 5724a (1994); see also 41 CFR 302-1.3 (1995). 
Ordinarily, when an employee responds to a job vacancy announcement
under a merit promotion plan, and is selected for that position,
the transfer is considered to be in the interest of the Government. 
E.g., Samuel Evans, B-216652 (May 6, 1985); Eugene R. Platt, 59
Comp. Gen. 699 (1980), aff'd on reconsideration, 61 Comp. Gen. 156
(1981).  An exception to this presumption comes into play, however,
when an employee voluntarily applies for a lateral transfer --
i.e., a position at the same grade as the one already held with no
greater promotion potential.  Julia R. Lovorn, 67 Comp. Gen. 392
(1988); James Trenkelbach, B-219047 (Apr. 24, 1986).  This is the
case even where the employee has responded to a vacancy
announcement and been competitively selected.  In this situation,
the agency has the discretion, based on the facts and
circumstances, to determine if the move should be considered to be
primarily in the Government's interest or for the convenience of
the employee.  Julie-Anna T. Tom, B-206011 (May 3, 1982); Eugene R.
Platt; Rosemary Lacey, B-185077 (May 27, 1976).  The Comptroller
General has consistently stated that an agency's exercise of this
discretion will be sustained unless shown to be arbitrary,
capricious, or clearly erroneous.  E.g., Samuel Evans. 

     Mr. Martin asserts that he was not advised, prior to his
relocation, that this move would not be considered to be in the
interest of the Government.  He also alleges that he was told that
relocation benefits were not authorized by the Huntington, West
Virginia Regional Office because of budgetary constraints, which he
correctly points out do not, standing alone, constitute a valid
basis for finding that a transfer is not in the interest of the
Government.  See David C. Goodyear, 56 Comp. Gen. 709 (1977).  Mr.
Martin further argues that the vacancy was posted nationwide when
the position could not readily be filled locally, and that he was
told his expenses would be covered because of his return rights. 
The agency does not concede, however, that claimant was ever
advised that he would receive more than the applicable return
rights benefits. 

     The vacancy announcement explicitly stated that relocation
benefits would not be authorized.  The agency has explained that it
classified this particular transfer as "not for the convenience of
the Government" for two reasons:  1) the limitation on payment of
relocation expenses stated in the vacancy announcement, and 2) the
lateral nature of the transfer.  This case is very similar to the
fact pattern set forth in Samuel Evans.  There, the employee was
competitively selected for and accepted a lateral transfer where
the agency had similarly made it clear at the outset that no
relocation benefits would be paid.  

     Regardless of any confusion that may have existed over the
extent of reimbursement that would be available to Mr. Martin, the
principal issue is whether the move was in the interest of the
Government or not.  As stated above, the agency, in the case of a
lateral transfer, has considerable discretion to make this
determination.  Nothing in the circumstances set forth in this
record would justify overturning the agency's conclusion in this
case that the move was not in the interest of the Government. 
Accordingly, we conclude that Mr. Martin is not entitled to recoup
the additional benefits that would be available under a full
relocation package.  





                                   ___________________________
                                   CATHERINE B. HYATT
                                   Board Judge