________________________

                              December 6, 1996
                         ________________________


                             GSBCA 13832-RELO


                    In the Matter of JEFFREY P. HERMAN


     Jeffrey P. Herman, Jacksonville, NC, Claimant.

     D. Lisenby, Director, Financial Policy and Systems
Directorate, Kansas City, MO, appearing for Defense Finance and
Accounting Service.

NEILL, Board Judge.

     Claimant, Mr. Jeffery P. Herman, seeks reimbursement for a
self-move of household goods to his new duty station.  He also
objects to the deduction of $454.34 from his pay to satisfy what
the agency contends was an erroneous overpayment made to him for
moving his household goods.  Based on the record before us, we
conclude that Mr. Herman is entitled to be compensated for the
movement of his household goods in accordance with the commuted
rate schedule issued by the General Services Administration (GSA)
and that the deduction from his pay was unjustified. 

     The facts in this case are as follows.  In mid-1992, Mr.
Herman was offered the position of aerospace engineer at the Naval
Aviation Depot at Cherry Point, North Carolina.  The letter
offering him the position advised him to contact base personnel for
instructions prior to travel and movement of his household goods. 
Mr. Herman states that, on contacting the base, he was told there
were three options for movement of household goods.  The first was
to do a self-move.  The second option was to have a public moving
company do the move with the lowest of three bidders selected.  The
third was to allow the Government itself to assume responsibility
for moving the household goods.  Mr. Herman elected to take the
first option and planned to claim for himself the allowances set
aside for either public or Government-furnished movement of
household goods.  Base personnel thereupon advised him to keep all
receipts, record mileage, and to obtain empty and loaded weights of
his truck from certified scales.      

     On July 20, 1992, Mr. Herman was issued travel orders to move
from Hudson, North Carolina to Cherry Point at an estimated total
cost of $2,682.  The orders established July 27, 1992, as the
reporting date at the new station.  They also contained the
following provision regarding shipment of household goods:
 SHIPMENT OF HOUSEHOLD GOODS MORE ADVANTAGEOUS BY U-HAUL.   

     A copy of the travel orders in the record shows a date stamp
of July 22, 1992, indicating that on that date a copy of the orders
was received by the base disbursing office.  An additional date
stamp on the orders shows that an actual cash advance of $500 was
provided by the disbursing office on July 23, 1992.   

     On July 24, 1992, Mr. Herman made the trip from Hudson, North
Carolina, to his new duty station.  It is unclear whether the $500
cash advance was provided to him prior to his departure from Hudson
or upon his arrival at Cherry Point.  In any event, there appears
to be no question that he received this cash advance.  

     On August 3, 1992, Mr. Herman submitted a travel voucher
together with supporting documentation including the weight
receipts he had been instructed to obtain.  By letter dated
September 9, 1992, the base disbursing office advised Mr. Herman
that he was entitled to a total of $410.56, namely $48.15 for
mileage and $362.41 for reimbursable expenses.  Given the cash
advance of $500, the disbursing office demanded he return the
balance of $89.44.  

     Mr. Herman questioned the manner in which payment of his
travel claim had been calculated.  In particular, he asked why no
account had been taken of the weight receipts he had been directed
to submit with his voucher.  He states that no explanation was
provided by either the base travel office or the disbursing office. 
At least one official consulted, did, however, suggest that he
resubmit his claim with an inventory of his household goods.  He
did so.

     On receipt of the inventory of Mr. Herman's household goods,
the agency recalculated his travel allowance  -- this time with the
help of what has been referred to as a "cost comparison."  The
record contains a memorandum from the disbursing office which
returned Mr. Herman's  original voucher to the attention of the
clerk in the base travel office who had been advising him.  The
memorandum is undated but bears a receipt date of October 2, 1992. 
A handwritten note at the bottom of the memo states "Cost
Comparison Attached."  Next to this entry is a yellow "sticky note"
on which the following is written:  "304 miles 4,500 lbs x $18.15
= $816.75"  On October 28, the disbursing office received a revised
version of Mr. Herman's original voucher (presumably from the
travel office).  According to the revised voucher, Mr. Herman is
said to be entitled to a total of $864.90, namely, $48.15 for
mileage and $816.75 -- the figure which appeared in the "cost
comparison" provided earlier by the disbursing office.  This figure
of $816.75 is identified in the revised voucher with the term "GBL"
i.e., Government Bill of Lading.  Given the cash advance of $500,
the disbursing office concluded that Mr. Herman was entitled to an
additional $364.90.  

     In an undated memorandum to the disbursing office, sent at
some time subsequent to his receipt of the $364.90, Mr. Herman
observed that his travel orders made no reference to a GBL.  He
suggested, therefore, that the commuted rate schedule should be
used to determine his allowance based upon a move of 4,200 pounds
over a distance of 321 miles.  He also asked that block 17 of his
travel orders, which contained the original shipping authorization,
be amended.  On December 27, 1994, block 17 was in fact amended to
read: "AUTH COMMUTED RATE VICE U-HAUL MOVE."  

     Notwithstanding Mr. Herman's request and the subsequent
amendment of his travel orders, the base disbursing office  made no
further payment to him.  Instead, on further review of the
situation, the disbursing office determined that its use of a GBL
value to calculate the amount due to Mr. Herman pursuant to the
revised voucher was incorrect.  On October 26, 1995, therefore, the
office sent Mr. Herman a collection letter advising him that he was
not entitled to the estimated value of a GBL but only to actual
costs incurred in conjunction with his original move.  He was,
therefore, directed to refund $454.34, i.e., the difference between
the two.  When Mr. Herman declined to pay, this amount was deducted
from his regular pay.  

     By letter dated January 3, 1996, Mr. Herman requested that the
Defense Finance and Accounting Service (DFAS) review his case, rule
on the validity of the collection letter, and provide guidance to
the Cherry Point disbursing office on the proper liquidation of his
travel claim.

     By letter dated February 21, 1996, DFAS advised Mr. Herman
that it considered the $454.34 deduction to be proper.  The DFAS
letter notes that, prior to Mr. Herman's move, it was determined
through a cost comparison that a move utilizing a GBL would be the
most economical method.  Nevertheless, Mr. Herman is said to have
chosen to rent a truck and move his own household goods rather than
have the Government move him.  The same letter goes on to point out
that,  under applicable regulations, a Government employee electing
to follow this course of action is entitled to nothing more than
reimbursement of actual costs.  

     Unsatisfied with the DFAS ruling, Mr. Herman now asks that we
review his claim.  On October 2, 1996, Mr. Herman sought leave to
supplement the record in this case.  By order dated October 4,
1996, we granted the request.  The same order also authorized the
DFAS official representing the agency to comment on Mr. Herman's
supplement if he wished.  No comments were submitted.    


                                Discussion

     Statute provides that under such regulations as the President
may prescribe, an agency shall pay from Government funds the
expenses of transporting, packing, crating, temporarily storing,
draying, and unpacking the household goods of an employee moving to
a permanent duty station.  The same statute also provides that for
moves within the continental United States (CONUS), instead of
being paid for the actual expenses of transporting, packing,
crating, storing, and unpacking of household goods, an employee
shall be reimbursed on a "commuted basis" at rates per 100 pounds
that are fixed by zones in the regulations.  The statute does,
however, permit agencies to pay actual expenses in lieu of the
commuted rate if a determination is made that payment of actual
expenses is more economical to the Government. 5 U.S.C. 
5724(a)(c) (1994).  

     In Executive Order 11609 (July 22, 1971), the President
delegated to the Administrator of General Services the authority to
issue regulations implementing 5 U.S.C.  5724 and related statutes
concerning travel and relocation of Government employees.  This
delegated authority underlies the Federal Travel Regulation (FTR)
issued by the Administrator, 41 CFR  chs. 301-304. The FTR, except
for employees of the judicial branch, applies to all civilian
employees of Government agencies, including civilian employees of
the Department of Defense.   Id. 301-1.2(a).  In resolving this
claim, therefore, we will look to the FTR as the primary regulation
and to the Joint Travel Regulations (JTR) of the Department of
Defense (DOD) as an official agency integration of and supplement
to the FTR.

     Following a scheme similar to that in 5 U.S.C.  5724, the FTR
provision on transportation of household goods states that two
methods are available.  One method is referred to as the "commuted
rate system."  Under this system the employee assumes the risks
associated with transportation of his or her household goods and
assumes the burden of making all necessary arrangements for
transportation of the goods between points within CONUS.  The
employee selects and pays the carrier or else transports the goods
by noncommercial means and is thereafter reimbursed by the
Government in accordance with schedules of commuted rates published
by the GSA.  The other method of transporting goods within CONUS is
referred to in the FTR as the "actual expense method."  Under this
method, the Government assumes full responsibility for transporting
the goods which are shipped under a GBL.  41 CFR 302-8.3.

     The FTR, like the statute it implements, expresses an initial
preference for use of the commuted rate system.  For individual
moves, as opposed to  multiple  or  mass  moves where groups of
employees are moved from one station to another at approximately
the same time, the FTR states: 

     The general policy is that commuted rates shall be used
     for transportation of employees' household goods when
     individual transfers are involved . . . .  

Id. 302-8.3(c)(3).   The principal reason for this preference would
appear to be that, when the commuted rate system is used, the
Government is spared the administrative expense of selecting
carriers, arranging for carrier services and for packing and
crating, preparing the GBL, paying charges incurred, and processing
any loss and damage claims.  Instead, the employee bears these
burdens and risks.  

     The FTR, like the statute it implements, however, does not
preclude an agency from using the actual expense method for an
individual move.  It states that the actual expense method "may" be
used in lieu of the commuted  rate system if it is determined that
the former would be the more economical.  Id. 302-8.3(c)(4)(i). 
The FTR, however, points out that the cost comparison leading to
such a conclusion must be made carefully.  It is not enough to
compare a simple line haul transportation charge for a specified
weight and distance to a corresponding commuted rate.  The cost of
using the actual expense method must reflect an accurate estimate
of (i) the administrative expense of selecting and dealing with
carriers and making other arrangements for transporting the
employee's household goods, (ii) the expected accessorial and
packing charges, and (iii) the actual line haul transportation
charge.  41 CFR 302-8(c)(2).

     In its agency supplement to the FTR, the DOD has chosen to
make the FTR's discretionary use of the actual expense method for
individual moves mandatory whenever this method is found, upon
completion of a cost comparison, to be more economical.  The JTR
states: 

     A cost comparison will be made between the actual expense
     (GBL) and commuted rate methods of shipping HHG
     [household goods].  In the event the estimated cost under
     one method exceeds the estimated cost under the other
     method by more than $100, the more economical method will
     be used.  

JTR C8001-D3c.  This same provision of the JTR also provides that
if, after it is determined that the actual expense method will be
used, an employee still wishes to do a self-move, he or she will be
paid only actual expenses not to exceed what the Government would
have paid if the goods were transported by GBL. 

     In the case of Mr. Herman, the agency has declined to
reimburse the claimant in accordance with the commuted rate system
for two reasons.  First, the agency contends that a cost comparison
was undertaken prior to Mr. Herman s move and it was determined at
that time that an actual expense or GBL move would be the more
economical.  Second, in view of this cost comparison, the agency
states that the amendment of Mr. Herman's travel orders after his
move, to authorize use of a commuted rate, was an error.  

     We find nothing in the record for this case which supports the
agency's contention that a cost comparison was made prior to Mr.
Herman's move.  The first mention in the record of any cost
comparison appears in documentation generated after Mr. Herman's
move and after the initial rejection of his voucher.  The so-called
"cost comparison" attached to the disbursing office's memorandum
returning Mr. Herman's voucher is hardly complete.  It refers only
to a cost which would be incurred using the actual expense method
of transporting goods.  It says nothing regarding the estimated
cost of the commuted rate method.  Mr. Herman, in his supplemental
remarks, takes issue with the DFAS contention that a cost
comparison was made prior to his move.  In particular he calls our
attention to the fact that the only documentation in the record
which concerns cost comparison was generated by the agency after
his move.  The agency, although given the opportunity to respond to
Mr. Herman's supplement, has chosen not to.  Given the material in
the file, Mr. Herman's arguments, and the absence of any reasonable
rebuttal on the part of the agency, we conclude that any cost
comparison, to the extent that one was made at all, was done after
and not before Mr. Herman was authorized to proceed with his move. 

     In addition to objecting to the agency's use of a cost
comparison done after his move, Mr. Herman also challenges the
accuracy of the figure of $816 as an estimate of the actual expense
of moving his household goods.  He contends that this figure is
based on nothing more than a line haul rate of $18.15.  The record
contains a table of what are purported to be line haul rates.  The
figure of $18.15 does indeed appear on the table for the distance
and weight involved in this case.  The agency does not deny that
these rates are nothing more than line  haul rates.  We conclude,
therefore, that the figure of $18.15 alone is clearly not
representative of the total costs which regulation requires an
agency to consider in estimating the cost of transporting goods
under the actual expense method. 

     The agency states that it never authorized a commuted rate
move for Mr. Herman and that the amendment of his orders after the
move was an error.  We disagree.  The oral instructions given to
Mr. Herman prior to his move concerning the need to record mileage
and obtain weight certificates is entirely consistent with an
authorization to pay for a commuted rate move and supports Mr.
Herman s understanding of the instructions given.  The statement
made in his orders that a U-Haul move was the "most advantageous"
is vague but certainly need not be interpreted as precluding use of
the commuted rate method.  Written instructions to employees
provided by the base travel office and submitted by Mr. Herman in
his supplement advise employees undertaking a self move by U-drive
truck or trailer that written verifications of weights must be
retained and submitted -- something which obviously would not be
required if the employee was to be reimbursed only for actual
expenses rather than at the commuted rate.  We find nothing in the
record indicating that the agency did not anticipate use of the
commuted rate when it authorized Mr. Herman to undertake his move. 
As to the subsequent amendment of Mr. Herman s travel orders, we
view this as nothing more than an effort to render explicit what
was already implicit in the original orders and explicitly
communicated to him orally prior to his move.  

     In refusing at this time to pay Mr. Herman anything more than
actual expenses and in insisting on the refund of moneys already
paid in excess of this amount, the agency is apparently attempting
to enforce the JTR provision requiring use of the actual expense
method if it is found to be the more economical.  The agency's
reliance on this provision is misplaced.  The agency itself, in
failing to undertake a comparison of estimated costs prior to
selecting the method of transporting goods, has rendered the
provision inoperative and unenforceable.  The FTR and the statute
it implements both permit an agency to use the actual expense
method rather than the commuted rate method provided it is
determined that this is the more economical method.  If an agency
wishes to take advantage of this leeway provided in the statute and
in the Government's primary regulation, it must, therefore, make a
comparison of the estimated costs of the two methods before a move
is made.  If it fails to do so, then it is constrained to follow
the guidance set out in the FTR.  

     The agency apparently believes that an after-the-fact cost
comparison is enough to render the JTR provision operative.  We
think not.  We find that from the context and the language itself
of the JTR provision, the applicable FTR provisions and the
statutory provision which the FTR implements, it is abundantly
clear that any cost comparison must be made prior to the selection
of the method for transporting an employee's household goods.  An
interpretation which permits comparisons either before or after the
fact would only lead to endless confusion and, ultimately, grossly
inequitable results.

     We conclude, therefore, that since Mr. Herman and the agency
both anticipated, at the time of his move, that he would be
compensated using the commuted rate system, the previous deduction
from his salary was unwarranted and he is entitled under the FTR to
compensation at the applicable commuted rate. 


                                   _____________________
                                   EDWIN B. NEILL
                                   Board Judge