April 25, 1997
                                                  


                             GSBCA 13862-RELO


                    In the Matter of JOHN PATRICK PEDE


     John Patrick Pede, Alexandria, VA, Claimant.

     R. Michael Imphong, Chief, Allowances Unit, Air Force
Personnel Operations Agency, Washington, DC, appearing for
Department of the Air Force.

DANIELS, Board Judge (Chairman).

     Generally, when an employee is transferred in the interest of
the Government from one official permanent duty station to another,
the Government, in accordance with regulatory prescriptions, is to
pay the expenses the employee incurs in selling his residence at
the old station and buying a home at the new one.  5 U.S.C.
 5724a(a)(4) (1994); 41 CFR pt. 302-6 (1996); JTR C14000 et seq. 
(When the transfer is from a foreign area to a location in the
United States, the "old station" is the place from which the
employee moved to the foreign area.  41 CFR 302-6.1(g); JTR
C14000.C.)

     When the old and new stations are within a short distance of
each other, special rules apply.  If the distance is less than ten
miles, no relocation allowances (such as real estate transaction
expenses) may be paid.  41 CFR 302-1.3(a)(i).  If the distance is
at least ten miles and is within the same general local or
metropolitan area, the applicable allowances "shall be authorized
only when the agency determines that the relocation was incident to
the change of official station."  Id. 302-1.7(a); JTR C4108.  The
regulations prescribe factors which an agency should consider in
making such a determination.  Id.

     These rules are important to a claim filed by John Patrick
Pede, a civilian employee of the Department of the Air Force.  In
1992, Mr. Pede was transferred from the United States Naval
Intelligence Command in Suitland, Maryland, to an Air Force
intelligence squadron at Ramstein Air Base, Germany.  Three years
later he was transferred again, this time to an Air Force unit at
The Pentagon in Washington, D.C.  The Suitland and Pentagon
facilities are more than ten miles apart, but both are within the
Washington metropolitan area.

     Mr. Pede's orders for the return to the United States include
the statement "real estate expenses authorized per JTR."  Within a
few months of his return, in December of 1995, Mr. Pede and his
wife sold their old home in Seabrook, Maryland, and bought a house
in Alexandria, Virginia.  The Pedes' old residence is much closer
to Mr. Pede's old duty station than is the new home, and commuting
time from the old house to that station is much shorter.  The
family's new residence is much closer to the new duty station than
is the old home, and commuting time from the new house to that
station is much shorter.

     Mr. Pede submitted a claim for reimbursement of various
expenses he incurred in making these transactions.  The Air Force
acknowledged that it had authorized reimbursement in accordance
with provisions of the JTR.  It further acknowledged that this
authorization was made in good faith.  It denied the claim,
however, based on "an unwritten Air Force policy."  The policy is
not to allow reimbursement for real estate transactions associated
with short-distance permanent change of station moves within the
Washington metropolitan area.  The Air Force cites in support of
its position decisions of the Comptroller General which say that
agencies have broad discretion in determining whether a short-
distance move is incident to a transfer, and that such
determinations should not be disturbed unless they are found to
have been arbitrary or capricious.  John W. Lacey, 67 Comp. Gen.
336 (1988); Rodney T. Metzger, B-217916 (Aug. 26, 1985); David E.
Meisner, B-187162 (Feb. 9, 1977); Luella S. Howard, 51 Comp. Gen.
187 (1971).

     We agree with the Air Force that the regulation grants
agencies considerable discretion in making these determinations. 
Mr. Pede's case is different from the ones cited, however.  Here,
the Air Force exercised its discretion before the move occurred; it
told Mr. Pede, in effect, that if he relocated incident to the
transfer, it would reimburse the expenses he incurred in selling
his old house and buying a new one.  If the Air Force has a policy
of not granting reimbursement for short-distance moves in the
Washington area, it should have considered that policy before, not
after, deciding to authorize reimbursement of Mr. Pede's real
estate transaction costs.  An unwritten policy certainly does not
preclude the exercise of discretion contrary to that policy.  Even
if a policy is in writing, it does not rise to the level of a
regulation and therefore does not affect the agency's ability to
exercise its discretion in a contrary way.

     Mr. Pede, having been authorized reimbursement of costs
associated with the sale and purchase of residences incident to his
transfer from Germany to The Pentagon, actually sold one house and
bought another.  In light of the relative distance and commuting
times from the family's old and new homes to the claimant's old and
new duty stations, it is clear that the change in residences was
incident to the change of official station.  Mr. Pede has fulfilled
the conditions the Air Force established as qualifying him to
recover costs.

     We consequently direct the agency to review the specifics of
the claim submitted by Mr. Pede and reimburse him for all expenses
which are allowable according to the relevant regulations, 41 CFR
pt. 302-6 and JTR C14000-C14006.





                                   _________________________
                                   STEPHEN M. DANIELS
                                   Board Judge