October 23, 1997 GSBCA 13979-RELO In the Matter of CHRIS W. GIGGEY Chris W. Giggey, Lusby, MD, Claimant. D. A. Meyers, Personnel Support Activity Detachment, Naval Inventory Control Point, Mechanicsburg, PA; and Robert E. Ryan and C. R. Groves, Career Management Site, Naval Center for Acquisition Training, Mechanicsburg, PA, appearing for Department of the Navy. DANIELS, Board Judge (Chairman). During 1995, the Department of the Navy sent one of its civilian employees, Chris W. Giggey, from Forestville, Maryland to Pearl Harbor, Hawaii for logistics intern training. The Navy has asked us to resolve a dispute between the employee and the agency as to the amount the employee should be paid for storage of his household goods in Maryland while he was in Hawaii. In response, Mr. Giggey maintains that he is entitled not only to a greater amount than the Navy has allowed for storage expenses, but also to a per diem allowance and reimbursement of automobile expenses he incurred, on the theory that he was on temporary duty while in Hawaii. As the agency now recognizes, it mischaracterized the nature of Mr. Giggey's assignment as a permanent change of station when it posted him to Hawaii. The assignment is properly characterized as long-term training. Under the statute and regulations relevant to such an assignment, the agency must perform a cost comparison to determine whether it acted permissibly in denying the employee a per diem allowance during his stay in Hawaii. If the denial of this allowance was permissible, the agency is obligated to pay the employee under the commuted rate system for the storage of his household goods. If it was not, the agency must pay the employee such an allowance, but should also recoup from him (through a set-off) the amounts already paid for transportation of his wife to and from Hawaii, and for storage of his goods. Background During 1995, Mr. Giggey was an aerospace engineer (trainee) with the Navy. The agency's position description for this job states that the position is at a "developmental level" and "is considered to be 100% training." Mr. Giggey was also a participant in the agency's Acquisition Logistics Career Intern Program. The Navy describes this program as being structured "to improve intern development through initial indoctrination followed by on-the-job training using rotational assignments at appropriate training sites. . . . Assignments are . . . designed to provide the experience necessary to satisfy the training requirements for journeyman Acquisition ILS Manager. . . . Rotational assignments should be sought to best fill the individual training need." One of the rotational assignments available to participants in the Acquisition Logistics Career Intern Program was work within the Fleet Environmental Office at CINCPACFLT, COMNAVBASE Pearl Harbor, Pacific Naval Facilities Engineering Command, Hawaii. This job was described as follows: "Assignments will vary depending on current program focus but will include exposure to one or more of the following environmental programs: . . . . Intern will conduct research and analysis relating to environmental programs. Results will be presented through briefings, point papers, engineering report [sic] and other standard staff correspondence." On March 24, 1995, the Navy authorized Mr. Giggey to undertake "permanent duty travel" from his home in Maryland to Hawaii for the purpose of "intern training relocation" to this assignment. Mr. Giggey understood that the assignment would last for six months. The authorization included transportation of Mr. Giggey's wife to Hawaii and shipment of up to 700 pounds of unaccompanied baggage. The travel orders additionally allowed shipment of household goods (HHG) not in excess of 18,000 pounds, but did not permit nontemporary storage of such goods. The orders state, "Authorized self shipment of HHG; dated weight receipts required showing date and weight." Mrs. Giggey did travel to Hawaii with her husband, and the couple did ship a small amount of household goods there; the agency reimbursed the costs for both. Mr. Giggey did not ship the bulk of his household goods, however. The Navy told him that shipment would take three months, so before he left, he rented a truck and moved most of his belongings -- weighing 7,840 pounds -- to a storage facility in Maryland, about fifteen to eighteen miles from his home. While he was in Hawaii, his travel orders were modified to read, "Authorized nontemporary storage of household goods. . . . Authorized reimbursement for self-storage costs NTE [not to exceed] cost of GBL [Government bill of lading]." The Navy has paid Mr. Giggey's out-of-pocket costs for truck rental, weight and scale fees, and storage. On August 30, 1995, the Navy issued permanent duty travel orders for Mr. Giggey and his wife to return from Hawaii to assume a position with the Naval Air Systems Command Headquarters in Arlington, Virginia. Discussion Generally speaking, travel and transportation costs incurred by federal employees for which the Government is responsible fall within two categories -- temporary duty while on official business away from an employee's designated post of duty (governed by subchapter I of chapter 57 of title 5, United States Code), and relocation from one permanent duty station to another (governed by subchapter II of that chapter). Travel for training is in a class by itself; it borrows from the principles established for the other categories but is separate from both of them. It is governed by section 4109 of title 5. Michael G. Pond, 58 Comp. Gen. 253 (1979). The first question we must answer in order to resolve Mr. Giggey's claim is whether his assignment to Hawaii is properly characterized as temporary duty (TDY), a permanent change of station (PCS), or training. As Mr. Giggey points out, the assignment cannot be considered a PCS, since initial tours of permanent duty for civilian employees of the Department of Defense (DoD) in Hawaii must last thirty-six months. JTR C4005.C.1(a). The question then becomes whether the trip was TDY or training. As to this issue, Mr. Giggey refers us to paragraph C4502.D of the Joint Travel Regulations (JTR), rules which pertain to DoD civilian employees. This paragraph, "Interns and Trainees," states: In cases involving the movement of an "intern" to "trainee," it is necessary to determine whether the purpose of the move is primarily for "training" or for the "performance of work." The designation of a facility as a "school" or "training center" may be used to assist in making this a determination [sic], but it isn't necessarily the sole determina[nt], as there are assignments that are primarily for training purposes which don't involve a school facility. The fact that an employee is being assigned for the purpose of learning from the performance of a particular job at a particular facility doesn't make it necessarily a "training" assignment. Because of the variables which may exist, it's necessary to evaluate each individual move in terms of the circumstances present, and decide each case on an individual basis. This paragraph is confusing in its use of the terms "intern" and "trainee" without providing any definition of them. The paragraph is also of uncertain applicability to Mr. Giggey, who is described as both an intern and a trainee and does not seem to have moved from one category to the other. We do glean from the paragraph, however, that an assignment should be considered "training" or "work" depending on its nature, rather than its label. The term "training" is defined by statute as meaning -- the process of providing for and making available to an employee, and placing or enrolling the employee in, a planned, prepared, and coordinated program, course, curriculum, subject, system, or routine of instruction or education, in scientific, professional, technical, mechanical, trade, clerical, fiscal, administrative, or other fields which will improve individual and organizational performance and assist in achieving the agency's mission and performance goals. 5 U.S.C.  4101(4) (1994). Mr. Giggey maintains that this definition does not describe his assignment because he "was assigned to a work rotation. I was not assigned to a training command or to any school type facility." Thus, he believes that what he did "was more like employment as a 'temporary' than a developmental or training assignment in Logistics." Although there appears to be some merit to this position, in that the Navy's description of the assignment also makes the job sound more like work than school, we think that applying some perspective to the situation commands a contrary conclusion. Mr. Giggey held a "100% training" position and went to Hawaii to perform an assignment in a developmental program which included "on-the-job training." The Navy had designated this particular work as one of its "rotational assignments at appropriate training sites" which could "fill [an] individual training need" so as to make the employee more valuable to the agency. The JTR provide that "[a]ll assignments under the DOD-wide Training Agreement for Rotational Assignments for Development of Key Personnel of the DOD or similar training and development programs are considered primarily for training." JTR C4561.C. The Navy's position that it sent Mr. Giggey to Hawaii on a training assignment is reasonable. Having determined that the law governing training expenses should apply to Mr. Giggey's claim, we now examine that law. Section 4109(a) of title 5, United States Code, states: The head of an agency, under the regulations prescribed [by the Office of Personnel Management] and from appropriations or other funds available to the agency, may -- . . . . (2) pay, or reimburse the employee for, all or a part of the necessary expenses of the training, . . . including among the expenses the necessary costs of -- (A) travel and per diem instead of subsistence under subchapter I of chapter 57 of this title . . . ; (B) transportation of immediate family, household goods and personal effects, packing, crating, temporarily storing, draying, and unpacking under section 5724 of this title . . . , when the estimated costs of transportation and related services are less than the estimated aggregate per diem payments for the period of training; (C) tuition and matriculation fees; (D) library and laboratory services; (E) purchase or rental of books, materials, and supplies; and (F) other services or facilities directly related to the training of the employee. The statute says plainly that an agency may pay for the transportation of an employee's family members to a training site, and shipment and temporary storage of his household goods, only "when the estimated costs of transportation and related services are less than the estimated aggregate per diem payments for the period of training." There is no indication in the record which the claimant and the agency have provided to the Board that the Navy ever made a comparison of these costs. Thus, there is no justification that paying the transportation and storage costs was permissible. The Navy contends that this is now irrelevant, in light of the Comptroller General's ruling that "after the transportation is effected in accordance with such initial determination [to pay transportation costs] the entitlement of the employee and the obligation of the Government have become fixed and thereafter may not be changed either by the department or by the employee." 39 Comp. Gen. 140 (1959). The agency ignores the Comptroller General's additional statement: "This rule applies only to competent orders. Where orders are clearly in conflict with a law or regulation they may be modified to make them consistent with the applicable law or regulation." Lynn C. Willis, 59 Comp. Gen. 619 (1980); see also Stephen T. Croall, 60 Comp. Gen. 478 (1981). The orders under which Mr. Giggey traveled are not competent because they were issued in contravention of the law permitting payment of transportation, shipment, and storage costs only consequent to a cost comparison. The statute does not limit the time at which the required comparison may be made. We conclude that the Navy should make it now. In making the comparison, the agency should consider the costs of shipping Mr. Giggey's household goods from Maryland to Hawaii (and back) by a means that would get them to their destination with such reasonable promptness as to permit him to use those goods while he was there. The fundamental law regarding employee training, the Government Employees Training Act, requires that training programs "be designed to lead to . . . fair and equitable treatment of Government employees with respect to training." Pub. L. No. 85-507,  2(3)(F), 72 Stat. 327 (1958). Sending an employee to a training assignment on the understanding that he would have use of his household goods while there, and then effectively denying him the use of those goods, would be inconsistent with the statute's intent. If, as the Navy told Mr. Giggey, shipping goods from Maryland to Hawaii takes three months, timely shipment would be impossible. No true cost comparison would be possible, and the option of paying for transportation and shipping costs would not be available to the agency; the Navy would have to pay the claimant's per diem costs instead. On the other hand, if an alternative form of transportation (such as air) could have gotten the employee's goods to Hawaii and back with such reasonable promptness as to make possible his using them, the costs of this method may fairly be included in a cost comparison. The costs to be compared with those of transporting Mrs. Giggey from Maryland to Hawaii and back, and shipping the Giggeys' household goods, are the estimated aggregate per diem payments for the period of training. Those payments are to be calculated in accordance with JTR 4561.D. Unless one of the exceptions described in paragraph 2 of this provision is present, since Government quarters were made available to the claimant, "per diem payable is determined using the lodgings-plus system in par. C4553." JTR 4561.D.1.b. If the comparison shows that per diem costs are equal to or less than the transportation and shipping costs, only per diem may be paid to Mr. Giggey. If the comparison shows, on the other hand, that per diem costs are more than the transportation and shipping costs, the statute on its face appears to permit payment of the transportation and shipping and storage expenses as well as per diem. The statute does not list subparagraphs (A) and (B) of paragraph (2) as alternatives, but rather as two of six categories of payment which an agency may permissibly make. The law provides for implementation under regulations issued by the Office of Personnel Management, but those regulations do not speak to this issue. 5 CFR 410.603 (1995). Nor does the Federal Travel Regulation. The JTR, however, state that in connection with a training assignment, an employee "is entitled to receive" either per diem while in attendance or reimbursement for the costs of transportation of dependents and shipment of household goods to the training location, if this would be less than per diem. JTR C4502.A.2, .B. Given that training programs are to be designed to lead to "dollar savings" as well as "fair and equitable treatment of Government employees with respect to training" (Pub. L. No. 85-507,  2(3)(B), (F)), and that the statute affords to agency heads the discretion to determine what part of training expenses will be paid (Croall; Willis), this regulation does not appear to be unreasonable. We therefore conclude that if the Navy is obligated to pay Mr. Giggey a per diem allowance for his time in training in Hawaii, it may demand that the employee repay the amounts he has already received for his wife's round-trip flight and the shipping and storage of his household goods. If payment of per diem is not appropriate, we must face the issue which was the subject of the initial disagreement between the agency and the employee: Did the Navy act permissibly in limiting reimbursement for storage expenses to Mr. Giggey's out- of-pocket costs, or should reimbursement have been calculated in accordance with the commuted rate system? Before we answer this question, we must note that the travel orders given to Mr. Giggey were improper in yet another way: the orders authorize nontemporary storage of goods, but the statute specifically permits authorization of only temporary storage. See 5 U.S.C.  4109(a)(2)(B). The Comptroller General held that authorization of nontemporary storage is consequently forbidden. Michael G. Pond--Reconsideration, B-193197 (Jan. 10, 1980). This problem need not trouble us here. "Nontemporary storage shall be authorized for periods of time not exceeding 1 year and extended as necessary." 41 CFR 302-9.1(g). "Temporary storage," on the other hand, is allowed for a period of time not to exceed ninety days, with an additional ninety days to be permitted; a long-term training assignment is justification for the additional ninety days. Id. 302-8.2(d). Because Mr. Giggey's tour in Hawaii was six months in duration, we have no difficulty in concluding that by allowing him to store household goods for that length of time, the Navy was effectively authorizing temporary storage, as permitted by statute. Costs of trainees' "transportation of . . . household goods and personal effects, packing, crating, temporarily storing, draying, and unpacking," are governed by 5 U.S.C.  5724, the statute which controls similar costs for employees who are relocated from one permanent duty station to another. 5 U.S.C.  4109. Under the regulation which implements that statute, "[t]he general policy is that commuted rates shall be used for transportation of employees' household goods when individual transfers are involved." 41 CFR 301-8.3(c)(3) (1995). Under the commuted rate system, the employee selects and pays a carrier or transports the goods by noncommercial means and is reimbursed by the Government in accordance with a schedule of rates published by the General Services Administration. The employee assumes the risks associated with the transportation. "The Government is spared the administrative expense of selecting carriers, arranging for carrier services and for packing and crating, preparing [a Government bill of lading (GBL)], paying charges incurred, and processing any loss and damage claims. Instead, the employee bears these burdens and risks." Jeffrey P. Herman, GSBCA 13832-RELO, 97-1 BCA  28,704 (1996). Under regulation, an agency may limit an employee's reimbursement for transportation costs to actual expenses only where the agency has determined in advance of the move, pursuant to a complete cost comparison, that the agency's taking responsibility for the move would be more economical for the agency than would allowing the employee to have responsibility. Herman (citing JTR C8001.D.3.c). The Navy did not make such a cost comparison, and it did not authorize shipment of Mr. Giggey's goods to storage under a GBL; instead, it simply authorized Mr. Giggey to make his own arrangements for storage of his goods. Costs of temporary storage are governed by the same principles as the ones outlined above. 41 CFR 302-8.5. Without saying so directly, the Navy, by allowing Mr. Giggey to make his own arrangements, effectively authorized use of the commuted rate method for the storage of the goods. John M. Horan, GSBCA 13986-RELO (Sept. 26, 1997); Lawrence M. Ribakoff, GSBCA 13892-RELO, 97-2 BCA  29,018. Mr. Giggey has presented the Navy with documents showing the points of origin, storage, and weight of the goods. Once he gives the agency the point of destination of the goods when they were released from storage, the agency should be able to apply the published rates to determine the correct amount of reimbursement. 41 CFR 302-8.5; JTR C8009. Mr. Giggey has also asked whether he may be reimbursed for automobile expenses he incurred in Hawaii. He incurred some costs in renting a car for the first and last few days he spent in the Aloha State, and incurred other costs in operating a vehicle he purchased while there (and sold before leaving). Both kinds of expenses may be paid by the Government for employees on temporary duty. Car rental expenses are reimbursable, however, only where they are "necessary to accomplish the purposes of the Government." 41 CFR 301-1.101(a). Mileage payments for the use of privately owned vehicles are appropriate only where such use is for the conduct of official business and has been authorized or approved. Id. 301-4.1(a). Mr. Giggey has provided no evidence that his use of automobiles in Hawaii was for anything other than his own personal convenience. Thus, even if his assignment were considered temporary duty, the costs could not be reimbursed. Phyllis G. Thompson, 97-2 BCA  29,067. As we have explained, the assignment was long-term training, not temporary duty. Section 4109 of title 5 does not authorize reimbursement of these expenses to employees on training assignments. The Navy correctly states that it may not pay these costs. _________________________ STEPHEN M. DANIELS Board Judge