July 15, 1997 GSBCA 14070-RELO In the Matter of WILL C. LaVEILLE Will C. LaVeille, Hilton Head, SC, Claimant. David H. Moore, Acting Director, Finance Division, Department of Energy, Aiken, SC, appearing for Department of Energy. GOODMAN, Board Judge. Claimant, Mr. Will C. LaVeille, is an employee of the United States Department of Energy (DOE). In 1995, while an employee of the United States Environmental Protection Agency, he made a permanent change of station move from Potomac, Maryland, to Aiken, South Carolina, to begin employment with the DOE. He rented an apartment in Aiken and lived there until his residence at the old duty station was sold. He then purchased a residence in Hilton Head, South Carolina. The DOE denied claimant's request for reimbursement of expenses related to the purchase of this residence. Mr. LaVeille has requested that this Board review the agency's denial of his claim for reimbursement. The agency's denial of the claim reads, in relevant part: The Comptroller General has consistently held that, in general, if the new residence is not within the commuting distance of the employee's new duty station, the expenses incurred in purchase of the residence are not allowable . . . . The reasoning is that if the employee's new residence is not within commuting distance of the new duty station, the purchase is not incident to a change in duty station. . . . Given that Mr. LaVeille maintains an apartment in Aiken, it would seem that he does not meet the threshold test of regularly commuting to work from his Hilton Head residence. In making its determination denying Mr. LaVeille's claim, the agency relies upon Federal Travel Regulation (FTR), 41 CFR 302- 1.4(k) and states: [W]ith respect to an employee's entitlement to reimbursement of residence expenses, "official station or post of duty means the residence or other quarters from which the employee regularly commutes to and from work." In responding to Mr. Laveille's request for review at this Board, the agency further states: At the time of Mr. LaVeille's claim . . . our denial was based on the fact that [claimant] did have an apartment in Aiken, South Carolina at 105 Fairway Ridge . . . . [He] maintained a published listing of his phone number and address in the Bell South Aiken, South Carolina telephone directory. In discussions with Mr. LaVeille, it was determined that he did maintain an apartment in Aiken, South Carolina where he commuted to and from work at the Savannah River Site (SRS) on a regular basis. He stated he was not commuting on a regular basis from his residence in Hilton Head, South Carolina. The fact that Mr. LaVeille still maintains an apartment in the Aiken area on a month-to-month basis may indicate his regular commute to SRS is still from Aiken . . . and not Hilton Head . . . . For your information, Hilton Head . . . is located approximately 130 miles from SRS. A one-way commute takes approximately 3 hours due to the lack of an interstate system between the two locales. The trip is mostly driven on a two-lane highway and passes through a number of small towns. Mr. LaVeille's submission of his request for review to this Board states as follows: [I believe that] "[n]ormal commuting distance" is not a valid criterion for evaluating this claim. Other staff at this DOE facility regularly commute from other locations equally distant from this office as is my home. When I worked in Washington, DC many coworkers regularly commuted from West Virginia and Pennsylvania. I do not maintain an apartment in Aiken at 105 Fairway Ridge. I did live there for a time prior to purchasing my home in Hilton Head, but moved from the Fairway Ridge Apartment complex on September 30, 1996. Since that date I have stayed occasionally in a room I rent in the basement of a private home in Aiken. When I work late or have an early morning meeting, it is sometimes more convenient to stay in Aiken rather than face a long drive home. The room has no kitchen facilities; meals I do eat in Aiken are either purchased in a restaurant or are food I bring from home in Hilton Head and reheat in the office microwave. All my laundry is done in my Hilton Head home. I do not have a lease on the room, but rent it month-by-month. My room serves no more purpose than a hotel room does when I am on travel. My home in Hilton Head is my only legal, permanent residence. I commute directly between Hilton Head and my office on work days; it is true, however, that I do not commute directly every day. I believe that this room in Aiken does not meet the interpretation of "maintains an apartment" and is merely a place where I sleep occasionally. Also, my home in Hilton Head is the location from which I usually commute directly to work. Therefore, I maintain that I have no residence other than Hilton Head and that my claim for reimbursement of purchase expenses should be honored. Mr. LaVeille also filed a reply to the agency's response to his request for review, which reads, in relevant part: Reference is made to the fact that I had an apartment, with a published telephone listing, in Aiken. This is true. At the time my listing was put in the Aiken section of the Bell South directory, I had been "maintaining a residence" in Aiken. I had been living in Aiken, without my wife, for several months while our home in Potomac, Maryland was on the market for sale (from 7/24/95 when I reported for work at the [SRS] to 3/31/96 when my house finally sold and my wife moved to Aiken). At that time we rented a larger apartment for six months while we looked for a home to buy in Hilton Head Island, South Carolina. We moved into that home on September 30, 1996 (when our lease was up) and I simultaneously moved a bed into the basement room that I now occasionally use in Aiken. Further, at the time of my claim (August 19, 1996) I was still commuting from that apartment but stopped doing it on a regular basis when I moved to Hilton Head Island. Although I do currently rent a room in the basement of a private home in Aiken, on a month-to-month basis, I regularly commute to work from my home on Hilton Head Island as I stated in my [request for review]. The few exceptions are when I have worked very late or during inclement weather when the rural roads are treacherous at night. The driving distance from the [SRS] to the door of my home is exactly 122 miles, and despite the fact that my route takes me through several small towns, the total trip never takes me longer than 2 1/2 hours. I am usually home for dinner by 7:00 pm. I prefer making this drive home vs. staying in Aiken, especially because my wife is physically handicapped and I reduce the number of nights away from her to an absolute minimum. The purchase of Mr. LaVeille's residence in Hilton Head was clearly incident to the change in duty station. Mr. LaVeille had no reason to sell his home in Potomac, Maryland, from where he commuted to his previous position in the Washington, DC, area and purchase a home in South Carolina, but for his permanent change of station to South Carolina. The agency correctly asserts that the applicable regulation is 41 CFR 302-1.4(k), which reads, in relevant part: With respect to entitlement . . . relating to the residence [expenses] . . . official station or post of duty also means the residence or other quarters from which the employee regularly commutes to and from work. It is true that the 122 mile distance between Mr. LaVeille's residence and his duty station is a greater distance than most federal employees commute. However, the decision of the General Accounting Office (GAO) cited by the agency, Donald R. Stacy, 67 Comp. Gen. 395 (1988), does not support the agency's assertion that the determining factor is the distance between the new residence and new duty station. Rather, the Stacy decision, and other decisions, including a decision by this Board, hold that for reimbursement for expenses of the purchase or sale of a residence, the requirement that the employee regularly commute from the residence in question contemplates commuting on a daily basis, and not merely returning to the residence on weekends and holidays. See Malcolm L. Jowers, GSBCA 13727-RELO, 97-1 BCA  28,800; Jesse Jackson, Jr., B-251559 (Mar. 31, 1993); Johnny W. Reising, B-238086 (June 8, 1990). Mr. LaVeille has proven that he does commute from his residence in Hilton Head, South Carolina, on a daily basis. Mr. LaVeille regularly commutes by automobile to and from his residence in Hilton Head, where he and his wife reside. He occasionally stays in a rented room closer to his duty station in Aiken, South Carolina, when weather or his work schedule make it prudent for him to do so. The rented room, without kitchen or laundry facilities, is not the apartment in which he lived before his wife joined him after his old residence was sold, nor the apartment where he and his wife lived while searching for a new residence, as alleged by the agency. In the decisions cited above, in which reimbursement has been denied, the claimant occupied rental facilities during the week and only returned to his purported residence on weekends, holidays, and other leave days. Mr. LaVeille's circumstances are quite dissimilar. As Mr. LaVeille regularly commutes to and from his residence in Hilton Head to his new duty station, he is entitled to be reimbursed for those costs related to the purchase of his residence at the new duty station for which law and regulation allow reimbursement. The agency should review the costs claimed by Mr. LaVeille and make payment of all reimbursable costs. _______________________ ALLAN H. GOODMAN Board Judge