Board of Contract Appeals General Services Administration Washington, D.C. 20405 ________________ April 7, 1998 ________________ GSBCA 14354-RELO In the Matter of CLIFFORD L. LEESON Clifford L. Leeson, New Bern, NC, Claimant. 2nd Lt. C.S. Burdulis, Disbursing Officer, Finance Office, Marine Corps Air Station, Cherry Point, NC, appearing for Department of the Navy. NEILL, Board Judge. Claimant, Clifford L. Leeson, a civilian employee assigned to the Marine Corps Air Station at Cherry Point, North Carolina, asks that we review a determination of the base finance office denying his claim for reimbursement of certain real estate costs incurred in connection with the purchase of a residence near his new duty station. On review of the record before us, we conclude that the initial decision rejecting the claim was correct. The two-year period of eligibility for this benefit clearly expired before Mr. Leeson purchased his residence in North Carolina. The applicable regulations, however, do permit the commanding officer of the activity bearing the cost to authorize a late filing of a request for extension of the period from two to three years. The Board recommends that claimant present a request for this authorization for consideration by the commanding officer. Background On July 21, 1994, claimant was issued permanent change of station (PCS) orders authorizing him to transfer from Vacaville, California, to Cherry Point, North Carolina. The authorization provided, among other things, for reimbursement of certain real estate expenses occasioned by the PCS. Claimant reported for duty at Cherry Point on September 30, 1994. Mr. Leeson encountered significant delay in the sale of his house in California. He explains that he ultimately sold the house but made no profit on the sale and was obliged in the meantime to use his savings to continue mortgage payments on the house and thus avoid foreclosure. As a result, he and his wife were not in a position to purchase a new residence in North Carolina until September 25, 1997. Shortly thereafter, Mr. Leeson submitted a claim for reimbursement of certain costs associated with the purchase. The claim was rejected by the base finance office on the ground that the two-year period of eligibility for this benefit had expired. Mr. Leeson states that, upon asking officials in the finance office if any further recourse was open to him, the suggestion was made that he ask this Board if anything more could be done. He did so without delay. Discussion Mr. Leeson, as a civilian employee of the Department of Defense, is subject to the provisions in the Department's Joint Travel Regulations (JTR). Section C14000-B of the JTR provides in part: Time Limitations on Residence or Lease Termination Transactions. Except as provided herein, the settlement dates for the sale and purchase or lease termination transactions for which reimbursement is requested must not be later than 2 years after the date that the employee reported for duty at the new PDS [permanent duty station] . . . . The 2-year period begins with the day following the date the employee reports for duty and ends on the second anniversary of the reporting date. . . . Upon an employee's written request, the 2-year time limitation for completion of the sale and purchase or lease termination transactions may be extended by the commanding officer of the activity bearing the cost, or his/her designee for an additional period of time not to exceed 1 year. The employee's written request should be submitted to the appropriate authority as soon as the employee becomes aware of the need for an extension but before expiration of the 2-year limitation; however, in no case will the request be submitted later than 30 calendar days after the expiration date unless this 30- day period is specifically extended by the commanding officer of the activity bearing the cost. Approval of the additional period of time will be based on a determination that extenuating circumstances, acceptable to the commanding officer of the activity concerned . . . have previously prevented the employee from completing the sale and purchase or lease termination transactions in the initial time-frame and that the residence transactions are reasonably related to the PCS. Mr. Leeson contends that, for the reasons set out above, he was unable to purchase his new residence within two years of the date of his reporting for duty at Cherry Point. He explains that he failed to make a timely request for an extension of this period to three years simply because he was unaware of the time limitation in question. Since he did purchase his residence within three years of reporting to duty, was delayed for good reason until then in making this purchase, and was unaware of the need to request formally a one-year extension of the original two-year period, he asks that we grant an exception to the two year limitation and authorize payment of his claim. It is not within our authority to grant an exception to the two-year limitation set out in the JTR. In the absence of an extension of the two-year period, the disbursing officer's determination is entirely correct. We, therefore, affirm the agency's rejection of the claim to date. The matter need not stop here, however. Under Section C14000-B of the JTR, a request for extension of the two-year period must be submitted, at the very latest, within thirty days of the expiration of the two-year period. This was not done by the claimant. Nevertheless, the same provision also states that the commanding officer of the activity bearing the cost, and only this commanding officer,[foot #] 1 can extend this thirty-day period. We find no indication in the record that claimant has ever presented the particulars of his situation to the commanding officer and sought the relief that the commanding officer is empowered to give from the deadline for requesting an extension of the two-year period. Under the JTR, this is a matter clearly left to the discretion of the commanding officer. The Board will not usurp or interfere with the exercise of that discretion unless it is demonstrated that the exercise of that authority or the refusal to exercise it is arbitrary or lacks a rational basis. We recommend, therefore, that Mr. Leeson, as a preliminary matter, seek leave of the commanding officer to file a late request for extension of the benefit period from two to three ----------- FOOTNOTE BEGINS --------- [foot #] 1 We note that, under this provision of the JTR, the authority to extend the benefit period from two to three years, for extenuating circumstances, can be exercised by the commanding officer or a designee. The authority to permit the late filing of such a request, however, is personally reserved to the commanding officer. ----------- FOOTNOTE ENDS ----------- years. If this authorization is given and the extension is subsequently granted, then the claim may be paid if found to be otherwise acceptable by the agency. ____________________ EDWIN B. NEILL Board Judge