Board of Contract Appeals General Services Administration Washington, D.C. 20405 _______________________________________________ November 23, 1999 _______________________________________________ GSBCA 15079-RELO In the Matter of JOHNNIE M. JONES Johnnie M. Jones, Eglin Air Force Base, FL, Claimant. Bernard T. Basil, Acting Director, Operations Department, Department of the Navy, Jacksonville, FL, appearing for Department of the Navy. BORWICK, Board Judge. Claimant, Johnnie M. Jones, seeks reimbursement of real estate transaction expenses of a sale of her house near Jacksonville, Florida, arising from a permanent change of station (PCS) to Osan Air Base (AB), Korea. Claimant claims she sold her house after being officially notified that she would not be returning to Jacksonville, Florida. The Department of Defense (DoD or agency) considered the statute and the Department of Defense Joint Travel Regulations (JTR) which provide that reimbursement shall not be allowed for any real estate transaction that occurs prior to official notification that the employee s return would be to a permanent duty station (PDS) other than the one from which he or she transferred to the foreign post of duty. The agency denied her claim because she sold her house ten months before her transfer to another nonforeign PDS and because claimant in fact possessed return rights to Jacksonville, Florida when she sold her house. For the reasons stated below, we sustain the decision of the agency. The record shows the facts to be as follows. Claimant was an employee with the Human Resouces Office (HRO), Department of the Navy, Naval Air Station, Jacksonville, Florida. Claimant states that in early fiscal year 1996, the HRO advised its employees that the office in Jacksonville would be consolidating with another office in Bay St. Louis, Mississippi. The employees were advised of a potential for a reduction in force (RIF) and were also advised to seek other employment, as employment at the HRO in Bay St. Louis, Mississippi could not be guaranteed. Acting on that advice, claimant sought another position and was hired by the Department of Defense (through the Department of the Air Force) to work at Osan AB, Korea. By travel authorization of January 18, 1997, the agency authorized claimant s PCS to Osan AB effective March 17. The agency did not authorize reimbursement of real estate expenses. Claimant states that she reported for duty at Osan AB on March 27, with the expectation that she would stay there at least two years. On or about May 7, the agency issued a notification of personnel action noting in block 45 that she possessed return rights under DoD 1400.6. That document noted her duty station as Osan AB. As to this action, the agency, through the Jacksonville, Florida, HRO states: [Claimant] was informed that she had return rights to HRO Jacksonville, although the position she left would no longer be in the new organization. On June 27, 1997, claimant sold her house and incurred $10,224.92 of real estate transaction expenses. Claimant states she sold her house in Orange Park, Florida, because: the HRO office presented us with such a negative outlook. They briefed the entire office concerning regionalization and informed us that no one would be guaranteed a position. We were told that we would have to compete with others in the new area for positions. They conducted an informal (paperwork only) RIF to determine who would be affected. Based on the result of that process and the lack of positions remaining at the HRO, employees were encouraged to find other employment elsewhere. She further states that Even though my personnel action indicated that my return right would be granted under DOD 1400.6 (which was cancelled) . . . , it was made very clear that I would not be returning to a position in Jacksonville, [Florida], and with that in mind I put my house up for sale. Claimant also states that she sold her house with the expectation that she would remain in Korea for two years. On October 15, 1997, the HRO in Jacksonville, Florida, requested claimant s performance ratings from Osan AB, Korea for RIF planning purposes. The agency, again through the Jacksonville, Florida, HRO, states that claimant was never officially notified of a RIF at that office. Claimant stayed in Korea fifteen months of her expected twenty-four month tour of duty, because her position was abolished. According to claimant, after her return from temporary duty in February of 1998, claimant s supervisor at Osan AB--erroneously as it turns out--told her supervisor that claimant no longer had return rights to Jacksonville. Claimant s headquarters then offered claimant a choice of finishing her tour in Andersen Air Force Base, Guam or in Randolph Air Force Base, Texas. Claimant chose to relocate to Guam, and, on April 2, 1998, the agency issued an authorization for claimant s PCS there. The authorization included reimbursement of real estate expenses. Apparently, this PCS was effective May 1998. In January 1999, the HRO, Jacksonville, Florida, tried to reach claimant at Osan AB to explain the coming reorganization; it then found out that claimant had transferred from Osan to Guam in May 1998. On January 12, 1999, claimant submitted her request for reimbursement of real estate expenses related to the sale of her house in Florida after her move from Osan AB to Guam. On January 29, 1999, now knowing of claimant s transfer from Osan AB to Andersen Air Force Base, Guam, the HRO in Jacksonville, Florida, advised claimant that effective February 5, claimant s former position at the Jacksonville HRO was abolished and that her transfer from Osan AB to Andersen Air Force Base, Guam, negated claimant s return rights to Jacksonville, Florida. On April 5, 1999, the agency denied her request for reimbursement of the real estate transaction expenses on the ground that she had sold her house in Florida ten months before her transfer to Guam, a nonforeign area. Claimant then filed a claim at this Board. In its submission to the Board, the agency further explains the denial of claimant s request for reimbursement of real estate transaction expenses. The agency argues that at the time claimant transferred to Korea, she was aware of the HRO consolidation in Mississippi, but that she was informed that she possessed return rights to Jacksonville, Florida, even though the position she left would no longer be in the new organization. The agency argues that claimant had return rights to the HRO in Jacksonville, Florida, when she was given the opportunity to transfer to Texas or Guam. Finally, the agency argues that claimant never received a RIF notice from the HRO in Jacksonville, Florida. The governing statute provides in pertinent part: (2) An agency shall pay to or on behalf of an employee who transfers in the interest of the Government from a post of duty located outside the United States to an official station within the United States (other than the official station within the United States from which the employee was transferred when assigned to the foreign tour of duty) (A) expenses required to be paid by the employee for the sale of the residence (or the settlement of an unexpired lease) of the employee at the old official station from which the employee was transferred when the employee was assigned to the post of duty located outside the United States; and (B) expenses required to be paid by the employee for the purchase of a residence at the new official station within the United States. (3) Reimbursement of expenses under paragraph (2) of this subsection shall not be allowed for any sale (or settlement of an unexpired lease) or purchase transaction that occurs prior to official notification that the employee's return to the United States would be to an official station other than the official station from which the employee was transferred when assigned to the post of duty outside the United States. 5 U.S.C. 5724a(d) (Supp. III 1997). The JTR provide in pertinent part: An employee, who, incident to a PCS to a foreign area from a PDS in a nonforeign area, is officially notified that return will be to a different nonforeign area PDS, may sell the residence at the former nonforeign area PDS and be reimbursed real estate expenses under this Chapter, if otherwise eligible, upon completion of a tour of duty in the foreign area and subsequent transfer to a different nonforeign area PDS. Reimbursement shall not be allowed for any real estate transaction that occurs prior to official notification that the employee s return would be to a PDS other than the one from which [he or she] transferred to the foreign post of duty. Reimbursement may not be made incident to the transfer to the foreign post of duty, even though the employee is officially notified at that time that return will not be to the same PDS after the completion of the foreign assignment. JTR 14000-D.2 (emphasis supplied). The entitlement to reimbursement of real estate transaction expenses for the sale of a residence at the last domestic residence upon completion of a tour of duty in the foreign area and subsequent transfer to a different nonforeign area PDS is narrow and specific. Thus, we have held that an employee who sold his residence upon being notified of a base closing was not entitled to rely upon the base closing as official notification that the employee would not be transferred back to his nonforeign PDS because the employee could have been transferred to another PDS within the commuting distance of his last domestic residence. Alfred Voelkelt, GSBCA 14889-RELO, 99-1 BCA 30,362. The agency did not handle claimant s multiple moves well. The HRO at Jacksonville, Florida, seemingly did not make an effort to keep claimant s supervisors at Osan AB apprised of claimant s return rights. The agency s supervisors at Osan AB, moreover, did not exercise sufficient diligence to ascertain the actual status of claimant s return rights, either by a careful review of claimant s personnel file or by checking on claimant s return rights status with the HRO at Jacksonville, Florida. The officials at Osan AB apparently acted upon their misunderstanding to transfer claimant to Guam. These observations, however, are not sufficient to grant claimant relief for entitlement to real estate expenses upon her transfer from a foreign PDS to a nonforeign PDS different from claimant s previous nonforeign PDS. The statute and the JTR are clear, prohibiting reimbursement for the real estate transactions that occur prior to official notification that claimant would not be returning to a nonforeign PDS other than the one for which he or she transferred when assigned to the post of duty outside the United States. Here, claimant sold her house in June 1997, acting, she explains, on the oral advice of officials of the Jacksonville, Florida, HRO. According to claimant, the HRO in Jacksonville, Florida had a negative outlook, which spurred her to sell her house. In the briefings claimant describes, HRO officials warned the HRO employees that they would have to compete for positions and that the positions within the new organization were not guaranteed. HRO officials advised the employees to seek employment elsewhere. Nothing in those briefings, however, establishes that authorized HRO officials specifically advised claimant that upon the expiration of a foreign PCS tour of duty, she would not be returning to Jacksonville, Florida. Indeed, in May 1997, the agency granted claimant return rights to Jacksonville, Florida, one month before she sold her house in Florida. Claimant also argues that it was made very clear that she would not return to Jacksonville. Claimant has not established what was said that made [it] very clear, whether the statement, if any, was made by an authorized official and when it was said. We cannot find on this record that any official provided official notification before June 27, 1997, that claimant would not return to Jacksonville, Florida. Instead the record shows that, in selling her house, claimant assumed that she would not be returning to Jacksonville, Florida, an assumption that was contrary to her return rights as stated in the May 7 notification of personnel action. We need not decide the interesting question whether Osan AB officials PCS travel authorization of April 2, 1998, to Guam represented official authorization --despite the erroneous assumption that claimant lacked return rights to Jacksonville-- because claimant incurred the real estate transaction expense well before the officials issued the authorization. We therefore must sustain the decision of the agency. __________________________ ANTHONY S. BORWICK Board Judge