November 7, 1997 GSBCA 14145-TRAV In the Matter of GERARD R. SLADEK Gerard R. Sladek, Lancaster, SC, Claimant. David K. Barnes, General Legal Services, Office of Chief Counsel, Internal Revenue Service, Washington, DC, appearing for Department of the Treasury. DANIELS, Board Judge (Chairman). Gerard R. Sladek, an employee of the Internal Revenue Service (IRS), accepted an assignment in November, 1991, and contends that he is entitled to a per diem allowance for each day that he was on that job. The IRS denied his claim. The claimant and the agency disagree as to whether the assignment was more like a permanent change of station or temporary duty, and as to whether the claimant's performance of the job primarily benefited him or the agency. We find that this assignment was a permanent change of station. Consequently, Mr. Sladek is not entitled to a per diem allowance for the time he spent on it. We find additionally that although the claimant's performance of the job benefited both him and his employer, the primary beneficiary was the claimant. Thus, Mr. Sladek is not entitled to relocation benefits, either. Accordingly, we deny the claim. Background In September, 1991, Mr. Sladek was a GS-13 internal revenue agent working for the IRS in its Greenville, South Carolina office. As explained by the claimant in a 1995 affidavit he gave to the IRS, he "was engaged to be married to a woman in Lancaster, SC. The marriage was to occur sometime in 1992 but with no definite date at that time." He heard that the IRS's Columbia (South Carolina) District, of which the Greenville office was a part, wanted to begin a major examination in Lancaster, which is about one hundred miles from Greenville. He immediately called his branch chief "and requested him to transfer me to the Rock Hill [South Carolina] POD [post of duty] and I would do the . . . examination." Rock Hill is close by Lancaster. Mr. Sladek's affidavit continues: [The branch chief] called me several days later and indicated he was willing to do the re-assignment. I told him I would not claim any moving costs but would move at my own expense. I did not anticipate selling my house anytime soon and would probably actually move my stuff when I was able to dispose of my house. Under those circumstances, I did not feel the government owed me any moving costs . . . . I asked [the branch chief] how he was going to structure the re-assignment - was it going to be permanent, etc. He indicated he was working on making the Rock Hill POD a permanent GS-13 POD . . . . I asked [him] about a potential date. He indicated sometime around the first of November (1991) and that he would get the paperwork started. He asked about per diem. I told him I was engaged to a girl who lives right down the road from the [Lancaster] exam and that we were thinking about getting married in 1992 but, if he could transfer me earlier, like say November, we might be able to set a date around that time and I would immediately move into her house and would not incur any per diem. In other words, if he transferred me in November, we would get married several days before or several days after the actual transfer and I would naturally not incur any per diem. He indicated this would be agreeable to him . . . . We both agreed that a transfer would be set for around November 1, 1991. Also in September 1991, the agency's Columbia District Office posted an announcement of a position for a GS-13 Internal Revenue Agent in Rock Hill. The position was listed as "Temporary, NTE [not to exceed] 2 Years." The announcement stated, "The payment of relocation expenses will be determined in accordance with guidance contained in IRM 0335.2662 and IRM 1763 (Chapter 500). If authorized, relocation will also be available to managers, management officials and bargaining unit professional employees." Mr. Sladek and two other IRS employees applied for this position and were found eligible by the agency. As October passed, Mr. Sladek "became a little concerned that no paper work [had come] through from Personnel." He inquired of the branch chief about the problem. "I told him I set a wedding date for November 9th so as to accommodate him on the per diem." The branch chief then indicated that he would be sending something up for my signature and that I should sign it and send it back. The document would essentially complete the transfer due to the wedding date of November 9th and that I agree to no moving cost or per diem cost reimbursements. He then asked me to provide a document requesting a "hardship transfer" due to my impending marriage. I told [him] that "it was beginning to be a hardship" because I could not not [sic] tell my [fiancee] emphatically that I would be working in Lancaster around November or ever for that matter and maybe we ought to delay the wedding plans at this point. I told [the branch chief] that my personal situation was getting a little untenable and I need[ed] to know quickly. In other words, if he could get me to Rock Hill around November 1, I would sign it and return it immediately. The affidavit continues: I then asked [the branch chief] about whether he had been working on the permanency aspect of the transfer and did he intend to indicate something in the document. He responded that coordinating the [Lancaster case] examination is a year and a half or so and that is about as permanent as he can get at the present time. He indicated that he would be working next spring on permanent GS-13 staffing in Rock Hill and he should have no trouble making it permanent by that time and I, naturally, would have the inside track. In other words, he led me to believe I had a transfer to the Rock Hill POD for about as permanent as anyone could get. Mr. Sladek states in his affidavit that he then "drafted a memo to [his branch chief] requesting a hardship transfer to Rock Hill due to my impending marriage . . . . I eventually got his memo on 10/28/91 . . . . I immediately signed it and sent it back." The branch chief's memorandum, captioned "Hardship Transfer Request," is dated October 24, 1991. It states: I have considered your hardship transfer request. I am willing to temporarily transfer you to our Rock Hill post of duty for assignment to one of our Coordinated Examination Program cases under the following conditions: -- The marriage that gives rise to the hardship transfer occurs by December 1, 1991, -- The transfer is at no cost to the government, including moving costs, -- When the need for your services on the large case examination in Rock Hill [is] no longer necessary, you agree to accept a transfer at no cost to the Government back to the Greenville post of duty. In addition, you have indicated it would alleviate your hardship to begin work in Rock Hill prior to your marriage. I am willing to temporarily assign you to the Rock Hill post of duty prior to your marriage, if you agree to waive per diem in the Rock Hill area for the period of the temporary assignment. Please let me know if you accept these conditions. Mr. Sladek accepted on October 28. He got married on November 9, as planned. More than two years after writing this affidavit, in filing a claim with the Board, Mr. Sladek provided a different version of events. He says now that he did not speak with his branch chief about the job in Rock Hill until after he had applied for it. The branch chief initiated the contact with him, to say that he had been selected for the position. Mr. Sladek says that he then volunteered the information, in response to a question from the branch chief, that he wanted the job so that he could advance his wedding date. The claimant states now that he never made a hardship request and that the branch chief's characterization of hardship reasons for the assignment was a "subterfuge" and a "fabrication." He alleges that he was the most qualified applicant for the position, and that the branch chief wrote the memorandum regarding hardship to avoid having to pay him relocation or per diem expenses. He says that he accepted the proposed conditions under duress -- had he not accepted, he would have had to postpone his wedding, which had been arranged with great effort. On November 19, 1991, the branch chief asked other IRS officials to cancel the announcement for the position in Rock Hill. He stated, "We have filled the vacancy through reassignment of an individual requesting a hardship transfer to that area." The acting director of the agency's Columbia District Office later said that the position was filled in this way "[t]o help Mr. Sladek," who had "requested this duty." Beginning in November 1991, Mr. Sladek was assigned to Rock Hill and worked on the Lancaster examination. He also went back to the IRS's Greenville office, on average three or four days per month, to help on jobs there to which he had been assigned previously. Mr. Sladek believed that the agency's demands on him for work in two locations, with short deadlines, were unreasonable. He particularly resented having to make the long drive to Greenville and back at a time when his wife and son were ill. He attributed these problems to a failure of coordination between two agency managers, both of whom were insisting that he work on projects that were of concern to them. In March 1992, the agency directed Mr. Sladek to complete his work on the Lancaster examination and make plans to return to Greenville. He was told to report to Greenville on June 29, 1992. Because this move would disrupt his family life, the claimant applied for a hardship transfer to the Charlotte (North Carolina) District Office. He was able to secure this assignment, with a post of duty in Rock Hill, effective June 28. Discussion Statute and regulation establish certain entitlements for Federal Government employees who are sent on temporary duty assignments, and other entitlements for employees who are transferred from one permanent duty station to another. 5 U.S.C. subchs. I, II (1988); 41 CFR chs. 301-302 (1992). Mr. Sladek's assignment to Rock Hill was not clearly demarcated as temporary or permanent. Our first task in resolving this claim is to determine which characterization is more appropriate. "Whether assignment to a particular station is temporary or permanent is a question of fact to be determined from the orders directing the assignment, the duration of the assignment, and the nature of the duties performed." Rodney C. Lowe, GSBCA 13850-RELO, 97-1 BCA  28,962; see also Durel R. Patterson-- Reconsideration, B-211818 (Nov. 13, 1984); Gretchen Ernst, B-192838 (Mar. 16, 1979); Secretary of the Navy, 36 Comp. Gen. 757 (1957). In resolving this question, one factor to be examined is where the employee was expected to spend the greater part of his time performing his duties. John P. DeLeo, GSBCA 14042-TRAV, 97-2 BCA  29,156. How the agency and the employee treated the assignment at the time it was made is especially important. Frederick C. Welch, 62 Comp. Gen. 80 (1982); Robert E. Larrabee, 57 Comp. Gen. 147 (1977). Although the position in Rock Hill was labeled as "temporary," all signs indicate that when Mr. Sladek was sent there, both he and the agency believed that the transfer was (in his words) "about as permanent as anyone could get." The claimant and his branch chief both understood that the assignment would last at least a year and a half; while the claimant was performing it, the branch chief would be working to make the assignment permanent; the effort was likely to be successful; and the claimant was likely to get the job. Throughout the life of the assignment, the great majority of Mr. Sladek's time was spent in Rock Hill or its environs. Although in one sense, the assignment turned out to be shorter than expected -- the claimant was ordered to return to Greenville after eight months in Rock Hill -- in another sense, the transfer really was permanent -- with a reassignment to the Charlotte District Office, Rock Hill ultimately was designated his permanent duty station. Per diem allowances are provided, by statute and regulation, for employees on temporary duty, not for employees who are reassigned permanently. 5 U.S.C.  5702(a)(1); 41 CFR 301-1.2. Since Mr. Sladek was reassigned permanently, he is not entitled to any sort of per diem allowance. Employees who are transferred "from one official station or agency to another for permanent duty" are generally entitled to relocation benefits. Those benefits are available, however, only to employees who are "transferred in the interest of the Government." 5 U.S.C.  5724(a). "When a transfer is made primarily for the convenience or benefit of an employee, . . . or at his request, his expenses of travel and transportation and the expenses of [relocation] may not be allowed or paid from Government funds." Id.  5724(h); see also 41 CFR 302-1.3(a)(1)(i). The "[a]uthority to make the determination as to whether a transfer is in the interest of the government rests primarily with the employing agency." Andrew A. Frederick, B-226637 (Aug. 3, 1987); see also Paul C. Martin, GSBCA 13722-RELO (Dec. 11, 1996); Bernard W. Wilson, B-228878 (Oct. 21, 1988). We will not overturn an agency's exercise of this discretion unless we are convinced that the determination was arbitrary, capricious, or clearly erroneous. Steven D. Hanson, GSBCA 14270-RELO (Oct. 7, 1997); Martin. Generally, an agency should consider a transfer to be for the convenience of the employee if the employee has taken the initiative by requesting it; if, on the other hand, the agency recruits, requests, or orders the employee to move, the transfer should be deemed to be in the interest of the Government. Rosemary Lacey, B-185077 (May 27, 1976); see also Frederick; David G. Goodyear, 56 Comp. Gen. 709 (1977). Where an employee is transferred to a position at the same grade level and without greater promotion potential, the move is usually for the benefit of the employee. Consequently, in this situation, the employee bears an especially heavy burden in overcoming an agency's determination to this effect. Hanson. This is so even where the employee is selected pursuant to a vacancy announcement issued under a merit promotion program. Martin; Frederick; see also Julia R. Lovorn, 67 Comp. Gen. 392 (1988). The agency rule cited in the announcement of the job which Mr. Sladek filled, IRM 0335.2662, is consistent with these principles; its paragraph (9) gives agency managers flexibility in deciding when moving expenses should be paid and provides specifically that "moving expenses will not be paid when the lateral reassignment is effected at the employee's request based on hardship circumstances, except in very unusual situations personally approved by the Regional Commissioner or Assistant Commissioner." We have no doubt that the IRS derived benefits from Mr. Sladek's move to Lancaster to perform the examination there. We also know, however, that the claimant did not receive a promotion in conjunction with this transfer, and we not have been advised that the job entailed any greater promotion potential than did the one he had been performing in Greenville. We know additionally from Mr. Sladek's 1995 affidavit that he asked to have this position so that he could advance the date of his planned marriage and that he signed a request that the assignment be made at a particular time to accommodate his wedding plans. The agency's version of the facts surrounding the assignment is consistent with the claimant's statements in that affidavit. The spin Mr. Sladek puts on events in his more recent claim is not convincing. We are not persuaded that the agency's characterization of the move as being primarily for the benefit of the employee is arbitrary, capricious, or clearly erroneous. Thus, although the assignment was permanent in nature, Mr. Sladek is not entitled to any relocation benefits. We note additionally that in requesting the position, Mr. Sladek (both as explained in his affidavit and by accepting the branch chief's conditions of transfer) specifically waived any entitlement to per diem or relocation benefits. The General Accounting Office has held that an employee may claim relocation allowances which he had previously waived, as long as he is legally entitled to those moneys. Eugene R. Platt-- Reconsideration, 61 Comp. Gen. 156 (1981). Whether this principle is worthy of acceptance or not, it does not apply in this case, since Mr. Sladek is not entitled to any of the benefits he seeks. _________________________ STEPHEN M. DANIELS Board Judge