_________________________ November 19, 1997 _________________________ GSBCA 14017-RELO In the Matter of DANA RISER Dana Riser, Brea, CA, Claimant. R. Michael Imphong, Chief, Allowances Unit, Air Force Personnel Operations Agency, Washington, DC, appearing for Department of Defense. WILLIAMS, Board Judge. Claimant seeks reimbursement of $20,152.60 in real estate expenses allegedly incurred incident to her permanent change of station from the Defense Contract Audit Agency (DCAA), Redondo Beach to March Air Force Base (March AFB) -- a distance of seventy-five miles. Prior to claimant's relocation, the Air Force authorized reimbursement of real estate expenses in her travel orders. However, in subsequently exercising its discretion to approve claimant's relocation expenses, the Air Force denied reimbursement, concluding that claimant's move to a residence only twenty-four miles closer to her new duty station was not in the immediate vicinity of the new duty station, was for her own personal convenience, and was not incident to her transfer. Because the travel orders were valid when issued and because the facts of record support a conclusion that claimant's move was incident to her transfer, we grant the claim. Background In January 1995, claimant accepted a position with the Air Force Audit Agency (AFAA) as an audit manager at March AFB in Moreno Valley, California. Prior to that, claimant was employed with the DCAA as an auditor in Redondo Beach, California. March AFB is located approximately seventy-five miles away from claimant's old duty station. Before relocating, claimant's permanent residence was in Compton, California, a distance of ten miles from her old duty station and sixty-three miles from her new duty station. In claimant's travel authorization issued on February 5, 1995, the Air Force authorized reimbursement of real estate expenses for the purchase and sale of claimant's residence so long as the expenses were incurred within two years of her reporting date of February 21, 1995. Claimant was also authorized to receive temporary quarters subsistence expenses (TQSE) for sixty days. During February and March 1995, claimant commuted to March AFB from her old residence, traveling 126 miles per day roundtrip with a commuting time of 90 minutes each way. On May 4, 1995, claimant sold her residence at the old duty station in Compton, California. She is claiming $15,444.80 in real estate expenses in conjunction with the sale of this residence. During a TQSE period between April 2 and July 2, 1995, claimant resided at the Residence Inn in Placentia, California -- which was also closer to her new duty station than was her old residence. Claimant intended to purchase a new residence as close as possible to her new duty station. In selecting the location of her family's new residence, claimant took into consideration her spouse's employment location, which was in El Segundo, California -- some seventy-nine miles away from her new duty station -- the travel requirements of her new position, and concerns for child care. Specifically, because her husband had to take over child care when she traveled for her job, claimant required a residence which was not too far from El Segundo. On June 23, 1995, claimant purchased a residence in Brea, California, and she seeks $4,707.80 in real estate expenses arising from that purchase. In July 1995, claimant and her family moved into this home in Brea, California, a distance of thirty-nine miles from her new duty station. By relocating from Compton to Brea, claimant reduced her commute by twenty-four miles and forty-five minutes each way. Claimant sought reimbursement of expenses arising from her sale of the Compton residence on May 16, 1995. On May 21, 1996, the agency's personnel management specialist forwarded the claims to the Air Force Personnel Operations Agency (AFPOA), Bolling Air Force Base, Washington, D.C., for determination of eligibility, stating that "it does not appear that the relocation of claimant's residence was incident to her transfer to March AFB." The personnel management specialist reasoned as follows: [Claimant's] old residence was located in Compton, approximately 10 miles from her old duty station and sixty-five miles from March. On 5 May 1995 she requested an extension of her TQSE and submitted for the reimbursement of the sale of her old residence. At this time her mailing address was located in Gardena, a location west of her old residence rather than east toward March AFB. At this time she was planning to purchase a residence in Placentia. In June 1995, a new purchase agreement was signed for a home located in Brea, 24 miles from her old address and 47 miles from March AFB. There is no evidence that [claimant] ever tried to relocate in the immediate vicinity of her new duty station, March AFB. The undated and unsigned memo [claimant] prepared, cites her childrens [sic] school and husbands [sic] duty location as major consideration. . . . El Segundo, her husband's duty location is located 4 miles north of [claimant's] old duty station and more than 75 miles from her new duty station. In addition, it appears that her children have remained in the same school district and her TQSE was utilized in an area closer to her husbands [sic] duty location in El Segundo than to her new duty station. On June 17, 1996, claimant submitted a rebuttal letter factually disputing several statements in the personnel management specialist's recommendation. Specifically, claimant replied that she and her family were never residents of Gardena; the mailing address was simply a post office box near her husband's employer. She submitted her hotel receipts to show proof of residence during the TQSE period and demonstrated that TQSE was not in an area closer to her husband's employer, but was in Placentia, which was closer to her new duty station. Claimant also submitted a map showing that her home in Brea is closer to March AFB and that Brea is located between her husband's place of employment in El Segundo and March AFB. In addition, claimant submitted a report card showing that her child did not remain in the same school district. She stated: The factors considered in the selection of our residence were the location of my husband's employment, the accessibility of our children's school for both parents, and the commuting rearrangements caused by work related audit travel required by my auditor position . . . . To conclude, my intent was to relocate as close as possible to March [AFB]. On August 29, 1996, the Chief Allowances Unit, AFPOA, denied claimant's claim, reasoning as follows: [T]he primary issue is whether a short distance move is approved for the Los Angeles area. Our review indicates your move was from Compton, CA, to Brea, CA. This relocation resulted in a reduction of only approximately 17 miles[[foot #] 1] of an approximately 63 mile commute. In order to be incident to a PCS the real estate transaction should be caused by the PCS. Your statement indicates several factors, to include your spouse's employment and children's school location influenced your decision. These factors appear to have prevented you from making a relocation decision based primarily upon the location of your new permanent duty station. Based upon our review we do not find that the relocation was incident to your PCS. This in addition to our long standing Air Force position of not approving short distance moves in the Los Angeles area prevent us from approving your appeal for reimbursement of real estate expenses. On November 22, 1996, claimant sought a determination by this Board. In its submission to the Board, the Air Force further explained: Although the Air Force does have a policy of limiting short distance moves in the Los Angeles area as well as Washington[,] DC, and San Antonio[,] Texas, we review each situation individually. This resulted in these three individuals being authorized PCS expenses based upon the reasonable assumption that they would move their residence to the immediate vicinity of March [AFB]. There was never an indication Ms. Riser would relocate to a new residence which would not reduce her commuting distance by even 50%. When this fact was ascertained during the real estate reimbursement process, the Air Force representatives correctly determined the subsequent sale of Ms. Riser's Compton[,] CA home and purchase of the Brea[,] CA home was not incident to her transfer to March [AFB]. . . . . Air Force policy would not have prevented payment of real estate expenses if [claimant] had moved to the vicinity of March [AFB]. Claimant responded that there is no regulation or policy which required her to reduce her commute by 50% in order to be reimbursed for real estate expenses. Nor was she ever advised that the Air Force required her to move 37.5 miles (50% of 75 miles). ----------- FOOTNOTE BEGINS --------- [foot #] 1 In a letter to the Board, the Air Force subsequently recognized that claimant's commute was reduced by twenty-four miles each way. ----------- FOOTNOTE ENDS ----------- Discussion At issue in this case is whether the real estate expenses incurred by claimant were incident to her permanent change of station from Redondo Beach to March AFB, a distance of seventy- five miles, when she changed her residence so as to be twenty- four miles closer to her new duty station. As we recognized in Cheryl A. Cadwell, GSBCA 14148-RELO, 97-2 BCA 29,066, "[g]enerally when an employee is transferred in the interest of the Government from one official permanent duty station to another, the Government, in accordance with regulatory prescriptions, is to pay the expenses the employee incurs in selling his residence at the old station and buying a home at the new one. 5 U.S.C. 5724a(a)(4) (1988); 41 CFR 302-1.3(a)(1), pt. 302-6 (1993)." Further, we noted that "[w]hen the old and new stations are within a short distance of each other, special rules apply." Specifically, we quoted Federal Travel Regulation (FTR) 302-1.7(a): "[i]f the distance is at least ten miles and is within the same general local or metropolitan area, . . . the applicable allowances 'shall be authorized only when the agency determines that the relocation was incident to the change of official station.' 41 CFR 302-1.7(a)." This regulation also provides: Ordinarily, a relocation of residence shall not be considered as incident to a change of official station unless the one-way commuting distance from the old residence to the new official station is at least 10 miles greater than from the old residence to the old official station. Even then, circumstances surrounding a particular case (e.g., relative commuting time) may suggest that the move of residence was not incident to the change of official station. 41 CFR 302-1.7. The FTR and the Joint Travel Regulations (JTR) prescribe factors which an agency should consider in making such a determination, as follows: "commuting time and distance between the employee's residence at the time of notification of transfer and his/her old and new posts of duty as well as the commuting time and distance between a proposed new residence and the new post of duty." Id.; JTR C4108. Here, claimant's one-way commuting distance between her old residence and old duty post was ten miles, and the distance between her old residence and new duty station is approximately sixty-three miles. In addition, claimant's commuting time between her old residence and new duty station was approximately ninety minutes each way for a roundtrip commute of three hours. Thus, because claimant's commute from her old residence to the new duty station would have been fifty-three miles longer than her old commute, she meets the minimum standard in the FTR that her "one-way commuting distance from the old residence to the new official station [be] at least 10 miles greater than from the old residence to the old duty station." The distance between claimant's new residence and new duty station is approximately thirty-nine miles, and the commuting time forty-five minutes each way. Thus, by moving to Brea, claimant saved ninety minutes in commuting time and reduced her commute by twenty-four miles each way. Under the circumstances, neither statute nor regulation prohibited the agency from authorizing or approving reimbursement of claimant's real estate expenses. Thus, claimant's February 1995 travel orders were valid and not erroneous, and the particulars of her move did not warrant either the agency's revocation of its prior authorization or its disapproval of claimant's real estate expenses due to the location of her new residence.[foot #] 2 John Patrick Pede, GSBCA 13862-RELO, 97-2 BCA 29,023, "As a general rule, legal rights and liabilities with regard to travel expenses vest when the travel is performed, and valid travel orders may not be revoked or modified retroactively so as to increase or decrease the rights that have become fixed after the travel has been performed. John A. Curtin, et al., B-239413 (July 3, 1991) (travel orders may be amended or revoked to correct an error on the face of the orders or if the orders clearly are in conflict with a law, regulation, or agency instruction). Here, the Air Force has shown no basis for revoking or modifying claimant's valid travel orders, since the facts of record indicate that claimant's move was incident to her transfer. Specifically, the Air Force's post hoc determination that claimant's relocation was not "incident to her transfer" because claimant considered factors such as her spouse's employment location is unsupported. Rather, the relevant facts -- the timing of claimant's relocation, the location of her new residence closer to March AFB, and her consistent statements that her job transfer was the primary cause of her move -- support the conclusion that claimant's move was incident to her transfer. In addition, the Air Force's conclusion that claimant should not be reimbursed her real estate expenses because she did not move to the "immediate" vicinity of her new duty station and did not reduce her commute by 50% is not mandated by statute, regulation, or decisions of this Board or the Comptroller General. See, e.g., 54 Comp. Gen. 751 (1969) (reimbursement of real estate expenses allowed where employee moved only one mile away from his former residence); E. L. Carney, B-172705 (May 28, 1971) (expenses allowed where distance between old and new residence 7/10 mile). As such, claimant is entitled to be reimbursed her real estate expenses to the extent permitted under statute and regulation. ----------- FOOTNOTE BEGINS --------- [foot #] 2 The Air Force could have revoked its travel authorization if claimant's move did not meet the regulatory requirement that her one-way commute be reduced by ten miles. ----------- FOOTNOTE ENDS ----------- Decision Ms. Riser is entitled to real estate transaction expenses on the sale of her Compton residence and the purchase of her home in Brea. We direct the agency to review the specifics of the claim and to reimburse claimant for all expenses which are allowable under the relevant regulations, FTR 302-6. __________________________ MARY ELLEN COSTER WILLIAMS Board Judge