__________________________ June 27, 1997 __________________________ GSBCA 13650-RELO In the Matter of REGINA V. TAYLOR Regina V. Taylor, Norfolk, VA, Claimant. Judy Hughes, Defense Finance and Accounting Service, Columbus, OH, appearing for Department of Defense. HYATT, Board Judge. Claimant, Regina V. Taylor, requests review of the Department of Defense's (DOD's) decision denying her claim for temporary quarters subsistence expenses (TQSE) in connection with her relocation to New York from an overseas tour in Bermuda. Ms. Taylor also challenges the denial of her claim for real estate transaction expenses associated with her subsequent permanent change of station (PCS) to Norfolk, Virginia. DOD asserts that Ms. Taylor is not entitled to TQSE for the move from Bermuda to New York because 1) the transfer was not approved by authorized personnel, 2) Ms. Taylor did not fulfill her obligation to serve two years under the overseas tour agreement, and 3) Ms. Taylor owned a home in New York which she should have occupied upon her return. For the reasons stated below, we conclude that Ms. Taylor is entitled to the TQSE benefits authorized, and subsequently extended, at the time of her transfer to New York. We also conclude that she may recover residential transaction expenses incurred with respect to the sale of her home in New York in accordance with applicable regulations. Background In October 1993, Ms. Taylor, a budget analyst employed by the Navy, was stationed at the Bermuda Naval Air Station (NAS) with six months remaining on her tour agreement there. She had return rights to the Naval Station, Staten Island, NY, which was her official duty station prior to her Bermuda assignment. Bermuda NAS had sent several electronic mail messages to the Naval Station in Staten Island inquiring if Ms. Taylor's tour might be extended. These messages were not answered. On November 1, 1993, the comptroller at the Naval Station in Staten Island contacted Ms. Taylor about returning to New York to her prior position. In a memorandum dated November 2, 1993, the comptroller formally requested that Ms. Taylor return earlier to resume her former position and stated that "it would be in the best interest of Naval Station New York to have a person with [her] background and skills on board to assist in the base closure process," which was to be completed by August 31, 1994. He advised her to obtain a waiver of her tour agreement, since the tour was not due to expire for another six months. On November 9, 1993, the commanding officer at the Bermuda NAS approved and signed off on Ms. Taylor's request for a waiver. Thereafter, the civilian personnel office for the Staten Island Naval Station sent a memorandum to the human resources department in Bermuda with formal notification that an offer for a position in New York had been extended to Ms. Taylor. On November 19, 1993, the human resources director in Bermuda issued PCS orders authorizing Ms. Taylor to move back to New York. Various allowances associated with PCS moves, including TQSE, were authorized in the orders. Ms. Taylor returned to New York in December 1993 and moved into the Navy Lodge. She was unable to occupy the home she co-owned in the New York City area because it had been rented. Ms. Taylor stayed at the Navy Lodge from December 13, 1993, until April 13, 1994, when she moved to an apartment. Ms. Taylor requested TQSE for that entire period. With extensions, the commanding officer authorized a total of 100 days. A request for an additional 20-day extension was denied. With the pending base closure fast approaching, the Naval Station began using the human resources office in Philadelphia to process personnel matters. That office, upon receiving the paperwork for Ms. Taylor, informed the Naval Station in Staten Island that Ms. Taylor's TQSE claim should not be reimbursed. On May 18, 1994, the Naval Station in Staten Island notified Ms. Taylor that her travel orders returning her from Bermuda were suspended because the Navy had determined that the comptroller and claimant had not "followed proper channels." Specifically, the comptroller did not have the "designated authority to issue orders or make job offers." Additionally, Ms. Taylor was deemed to have exercised her return rights early. Thus, the Staten Island Naval Station had been advised that it was not obligated to pay TQSE upon her return from Bermuda. In May 1994, because of the scheduled closure of the New York base, Ms. Taylor was recruited for a position in Norfolk, Virginia. She received official notification of her transfer to Norfolk on May 11, 1994, with a report date in June 1994. According to DOD records, Ms. Taylor apprised the Navy that her house was rented while she was overseas, with a lease expiring effective May 17, 1994. She moved back into the house on May 18. On May 19 she departed on a house-hunting trip to Norfolk. Upon returning from Norfolk she moved into Bachelor Officers Quarters for the remainder of her time in Staten Island. In connection with the move to Norfolk, Ms. Taylor requested reimbursement of real estate expenses for the house she owned in New York. This claim was denied because Ms. Taylor was not deemed to be commuting to work from this address at the time she was officially notified of her transfer to Norfolk. Ms. Taylor requested that the General Accounting Office (GAO) review the Navy's decisions denying her claims for TQSE and residential transaction expenses. Discussion The Navy maintains that Ms. Taylor is not entitled to any temporary quarters subsistence expenses in connection with her return from Bermuda to New York. Three reasons are given: 1) Ms. Taylor should have reoccupied her home when she returned; 2) Ms. Taylor did not complete the two-year period of overseas service specified in the transportation agreement she signed; and 3) Ms. Taylor's return to New York was not formally authorized by the commanding officer at that base. Under the applicable statute and the implementing regulations set forth in the Federal Travel Regulation (FTR), when an employee is transferred from one official duty station to another, the agency shall pay the subsistence expenses the employee incurs while occupying temporary quarters, provided certain requirements are met. 5 U.S.C.  5724a(a)(3) (1994); 41 CFR ch. 302-5 (1994). The Department of Defense (DOD) has supplemented the FTR with its Joint Travel Regulations (JTR), which apply to civilian employees of DOD. Under JTR C13001, TQSE may be authorized when 1) a written transportation agreement is signed by the employee and 2) a PCS has been authorized and approved and the new duty station is located in the United States. Ms. Taylor explains that since she returned to Staten Island early, at the request of the comptroller, her house was occupied by tenants and thus not available for her occupancy. She has supplied a copy of the lease. This explanation suffices to rebut the Navy's contention that Ms. Taylor is not eligible for TQSE because she already had permanent quarters available to her upon her return to New York. Similarly, Ms. Taylor's early return does not invalidate her entitlement to TQSE, which was authorized under her travel orders and twice extended by the commanding officer at Staten Island. As advised by the comptroller, Ms. Taylor requested and was given a waiver of her two-year commitment. The document waiving her obligation was properly approved in writing by the commanding officer in Bermuda. Thus, she did not forfeit her right to travel allowances in connection with her change of station on this basis. See Neil Gorter, B-194448 (Apr. 28, 1980). Finally, we are not persuaded that Ms. Taylor's entitlement to TQSE is nullified by the failure of Ms. Taylor or the comptroller to obtain the prior written approval of the commanding officer in New York before initiating Ms. Taylor's transfer back to New York. Ms. Taylor's TQSE was authorized under travel orders issued by the Human Resources Director in Bermuda. The Bermuda human resources office had been notified in writing of the pending transfer by the human resources office in New York. The travel orders are proper on their face, and there is no allegation that the individual who signed them had no authority to do so. Once in New York, Ms. Taylor reported to work and obtained written approvals for two extensions of her TQSE. These extensions were authorized by the commanding officer at the New York facility. We recognize that the JTR provision cited by the Navy refers to requirements to sign a transportation agreement and to effect a transfer pursuant to an authorized PCS. We conclude that both of these conditions were satisfied here, however. Although the record does not show whether Ms. Taylor signed a service or transportation agreement upon transferring back to New York, it is immaterial. She has completed more than the necessary amount of time in Government service. It is well settled that the absence of a signed service agreement is not fatal to a claim for relocation allowances so long as the employee has remained in Government service for the required length of time. See Thomas D. Mulder, 65 Comp. Gen. 900 (1986); Baltazar A. Villarreal, B-214244 (May 22, 1984). Moreover, on this record, the correspondence issued by New York personnel and the issuance of travel orders is sufficient evidence of administrative intent to approve a transfer for us to conclude that this PCS was authorized for the purposes of reimbursement of relocation expenses. Cf. Mulder; Lawrence C. Jackson, B-207564 (Nov. 22, 1982). Thus, under the circumstances of this claim, the provision of the JTR cited by the Navy does not bar Ms. Taylor's recovery of TQSE. Also at issue is Ms. Taylor's eligibility for payment of residential transaction expenses, or the cost of selling her home upon transferring to Norfolk. The travel orders issued in conjunction with this transfer authorized reimbursement of real estate expenses; recovery of these costs, however, is predicated upon meeting the eligibility requirements of the FTR and JTR. One of those requirements is that the residence sold at the old duty station be the employee's actual residence at the time he or she was first officially notified of the transfer. The home sold at the old duty station must also have been the residence from which the employee regularly commuted to and from work. 41 CFR 302- 6.1(d) (1994); JTR C14000A (2, 4). The Navy argues that Ms. Taylor, who reoccupied her house for a brief time after being notified of her pending transfer, does not meet these requirements and that the regulations accordingly do not permit reimbursement of the allowable costs of selling her house in New York. Although Ms. Taylor was not actually occupying the house in New York as of the date she was informed of her transfer to Norfolk, this was a direct consequence of the prior transfer to Bermuda, under which she had return rights to New York. Given her expectation that she would resume a position in New York upon completing her tour, Ms. Taylor rented her residence for a period coinciding with her planned tour overseas, rather than sell it. The only reason she had not moved back into her house was that her return to New York occurred prior to the expiration of her tour. Her early return was initiated by the Navy to obtain her assistance in the base closure process. Given the circumstances described above, we believe that this case is closely akin to those in which GAO has held that the expenses of selling a house may be reimbursed because the employee would have been resident in the house except for the actions of the Government. For example, in Frank M. Lindeen, B-188657 (Dec. 30, 1977), the claimant, who was stationed in Gary, Indiana, was on a two-year temporary detail in Buffalo, New York, when he was notified of his transfer to Indianapolis. GAO reasoned that but for the Government's interest in detailing him to Buffalo, the claimant would have been resident at his house in Gary and authorized reimbursement of real estate expenses assuming all other conditions of eligibility were met. In another case, Charles P. Ball, B-223407 (June 18, 1987), the employee had been transferred to Wiesbaden, Germany, from the Baltimore-Washington, DC area in 1981. Mr. Ball did not sell his Severna Park, Maryland, home while in Germany. In 1984, he was transferred from Wiesbaden to Fort George C. Meade, Maryland, with shipment of his household goods to Newport, Rhode Island, where he was attending long-term training at the Naval War College. The house in Severna Park was in commuting distance from Fort Meade. Eleven months later, while still in training, Mr. Ball's temporary duty assignment in Newport was converted to a permanent change of station. GAO reasoned that but for the temporary assignment Mr. Ball would have reoccupied his home in Severna Park and have been eligible for the reimbursement of expenses associated with its sale. Although here, the inability to reoccupy the house was a result of her early return from an overseas tour, Ms. Taylor similarly had returned early to New York for the convenience of the Government. We thus find that her nonoccupancy of the house does not preclude reimbursement of the expenses of selling the residence. To conclude, Ms. Taylor is entitled to payment for the approved 100 days of TQSE in connection with her move from Bermuda to New York. She is also entitled to reimbursement of the expenses of selling her home in New York so long as all other conditions of entitlement are met. ___________________________ CATHERINE B. HYATT Board Judge