BNUMBER:  B-261878
DATE:  March 6, 1996
TITLE:  William R. Lenderking

**********************************************************************

Matter of:William R. Lenderking

File:     B-261878

Date:March 6, 1996

DIGEST

An employee must complete 1 year of service following transfer to 
qualify for reimbursement of relocation expenses unless, as determined 
by the agency, circumstances exist that are beyond the control of the 
employee and acceptable to the agency.  5 U.S.C.  sec.  5724(i) (1994).  
Our Office will not overturn agency findings in such cases unless we 
find them to be arbitrary or capricious.  Where employee accepted 
transfer with knowledge that he would be involuntarily retired in 3 
months, agency's determination that he is not entitled to relocation 
expenses is not arbitrary or capricious.

DECISION

Mr. James Q. Kohler, Jr., Chief, Financial Operations Division, United 
States Information Agency, requests an advance decision on the 
entitlement of Mr. William R. Lenderking to relocation allowances in 
connection with his reassignment to Washington, D.C.  We hold that he 
is not entitled to relocation allowances. 

BACKGROUND

In June 1992, Mr. Lenderking, a Career Minister Counselor for the 
United States Information Agency (USIA), was transferred from 
Islamabad, Pakistan, to Miami, Florida, for a 2-year assignment as 
diplomat in residence and senior research associate at the North-South 
Center of the University of Miami.  By letter dated November 5, 1993, 
USIA's Personnel Director notified Mr. Lenderking that he was being 
retired effective August 31, 1994.[1]  Mr. Lenderking was granted an 
extension of his retirement date to September 29, 1994, to accommodate 
his participation in the agency's career transition program.  By 
Travel Authorization T4-2770, dated March 23, 1994, he was transferred 
from Miami, Florida, to Washington, D.C., to attend the career 
transition program, effective June 27, 1994.

Mr. Lenderking was told by USIA that expenses would not be paid if he 
attended the program.  Mr. Lenderking was transferred and received 
full salary but no expense allowance for the duration of the program.  
A prerequisite to entering the career transition program is the 
execution of a retirement agreement.  This agreement indicated his 
separation would be effective in 3 months, on September 29, 1994.  Mr. 
Lenderking did not execute an agreement to remain in government 
service for 1 year following the transfer, normally a prerequisite to 
qualifying for relocation expense reimbursement.  

Mr. Lenderking submitted a travel reimbursement voucher in the amount 
of $33,332.48, which includes a claim for $32,434.00 for real estate 
transaction expenses for the sale of his residence in Coral Gables, 
Florida.  Mr. Lenderking contends that he is entitled to be reimbursed 
for residence transaction expenses for the sale of his residence since 
he had received residence transaction expenses for the purchase of the 
residence when he transferred to Florida in 1992.  He also contends 
that, since his retirement was mandatory, it was for reasons beyond 
his control and, hence, that he should qualify for relocation 
allowances.  

The USIA states that it has consistently interpreted the phrase 
"beyond his control" as applying to situations where separations occur 
without warning, such as reduction-in-force or sudden medical 
disability retirements.  The USIA advises that where an employee is 
given several months notice of Time-in-Class (TIC) Mandatory 
Retirement, it does not deem such a retirement to be an acceptable 
reason beyond the employee's control that would qualify him for 
relocation allowances.  

The USIA certifying officer requests a decision as to whether Mr. 
Lenderking should be reimbursed relocation allowances as authorized 
under 5 U.S.C.  sec.  5724(a), 6 FAM, and 41 C.F.R. Part 302.

ANALYSIS AND CONCLUSION

The payment of travel, leave, and other benefits for members of the 
Foreign Service is authorized under 22 U.S.C.  sec.  4081 (1995) as 
implemented by regulations contained in the Foreign Affairs Manual 
(FAM).  6 FAM  sec.  148.1 provides for a Domestic Relocation Allowance for 
personnel transferred within the United States.  This allowance is 
intended to permit reimbursement of expenses incident to domestic 
relocation incurred by foreign service personnel for which other 
government employees are reimbursed under 5 U.S.C.  sec.  5724(a).  Before 
any obligation of government funds is incurred, 6 FAM  sec.  148.5 provides 
that an employee must have executed a 1-year service agreement.[2]  
The statutory basis for the requirement is found in 5 U.S.C.  sec.  5724(i) 
(1994) which provides that an agency may pay transfer expenses only 
after:

     "the employee agrees in writing to remain in the Government 
     service for 12 months after his transfer, unless separated for 
     reasons beyond his control that are acceptable to the agency 
     concerned."

The critical element in the statutory requirement is the service 
obligation, not the service agreement per se.  Thus, we have ruled 
that the 12-month service obligation in the statute and the FTR is a 
statutory condition precedent to payment of relocation expenses 
incident to a transfer and that an employee was bound by the service 
obligation even though she did not execute a service agreement.  
Cathryn P. White, B-195180, Oct. 24, 1979, and B-188048, Nov. 30, 
1977.  In another decision, we allowed reimbursement of previously 
incurred expenses even though the transfer was canceled and the 
employee did not execute a service agreement because the employee 
remained in government service for 12 months and thus satisfied the 
service obligation in 5 U.S.C.  sec.  5724(i).  Orville H. Myers, 57 Comp. 
Gen. 447 (1978).  See also Thomas D. Mulder, 65 Comp. Gen. 900 (1986).

The resolution of the issue presented, therefore, turns on the 
12-month service requirement imposed as a statutory condition by 5 
U.S.C.  sec.  5724(i).  Mr. Lenderking can escape from this obligation only 
if he was separated for reasons beyond his control and acceptable to 
the USIA.

We have held that the determination as to whether an employee's 
separation from the service is for a reason beyond his control and 
acceptable to the agency concerned must be made by the employing 
agency.  We will not overturn the agency's determination unless it is 
shown to be arbitrary and capricious.  William C. Moorehead, 56 Comp. 
Gen. 606 (1977) and Arnold M. Biddix, B-198938, Mar. 4, 1981.

The USIA contends that it consistently interprets the phrase "beyond 
his control" as referring to situations that occur without warning to 
the employee.  Mandatory retirement for TIC requires at least 6 months 
advance notice and a 60-working-day limit for filing an appeal of the 
retirement notice.  MOA-VB  sec.  742.6.  As stated above, Mr. Lenderking 
was notified more than 4 months prior to the date of his travel 
authorization that he was being involuntarily retired and that he 
would not be paid expenses if he attended the program.  He 
nevertheless chose to attend the 3-month program at full salary and 
was granted a 1-month extension of his retirement date.  

Although in our opinion a mandatory retirement is beyond the control 
of the employee, we believe the agency's determination must be viewed 
in the context of the purpose of 5 U.S.C.  sec.  5724(i).  As noted above, 
a 12-month period of service is a statutory requirement for payment of 
relocation expenses; an employee is bound by the service obligation 
whether or not a service agreement is executed.

For this reason, we believe that the phrase "reasons beyond his 
control" in section 5724(i) contemplates reasons that arise after the 
execution of an agreement to serve at least 12 months in the new 
location or after the transfer of station occurs.  In our view, the 
concept of "beyond control" has meaning only within the context of an 
effort to carry out a 12-month service obligation.  Here, Mr. 
Lenderking knew before his transfer was authorized that he would be 
serving no more than 3 months in the new location.  Hence, he could 
not have agreed to serve 12 months; nor could he actually have served 
12 months.  His situation thus falls outside the acceptable reasons 
contemplated by the statute, and he therefore cannot qualify under it.

We note also that Mr. Lenderking sought advice in advance on the issue 
of his relocation expenses, and was told they could not be covered.  
The agency's established rule is that it does not cover such expenses.  
Under these circumstances, we cannot conclude that USIA's 
determination is arbitrary or capricious.  Accordingly, we concur in 
USIA's denial of Mr. Lenderking's claim for relocation allowances.

/s/Lowell Dodge
for Robert P. Murphy
General Counsel

1. See USIA Manual of Operations and Administration, MOA-VB, paragraph 
742.2-Mandatory Retirement for Expiration of Time-in-Class (TIC). 

2. The specific provisions for entitlement to residence transaction 
expenses in  sec.  148.6-5 refer to section 302-6.1 of the Federal Travel 
Regulation (FTR) (41 C.F.R.  sec.  302-6.1 (1995)), which requires the 
execution of a 1-year service agreement, as prescribed in 41 C.F.R.  sec.  
302-1.5.