__________________________ January 16, 1997 __________________________ GSBCA 14039-RELO In the Matter of SAMUEL L. MARR Samuel L. Marr, Starke, FL, Claimant. G.A. Terrill, Chief, Travel Division, Defense Finance and Accounting Service, Columbus, OH, appearing for the Department of Defense. HYATT, Board Judge. The claimant, Mr. Samuel L. Marr, a civilian employee of the Department of the Navy, seeks reimbursement of certain relocation expenses incurred in connection with his permanent change of station (PCS) from Indianapolis, Indiana to Jacksonville, Florida. The Defense Finance and Accounting Service (DFAS), on behalf of Mr. Marr, submitted the claim to the Board on December 18, 1996. As explained in more detail below, except as to the method of compensation for the shipment of household goods, the Board's authority does not permit it to allow this claim. We return the matter to the Department of Defense to consider whether to exercise its authority to waive collection of amounts already paid to claimant. Background In 1992, Mr. Marr was employed by the Government in Indianapolis, Indiana. At that time, his eldest daughter was involved in an accident which left her paralyzed. Shortly after the accident, Mr. Marr resigned from the Government and moved with his family (spouse and five children) to Tucson, Arizona to work in real estate. After a time, he decided to go back to work with the Government and accepted a "term" position at the Naval Air Warfare Center, Aircraft Division, in Indianapolis. Mr. Marr moved back to Indianapolis; his wife and children remained in Tucson. Some time after his return to Indianapolis, Mr. Marr was informed that the Naval Air Warfare Center was scheduled for closure and that there would be no guarantee of continued employment for term employees. For this reason, he pursued employment elsewhere. On July 9, 1996, Mr. Marr was offered a permanent position, effective August 18, 1996, as an electronics technician, GS-0856-12, at the Naval Aviation Depot, Naval Air Station, located in Jacksonville, Florida. Mr. Marr accepted the position on July 10, 1996. That same day, the Human Resources Office (HRO) in Jacksonville issued permanent change of station travel orders for Mr. Marr's transfer from Indianapolis to Jacksonville. The orders authorized numerous categories of relocation allowances for civilian employees transferring between official duty stations, including travel and transportation expenses of Mr. Marr's wife and five children, whose ages at the time ranged from sixteen to twenty-two. Block 14 of this form provides the authorization to ship household goods (HHG), not exceeding 18,000 pounds net weight, from one destination to another. In completing block 14, the HRO in Jacksonville mistakenly authorized the shipment of household goods to Jacksonville from Tucson, rather than from Mr. Marr's old duty station in Indianapolis. On the next day, the HRO in Jacksonville amended Mr. Marr's orders to change his reporting date from August 18 to August 4, 1996. In addition, the HRO revised block 14 to change Tucson to read Indianapolis. In block 17, the remarks section, the new reporting date was noted and the following statement was added: Employee will make his own arrangements for shipment - Reimbursement for actual expenses incurred for shipment of HHG not to exceed GBL [Government Bill of Lading] shipment costs. No explicit mention of the change in block 14 was made in the remarks section. In addition, on July 11, the orders were amended again to state that Mr. Marr would be permitted six days travel time from Tucson to Jacksonville. On July 23, 1996, Mr. Marr sold his home in Tucson and commenced his move to Jacksonville. The new owners were taking immediate possession of the house, requiring that the Marr family's household possessions be removed before that date. The household goods were picked up by a commercial moving company on July 19 and delivered to the new home in Florida on July 31. The Marr family moved into the new home on August 1. Mr. Marr reported for duty on August 5. On August 7, the travel orders were once again amended, this time to state expressly that: "All expenses to be paid from Indianapolis, Indiana (actual place of employment) to Jacksonville, FL." In early August 1996, Mr. Marr submitted his claim to the Personnel Support Activity (PSA) in Jacksonville. According to the report submitted by DFAS with respect to this matter, Mr. Marr's claimed amounts and the PSA's settlements are summarized as follows: Item Claimed Allowed Per Diem $ 1,002.25* $ 783.75** Travel $ 733.40* $ 349.72** Temporary Quarters $ 2,506.78 $ 2,506.78 Miscellaneous Expenses $ 700.00 $ 700.00 Home Purchase $ 3,349.18 $ 1,655.00 Home Sale $18,567.50 $ 0 Shipment of HHG $13,746.16*** $ 4,617.00*** TOTALS $40,605.27 $10,612.25 * From Tucson, AZ to Jacksonville, FL ** From Indianapolis, IN to Jacksonville, FL *** The amount claimed is based on 29,800 lbs. actually shipped from Tucson, AZ. The amount allowed is based on 18,000 lbs. maximum shipped from Indianapolis, IN. Prior to the transfer, Mr. Marr received a travel advance in the amount of $19,454. After his claim was reviewed and computed, he was notified by letter dated December 4, 1996, that he owed $10,130.96 to the Government. Collection of this amount has been suspended, however, pending the outcome of this case. In submitting this claim to the Board, the Navy states as follows: Mr. Marr, in good faith, and believing he had been properly advised by Personnel experts, had accomplished his move in less than one month's time, incurring expenses that he believed would be reimbursed by the Government based on the authorizations in his orders. Never during the many discussions with the HRO was there any mention that Mr. Marr was not entitled to expenses he incurred for selling his home in Tucson, Arizona, or that his entitlement would be limited as if the move had taken place from Indianapolis, Indiana. In fact, all of the estimated cost in preparing the orders had been prepared based on a projected move from Tucson, and the orders had been amended to reflect additional travel time to travel from Tucson instead of Indianapolis. Although the Navy personnel involved in the review process regret the hardships experienced by the Marr family as a result of this situation, and would like to reimburse Mr. Marr for the expenses of moving from Tucson to Jacksonville, they believe that there is no legal authority to make these payments. Accordingly, at the request of the Jacksonville HRO, the matter has been forwarded to the Board for review pursuant to 31 U.S.C.  3702(a). Under this provision, the Board may review agency denials of reimbursement of the expenses of travel and relocation to determine if the expenses are in fact permitted to be paid under statute or applicable regulation. Discussion The Navy submits that two issues should be considered by the Board. The principal issue is whether there is a legal basis under applicable statutes and regulations to allow payment of Mr. Marr's claim for relocation expenses incurred in transferring to Jacksonville from Tucson. This issue will be addressed further below. The second issue specifically concerns the amount allowed for shipment of household goods. Mr. Marr's amended travel orders authorized him to make his own arrangements for shipment of household goods (limited by the maximum amount allowable under a GBL) because there was insufficient time for the Government to arrange for a GBL carrier within the time period necessary to meet Mr. Marr's needs. The agency explains that in reviewing this claim it determined that it was constrained to limit recovery of transportation costs for HHG to the amount that would have been allowed under a GBL for the movement of HHG from Indianapolis to Jacksonville, but suggests there may be a reasonable basis for allowing payment under the commuted rate method. In explaining its position, the Navy states that while no cost comparison appears to have been performed, even assuming that a standard cost comparison would reflect that the GBL method of shipment was cheaper, it would appear that substantial savings were in fact realized because the Marr family would have incurred, at Government expense, far greater temporary subsistence and storage costs had they awaited the availability of a GBL shipment. Thus, the Navy suggests that it would be reasonable to pay Mr. Marr under the commuted rate method. The Federal Travel Regulation (FTR) and Joint Travel Regulations (JTR), which supplement the FTR provisions with respect to civilian employees of the Department of Defense, provide that the cost of shipping household goods may be reimbursed from any origin to any destination so long as the amount paid by the Government does not exceed the cost of transporting the property in one lot by the most economical route from the last official station of the transferring employee to the new official duty station. 41 CFR 302-8.2(e) (1996); JTR C8001-C. The FTR further provides for two alternative methods of reimbursement: the commuted rate method and the actual expense method. 41 CFR 302-8.3. Under the commuted rate method the employee makes the arrangements for transporting household goods, selecting the carrier, and receiving reimbursement from the Government in accordance with published rate schedules. Under the actual expense method, the Government assumes responsibility for making shipment arrangements, ships the goods under a GBL, and pays the carrier directly. To the extent the weight of the HHG shipped exceeds the maximum weight limitation, the employee is responsible for costs and charges applicable to the excess weight. The FTR provides that for individual moves, the commuted rate is preferred, principally because the Government is spared the administrative expenses associated with selecting a carrier, arranging for the carrier services and for packing and crating, preparing the GBL, paying charges incurred, and processing loss and damage claims. See Jeffrey P. Herman, GSBCA 13832-RELO, at 5 (Dec. 6, 1996). The FTR permits an agency to use the GBL method for an individual move, however, if it determines, under an appropriate cost comparison, that such a move would be more economical. Id. As the Board noted in Herman, the JTR makes the discretionary use of the actual expense method mandatory for individual moves when this method is determined, upon completion of a cost comparison, to be more economical. JTR C8001-D3. To the extent that the cost comparison required under the JTR has not been properly performed prior to the move, that provision becomes inapplicable, and entitlement to payment is governed by the FTR. Herman at 7. Thus, if, as appears to be the case in the record before us, the agency did not perform a cost comparison prior to the selection of the method for transporting household goods, Mr. Marr should be compensated under the commuted rate method. Reimbursement is limited to the rate for shipping 18,000 pounds, however, since no more was authorized (or permitted by statute or regulation). 5 U.S.C.  5724(a)(2) (1994); 41 CFR 302- 8.2(a). The principal issue, involving reimbursement of Mr. Marr for relocation expenses incurred with respect to the sale of his home in Tucson, and travel from Tucson to Jacksonville, poses a more difficult problem. With respect to travel and subsistence, the applicable regulation expressly limits reimbursement to the maximum allowable for travel from the old duty station (Indianapolis) to the new station. 41 CFR 302-2. The FTR also limits recovery of expenses associated with the sale of a residence or settlement of a lease at the old duty station. 41 CFR 302-8. Mr. Marr's duty station at the time he accepted his transfer was in Indianapolis. Thus, there is no authority, given the plain language of the FTR, to reimburse expenses incurred in the sale of the residence in Tucson. Accord JTR C14000. The Board's authority is limited to reviewing the agency's determination as to a claim of this nature and determining if it is proper under applicable laws and regulations. Thus, we are unable to authorize payment of the expenses properly determined by the agency to be unrecoverable under the FTR and JTR. This is so in spite of the fact that Mr. Marr reasonably relied on erroneous advice given to him by Navy personnel. As the Board has noted: The Government may not spend money in violation of statute or regulation; if the rule were otherwise, executive branch employees could usurp the control over public funds that is lawfully that of Congress and, pursuant to statutory authorization, the officials who promulgate these rules. Kevin S. Foster, GSBCA 13639-RELO, at 5-6 (Nov. 8, 1996) (citing Office of Personnel Management v. Richmond, 496 U.S. 414 (1990); Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947)). Under the law as defined by the Supreme Court cases cited in Foster, we are unable to redress the hardship that has arisen here. Nonetheless, there may still be relief available to this claimant. The Jacksonville office, in submitting this matter to DFAS, cited to a recent ruling by the Comptroller General granting claims for waiver of a debt to an agency where the debt was incurred as a result of erroneous personnel advice as to recoverability of relocation costs. Michael H. Mattei, B-265864.2 (Aug. 29, 1996). The authority to waive a debt arises under 5 U.S.C.  5584 and applies in cases where the collection of a claim against an employee "arising out of an erroneous payment" of transportation or relocation expenses, would be contrary to equity and good conscience. The Board does not have jurisdiction to consider a claim under this statutory provision, however. This authority, insofar as it pertains to claims of $1,500 or more affecting the executive branch of Government, was transferred from the Comptroller General to the Director of the Office of Management and Budget (OMB) under Pub. L. No. 104-316,  103(d)(3), 110 Stat. 3826, 3828 (1996). On December 17, 1996, the Director of OMB delegated this authority to the agencies from which the original claims arose, in this case the Department of Defense. That Department may now wish to consider exercising its delegated authority with regard to Mr. Marr's claim. With respect to the remaining amounts claimed by Mr. Marr, for which no advance payment was made, we are not aware of any authority for payment other than an Act of Congress. _____________________________ CATHERINE B. HYATT Board Judge