_______________________ November 18, 1997 _______________________ GSBCA 14111-RELO In the Matter of THOMAS T. MATTESON Thomas T. Matteson, Kings Point, NY, Claimant. A. J. Herberger, Administrator, Maritime Administration, Washington, DC, appearing for Department of Transportation. HYATT, Board Judge. Claimant, Admiral Thomas T. Matteson, a career Senior Executive Service (SES) employee of the Maritime Administration, has requested review of a decision by the Department of Transportation denying his entitlement to a "last move home" under the provisions of the Federal Travel Regulation (FTR). For the reasons explained below, we conclude that the agency correctly determined that the regulations do not authorize a "last move home" under the circumstances applicable here. Admiral Matteson retired from the United States Coast Guard effective July 1, 1993. On that same date he assumed the position of Superintendent of the United States Merchant Marine Academy (USMMA) in Kings Point, New York. Immediately prior to retirement from active service, claimant had served as Superintendent of the United States Coast Guard Academy in New London, Connecticut. He thus transferred from active duty in the uniformed services to the SES with no break in service. Upon retiring from the Coast Guard, Admiral Matteson received the standard notification provided to retiring members of the armed forces explaining that he was entitled to "shipment of household goods (HHG) from the . . . permanent duty station (PDS) . . . to the home selected." This entitlement expires one year after retirement. In January 1993, Admiral Matteson had also been told that the USMMA had set aside appropriated funds to move his HHG from his quarters at the Coast Guard Academy to government quarters at the Merchant Marine Academy. In lieu of accepting reimbursement of travel expenses and transportation of HHG from the USMMA, claimant opted to use his "last move home" with the Coast Guard despite the fact that he was moving to a temporary place of federal employment, and to government-provided housing, and not to what claimant would regard as "the home selected." Admiral Matteson then inquired whether, as an SES employee, he would be eligible for a last move home under the FTR should he retire in exactly five years. The Department of Transportation (DOT), Office of the Secretary, advised that Admiral Matteson would not be eligible for payment of last-move-home moving expenses based on his move to the Superintendent position at the USMMA. DOT responded that the provision in question provides for reimbursement of moving expenses only when an already appointed civil servant is transferred within the five-year period. A move from the uniformed services into the SES was not deemed to be a move that would trigger application of this FTR provision.[foot #] 1 Discussion The eligibility of an SES career appointee to a "last move home" is governed by 5 U.S.C. 5724(a)(3) (1994), which provides that upon separation from federal service the agency shall, from Government funds, pay: the travel expenses of [the career employee], the transportation expenses of the immediate family of such individual, and the expenses of moving . . . the household goods of such individual, if such individual -- (A) during or after the five years preceding eligibility to receive an annuity under subchapter III of chapter 83, or of chapter 84 of this title, has been transferred in the interest of the Government from one official station to another for permanent duty as a career appointee in the Senior Executive Service . . . ; and ----------- FOOTNOTE BEGINS --------- [foot #] 1 This conclusion was reached after DOT spoke with someone involved in administration of the travel regulations at the General Services Administration (GSA) concerning the application of the regulation to this situation. According to DOT, "GSA informed us that a geographical movement from the uniformed services into the SES is not a movement that would trigger the last-move-home provisions. These provisions were intended to cover the reassignments or transfer within the 5 years preceding retirement of an already appointed civil servant." ----------- FOOTNOTE ENDS ----------- B) is eligible to receive an annuity upon such separation under the provisions of subchapter III of chapter 83 or chapter 84 of this title. The applicable regulation is set forth in Part 302-1, Subpart B of the FTR. 41 CFR 302-1.101 (1996). Section 302- 1.101 states that: An SES career appointee, as defined in 302-1.100, is eligible, upon separation from federal service, for those travel and transportation allowances specified in 302- 1.103 of this subpart, if such individual meets the following criteria: (a) Was transferred or reassigned geographically at any time in the interest of the Government and at Government expense from one official station to another or permanent duty as a career appointee in the SES, including a transfer or reassignment: (1) From an SES career appointment to another SES career appointment; or (2) From other than an SES career appointment, including an appointment in a civil service position outside the SES, to an SES career appointment; (b) At the time of transfer or reassignment: (1) Was eligible to receive an annuity for optional retirement under section 8336(a), (b), (c), (e), (f), or (j) of subchapter III of chapter 83 (Civil Service Retirement System (CSRS) or under section 8412 of subchapter II of chapter 84 (Federal Employees Retirement System (FERS) of title 5, U.S.C.; or (2) Was within 5 years of eligibility to receive an annuity for optional retirement under one of the authorities in subparagraph (b)(1) of this section; or (3) Was eligible to receive an annuity based on discontinued service retirement, or early voluntary retirement under an OPM [Office of Personnel Management] authorization, under section 8336(d) of subchapter III of chapter 83 or under section 8414(b) of subchapter II of chapter 84 of title 5, U.S.C.; (c) Is separated from Federal Service on or after September 22, 1988; (d) Is eligible to receive an annuity upon such separation under the provisions of subchapter III of chapter 83 (CSRS) or chapter 84 (FERS) of title 5 U.S.C., including an annuity based on optional retirement, discontinued service retirement, early voluntary retirement under an OPM authorization, or disability retirement; and (e) Has not previously been authorized and received "last move home" benefits upon separation from Federal service for retirement. Although, as claimant points out, he will be eligible to retire under FERS as of five years after his appointment, to be eligible for a "last move home" the statute and regulation also require that the retiring SES employee must have been transferred or reassigned from an official station within the civil service to another location. Admiral Matteson was not transferred from an official station within the meaning of the FTR[foot #] 2 to Kings Point. Rather, upon acceptance of the position at the USMMA, Kings Point became his initial official duty station as a member of the civil service.[foot #] 3 He was a new appointee to the civil service when he assumed the position at the USMMA, and he has not been transferred or reassigned since that time. Thus, there is no transfer action that would trigger his eligibility to a last move home under the applicable statute or regulation. Admiral Matteson makes the further argument that under these circumstances, an "exception" should be made to enable him to achieve a "last move home" at the expense of the Government since he clearly could have taken advantage of this benefit had he fully retired from the Coast Guard and been in a position to move to a home of his selection. The foregoing provisions, however, have the force and effect of law and, as such, neither DOT nor ----------- FOOTNOTE BEGINS --------- [foot #] 2 Part 302 of the FTR expressly excludes members of the uniformed services from its coverage. 41 CFR 302- 1.2(b)(3). [foot #] 3 Under the FTR, a new civil service appointee is treated as a transferee only when returning to government service following a reduction in force or loss of prior job due to a transfer of function. 41 CFR 302-1.4 (d). ----------- FOOTNOTE ENDS ----------- the Board has the authority to depart from their terms. See, e.g., Ernest L. Harper, B-259657 (Aug. 15, 1995). _____________________________ CATHERINE B. HYATT Board Judge