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                               April 4, 1997
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                             GSBCA 13708-TRAV


                   In the Matter of STEPHEN G. PHILLIPS


     Stephen G. Phillips, APO Area Europe, Claimant.

     Col. David W. Chappell, Staff Judge Advocate, 86th Airlift
Wing (USAFE), Department of the Air Force, APO Area Europe,
appearing for Department of Defense.

DeGRAFF, Board Judge.

     Stephen G. Phillips was stationed in Germany when he retired
from active duty in the United States Air Force (Air Force) on
June 30, 1992.  According to Mr. Phillips, in the summer of 1992,
Air Force employees told him that if he were to accept an
appointment as a civilian Government employee in Germany, he would
be entitled to free home travel every two years, to transportation
back to the United States at Government expense when he elected to
return to the United States, and to other allowances.  

     A short time before Mr. Phillips retired, the Air Force
advertised for a GS-5 shipment compliance inspector at Sembach Air
Base (Germany).  The advertisement gave applicants five days to
apply for the position.  Only local candidates were recruited and
four qualified applicants, including Mr. Phillips, responded to the
advertisement.  We do not know how many, if any, unqualified
applicants responded to the advertisement.  The Air Force did not
consider out of country recruitment due to the high permanent
change of station costs that would be incurred in order to hire a
relatively low-paid employee.  

     Because Air Force regulations placed restrictions upon hiring
a retired military member within 180 days of retirement, on
August 6, 1992, an Air Force personnel officer prepared a
memorandum asking for approval to hire Mr. Phillips.  This
memorandum says that the shipment compliance inspector position was
considered hard to fill and that "numerous" applicants were rated
not qualified for the position.  The Air Force selected
Mr. Phillips for the position, and he entered on duty on August 17,
1992.   

     On September 14, 1992, Mr. Phillips signed a transportation
agreement.  According to the agreement, under certain conditions,
the Government would pay for travel and transportation of
Mr. Phillips and his immediate family, for movement and storage of
household goods and personal effects, and for certain other
expenses incident to employment outside the United States.  The
agreement states that eligibility and entitlement are subject to
the conditions of the Joint Travel Regulations, Volume 2. 
Mr. Phillips' agreement also notes, "Position was hard to
fill . . . ."

     On November 23, 1992, an Air Force employee relations
assistant stated in a memorandum, addressed to  whom it may
concern,  that Mr. Phillips was "granted full logistical support
including . . . transportation rights back to [the United States]
at Government expense."  We do not know why this memorandum was
prepared.

     In March 1995, Mr. Phillips asked for authorization to travel,
with his wife, to the United States.  He also asked for orders to
pay for shipment of stored household goods.  In April 1995, the Air
Force explained to Mr. Phillips that, according to the regulations
in effect in 1992, he was not entitled to storage and shipment of
household goods or to travel and transportation allowances.

     In May 1995, Mr. Phillips filed a grievance, claiming that the
Air Force should give him transportation back to the United States
at Government expense when he elects to return to the United
States, and that the Air Force should pay to store or ship his
household goods.  Mr. Phillips also asked that he receive renewal
agreement travel, which provides employees who agree to serve an
additional tour of duty with allowances for travel and
transportation expenses for the purpose of returning home to take
leave between tours of duty overseas.  Mr. Phillips asked that the
Air Force pay for airplane tickets he purchased based upon his
belief that he was entitled to renewal agreement travel.  

     The Air Force investigated Mr. Phillips' grievance and
determined that a position at the GS-5 grade level is normally
staffed using local recruitment and there are sufficient numbers of
qualified candidates so that out of country recruitment is not
necessary.  The Air Force also determined that it recruited within
Germany to fill the position for which Mr. Phillips was selected. 
The Air Force decided that Mr. Phillips was not eligible for the
benefits he claimed, because the transportation agreement that
granted him those benefits was not authorized by regulations in
effect when the agreement was signed in September 1992.

     On August 31, 1995, the Air Force notified Mr. Phillips that
it was denying his grievance.  The Air Force's notice states that
the cancellation of the erroneous transportation agreement and the
withdrawal of the benefits associated with that agreement were
appropriate.  The notice explains that the personnel involved in
hiring Mr. Phillips did not realize that the regulations governing
transportation agreements changed significantly in December 1991,
and did not permit the Air Force to enter into a transportation
agreement with a locally hired employee if the position being
filled was normally filled using local recruitment.

     Mr. Phillips asked the General Accounting Office to review the
decision of the Air Force concerning his claim. On July 17, 1996,
this claim and all others involving expenses incurred by federal
civilian employees for official travel and transportation were
transferred from GAO to the General Services Board of Contract
Appeals.  Legislative Branch Appropriations Act, 1996, Pub. L. No.
104-53,  211, 109 Stat. 514, 535 (1995); Determination by Acting
Director of the Office of Management and Budget (June 28, 1996);
Delegation of Authority from the Acting Administrator of General
Services (July 17, 1996).  The authority to settle these claims has
more recently been vested by statute in the Administrator of
General Services.  General Accounting Office Act of 1996, Pub. L.
No. 104-316,  202(n), 110 Stat. 3826, 3843 (1996).

     In response to an inquiry made by the Board, the Air Force
states that the position for which Mr. Phillips was hired is not
one for which out of country recruitment is normally undertaken
because permanent change of station costs are significant when
considering the salary paid to a GS-5 employee.  The Air Force also
says that the travel agreement's notation "Position was hard to
fill" must have been inserted by mistake because the position was
not hard to fill.  The Air Force notes that the position was
advertised for a short time within a limited pool of applicants,
and four qualified candidates applied for the position. 

                                Discussion

     Regulations in effect when Mr. Phillips signed his
transportation agreement provided that the Air Force could enter
into a transportation agreement with a locally hired employee (one,
such as Mr. Phillips, not recruited in the United States) only if:

     the commanding officer . . . determines another candidate
     will likely have to be transferred or appointed from the
     United States or from a different overseas geographical
     locality to fill the position involved unless a
     transportation agreement is offered to a locally hired
     employee[.]  (A locally hired candidate is not eligible
     for a transportation agreement if the position being
     filled is one for which out of country recruitment is not
     normally undertaken.)

Joint Travel Regulations, Vol. 2, C4002-3b(2)1.  This regulation
was effective on December 1, 1991.

     Mr. Phillips says that the position for which he was hired was
hard to fill and, therefore, a transportation agreement was
authorized according to the regulation.  In support of his
position, Mr. Phillips relies upon the statement contained in the
August 6, 1992 memorandum that was prepared in order to hire him
within 180 days after his retirement, and upon the note contained
in his transportation agreement.  Mr. Phillips also points out that
the November 23, 1992 memorandum addressed to whom it may concern
stated that he had transportation rights back to the United States,
which is true only if Mr. Phillips had a valid transportation
agreement.  He notes that, in the summer of 1992, Air Force
employees told him that he would have the allowances he now claims
if he obtained a position as a civilian employee. 

     Mr. Phillips has not established that the position was hard to
fill; that is, he has not shown that the commanding officer
determined that a candidate from outside Germany would have to be
transferred or appointed to fill the shipment compliance inspector
position unless a transportation agreement was offered to a
locally-hired employee.  We cannot find any facts to support the
statements made either in the August 6, 1992 memorandum which was
written in order to justify hiring Mr. Phillips within 180 days
after his retirement, or in the note found on the transportation
agreement, or in the November 23, 1992 memorandum.  The facts show
that Mr. Phillips and three other qualified, local applicants
responded to the advertisement for a shipping compliance inspector,
and nothing suggests that a transportation agreement had to be
offered to a locally-hired employee in order to fill the position. 

     In addition, Mr. Phillips has not established that the
position was one for which out of country recruitment was normally
undertaken.  The Air Force only recruited locally to fill the
shipping compliance inspector position, and did not consider out of
country recruitment for GS-5 positions due to the high permanent
change of station costs that would be incurred in connection with
hiring a relatively low-paid employee.  Nothing in our record
counters these facts.

     Finally, the Air Force is not bound by whatever erroneous
advice its employees may have given to Mr. Phillips.  This is true
even if Mr. Phillips relied upon that advice when he decided to
accept the shipping compliance inspector position.  Federal Crop
Insurance Corp. v. Merrill, 332 U.S. 380 (1947).  

     In summary, the regulations in effect in September 1992
allowed the Air Force to enter into a transportation agreement with
Mr. Phillips only if the position for which Mr. Phillips was
selected was hard to fill and was one for which out of country
recruitment was normally undertaken.  The facts do not establish
that either of these requirements was met.  Therefore, the Air
Force correctly determined that it lacked the authority to enter
into the transportation agreement with Mr. Phillips.




                                   _______________________________
                                   MARTHA H. DeGRAFF
                                   Board Judge