September 18, 1997 GSBCA 13946-TRAV In the Matter of GEORGE E. LINGLE George E. Lingle, Kailua, HI, Claimant. D. Lisenby, Director, Financial Policy and Systems Directorate, Defense Finance and Accounting Service, Kansas City, MO, appearing for Department of Defense. GOODMAN, Board Judge. George E. Lingle is a civilian employee of the Department of the Navy, United States Marine Corps. He has requested that the General Accounting Office review the agency's denial of his claim for retroactive renewal agreement travel. On October 10, 1978, Mr. Lingle was transferred from the Naval Ocean System Center (NOSC), San Diego, California, to the NOSC, Hawaii. Mr. Lingle signed an initial transportation agreement for a thirty-six month tour. Subsequently, Mr. Lingle remained in Hawaii, performing additional tours of duty, and completed home leave travel periodically through August 1990. The last travel agreement on record with NOSC was dated August 24, 1990. The NOSC issued a memorandum on January 27, 1992, to all employees at the Hawaii location that due to a scheduled closure of the Hawaii laboratory, all round-trip renewal agreement travel was discontinued effective that date. In July 1992, Mr. Lingle, his wife, and two children traveled from Hawaii to San Diego at a cost of $1,795 (four round-trip tickets). Mr. Lingle has requested reimbursement for this trip. On August 31, 1992, the NOSC offered Mr. Lingle a job transfer back to San Diego. Mr. Lingle declined the NOSC's offer on September 10, 1992, and applied for a new position with the Marine Corps Base Hawaii (MCBH). He was selected for employment and placed in a position effective December 13, 1992. In December 1994, Mr. Lingle, his wife, and two children again traveled from Hawaii to San Diego at a cost of $1,706 (four round-trip tickets). Mr. Lingle has also requested reimbursement for this trip. Initially, the MCBH denied Mr. Lingle continued entitlement to renewal agreement travel, as the human resources office at MCBH viewed Mr. Lingle as a "local hire." However, eventually the agency reversed its determination, stating that "after a lengthy and thorough review of the facts and circumstances, and based on paragraph C4152 of the Joint Travel Regulations (JTR), Volume 2, the MCBH commander reinstated Mr. Lingle's renewal agreement travel rights on July 22, 1995. Initially, Mr. Lingle filed no information concerning the trips that his family made in July 1992 and December 1994, believing that he was entitled to round trip tickets for two trips, in lieu of the trips in 1992 and 1994 for which he had not received reimbursement. He based this request on his belief that he would have been entitled to reimbursement of the costs of the first trip after completing his twenty-four month tour with the NOSC pursuant to the agreement signed August 24, 1990, and that he would have been entitled to the second trip after completion of his twenty- four month tour with the MCBH. Upon request of the Board, Mr. Lingle furnished information concerning the two trips he actually performed. Mr. Lingle thereafter requested alternatively that he be reimbursed for the two trips that he took during the period in which he was erroneously denied reinstatement of his renewal agreement travel. The agency's position in denying Mr. Lingle's request is as follows: The Comptroller General has held that an employee is entitled to renewal agreement travel only when the travel is performed after the date of completion of one agreement and prior to serving another tour of duty under a new agreement. This Comptroller General Decision is referenced in the JTR, paragraph C4157, which also states that entitlement to renewal agreement travel is not cumulative from one period of service to another if not used. In this case, Mr. Lingle's travel agreement dated August 24, 1990, was revoked by the NOSC on January 27, 1992 due to the scheduled closure of the Hawaii laboratory. Mr. Lingle was authorized home leave travel immediately after the MCBH reinstated his renewal travel rights on July 22, 1995, but there was not entitlement to any authorized travel from January 28, 1992 to July 21, 1995. The hardship that Mr. Lingle may have endured during this delay is unfortunate, however, we could not find any regulation that would allow Mr. Lingle the entitlement to retroactive renewal agreement travel. The applicable provisions of law governing tour renewal agreement travel for the employee and his immediate family are found in 5 U.S.C.  5728 (1994), with governing regulations for civilian employees of the Department of Defense contained in the Joint Travel Regulations (JTR), Vol. 2, Chap. 4, Pt. D. Those provisions authorize round-trip travel to the employee's actual residence in the continental United States (CONUS) each time the employee satisfactorily completes a tour of duty at the same or another overseas location and enters into a new agreement for another period of service at a post outside the CONUS. Specific regulations govern employees whose tours of duty are in Alaska or Hawaii. The following provision is applicable to Mr. Lingle s situation, since he has been stationed in Hawaii since 1978. C4152 EMPLOYEES STATIONED IN ALASKA OR HAWAII ON 8 SEPTEMBER 1982 An employee whose status on 8 September 1982 was any of the situations listed in items 1, 2, or 3 involving a post of duty in Alaska or Hawaii will continue to be eligible to receive allowances for travel and transportation expenses for tour renewal agreement travel provided that the employee continues to serve consecutive tours of duty within Alaska or Hawaii. . . . On 8 September 1982, the employee must have been: 1. serving a tour of duty in Alaska or Hawaii on that date; . . . . The regulation cited by the agency in denying Mr. Lingle reimbursement is the following: C4157 RENEWAL AGREEMENT TRAVEL NONCUMULATIVE Renewal agreement travel entitlement is for use between consecutive periods of continuous overseas employment and may be performed between the date of completion of one agreement and before serving another tour of duty pursuant to a written agreement (35 Comp. Gen. 101) (1955). Entitlement to renewal agreement travel is not cumulative from one period of service to another if not used. The agency admits that Mr. Lingle was erroneously denied a renewal agreement during the period in which he and his family performed two trips to his place of residence from Hawaii, but does not find entitlement in any regulation to what it terms retroactive renewal agreement travel. Apparently, the agency believes that the lack of the renewal agreement during the period in which travel authorization was erroneously denied prohibits reimbursement for trips taken during the period. However, there are decisions of the Comptroller General which support Mr. Lingle s position that he is entitled to reimbursement for one of his two trips to his place of residence during the period when his renewal agreement travel was erroneously denied. We find these decisions persuasive and apply their reasoning in resolving this matter. In Estelle C. Maldonado, 62 Comp. Gen. 545, 551-52 (1983), the Comptroller General held that an employee's entitlement to return travel to the United States does not depend on the employee having served in an overseas post under a written agreement. Rather, the employee is entitled to return travel, even without a written transportation agreement, provided the employee met all of the eligibility requirements to qualify for the entitlement and the employee s place of residence upon hire was in the United States. In Wilbur E. Porter, B-233352 (June 11, 1990), a similar situation occurred. The claimant was denied the opportunity to negotiate a transportation agreement upon his employment with the Department of the Army in 1974 in Munich, West Germany, on the basis that he received only a temporary appointment as a teacher. Therefore, his return travel to the United States between overseas tours of duty was at his personal expense rather than at Government expense. However, in 1982, the Army acknowledged that an administrative error had been made and approved a transportation agreement retroactive to the completion of the initial two-year period of employment, 1974-1976. The Comptroller General held that the claim accrued when the employee performs the travel, regardless of whether an agency's administrative error may have misled an employee as to the nature or extent of his or her entitlement. Thus, the agency cannot give Mr. Lingle tickets for two additional trips as he initially requested, as this would be to compensate him for travel which he has not performed. As in most situations involving an employee s travel, as the Porter decision emphasizes, the claim accrues when the employee performs the travel. The agency is correct that there can be no retroactive entitlement for travel which was not accomplished. However, in this case, Mr. Lingle and his family did perform round-trip travel. If such travel is accomplished after the employee satisfactorily completed one overseas tour of duty and entered into an agreement to perform another such tour, and the employee s place of residence upon hire was in the United States, then the employee would be entitled to compensation. The first trip Mr. Lingle and his family took was in July 1992, one month before his previous tour expired and before he had agreed to perform another one. Accordingly, he is not entitled to reimbursement for that trip. The second trip was taken in December 1994. The agency acknowledges that Mr. Lingle's hiring should be considered to be on the basis of agreements for two-year tours of duty. December 1994 was at the end of one tour and the beginning of another. It was therefore between tours of duty or within a reasonable time after entering into a renewal agreement. Accordingly, Mr. Lingle is entitled to reimbursement for this trip for himself, his wife and his two sons. Determination of the amount of reimbursement should be on a constructive basis, i.e., the cost the employee would have incurred on the basis of Government rates had the travel been authorized at the time it was performed. Mr. Lingle has submitted documentation that the actual cost of the travel in December 1994 to San Diego was $968 for air fare ($242 per person - round-trip Honolulu to Los Angeles) and $351 for a rental car for seventeen days (no receipts were submitted for the car, but Mr. Lingle advises that his cost information was taken from his federal tax return). Assuming that two days of car rental ($351/17 = $20.64 per day) would be required for the round trip from Los Angeles to San Diego, the total cost for round trip travel is $968 + $41.28 = $1,009.28. Apparently, Mr. Lingle paid commercial rates for travel. Under the circumstances, he should be reimbursed the constructive costs of his travel expenses to San Diego, his designated actual place of residence. The amount reimbursed should be limited to the Government contract air fare between Honolulu and San Diego, if such amount is less than the actual cost of the air fare and two days of car rental. Neil G. Pfaff, 68 Comp. Gen. 587 (1989). We note that Mr. Lingle has stated that the cost information was from his federal tax return. He states that he and his wife have real estate property in San Diego [and] we used the . . . trips to visit family and manage our property. If Mr. Lingle has claimed portions of his travel expenses as tax deductions, he may wish to seek tax advice as to how to treat any reimbursements of these expenses which he may now receive as the result of this decision. _____________________ ALLAN H. GOODMAN Board Judge