Board of Contract Appeals

                    General Services Administration

                         Washington, D.C. 20405

 

 

 

                            _______________

 

                              May 9, 2001

                            _______________

 

 

                            GSBCA 15466-RELO

 

 

                    In the Matter of BRENT A. MYERS

 

 

        Brent A. Myers, Tooele, UT, Claimant.

 

        Rickie  P.  Cannon,   Acting  Chief,   Policy  and   Program

   Development  Division, Manpower  and Reserve  Affairs,  Office of

   Assistant   Secretary  of  the  Army,  Department  of  the  Army,

   Alexandria, VA, appearing for Department of the Army.

 

   DeGRAFF, Board Judge.

 

        On  April 23,  2001, we  granted the  Army's request  for an

   extension  of  time  until  April 30,  to   file  a  request  for

   reconsideration of  our March  23, 2001  decision resolving  this

   claim.    On April  30, after  the close  of the  Board's working

   hours,  we  received a  request  from  the  Army to  clarify  our

   decision.  Because the request  was received after working hours,

   it is  considered to have  been filed on  May 1, 2001.   See Rule

   402(a)(3) (48 CFR 6104.2(a)(3) (2000)) (Board's working hours end

   at 4:30 p.m.).

 

        To the extent that the Army's May 1, 2001 filing is meant to

   be  a request for reconsideration,  we deny it  as untimely.  The

   filing raises two issues, however, that merit comment.

 

        First, the  Army states,  "In the  past decisions  from this

   Board  were either published  or unpublished.   The Department of

   the Army  requests clarification of  whether or not this  case is

   specific or should be applied  across the board."  We  think that

   the  Army is  perhaps confusing  us with  the General  Accounting

   Office (GAO), which  resolved travel and relocation  claims until

   that authority was  transferred to us in mid-1996.   Although GAO

   did not  publish all  of  its decisions,  all of  our travel  and

   relocation decisions  are published.   They can  be found  in the

   Board of Contract Appeals reporter published by Commerce Clearing

   House, and on our web  site (www.gsbca.gsa.gov).  Further, all of

   our travel and relocation decisions are precedential, which means

   that they  are meant to be  used as an  example or a  standard in

   resolving subsequent similar claims. 

 

 

        Next, the Army  tells us that the "Internal  Revenue Service

   has   established  12  months   as  the  determining   factor  of

   establishing a residency  requirement."  Based upon  the Internal

   Revenue Service's "definition of residency, the Department of the

   Army has  established its policy  that any  move of 12  months or

   more, is  considered a  permanent change of  station."   The Army

   asks  how  this  affects  the  Joint  Travel  Regulations  (JTR).

   Internal Revenue Service rules govern taxation, but do not govern

   a federal civilian employee's entitlement to relocation benefits.

   The  rules governing such entitlements are set  out in title 5 of

   the  United States  Code, as  implemented by  the  Federal Travel

   Regulation (FTR), which  is supplemented by the JTR.   It appears

   that  the manner  in which  the  Army is  applying the  purported

   Internal Revenue Service rule conflicts with the statute and  the

   regulations  that apply  to relocation  benefits.   According  to

   title 5  of the  United States Code,  the FTR,  and the  JTR, Mr.

   Myers is entitled to relocation benefits.  The Army would be well

   advised  to  follow  the  FTR  and the  JTR  when  assessing  the

   eligibility of  either  Mr.  Myers  or  any  other  employee  for

   relocation  benefits, and not to  use an Internal Revenue Service

   rule for a purpose for which it was not intended.

   __________________________________

 

                                      MARTHA H. DeGRAFF

                                      Board Judge