Earl Franklin Peterson died 5:15 PM, Monday, February 27, 1961, at Rockford Memorial Hospital, Rockford, Winnebago Co., IL, at age 58. Buried in Arlington Memorial Park Cemetery, Rockford, Winnebago Co., IL.

Patrick Raymond Gillen and Cynthia Ann "Cindy" Peterson were married November 2, 1968, in Pusan, South Korea.

Patrick Raymond Gillen and Cynthia Ann "Cindy" (Peterson) Gillen and family at Heathfield Lodge, England, about 1965.

Patrick Raymond Gillen and Cynthia Ann "Cindy" (Peterson) Gillen and family, Christmas, 1979.

Verona Mathilda (Swenson) Peterson died January 7, 1980, in San Antonio, Bexar Co., TX, at age 72. Buried in Sunset Memorial Park, San Antonio, Bexar Co., TX.

Board of Contract Appeals
                 General Services Administration
                      Washington, D.C. 20405


                          _____________

                          April 11, 2002
                          ______________


                         GSBCA 15748-RELO


                In the Matter of PATRICK R. GILLEN


     Patrick R. Gillen, Suffolk, U.K., Claimant.

     Paul Wolfe, Personnel Director, Education Activity, Department of Defense,
Arlington, VA, appearing for Department of Defense.

DeGRAFF, Board Judge.

     Patrick R. Gillen was employed as an educator by the Department of Defense (DoD)
in Lakenheath, United Kingdom, for more than thirty years.  His wife was also employed by
DoD in Lakenheath.  In July 1999, a physician in the United States stated that Mr. and
Mrs. Gillen were his patients, and that he believed they both qualified for medical retirement.
In August 1999, Mr. Gillen completed his application for retirement, to be effective June 24,
1999.  Although Mr. Gillen did not report for work after June 1999, he stated that he did not
want to retire without first obtaining certain information from the Office of Personnel
Management (OPM) regarding the retirement benefits he would receive.  OPM and DoD told
Mr. Gillen that they could not provide the information he requested until he provided a
definite retirement date.  Mrs. Gillen retired from work effective January 7, 2000.

     On January 9, 2000, in a letter to a member of the United States Senate, Mr. Gillen
made it clear that he wanted his retirement to be effective June 24, 1999.  As a result, on
January 19, 2000, DoD provided Mr. Gillen with a certificate of retirement, and OPM made
a determination regarding Mr. Gillen's benefits.  On June 28, 2000, DoD prepared separation
travel orders that authorized Mr. Gillen to ship his household goods to the United States and
to travel to the United States with his wife at Government expense, provided he began his
travel and transportation within two years from the date of his retirement, that is to say by
June 23, 2001.

     In April 2001, Mr. Gillen asked DoD for an indefinite extension of time to return to
the United States at Government expense.  He explained that he and his wife had serious
medical problems that were being addressed in the United Kingdom, and that they did not
have the "emotional or physical strength and stamina" to move back to the United States.
DoD told Mr. Gillen on April 23, 2001, that applicable regulations imposed a maximum time
limit of two years for beginning separation travel and transportation of household goods.  In
addition, DoD explained that it lacked the authority to modify or waive the two-year
deadline.  In May 2001, Mr. Gillen wrote to a second member of the United States Senate,
"Please help us as we need to stay in the United Kingdom because of the medical care that
we are receiving . . . ."

     So far as we can tell from our record, Mr. Gillen's most recent trip to the United States
was from mid-December 1999, through early January  2000, and Mrs. Gillen's most recent
trip was sometime after March 1999.  In March 2001, Mrs. Gillen's physician stated that she
would not want to subject her to a change of medical staff or hospital.  In September 2001,
Mr. Gillen explained that he could not travel due to his medical condition. 

     On January 18, 2002, Mr. Gillen asked us to review DoD's decision not to grant an
extension of time to ship his household goods and to begin his return travel to the United
States.  Included in Mr. Gillen's submission is a statement that he would like the deadline to
be extended until January 19, 2003, which is three years after the issue regarding his
retirement annuity was resolved.  DoD points out that there is no authority to grant
Mr. Gillen's request, and asks the Board to recommend that the General Services
Administration's Deputy Associate Administrator, Office of Transportation and Personal
Property (MT), grant administrative relief to Mr. Gillen. 

     Applicable regulations do not permit DoD to pay Mr. Gillen's travel and transportation
expenses.  Agencies may pay travel and transportation expenses of employees who return
from posts of duty overseas, pursuant to applicable regulations.  5 U.S.C.   5722, 5724(d)
(2000).  The regulations, which apply to all federal civilian employees, provide that all travel
and transportation shall be accomplished within six months of the date of separation or other
reasonable period of time as determined by the employing agency, but in no case later than
two years from the effective date of the employee's separation from Government service.  41
CFR 302-1.106 (2000).  The imposition of a time limitation ensures that an employee's travel
is clearly incidental to the separation and that the travel will begin in a reasonable time.  If
an employee does not return to the United States as the result of the termination of an
assignment and within a reasonable time, the employee's eventual return should not be
authorized at public expense.  28 Comp. Gen. 285 (1948).  DoD correctly informed
Mr. Gillen that an agency may not waive the two-year maximum time period.  John W.
Castellani, GSBCA 15428-TRAV, 01-2 BCA   31,515 (citing cases). 

     In a test program begun on April 28, 2000, the Administrator of General Services
authorized the Board to refer claims to MT if administrative relief should be granted for legal
or equitable considerations, but such relief is prohibited by statutory or regulatory
restrictions.  Such claims are commonly referred to as "meritorious claims."  The purpose of
the test program is to allow MT to achieve the same results as it would if the Meritorious
Claims Act, 31 U.S.C.   3702(d) (Supp. V 1999), were utilized, but in a more efficient
manner.  The standard we use when we consider whether to recommend a claim for
disposition under the pilot program is as follows:

     We will not apply a hard and fast rule when we determine whether equitable
     considerations compel us to conclude that a claim is meritorious.  In reaching
     our decisions, we will consider and balance several factors.  At the outset, we
     recognize that deeming a claim "meritorious" is highly extraordinary, since
     Government employees are charged with knowledge of all applicable laws and
     regulations and are expected to comply with them.  We will look to see
     whether the claim presents equitable considerations of an unusual nature which
     are unlikely to constitute a recurring problem.  We will consider whether an
     agency directed an employee to incur the claimed expenses.  We will also
     consider whether an agency's actions caused an employee to incur the claimed
     expenses.  We may also consider other factors, as warranted by the
     circumstances presented by individual claims.

Roy Katayama, GSBCA 15605-RELO, 01-2 BCA   31,542. 

     Using this standard to evaluate the facts presented by Mr. Gillen, we have decided not
to refer this claim to MT for relief.  No legal considerations suggest that this claim is
meritorious.  As for equitable considerations, we explained recently that we have been
convinced that the equities weigh in favor of employees who incur costs due to agencies'
actions, but not in favor of employees who incur costs because of personal decisions and who
benefit from the expenditures.  See Charles P. Cooluris, GSBCA 15693-RELO (Feb. 11,
2002) (citing cases).  Here, DoD did not delay Mr. Gillen's departure from the United
Kingdom, and played no role in his decision to continue his and his wife's medical treatment
in the United Kingdom.  Further, if Mr. Gillen's time to begin his travel and transportation
were extended, the costs incurred to return him, his wife, and his household goods to the
United States would be for his benefit.  In addition, the equitable considerations involved
here are not unusual, in that other federal employees confronted with personal problems have
been held to the requirement that travel and transportation must be completed within the time
required by either the applicable regulations or a travel authorization.  See, e.g., Sherrell M.
Garth, GSBCA 15729-RELO (Feb. 8, 2002); Eugene Leong, GSBCA 13666-RELO
(Mar. 31, 1997); Teresita G. Bowman, B-212278 (Sept. 2, 1983); 62 Comp. Gen. 200 (1983);
Dale R. Moore, B-184676 (Nov. 17, 1975).  We are certain that all such employees
considered their claims to be genuinely meritorious.  However, in part because such claims
are not unusual, they are not so highly extraordinary as to warrant a recommendation to MT
that administrative relief contrary to explicit regulatory requirements should be granted. 




                                   ___________________________________
                                   MARTHA H. DeGRAFF
                                   Board Judge

http://registry.adoption.com/records/393614.html