B-187079, OCTOBER 7, 1976, 56 COMP.GEN. 15

B-187079, OCTOBER 7, 1976, 56 COMP.GEN. 15

OFFICERS AND EMPLOYEES - TRANSFERS - RELOCATION EXPENSES - TEMPORARY QUARTERS - BEGINNING OF OCCUPANCY - THIRTY DAY PERIOD TRANSFERRED EMPLOYEE OCCUPIED TEMPORARY QUARTERS FOR MORE THAN 30 DAYS. EMPLOYEE CONTENDS THAT THE CALENDAR DAY QUARTER ON WHICH HE BECAME ELIGIBLE FOR REIMBURSEMENT OF TEMPORARY QUARTERS EXPENSES SHOULD BE USED THROUGHOUT HIS ELIGIBILITY PERIOD TO DETERMINE WHEN REIMBURSEMENT SHOULD CEASE. SINCE THE AUTHORIZING STATUTE ALLOWS REIMBURSEMENT ONLY FOR CALENDAR DAYS SPENT IN TEMPORARY QUARTERS AND THE IMPLEMENTING REGULATIONS UTILIZE THE QUARTER DAY CONCEPT TO ASCERTAIN COMMENCEMENT OF ELIGIBILITY ONLY, DATE OF INITIAL ELIGIBILITY CONSTITUTES ONE CALENDAR DAY. THEREAFTER, REIMBURSEMENT MAY BE MADE ONLY IN UNITS OF WHOLE CALENDAR DAYS.

IN THE MATTER OF JOSEPH B. STEPAN-- SUBSISTENCE-- TEMPORARY QUARTERS, OCTOBER 7, 1976:

THIS MATTER IS IN RESPONSE TO A REQUEST DATED JULY 28, 1976 FROM MS. ANNE C. HANSEN, AN AUTHORIZED CERTIFYING OFFICER OF THE MINING ENFORCEMENT AND SAFETY ADMINISTRATION (MESA), DEPARTMENT OF THE INTERIOR, CONCERNING THE VOUCHER SUBMITTED BY MR. JOSEPH B. STEPAN FOR REIMBURSEMENT OF SUBSISTENCE EXPENSES WHILE OCCUPYING TEMPORARY QUARTERS INCURRED INCIDENT TO THE TRANSFER OF HIS PERMANENT DUTY STATION.

THE RECORD INDICATES THAT MR. STEPAN, A MESA EMPLOYEE, WAS TRANSFERRED FROM WASHINGTON, D.C. TO DULUTH, MINNESOTA. HE AND HIS FAMILY ARRIVED AT THE NEW DUTY STATION AT 3:30 P.M. ON JUNE 27, 1975, AND ENTERED TEMPORARY QUARTERS. THE FAMILY REMAINED IN TEMPORARY QUARTERS UNTIL SEPTEMBER 9, 1975, WHEN THEY OCCUPIED THEIR NEW PERMANENT RESIDENCE.

MR. STEPAN WAS PAID PER DIEM THROUGH THE THIRD QUARTER DAY OF JUNE 27, 1975 FOR TRAVEL FOR HIMSELF AND HIS FAMILY. IT IS UNDISPUTED THAT HIS ELIGIBILITY PERIOD FOR SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS BEGAN ON THE LAST QUARTER DAY OF JUNE 27, 1975. MR. STEPAN HAS CLAIMED TEMPORARY QUARTERS REIMBURSEMENT FOR 30 DAYS, FROM THE LAST QUARTER DAY OF JUNE 27, 1975 THROUGH THE THIRD QUARTER DAY OF JULY 27, 1975. IT IS APPARENTLY THE CLAIMANT'S VIEW THAT PARAGRAPH 2-5.2G OF THE FEDERAL TRAVEL REGULATIONS (FPMR 101-7) (MAY 1973) REQUIRES THAT THE CALENDAR DAY QUARTER ON WHICH THE EMPLOYEE FIRST BECAME ELIGIBLE FOR REIMBURSEMENT OF TEMPORARY QUARTERS EXPENSES BE UTILIZED THROUGHOUT THE PERIOD OF ELIGIBILITY TO ASCERTAIN THE INTERMEDIATE 10 DAY PERIODS AND TO DETERMINE WHEN THE REIMBURSEMENT SHOULD CEASE. THE EMPLOYING AGENCY, HOWEVER, SUSPENDED $50.12 FROM MR. STEPAN'S CLAIM FOR TEMPORARY QUARTERS EXPENSES, CONTENDING THAT AFTER THE DATE ON WHICH THE EMPLOYEE'S ELIGIBILITY COMMENCES, HE MAY PROPERLY BE REIMBURSED ONLY IN UNITS OF CALENDAR DAYS, UP TO A TOTAL OF 30 DAYS, INCLUDING THE DATE OF INITIAL ELIGIBILITY. THE CERTIFYING OFFICER HAS THEREFORE REQUESTED OUR DECISION CONCERNING THE PERIOD OF TIME DURING WHICH TEMPORARY QUARTERS EXPENSES MAY BE REIMBURSED.

STATUTORY AUTHORITY FOR THE REIMBURSEMENT OF THE SUBSISTENCE EXPENSES OF TRANSFERRED EMPLOYEES IF FOUND AT 5 U.S.C. 5724AA)(3) (1970), WHICH PROVIDES THAT, UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT, SUCH EXPENSES MAY BE PAID "FOR A PERIOD OF 30 DAYS" WHILE OCCUPYING TEMPORARY QUARTERS. REGULATIONS GOVERNING THESE REIMBURSEMENTS ARE PRESENTLY FOUND AT FTR PARA. 2-5.2G (MAY 1973) AND PROVIDE AS FOLLOWS:

EFFECT OF PARTIAL DAYS. IN DETERMINING THE ELIGIBILITY PERIOD FOR TEMPORARY QUARTERS, SUBSISTENCE EXPENSE REIMBURSEMENT AND IN COMPUTING MAXIMUM REIMBURSEMENT WHEN OCCUPANCY OF SUCH QUARTERS FOR REIMBURSEMENT PURPOSES OCCURS IN THE SAME DAY THAT EN ROUTE TRAVEL PER DIEM TERMINATES, THE PERIOD SHALL BE COMPUTED BEGINNING WITH THE CALENDAR DAY QUARTER AFTER THE LAST CALENDAR DAY QUARTER FOR WHICH TRAVEL PER DIEM DESCRIBED IN 2-2.1 AND 2-2.2 IS PAID, EXCEPT THAT WHEN TRAVEL IS 24 HOURS OR LESS THE PERIOD SHALL BEGIN WITH THE CALENDAR DAY QUARTER DURING WHICH TRAVEL PER DIEM TERMINATES. IN ALL OTHER CASES, THE PERIOD SHALL BE COMPUTED FROM THE BEGINNING OF THE CALENDAR DAY QUARTER FOR WHICH TEMPORARY QUARTERS SUBSISTENCE REIMBURSEMENT IS CLAIMED, PROVIDED THAT TEMPORARY QUARTERS ARE OCCUPIED IN THAT CALENDAR DAY. THE TEMPORARY QUARTERS PERIOD SHALL BE CONTINUED FOR THE DAY DURING WHICH OCCUPANCY OF PERMANENT QUARTERS BEGINS.

THE QUOTED PROVISION WAS ADDED TO SECTION 2.5(B)(6) OF BUREAU OF THE BUDGET CIRCULAR NO. A-56 ON JUNE 26, 1969. BY TRANSMITTAL MEMORANDUM NO. 5 OF THE SAME DATE, THE REVISION WAS EXPLAINED AS "CLAIFYING) THE ALLOWANCES PAYABLE FOR THE FIRST AND LAST DAY OF USE OF TEMPORARY QUARTERS." THE FIRST TWO SENTENCES OF THE REGULATIONS, THEN, CLARIFY THE COMMENCEMENT OF THE ELIGIBILITY PERIOD; THE LAST SENTENCE CLARIFIES ITS CESSATION.

THE JUNE 26, 1969 ACTION BY THE BUREAU OF THE BUDGET WAS APPARENTLY IN RESPONSE TO, AND INCORPORATED THE HOLDINGS OF, OUR DECISIONS B-161348, MAY 31, 1967 AND B-161878, JULY 21, 1967, IN WHICH WE DETERMINED THAT AN EMPLOYEE IS ELIGIBLE FOR REIMBURSEMENT OF EXPENSES IN TEMPORARY QUARTERS FROM THE TIME HE CEASES TO RECEIVE PER DIEM FOR TRAVEL THROUGH THE FULL DAY ON WHICH HE OCCUPIES HIS PERMANENT QUARTERS. IN EACH OF THESE CASES, THE QUESTION FOR OUR CONSIDERATION WAS WHETHER REIMBURSEMENT OF TEMPORARY QUARTERS EXPENSES WAS PRECLUDED BY THE PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE FOR THAT PORTION OF THE DAY DURING WHICH THE EMPLOYEE WAS TRAVELING TO THE NEW DUTY STATION. SINCE OUR DECISIONS AND THE REGULATIONS ISSUED PROMULGATED THEREAFTER UTILIZED AND INTENDED THE CONCEPT OF CALENDAR DAY QUARTERS ONLY TO ASCERTAIN WHEN AN EMPLOYEE'S ELIGIBILITY BEGINS, SUCH AUTHORITIES DO NOT SUPPORT THE POSITION THAT CALENDAR DAY QUARTERS SHOULD BE USED THROUGHOUT THE PERIOD TO DETERMINE WHEN ELIGIBILITY CEASES, AS ADVANCED HERE BY THE CLAIMANT.

AS NOTED ABOVE, THE STATUTORY AUTHORITY FOR TEMPORARY QUARTERS REIMBURSEMENT LIMITS PAYMENTS TO A "PERIOD OF 30 DAYS." 5 U.S.C. 5724AA)(3) (1970). THE UNMODIFIED WORD "DAYS" AS USED IN STATUTES GENERALLY HAS BEEN REGARDED AS REFERRING TO "CALENDAR DAYS" IN THE ABSENCE OF A CLEAR INTENT TO THE CONTRARY. 27 COMP.GEN. 245, 252 (1947). THUS, REIMBURSEMENTS MADE PURSUANT TO THAT STATUTE ARE LIMITED TO 30 CALENDAR DAYS. IN VIEW THEREOF, WE HOLD THAT THE PORTION OF THE DAY ON WHICH AN EMPLOYEE BECOMES ELIGIBLE FOR REIMBURSEMENT OF HIS TEMPORARY QUARTERS EXPENSES CONSTITUTES ONE OF THE 30 CALENDAR DAYS DURING WHICH SUCH EXPENSES MAY BE PAID. THEREAFTER, REIMBURSEMENT MAY BE MADE, IF OTHERWISE PROPER, FOR EACH CALENDAR DAY (MIDNIGHT TO MIDNIGHT) THAT THE EMPLOYEE OCCUPIES TEMPORARY QUARTERS, INCLUDING THE DAY ON WHICH HE ENTERS HIS PERMANENT RESIDENCE, UP TO THE MAXIMUM ALLOWABLE PERIOD OF 30 CALENDAR DAYS.

ACCORDINGLY, THE VOUCHER SUBMITTED BY MR. STEPAN MAY NOT BE CERTIFIED FOR PAYMENT.