B-161816, AUG. 4, 1967

B-161816, AUG. 4, 1967

EMPLOYEES - TRANSFERS - PUBLIC LAW 89-516 - TEMPORARY LODGING DECISION TO DISBURSING OFFICER, DEFENSE SUPPLY AGENCY, RE ENTITLEMENT OF EMPLOYEE TO REIMBURSEMENT FOR EXPENSES UNDER PUBLIC LAW 89-516. EMPLOYEE WHO, INCIDENT TO TRANSFER FROM BRIGHAM CITY, UTAH, TO RICHMOND, VIRGINIA, OCCUPIED FURNISHED APARTMENT FOR WHICH HE PAID UTILITIES, FOR MORE THAN 30 DAYS PRIOR TO MOVING HIS FAMILY TO THE NEW STATION MAY BE REGARDED AS OCCUPYING THE APARTMENT AS TEMPORARY QUARTERS SINCE IT IS THE INTENTION OF THE EMPLOYEE AS EVIDENCE BY HIS OVERT ACTS WHICH WOULD JUSTIFY AN AGENCY IN CONCLUDING THAT THE QUARTERS OCCUPIED ARE TEMPORARY OR PERMANENT. ALTHOUGH EMPLOYEE MAY BE PAID FOR EXPENSES FOR OCCUPANCY OF APARTMENT NO ALLOWANCE, NO SUBSISTENCE EXPENSES AT OLD OR NEW STATION IS WARRANTED ON ACCOUNT OF THE DEPENDENTS WHO REMAINED IN THE FORMER DWELLING AT THE OLD STATION. IF UTILITIES WERE EESENTIAL TO THE OCCUPANCY OF THE QUARTERS, REIMBURSEMENT MAY BE MADE. ENTITLEMENT TO ALLOWANCE FOR TEMPORARY QUARTERS AND SUBSISTENCE MAY BE CONSIDERED TO HAVE BEGUN WHEN EMPLOYEE MOVED IN TO HOTEL QUARTERS FOR COMMENCEMENT OF THE 30DAY PERIOD. ALSO OVERCLAIMS DUE TO BONA-FIDE MISUNDERSTANDING OF REGULATIONS NEED NOT BE CONSIDERED IN DETERMINING ENTITLEMENT TO SUBSISTENCE EXPENSES FOR TEMPORARY QUARTERS.

TO MAJOR G. B. ADAMS, FC, ACCOUNTING AND FINANCE OFFICER, DEFENSE SUPPLY AGENCY:

YOUR LETTER OF MAY 29, 1967, REFERENCE DGSC-CF-PC, WITH ENCLOSED VOUCHER IN FAVOR OF MR. WILLIAM G. HORTON, COVERING SUBSISTENCE EXPENSES CLAIMED UNDER SECTION 2.5, BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966, FORWARDED HERE BY THE DEPUTY COMPTROLLER'S LETTER OF JUNE 13, REQUESTS OUR DECISION WHETHER THE VOUCHER MAY BE PAID.

THE RECORD SHOWS THAT MR. HORTON UNDER PERMANENT CHANGE OF STATION ORDERS DEPARTED BRIGHAM CITY, UTAH, ON NOVEMBER 7, 1966, AND ACTUALLY ARRIVED IN RICHMOND, VIRGINIA, HIS NEW STATION ON NOVEMBER 12, BETWEEN 1200 AND 1800 HOURS. HE LODGED IN A MOTEL FOR THE NIGHTS OF NOVEMBER 12 AND 13, AND ON THE 14TH MOVED TO A FURNISHED APARTMENT UNDER AN AGREEMENT BY WHICH HE PAID FOR UTILITIES.

MR. HORTON, WHOSE FAMILY REMAINED IN UTAH, RESIDED IN THE FURNISHED APARTMENT UNTIL DECEMBER 14, 1966, WHEN HE DEPARTED ON ANNUAL LEAVE FOR UTAH TO BRING HIS FAMILY AND THE REMAINDER OF HIS HOUSEHOLD GOODS- PART OF WHICH APPEARS TO HAVE BEEN SHIPPED ON NOVEMBER 7, 1966--TO RICHMOND.

UPON HIS DEPARTURE ON LEAVE, MR. HORTON APPARENTLY CONTINUED TO RENT THE SAME APARTMENT BUT MADE ARRANGEMENTS WITH THE BROKER TO REMOVE THE FURNISHINGS SO THAT HIS OWN HOUSEHOLD GOODS MIGHT BE INSTALLED UPON HIS RETURN FROM UTAH WITH HIS FAMILY AND GOODS. MR. HORTON RETURNED TO RICHMOND WITH HIS FAMILY ON DECEMBER 22, 1966, AND REOCCUPIED THE APARTMENT. ON DECEMBER 27, 1966, HE ENTERED INTO A CONTRACT TO PURCHASE A DWELLING HOUSE TO BE READY FOR OCCUPANCY ON OR BEFORE APRIL 1, 1967.

IN REGARD TO THE BROAD QUESTION OF WHETHER THE VOUCHER MAY BE PAID YOU ASK SPECIFIC QUESTIONS AS FOLLOWS:

"4A. ARE FURNISHED APARTMENTS, WITHOUT UTILITIES BEING FURNISHED, CONSIDERED TEMPORARY QUARTERS UNDER THE PROVISIONS OF PARAGRAPH 2.5 OF APPENDIX A, VOLUME 2, JOINT TRAVEL REGULATIONS, OR ARE SUCH QUARTERS CONSIDERED PERMANENT RESIDENCE QUARTERS AS ENVISIONED IN PARAGRAPH 2.5B/3) AND 2.5B/5) OF APPENDIX A?

"B. IF FURNISHED APARTMENTS ARE CONSIDERED TEMPORARY QUARTERS, ARE THE COSTS OF UTILITIES PURCHASED DURING THE 30 DAYS TEMPORARY LODGING PERIOD REIMBURSABLE?

"C. IN THE INSTANT CASE, DID ENTITLEMENT TO TEMPORARY QUARTERS AND SUBSISTENCE BEGIN WHEN MR. HORTON MOVED INTO THE APARTMENT OR WHEN HE ARRIVED IN RICHMOND AND RENTED A ROOM?

ALSO, IN PARAGRAPH 5 OF YOUR LETTER YOU ASK WHETHER SECTION C11002, JOINT TRAVEL REGULATIONS, RELATING TO INTENTIONAL OVERCLAIMS, WOULD AFFECT THE EMPLOYEE'S ENTITLEMENT TO AMOUNTS OTHERWISE DUE UNDER PUB. L. 89-516, BECAUSE OF HIS OVERCLAIM FOR PER DIEM AND THE COST OF TRANSPORTING HIS AUTOMOBILE.

SECTION 2.5 OF THE CIRCULAR (PARAGRAPH 2.5 OF APPENDIX A, VOLUME 2, JOINT TRAVEL REGULATIONS) RELATES TO THE SUBSISTENCE EXPENSES OF THE EMPLOYEE AND HIS IMMEDIATE FAMILY WHILE OCCUPYING TEMPORARY QUARTERS INCIDENT TO A TRANSFER OF STATION TO A NEW OFFICIAL STATION IN THE 50 STATES AND OTHER DESIGNATED LOCALITIES.

FURTHER, SECTION 2.5A OF THE CIRCULAR, CITED ABOVE, PROVIDES IN THE SECOND SENTENCE AS FOLLOWS:

"AS A GENERAL POLICY, ALLOWANCE FOR TEMPORARY QUARTERS SHOULD BE REDUCED OR AVOIDED * * * IF, AS A RESULT OF EXTENDED TEMPORARY DUTY AT THE NEW OFFICIAL STATION OR OTHER CIRCUMSTANCES, THE EMPLOYEE HAS HAD ADEQUATE OPPORTUNITY TO COMPLETE ARRANGEMENTS FOR PERMANENT QUARTERS.'

RESPONSIVE TO YOUR QUESTION 4A, THE NATURE OF THE QUARTERS OCCUPIED AND THE QUESTION OF WHETHER THE COST OF UTILITIES IS PAID BY THE OCCUPANT OR INCLUDED IN THE RENTAL ARE NOT DETERMINATIVE OF WHETHER QUARTERS MAY BE CONSIDERED TEMPORARY OR PERMANENT. RATHER, IT IS THE THEN PRESENT INTENTION OF THE EMPLOYEE AS EVIDENCED BY HIS OVERT ACTS OR EXPRESSIONS WHICH WOULD JUSTIFY A DEPARTMENT OR AGENCY IN CONCLUDING WHETHER THE QUARTERS OCCUPIED ARE TEMPORARY OR PERMANENT.

THE LETTER OF JANUARY 26, 1967, FROM MR. HORTON'S RENTAL BROKER, COLE REAL ESTATE, INC., PARTICULARLY SO FAR AS IT SAYS THAT DURING NOVEMBER AND DECEMBER THE BROKER SHOWED MR. HORTON SEVERAL DWELLINGS FOR SALE, AND THE FACT THAT HE ACTUALLY CONTRACTED IN LATE DECEMBER TO BUY A DWELLING HOUSE MAY BE ADMINISTRATIVELY CONSIDERED IN DETERMINING WHETHER MR. HORTON AT ANY TIME VIEWED HIS OCCUPANCY OF THE APARTMENT, EITHER FURNISHED OR UNFURNISHED, AS HIS PERMANENT PLACE OF RESIDENCE AND WHETHER HE MADE BONA FIDE EFFORTS TO LOCATE PERMANENT QUARTERS PRIOR TO HIS GOING ON LEAVE.

IF IT BE ADMINISTRATIVELY CONCLUDED THAT MR. HORTON OCCUPIED THE APARTMENT AS TEMPORARY QUARTERS, WE WOULD INTERPOSE NO OBJECTION TO ALLOWANCE OF SUBSISTENCE EXPENSES FOR THE AUTHORIZED 30 DAYS WHICH BEGAN WITH HIS OCCUPANCY OF MOTEL QUARTERS ON NOVEMBER 12, 1966.

ALSO, IT APPEARS THAT THE MEMBERS OF THE CLAIMANT'S FAMILY CONTINUED TO RESIDE IN HIS FORMER DWELLING UNTIL THEIR DEPARTURE FROM UTAH--MORE THAN 30 DAYS AFTER THE CLAIMANT'S OCCUPANCY OF QUARTERS IN RICHMOND- AND, THEREFORE, AS YOU INDICATE, NO ALLOWANCE OF SUBSISTENCE EXPENSES FOR TEMPORARY QUARTERS AT THE OLD OR NEW STATION IS WARRANTED ON THEIR ACCOUNT.

QUESTION 4B IS ANSWERED IN THE AFFIRMATIVE, ASSUMING THAT THE UTILITIES WERE ESSENTIAL TO THE OCCUPANCY OF THE QUARTERS. IN THIS CONNECTION COMPARE B-160914, MARCH 20, 1967, COPY HEREWITH, REGARDING TELEPHONE AND TELEVISION.

IN ANSWER TO QUESTION 4C, THE ENTITLEMENT TO TEMPORARY QUARTERS AND SUBSISTENCE, IF OTHERWISE ADMINISTRATIVELY FOUND TO BE ALLOWABLE, APPEARS TO HAVE BEGUN ON NOVEMBER 12, 1966, AND TERMINATED WITH THE EXPIRATION OF THE 30-DAY AUTHORIZED PERIOD. AS TO THE SPECIFIC HOUR OF COMMENCEMENT OF THE TEMPORARY QUARTERS, SEE B-161348, DATED MAY 31, 1967, COPY ENCLOSED.

RESPONSIVE TO YOUR QUESTION 5 (NOT QUOTED ABOVE) RELATING TO SECTION C11002, JOINT TRAVEL REGULATIONS, IT APPEARS THAT THE OVERCLAIMS BY MR. HORTON FOR PER DIEM AND THE COST OF TRANSPORTATION OF HIS AUTOMOBILE HAVE BEEN ADMINISTRATIVELY DETERMINED TO STEM FROM A BONA FIDE MISUNDERSTANDING OF THE REGULATIONS BY HIM AND, THEREFORE, SUCH OVERCLAIMS NEED NOT BE CONSIDERED IN DETERMINING WHETHER HE IS ENTITLED TO SUBSISTENCE EXPENSES WHILE OCCUPYING TEMPORARY QUARTERS.

THE VOUCHER TRANSMITTED WITH YOUR LETTER IS RETURNED HEREWITH AND MAY BE PAID IN ACCORDANCE WITH THE FOREGOING IN SUCH AMOUNT AS IS FOUND DUE--NOT TO EXCEED ACTUAL SUBSISTENCE EXPENSES OF MR. HORTON FOR 30 DAYS. SUCH EXPENSES MUST BE EVIDENCED AS REQUIRED BY SECTION 2.5D/1) OF THE CIRCULAR.