B-164746, AUG 20, 1974

B-164746, AUG 20, 1974

EMPLOYEE MAY BE PAID TEMPORARY QUARTERS SUBSISTENCE EXPENSES BASED ON SONS' OCCUPANCY OF TEMPORARY QUARTERS AT OLD STATION WHERE SONS DID NOT MOVE TO NEW STATION WITH FAMILY BUT STAYED IN HOTELS FOR 2 WEEKS PRIOR TO MOVING INTO APARTMENT IN ORDER TO ATTEND COLLEGES LOCATED IN VICINITY OF OLD STATION. TEMPORARY QUARTERS ALLOWNACE MAY BE PAID FOR CHILDREN'S OCCUPANCY OF TEMPORARY QUARTERS PRIOR TO MOVING INTO QUARTERS AT SCHOOL ALTHOUGH THEY DO NOT INTEND AT THAT TIME TO MOVE INTO PERMANENT QUARTERS AT NEW DUTY STATION. B-162513, OCTOBER 11, 1967, OVERRULED.

SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS:

MR. JAMES Y. KURIHARA, THE NEWLY APPOINTED ASSISTANT DIRECTOR OF THE FAR EAST BRANCH OF THE U.S. GENERAL ACCOUNTING OFFICE, HAS REQUESTED OUR CONSIDERATION OF THE ACTION TAKEN WHICH DISALLOWED HIS CLAIM FOR PAYMENT IN THE AMOUNT OF $366.62 FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES INCURRED IN CONNECTION IWTH HIS TRANSFER TO A NEW OFFICIAL STATION IN AUGUST OF 1973.

PRIOR TO THE NOTIFICATION OF THE TRANSFER OF HIS OFFICIAL STATION FROM WASHINGTON, D.C., TO HONOLULU, HAWAII, MR. KURIHARA'S TWO SONS HAD ENROLLED AT THE UNIVERSITY OF MARYLAND AND MONTGOMERY COLLEGE. SO THAT THEY COULD ATTEND COLLEGE AS PLANNED, AN APARTMENT WAS LOCATED FOR THE TWO BOYS. THE APARTMENT WAS NOT READY FOR OCCUPANCY UNTIL SEPTEMBER 1, 1973. ON AUGUST 6, 1973, 4 DAYS PRIOR TO THE FAMILY'S SCHEDULED MOVE, MR. KURIHARA RECEIVED AN OFFER TO PURCHASE THE FAMILY'S RESIDENCE IN POTOMAC, MARYLAND, SUBJECT TO THE CONDITION THAT THE PURCHASER BE GIVEN OCCUPANCY BY AUGUST 15. THUS, THE TWO BOYS STAYED IN HOTELS FOR THE PERIOD FROM AUGUST 15 UNTIL SEPTEMBER 1 WHEN THEY WERE ABLE TO MOVE INTO THEIR APARTMENT AND IT IS THIS OCCUPANCY OF TEMPORARY QUARTERS BY HIS SONS THAT IS THE BASIS FOR MR. KURIHARA'S CLAIM FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES.

AUTHORITY FOR PAYMENT OF SUBSISTENCE EXPENSES WHILE OCCUPYING TEMPORARY QUARTERS INCIDENT TO A CHANGE OF OFFICIAL STATION IS CONTAINED AT SECTION 5724AA)(3) OF TITLE 5 OF THE UNITED STATES CODE. THAT AUTHORITY IS IMPLEMENTED AT PART 5 OF CHAPTER 2 OF THE FEDERAL PROPERTY MANAGEMENT REGULATIONS (FPMR), REVISED MAY 1, 1973, IN FORCE AT THE TIME IN QUESTION. SUBSECTIONS 2-5.2C, E AND F THEREOF PROVIDE AS FOLLOWS:

"C. *** THE TERM 'TEMPORARY QUARTERS' REFERS TO ANY LODGING OBTAINED FROM PRIVATE OR COMMERCIAL SOURCES TO BE OCCUPIED TEMPORARILY BY THE EMPLOYEE OR MEMBERS OF HIS IMMEDIATE FAMILY WHO HAVE VACATED THE RESIDENCE QUARTERS IN WHICH THEY WERE RESIDING AT THE TIME THE TRANSFER WAS AUTHORIZED.

"E. *** IN ORDER TO BE ELIGIBLE FOR THE TEMPORARY QUARTERS ALLOWANCE, THE PERIOD OF USE OF SUCH QUARTERS FOR WHICH A CLAIM FOR REIMBURSEMENT IS MADE MUST BEGIN NOT LATER THAN 30 DAYS FROM THE DATE THE EMPLOYEE REPORTED FOR DUTY AT HIS NEW OFFICIAL STATION, OR IF NOT BEGUN DURING THIS PERIOD, NOT LATER THAN 30 DAYS FROM THE DATE THE FAMILY VACATES THE RESIDENCE AT THE OLD OFFICIAL STATION, BUT NOT BEYOND THE MAXIMUM TIME FOR BEGINNING ALLOWABLE TRAVEL AND TRANSPORTATION.

"F. *** THE EMPLOYEE MAY OCCUPY TEMPORARY QUARTERS AT ONE LOCATION WHILE MEMBERS OF THE IMMEDIATE FAMILY OCCUPY QUARTERS AT ANOTHER LOCATION. THE PERIOD OF ELIGIBILITY SHALL TERMINATE WHEN THE EMPLOYEE OR ANY MEMBER OF HIS IMMEDIATE FAMILY OCCUPIES PERMANENT RESIDENCE QUARTERS OR WHEN THE ALLOWABLE TIME LIMIT EXPIRES, WHICHEVER OCCURS FIRST."

MR. KURIHARA'S CLAIM FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES WAS ADMINISTRATIVELY DISALLOWED ON THE BASIS OF OUR HOLDING IN B-162513, OCTOBER 11, 1967, WHICH INVOLVED A SUBSTANTIALLY SIMILAR FACTUAL SITUATION. IN THAT CASE, INSTEAD OF ACCOMPANYING THE FAMILY IN MOVING TO THE NEW DUTY STATION, TWO OF THE EMPLOYEE'S DAUGHTERS REMAINED IN TEMPORARY LODGINGS AT THE OLD DUTY STATION DURING MOST OF THE MONTH OF AUGUST AND PART OF SEPTEMBER PRIOR TO ATTENDING NEARBY COLLEGES IN THE FALL. THE EMPLOYEE'S CLAIM FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES BASED ON HIS DAUGHTERS' OCCUPANCY OF TEMPORARY QUARTERS AT A DIFFERENT LOCATION FROM THE REST OF THE FAMILY WAS ADMINISTRATIVELY DENIED. UPHOLDING THE DENIAL OF THE CLAIM THERE INVOLVED WE INDICATED THAT WE COULD NOT FIND THE ADMINISTRATIVE CONCLUSION THAT THE DAUGHTERS WERE NOT OCCUPYING TEMPORARY QUARTERS PENDING MOVEMENT INTO PERMANENT QUARTERS AT THE NEW OFFICIAL STATION TO BE ARBITRARY AND CAPRICIOUS. HOWEVER, UPON FURTHER REVIEW OF THAT DECISION AND THE APPLICABLE REGULATIONS, WE NOW FIND THE ADMINISTRATIVE VIEW THERE EXPRESSED TO BE TOO RESTRICTIVE. SUBPARAGRAPH 2.5B(5) OF THE REGULATIONS IN EFFECT OCTOBER 11, 1967, AND SUBSECTION 2-5.2F OF THE CURRENT REGULATIONS, QUOTED ABOVE, PROVIDE THAT THE EMPLOYEE MAY BE PAID SUBSISTENCE EXPENSES BASED ON HIS OCCUPANCY OF TEMPORARY QUARTERS AT ONE LOCATION AS WELL AS THE OCCUPANCY OF TEMPORARY QUARTERS BY MEMBERS OF THE IMMEDIATE FAMILY AT ANOTHER LOCATION. UNDER THE ABOVE REGULATION TEMPORARY QUARTERS SUBSISTENCE EXPENSES OF SCHOOL AGE CHILDREN OF EMPLOYEES WHO ARE INTENDING TO LIVE AT SCHOOLS AWAY FROM THE REST OF THE IMMEDIATE FAMILY MAY BE PAID NOTWITHSTANDING THAT THOSE CHILDREN DO NOT INTEND AT THAT TIME TO MOVE INTO PERMANENT QUARTERS AT THE NEW OFFICIAL STATION. A TEMPORARY QUARTERS ALLOWANCE MAY BE PAID TO THE SAME EXTENT AS IF THEY HAD ACCOMPANIED THE FAMILY WHEN, DUE TO THE PARENT'S TRANSFER, SCHOOL AGE CHILDREN NECESSARILY OCCUPY QUARTERS OTHER THAN THOSE IN WHICH THEY INTEND TO RESIDE THROUGHOUT THE MAJOR PORTION OF THE SEMESTER OR PARTICULAR SESSION OF SCHOOL WHICH IS INVOLVED.

THE RECORD INDICATES THAT MR. KURIHARA OCCUPIED TEMPORARY QUARTERS AT HIS NEW DUTY STATION FROM AUGUST 15, 1973, TO SEPTEMBER 25, 1973, WHILE HIS TWO SONS STAYED IN HOTELS IN THE WASHINGTON, D.C. AREA FROM AUGUST 17, 1973, TO AUGUST 31, 1973, AND THAT HE NEITHER MOVED DIRECTLY INTO PERMANENT QUARTERS NOR DID HE OCCUPY TEMPORARY QUARTERS BEYOND THE ALLOWABLE PERIOD SET BY REGULATIONS. UNDER THE REGULATION QUOTED ABOVE WHICH PROVIDES FOR PAYMENT OF SUBSISTENCE EXPENSES WHILE OCCUPYING TEMPORARY QUARTERS AT TWO LOCATIONS, MR. KURIHARA MAY BE PAID SUBSISTENCE EXPENSES BASED ON HIS SONS' OCCUPANCY OF TEMPORARY QUARTERS FOR THE PERIOD FROM AUGUST 15 TO SEPTEMBER 1, 1973. TO THE EXTENT THAT THE HOLDING IN THIS DECISION IS INCONSISTENT WITH B-162513, OCTOBER 11, 1967, THE LATTER DECISION IS NO LONGER TO BE FOLLOWED.