B-212432, NOVEMBER 28, 1983, 63 COMP.GEN. 58

B-212432: Nov 28, 1983

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SUBSISTENCE - PER DIEM - TEMPORARY DUTY - AT PERMANENT POST AN EMPLOYEE WHO WAS TRANSFERRED FROM BOSTON TO NEW YORK WAS INSTRUCTED BY THE EMPLOYING AGENCY TO INCUR NO PERMANENT CHANGE-OF STATION EXPENSES PRIOR TO RECEIPT OF TRAVEL ORDERS. BECAUSE PAYMENT OF THESE ALLOWANCES TO AN EMPLOYEE AT HIS PERMANENT DUTY STATION IS PROHIBITED. THE CLAIM IS DENIED. THE DENIAL WAS SUSTAINED BY THE DEPARTMENT OF JUSTICE. MARCHAND'S CLAIM WE CONCLUDE THAT THE DENIAL OF THE CLAIM WAS PROPER. MARCHAND WAS INFORMED THAT HE WAS TO BE TRANSFERRED FROM BOSTON. HE WAS ADVISED NOT TO INCUR RELOCATION EXPENSES UNTIL HE RECEIVED TRAVEL ORDERS. UPON RECEIVING NOTICE THAT HE WAS TO REPORT FOR DUTY IN NEW YORK ON JUNE 28.

B-212432, NOVEMBER 28, 1983, 63 COMP.GEN. 58

SUBSISTENCE - PER DIEM - TEMPORARY DUTY - AT PERMANENT POST AN EMPLOYEE WHO WAS TRANSFERRED FROM BOSTON TO NEW YORK WAS INSTRUCTED BY THE EMPLOYING AGENCY TO INCUR NO PERMANENT CHANGE-OF STATION EXPENSES PRIOR TO RECEIPT OF TRAVEL ORDERS. HE RECEIVED THOSE ORDERS 8 MONTHS AFTER THE EFFECTIVE DATE OF HIS TRANSFER. HE CLAIMS TEMPORARY DUTY ALLOWANCES FOR THE ENTIRE PERIOD PRIOR TO THE ISSUANCE OF THE TRAVEL ORDERS. BECAUSE PAYMENT OF THESE ALLOWANCES TO AN EMPLOYEE AT HIS PERMANENT DUTY STATION IS PROHIBITED, THE CLAIM IS DENIED.

MATTER OF: ROGER J. MARCHAND, NOVEMBER 28, 1983:

MAY AN EMPLOYEE BE PAID TEMPORARY DUTY ALLOWANCES FOLLOWING HIS TRANSFER TO A NEW PERMANENT STATION WHEN THE AGENCY FAILS TO ISSUE TRAVEL ORDERS IN A TIMELY FASHION? TEMPORARY DUTY ALLOWANCES MAY NOT BE PAID TO AN EMPLOYEE AT HIS PERMANENT STATION. /1/

SPECIAL AGENT ROGER J. MARCHAND CLAIMS TEMPORARY DUTY EXPENSES, AT A RATE OF $75 PER DAY, FROM AUGUST 9, 1981, TO APRIL 23, 1982, IN THE TOTAL AMOUNT OF $19,350. HE BASES HIS CLAIM ON THE FAILURE OF THE DRUG ENFORCEMENT ADMINISTRATION TO ISSUE HIM A TRAVEL ORDER OR ADVANCE OF FUNDS IN A TIMELY MANNER SO AS TO FACILITATE HIS RELOCATION IN CONNECTION WITH A PERMANENT CHANGE OF STATION.

THE DRUG ENFORCEMENT ADMINISTRATION DENIED HIS CLAIM, AND THE DENIAL WAS SUSTAINED BY THE DEPARTMENT OF JUSTICE. UPON REVIEW OF MR. MARCHAND'S CLAIM WE CONCLUDE THAT THE DENIAL OF THE CLAIM WAS PROPER.

IN APRIL 1981, MR. MARCHAND WAS INFORMED THAT HE WAS TO BE TRANSFERRED FROM BOSTON, MASSACHUSETTS, TO NEW YORK, NEW YORK. ON APRIL 28, 1981, HE RECEIVED WRITTEN CONFIRMATION OF HIS REASSIGNMENT IN THE INTEREST OF THE GOVERNMENT, BUT HE WAS ADVISED NOT TO INCUR RELOCATION EXPENSES UNTIL HE RECEIVED TRAVEL ORDERS. THIS COMMUNICATION ALSO INSTRUCTED HIM TO COMPLETE TRAVEL REQUEST FORMS AND FORWARD THEM TO THE AGENCY'S TRANSPORTATION OFFICER.

UPON RECEIVING NOTICE THAT HE WAS TO REPORT FOR DUTY IN NEW YORK ON JUNE 28, 1981, HE REQUESTED THAT HIS REPORTING DATE BE EXTENDED TO AUGUST 9, 1981, FOR PERSONAL REASONS. FOLLOWING A SECOND EXTENSION AT HIS REQUEST, HE REPORTED FOR DUTY IN NEW YORK ON AUGUST 17, 1981. THE EFFECTIVE DATE OF HIS REASSIGNMENT WAS ESTABLISHED AS AUGUST 16, 1981. AT THE NEW YORK OFFICE ON AUGUST 30, 1981, HE SUBMITTED THE TRAVEL REQUEST FORMS NECESSARY FOR THE ISSUANCE OF TRAVEL ORDERS.

AFTER MR. MARCHAND'S TRAVEL ORDERS HAD NOT BEEN ISSUED BY DECEMBER 1981, HE STATES THROUGH HIS ATTORNEY THAT HE REQUESTED PERMISSION OF THE AGENCY TO SUBMIT A CLAIM FOR TEMPORARY DUTY PER DIEM EXPENSES IN ORDER TO CLAIM FOR TEMPORARY DUTY PER DIEM EXPENSES IN ORDER TO OFFSET THE SUBSTANTIAL FINANCIAL LOSSES HE HAD INCURRED AS A RESULT OF HIS REASSIGNMENT TO NEW YORK WHILE MAINTAINING HIS RESIDENCE IN THE BOSTON AREA. HE FURTHER INDICATES THAT HE WAS INFORMED THAT EFFORTS WERE BEING MADE TO HAVE HIM REASSIGNED TO BOSTON BUT THAT IF SUCH REASSIGNMENT WERE EFFECTED HE COULD NOT BE PAID TEMPORARY DUTY EXPENSES. HE SAYS THAT AGENCY OFFICIALS THEN ATTEMPTED TO NEGOTIATE HIS REASSIGNMENT TO BOSTON IN EXCHANGE FOR HIS AGREEMENT TO FOREGO A CLAIM FOR TEMPORARY DUTY EXPENSES IN NEW YORK.

HE WAS NOT REASSIGNED TO BOSTON, BUT ON APRIL 23, 1982, HE RECEIVED TRAVEL ORDERS AUTHORIZING RELOCATION TRAVEL. ON APRIL 30, 1982, HE RECEIVED AN ADVANCE OF FUNDS FOR RELOCATION IN THE AMOUNT OF $3,700. HAVE BEEN INFORMALLY ADVISED THAT ON APRIL 7, 1983, THE BALANCE OF HIS CLAIM FOR RELOCATION EXPENSES WAS PAID.

THROUGH COUNSEL MR. MARCHAND CONTENDS THAT BECAUSE OF THE DRUG ENFORCEMENT ADMINISTRATION'S FAILURE TO ISSUE HIS TRAVEL ORDERS IN A TIMELY MANNER, HE "WAS FORCED TO INCUR SUBSTANTIAL EXPENSES IN NEW YORK FOR LODGING, FOOD, TRANSPORTATION, TOLLS, LAUNDRY, AND NUMEROUS MISCELLANEOUS ITEMS" WHILE CONTINUING TO MAINTAIN HIS HOUSEHOLD IN MASSACHUSETTS. HE FURTHER CONTENDS THAT BECAUSE HE HAD NO OFFICIAL TRAVEL ORDERS WHILE ASSIGNED TO DUTY IN NEW YORK FROM AUGUST 9, 1981 (THE DAY HE WAS TO HAVE REPORTED FOR DUTY PURSUANT TO THE FIRST EXTENSION HE RECEIVED), UNTIL APRIL 23, 1982 (THE DATE HE RECEIVED TRAVEL ORDERS), HIS ASSIGNMENT THERE WAS TANTAMOUNT TO TEMPORARY DUTY DURING THIS PERIOD. THIS BASIS HE CLAIMS ACTUAL EXPENSES OF $75 PER DAY (THE MAXIMUM RATE THEN ALLOWABLE IN NEW YORK) FOR 258 DAYS, REPRESENTING A SUM OF $19,350.

PAYMENT OF TRAVEL, TRANSPORTATION, AND RELOCATION EXPENSES OF AN EMPLOYEE WHO IS TRANSFERRED IN THE INTEREST OF THE GOVERNMENT IS AUTHORIZED BY THE PROVISIONS OF 5 U.S.C. 5724 AND 5724A. TRAVEL ORDERS ARE GENERALLY RECOGNIZED AS THE DOCUMENT AUTHORIZING A TRANSFER. MATTER OF RELOCATION EXPENSES, 54 COMP.GEN. 993 (1975). IT IS WELL ESTABLISHED THAT WRITTEN TRAVEL ORDERS SHOULD BE ISSUED PRIOR TO INCURRING TRAVEL EXPENSES EXCEPT WHEN PRIOR ISSUANCE IS IMPRACTICABLE OR WHEN IT IS UNNECESSARY BECAUSE OF THE LIMITED NATURE OF THE TRAVEL TO BE PERFORMED. FEDERAL TRAVEL REGULATIONS, FPMR 101-7, PARA. 1-1.4; B-181431, FEBRUARY 27, 1975; MATTER OF DEVITO, B-196950, MARCH 24, 1980. THE AGENCY HAS INDICATED THAT TRAVEL ORDERS WERE NOT ISSUED TO MR. MARCHAND PRIOR TO HIS TRANSFER BECAUSE OF HIS FAILURE TO COMPLETE THE FORMS NECESSARY FOR THE AUTHORIZATION. HOWEVER, THE RECORD IS NOT CLEAR AS TO WHY, FOLLOWING HIS SUBMISSION OF THE REQUIRED FORMS IN SEPTEMBER 1981, THE AGENCY DELAYED ISSUANCE OF HIS TRAVEL ORDERS UNTIL APRIL 1982. WHEN AN EMPLOYEE IS ORDERED TO TRANSFER IN THE INTEREST OF THE GOVERNMENT AND HAS FULFILLED THE PROCEDURAL REQUIREMENTS, HE IS BY LAW ENTITLED TO RECEIVE A TRAVEL AUTHORIZATION. FEDERAL TRAVEL REGULATIONS, FPMR 101-7, PARA. 2-1.3. THEREFORE, THE AGENCY'S INSTRUCTION THAT HE NOT INCUR RELOCATION EXPENSES WAS NOT APPROPRIATE. IN VIEW OF THE RECORD BEFORE US, THE AGENCY'S FAILURE TO ISSUE THE AUTHORIZING ORDERS PROMPTLY WAS CLEARLY IMPROPER.

HOWEVER, EVEN THOUGH ISSUANCE OF MR. MARCHAND'S TRAVEL ORDERS WAS IMPROPERLY DELAYED, HE IS NOT ENTITLED TO TEMPORARY DUTY ALLOWANCES AS CLAIMED BECAUSE AN EMPLOYEE MAY NOT BE PAID TEMPORARY DUTY ALLOWANCES AT HIS PERMANENT DUTY STATION. MATTER OF TABOR, B-211626, JULY 19, 1983. THE LOCATION OF AN EMPLOYEE'S PERMANENT DUTY STATION IS NOT DETERMINED SOLELY ON THE BASIS OF ADMINISTRATIVE DOCUMENTATION OR DESIGNATION. THUS, THE FACT THAT THE AGENCY DIRECTED MR. MARCHAND'S TRANSFER BUT DID NOT ISSUE HIS TRAVEL ORDERS PRIOR TO HIS REPORTING DATE IS NOT DETERMINATIVE OF HIS PERMANENT DUTY STATION NOR DOES THAT FACT ALTER THE CHARACTER OF HIS ASSIGNMENT IN NEW YORK.

NEITHER THE STATUTORY PROVISIONS GOVERNING TEMPORARY DUTY ALLOWANCES (TITLE 5, UNITED STATES CODE, CHAPTER 57, SUBCHAPTER 1), NOR THE FEDERAL TRAVEL REGULATIONS SPECIFICALLY DEFINE A TEMPORARY DUTY ASSIGNMENT. HOWEVER, WE HAVE HELD THAT THE TERM "TRANSFER" AS USED IN PROVISIONS THAT AUTHORIZE PAYMENT OF TRAVEL, TRANSPORTATION AND RELOCATION EXPENSES REFERS TO THE CIRCUMSTANCES OF BEING ORDERED TO MAKE A PERMANENT CHANGE-OF-DUTY STATION. MATTER OF RELOCATION EXPENSES, CITED ABOVE. THE QUESTION OF WHETHER AN ASSIGNMENT SHOULD BE CONSIDERED TEMPORARY OR A PERMANENT CHANGE -OF-DUTY STATION IS A QUESTION OF FACT TO BE DETERMINED FROM THE ORDERS DIRECTING THE ASSIGNMENT, ITS DURATION, AND THE NATURE OF THE DUTIES TO BE PERFORMED. MATTER OF TABOR, CITED ABOVE; MATTER OF SANTULLI, B-200691, AUGUST 24, 1981.

EXAMINING THE FACTS IN THIS CASE, WE NOTE THAT THE TWO AGENCY COMMUNICATIONS DATED APRIL 28 AND MAY 13, 1981, DIRECTING MR. MARCHAND'S ASSIGNMENT REFER TO THE ACTION BEING TAKEN AS A "REASSIGNMENT." THE APRIL 28 NOTICE ALSO SPECIFICALLY STATES, "THIS TRANSFER IS IN THE INTEREST OF THE GOVERNMENT." ALSO, THE FACTS THAT THE FIRST DIRECTIVE INSTRUCTING HIM TO COMPLETE AND FORWARD TRAVEL ORDER FORMS AND TO "INCUR NO PCS-(PERMANENT CHANGE OF STATION) RELATED EXPENSES UNTIL (HIS) RECEIPT OF TRAVEL ORDERS" FURTHER INDICATE THAT HIS ASSIGNMENT CONSTITUTED A TRANSFER.

THERE IS NO INDICATION IN THESE ORDERS OR OTHERWISE IN THE RECORD BEFORE US THAT A COMPLETION OR TERMINATION DATE, OR A SPECIFIC DURATION OF THE ASSIGNMENT, WAS ESTABLISHED. MR. MARCHAND'S POSITION IN NEW YORK WAS THE SAME AS THAT WHICH HE HELD IN BOSTON. THAT HE UNDERSTOOD HIS ASSIGNMENT TO BE A TRANSFER IS INDICATED BY HIS REFERENCE TO IT AS A TRANSFER IN HIS REQUEST FOR REPORTING DATE EXTENSIONS.

UNDER THESE CIRCUMSTANCES, WE CONCLUDE THAT MR. MARCHAND'S REASSIGNMENT WAS NOT TANTAMOUNT TO TEMPORARY DUTY ON ACCOUNT OF THE DELAYED ISSUANCE OF HIS TRAVEL ORDERS, BUT WAS IN FACT A CHANGE OF HIS PERMANENT DUTY STATION FROM ITS INCEPTION. MATTER OF SANTULLI, CITED ABOVE; SEE ALSO MATTER OF FERRELL, B-198381, FEBRUARY 13, 1981, AND MATTER OF BUCHENHORST, B-194447, AUGUST 7, 1979. BECAUSE TEMPORARY DUTY ALLOWANCES MAY NOT BE PAID TO AN EMPLOYEE AT HIS PERMANENT DUTY STATION, MR. MARCHAND'S CLAIM MUST BE DENIED.

IT IS UNFORTUNATE THAT THE AGENCY AND THE EMPLOYEE WERE UNINFORMED AS TO THE REQUIREMENTS OF THE LAW IN THIS MATTER. WHILE WE CAN APPRECIATE THE PROBLEMS AND INCONVENIENCE CAUSED BY THE CIRCUMSTANCES UNDER WHICH MR. MARCHAND BEGAN HIS WORK IN NEW YORK, HIS ONLY ENTITLEMENTS ARE THOSE PAYABLE IN CONNECTION WITH A PERMANENT CHANGE OF STATION.

/1/ THIS QUESTION WAS PRESENTED BY THE DEPARTMENT OF JUSTICE AS A REQUEST FOR A DECISION ON THE CLAIM OF A SPECIAL AGENT OF THE DRUG ENFORCEMENT ADMINISTRATION.

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