Matter of: Steven B. Wirth File: B-249337 Date: May 6, 1993
Highlights
CIVILIAN PERSONNEL Relocation Household goods Commuted rates Reimbursement Amount determination Transferred employee was authorized to move his household goods under the commuted rate method but no cost comparison was done between that method and the actual expense (GBL) method prior to shipment. Agency's failure to perform cost comparison prior to shipment was a clear violation of the Joint Travel Regulations. This failure justifies exception to the rule against retroactive modification of travel orders after travel is performed. Subsequent cost comparison showed that GBL method was substantially less expensive than commuted rate method. Employee's claim for commuted rate payment is denied.
Matter of: Steven B. Wirth File: B-249337 Date: May 6, 1993
CIVILIAN PERSONNEL Relocation Household goods Commuted rates Reimbursement Amount determination Transferred employee was authorized to move his household goods under the commuted rate method but no cost comparison was done between that method and the actual expense (GBL) method prior to shipment. Agency's failure to perform cost comparison prior to shipment was a clear violation of the Joint Travel Regulations, Vol. 2 para. C8OO1-4c(3). This failure justifies exception to the rule against retroactive modification of travel orders after travel is performed. Subsequent cost comparison showed that GBL method was substantially less expensive than commuted rate method. Employee's claim for commuted rate payment is denied, and he is entitled only to his out-of-pocket receipted expenses. CIVILIAN PERSONNEL Travel Travel expenses Documentation procedures Burden of proof CIVILIAN PERSONNEL Relocation Temporary quarters Actual subsistence expenses Dependents Eligibility Employee's request for reimbursement of temporary quarters subsistence expenses, i.e., meals and miscellaneous expenses for boarding his children with a friend at a site away from his permanent duty station is allowed to the extent that the agency determines it is reasonable. The boarding constitutes unusual circumstances since the employee was a single parent, and the boarding was necessitated by the transfer.
DECISION The issues presented are whether a transferred employee may be reimbursed under the commuted rate method for a shipment of his household goods and whether he may be reimbursed temporary quarters subsistence expenses (TQSE) for his dependent children at other than his permanent duty station.[1] For the reasons that follow, we determine that Mr. Wirth may not be reimbursed at the commuted rate for moving his goods, but that his request for TQSE is allowed.
Shipment of Household Goods
Mr. Steven B. Wirth, an employee of the Department of the Army, was issued travel orders on December 5, 1991, authorizing his transfer from Fort Lewis, Washington, to Fort Monmouth, New Jersey. The travel orders specifically stated that the shipment of household goods was authorized by the commuted rate method in accordance with Volume 2 of the Joint Travel Regulations (2 JTR). The travel order was amended on January 10, 1992, to change the destination to Fort Campbell, Kentucky.
In January 1992, Mr. Wirth moved his household goods to his new duty station. He obtained weight certificates and he has claimed the commuted rate for 17,760 pounds at an estimated cost of $16,676.74. The Fort Campbell Finance and Accounting Officer denied Mr. Wirth's claim on the basis that 2 JTR para. C8OO1-4c(3) requires a cost comparison between the actual expense Government Bill of Lading (GBL) method and the commuted rate method of shipping household goods prior to the shipment. The Finance Officer estimated the GBL cost to be $9,217.44. The submission states that the required cost comparison was not made because the employee had requested commuted rate.
The submission also refers to decision Donald F. Daly, B-209873, July 6, 1983, as support for the conclusion that the claim should be denied. In Daly, the employee moved himself and reimbursement was limited to his actual out-of-pocket expenses for which he had receipts. On the other hand, the agency states that Wilson Barber, B-241928, Feb. 7, 1991, supports payment of the claim. The agency is unclear as to which decision governs and requests that this Office determine the correct method for reimbursing Mr. Wirth.
As a general rule, legal rights and liabilities with regard to travel expenses vest under the statute and regulations when the travel is performed. As a result, travel orders may not be revoked or modified retroactively so as to increase or decrease the rights which have become fixed at the time the travel has been performed, except where there are errors apparent on the face of the original orders or where all the facts and circumstances surrounding the issuance of the original orders clearly demonstrate that some provision which was previously determined and definitely intended has been omitted through error or inadvertence in their preparation. Wilbert D. Hammers, B-234696, Nov. 3, 1989.
While a travel order may not be amended retroactively to correct an error in judgment committed in the proper exercise of authority, the general rule is not a bar to the retroactive amendment of an order whose provisions are clearly in conflict with a law, agency regulation, or instruction. 36 Comp.Gen. 487 (1957); B-183886, July 30, 1975; B-151457, May 23, 1963.
The latter principle is controlling here. The Joint Travel Regulations, Vol. 2 (2 JTR) para. C8001-4c(3) were amended effective October 1, 1990, to add a mandatory policy that a cost comparison be made between the cost of shipment by the Government Bill of Lading (GBL) method and by the commuted rate method. This paragraph further provides that the more economical method will be used if the cost difference exceeds $100 and that an employee's request for a particular method will be the determining factor if the cost difference is $100 or less.[2]
As suggested by the Finance Officer, the applicable precedent is Donald F. Daly, B-209873, July 6, 1983. There, the employee elected to move his household goods by rental truck, and he claimed reimbursement under the commuted rate system. A cost comparison made after the shipment showed that the GBL method would have been less expensive than the commuted rate. On the basis of 41 C.F.R. Sec. 101-40.2 which required each civilian agency to obtain a cost comparison for household goods shipments,[3] we held that the employee's reimbursement was limited to his actual out-of-pocket expenses for which he had receipts. See John S. Phillips, 62 Comp.Gen. 375 (1983).
Although Mr. Wirth, unlike Mr. Daly, is employed by an agency of the Department of Defense and hence is not subject to GSA's regulations in 41 C.F.R. Sec. 101-40.2, the requirement of a cost comparison was added to the Joint Travel Regulations (effective October 1, 1990, as stated above) which do apply to civilian employee travel for the Department of Defense.
Since the required cost comparison was not made before Mr. Wirth's shipment took place, the Department of the Army violated the mandatory policy stated in 2 JTR Sec. C8001-4c(3), and the travel order Provision for commuted rate reimbursement comes within the exception to the general rule against retroactive modification of travel orders.
Our decision in Charles E. Robertson, B-242457, May 24, 1991, allowing full commuted rate payment to an employee of the Department of the Air Force, is no longer applicable because Mr. Robertson transferred and moved his household goods in September 1989, prior to the October 1, 1990, JTR amendment adding the requirement of a cost comparison and payment on the basis of the less expensive method.
Finally, our decision in Wilson Barber, Jr., B-241928, Feb. 7, 1991, is distinguishable There, we allowed the employee's claim to the commuted rate where no cost comparison was made prior to shipment. We did so because he was employed by the Bureau of Indian Affairs and the FTR, unlike the JTR, allows the agency to choose the method of shipment and does not require the agency to authorize use of the less expensive method. See 41 C.F.R. Secs. 302-8.3(c), 101-40.203-2(a) (1991).
Applying the holding in Donald F. Daly to the case before us, the finance office at Ft. Campbe1l properly limited Mr. Wirth to his actual expenses incurred. His claim for full commuted rate reimbursement is denied.
Temporary Quarters Subsistence Expenses
Mr. Wirth traveled with his two children (aged 4 and 6) from Fort Lewis to Wautoma, Wisconsin, where he left them with a friend. Mr. Wirth states that he is a single parent, and he was forced to do this for several reasons, one of which was the likelihood of being unable to locate adequate child care providers in a community he was wholly unfamiliar with. Mr. Wirth has requested reimbursement for $125 per week he agreed to pay his friend for room, board, and laundry, under the provisions of 2 JTR para. C13O01-1b, which provides for reimbursement for occupancy of temporary quarters in other locations under unique circumstances. The Finance Officer denied Mr. Wirth's claim on the basis that Wisconsin is not in close proximity to the old or new duty station, and 2 JTR C4555-2c provides that no lodging expenses are payable when the employee obtains lodging from friends or relatives.
This Office has allowed reimbursement for TQSE at places other than an employee's official duty station when unusual circumstances prevent the employee's dependents from occupying temporary quarters and the occupation is incident to the transfer. Henry J Kessler, B-185376, July 23, 1976; B-179556, May 14, 1974. We believe that Mr. Wirth's circumstances qualified him for reimbursement under this exception. He is a single parent of two young daughters, ages 4 and 6, and his change of permanent duty station necessitated his boarding his daughters with a friend.
Further, although 2 JTR C4555-2c provides that no lodging expenses are payable when the employee obtains lodging from friends or relatives, we believe that Mr. Wirth can be reimbursed a reasonable amount for meals and miscellaneous expenses for his daughters upon obtaining proof from him to the extent that his friend expended additional amounts on behalf of the daughters. Robert J. Gofus, 66 Comp.Gen. 347 (1987); Karen S Currier, B-249180, Nov. 17, 1992; Carlos A. W. DiBella, B-198336, Feb. 13, 1981. Accordingly, Mr. Wirth may be reimbursed for TQSE for his daughters to the extent the agency determines it is reasonable.
1. The request was submitted by M.D. Greenblatt, Acting Director of Accounting, Defense Finance and Accounting Service, Indianapolis, Indiana.
2. Change 300, Oct. 1, 1990, 2 JTR. The Brief of Revisions accompanying the change states:
"C8001-4. Requires a cost comparison between the actual expense (GBL) and commuted rate methods of shipping HHG and requires using the cheapest method if the difference is more than $100." (Emphasis added).
3. "Centralized Household Goods Traffic Management Program" established by GSA in 1980 does not apply to the Department of Defense. 41 C.F.R. Sec. 101-40.000.