Matter of: [Redacted] File: 96070229 Date: December 9, 1996

Matter of: [Redacted] File: 96070229 Date: December 9, 1996

DIGEST

DECISION

This is in response to an appeal of the U.S. General Accounting Office's (GAO) Settlement Certificate Z-2869577, July 13, 1995, which denied a service member's claim for reimbursement of lodging expenses incident to temporary duty.

Background

The service member was directed to perform temporary duty (TDY) at Little Rock Air Force Base, Arkansas, from August 15, 1992, through December 18, 1992. Prior to leaving on TDY, the member contacted the billeting office at Little Rock AFB and was told that no on-base housing was available but that contract quarters at the Comfort Inn Hotel were available. The member decided to rent an apartment rather than stay in the contract quarters because of the prospect of being forced to move three or four times by the housing office as many other students had been forced to do, negative comments he had heard regarding the studying atmosphere and service (presumably at the Comfort Inn Hotel), and the government savings achieved by obtaining an apartment through the Little Rock AFB housing referral office. Two weeks after arriving in Arkansas, the member sought and was denied a non-availability statement by the billeting personnel at Little Rock AFB. He contacted the finance department at his permanent duty station and was reassured that if Little Rock AFB would not provide him with the non-availability statement, then his home base would.

Upon return to his permanent duty station, the member filed a claim for reimbursement of apartment rent and utilities totaling $1,948.03. The claim was denied by the Air Force due to the fact that the member did not have a statement of non-availability indicating that government quarters, including contract quarters, were not available at the temporary duty station.

In his request for appeal of GAO's subsequent denial of his claim, the member again contends that the apartment rental was a cost savings to the government, that his permanent duty station indicated that they would provide him with a non-availability statement, that if he had any idea that he would not be refunded for the out-of-pocket expenses for the apartment he would have immediately moved to government quarters, and that the procedures for acquiring a non-availability statement have changed since the time of his temporary duty. The member suggests that because the procedures have been changed to permit a member to verbally receive a non-availability number to be annotated on his travel orders, rather than a written non-availability statement as was required when he traveled, the requirement for a written statement should not be a factor in his claim for reimbursement.

Discussion

It has been the consistent policy of the Department of Defense to require that government quarters will be utilized when available and it has been the view of the Comptroller General in the past, as is the view of this Office, that except as it may otherwise specifically provide, the Congress intends that the public quarters which it provides for the uniformed services must be used to the maximum extent practical. 44 Comp.Gen. 626, 628 (1965). At the time the service member traveled, with limited exceptions, paragraph U4400 of the Joint Federal Travel Regulations (JFTR) provided that available government quarters designated as adequate by the appropriate authority of the services concerned had to be used by members in a travel status. One exception applied when the order-issuing official, or the member's commander or his designated representative, either before or after travel, found (and stated) that the use of government facilities would adversely affect the performance of the assigned mission. Another exception applied when the order-issuing authority, as a result of direct communication with the commander (or designated representative) responsible for the government quarters at the TDY facility, found (and stated), ahead of travel, that adequate government quarters were not available. A third exception applied when the commander (or his designated representative) at the TDY site found (and stated) that use of government quarters was impractical. To the extent that the adequacy and availability of government quarters was the issue, only the installation commander (or a designated representative) who is responsible for government facilities at the TDY point, had the authority to make such a determination. See JFTR para. U4400 (Change No. 45, Sept. 1, 1990) and U4405 (Change No. 45, Sept. 1, 1990.) At the time the service member traveled, paragraph U4420 of the JFTR also provided that, in the absence of a nonavailability statement, it was assumed for purposes of payment of the per diem allowance that adequate government quarters were available. See JFTR para. U4420 (Change No. 45, Sept. 1, 1990.) The right to reimbursement for quarters portion of the per diem allowance is governed by the non-availability of government quarters. See JFTR para. U4125(A)(1) (Change No. 51, Mar. 1, 1991).

Under current procedures, paragraph U4400 of the JFTR provides that a service member on official travel must use adequate and available government quarters or he will receive no reimbursement for lodging. The nonavailability of government quarters still must be checked and documented. The service member can document nonavailability if the confirmation number is in the travel order or the member refers to it in his voucher; otherwise the member will note the date he attempted to obtain reservations with the phone number and point of contact in the billeting office.

The appropriate officers at the Little Rock AFB TDY station determined that government quarters, contract quarters at the Comfort Inn Hotel, were available and adequate. Neither an officer at the member's permanent duty station nor the member himself was authorized to make a non-availability determination for Little Rock AFB. The change in the procedures for annotating the non-availability determination has no substantive effect on the requirement for the determination to be made by the TDY station officer.

It is unfortunate that the member may have been misinformed by the finance department at his permanent duty station, but the United States Supreme Court has held that the government is neither bound nor estopped by the erroneous or unauthorized acts of its officers, agents, or employees even though committed in the performance of their official duties. See Office of Personnel Management v. Richmond, 496 U.S. 414 (1990).

Conclusion

We affirm the settlement.

Michael D. Hipple Chairman, Claims Appeals Board

Christine M. Kopocis Member, Claims Appeals Board

Joyce N. Maguire Member, Claims Appeals Board