B-203924 O.M., SEP 15, 1981

B-203924 O.M., SEP 15, 1981

SUBJECT: CLAIM FOR LODGING EXPENSES BY MAJOR GLENN N. POMERANCE, M.C., U.S.A. - B-203924-O.M. DIGEST: ARMY MEMBER ASSIGNED TO 2-1/2 MONTHS TEMPORARY DUTY IN A FOREIGN COUNTRY WHERE LODGING RATES EXCEEDED PER DIEM, OBLIGATED HIMSELF IN ADVANCE TO LODGING EXPENSES IN CONNECTION WITH AN APARTMENT RENTAL AGREEMENT. HIS TEMPORARY DUTY WAS DELAYED BECAUSE OF ADMINISTRATIVE CONDITIONS BEYOND HIS CONTROL, WHICH RESULTED IN HIS INCURRING RENTAL EXPENSES FOR 15 DAYS BEFORE HE COULD BEGIN HIS TEMPORARY DUTY. HE IS ENTITLED TO REIMBURSEMENT OF ALLOWABLE LODGING EXPENSES ON AN ACTUAL EXPENSE BASIS SINCE HIS TRAVEL AND ASSUMPTION OF THE SECURED LODGINGS WERE DELAYED BY CIRCUMSTANCES OVER WHICH HE HAD NO CONTROL AND HE ACTED IN A REASONABLE MANNER IN INCURRING THE EXPENSES CONSIDERING THE LENGTH OF HIS TEMPORARY ASSIGNMENT.

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858):

RETURNED IS CLAIM FILE Z-2825472 PERTAINING TO THE CLAIM OF MAJOR GLENN N. POMERANCE, M.C., U.S.A., FOR LODGING EXPENSES THAT ACCRUED PRIOR TO HIS ENTRY INTO A TRAVEL STATUS. MAJOR POMERANCE'S TRAVEL WAS DELAYED DUE TO THE UNAVAILABILITY OF FUNDS BECAUSE THE MILITARY APPROPRIATIONS BILL HAD NOT BEEN ENACTED BY THE SCHEDULED DATE OF HIS DEPARTURE. SINCE HIS DELAYED ARRIVAL AT THE TEMPORARY DUTY STATION WAS OCCASIONED BY ADMINISTRATIVE CIRCUMSTANCES BEYOND HIS CONTROL AND SINCE HE ACTED REASONABLY IN SECURING LODGING ACCOMMODATIONS IN ADVANCE AT REDUCED RATES, HE IS ENTITLED TO REIMBURSEMENT FOR THE LODGING EXPENSES INCURRED DURING THE PERIOD IN QUESTION.

MAJOR POMERANCE WAS ORDERED TO SERVE 2-1/2 MONTHS TEMPORARY DUTY AS A VISITING PHYSICIAN IN LIMA, PERU, TO COMMENCE ON OCTOBER 1, 1978. HOWEVER, BECAUSE ENACTMENT OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT OF 1979, WAS DELAYED, HIS ORDERS WERE AMENDED TO DELAY HIS TRAVEL UNTIL OCTOBER 16, 1978. MAJOR POMERANCE EXPLAINS THAT, DURING THE TIME OF HIS TEMPORARY DUTY ASSIGNMENT, DAILY COMMERCIAL HOTEL RATES IN LIMA GREATLY EXCEEDED THE PER DIEM ALLOWANCE AND THAT IT WAS VERY DIFFICULT TO OBTAIN SUITABLE HOUSING THERE AT REASONABLE COSTS. HE FURTHER EXPLAINS THAT IN AN EFFORT TO SECURE INEXPENSIVE HOUSING, HE HAD ENTERED INTO AN AGREEMENT WITH AN APARTMENT OWNER WHO RENTED, ON A CONTINUING BASIS, TO PARTICIPANTS IN THIS VISITING PHYSICIANS PROGRAM. AS HE EXPLAINS IT, EACH PARTICIPANT IN THE PROGRAM ASSUMED, ONE AFTER ANOTHER, THE OBLIGATIONS TO THE LANDLORD SO THAT THE HOUSING COULD BE AVAILABLE UNINTERRUPTEDLY TO NEW ARRIVALS. THE TOURS OF DUTY OVERLAPPED BY APPROXIMATELY 10 TO 15 DAYS WITH EACH OFFICER BEING RESPONSIBLE FOR HOUSING COST AS OF THE DATE OF HIS ARRIVAL IN LIMA. SINCE HIS ASSIGNMENT WAS TO COMMENCE ON OCTOBER 1, MAJOR POMERANCE HAD ARRANGED IN ADVANCE TO ASSUME LODGING LIABILITY ON THAT DATE. THEREFORE, HE WAS REQUIRED TO PAY FOR THE RENT, UTILITIES, AND OVERSIGHT OF THIS PROPERTY DURING THE 15-DAY DELAY.

UPON HIS RETURN TO THE UNITED STATES AT THE CONCLUSION OF THIS ASSIGNMENT, HE WAS DENIED REIMBURSEMENT FOR LODGING EXPENSES INCURRED DURING THE 15-DAY DELAY SINCE, PURSUANT TO THE AMENDMENT OF HIS ORDERS, HE WAS NOT IN A TRAVEL STATUS AT THAT TIME.

GENERALLY, PAYMENT OF PER DIEM FOR LODGING COVERS ONLY THOSE COSTS INCURRED WHILE THE MEMBER IS IN A TRAVEL STATUS. VOLUME 1, JOINT TRAVEL REGULATIONS, PARAGRAPH M4205.2-1. HOWEVER, IN SOME INSTANCES AN EMPLOYEE OR MEMBER MAY BE REIMBURSED, ON AN ACTUAL COST BASIS, FOR ALLOWABLE LODGING EXPENSES FOR WHICH HE COULD NOT OTHERWISE BE REIMBURSED. THAT IS, WHEN, IN THE OPINION OF THE AGENCY, THE EMPLOYEE ACTED REASONABLY IN INCURRING NONREFUNDABLE EXPENSES WHICH WOULD NOT BE COVERED BY PER DIEM BECAUSE HIS ORDERS WERE SUBSEQUENTLY CANCELLED (OR AS IN THIS CASE, AMENDED) CHANGING THE TIME IN A TRAVEL STATUS, REIMBURSEMENT IS AUTHORIZED. IN SUCH CASES, THE EMPLOYEE OR MEMBER IS ENTITLED TO REIMBURSEMENT FOR THE NONREFUNDABLE LODGING EXPENSES TO THE SAME EXTENT THAT THOSE EXPENSES WOULD HAVE BEEN REIMBURSABLE IF TRAVEL HAD BEEN PERFORMED AS ORIGINALLY SCHEDULED IN THE ORDERS. 59 COMP.GEN. 609 (1980); 59 COMP.GEN. 612 (1980).

IN THIS CASE, MAJOR POMERANCE INCURRED LODGING COSTS INCIDENT TO HIS TEMPORARY DUTY BUT WAS UNABLE TO OCCUPY THOSE LODGINGS AS ORIGINALLY SCHEDULED BECAUSE OF CONDITIONS BEYOND HIS CONTROL. AS IN 59 COMP.GEN. 612, HIS ORIGINAL ORDERS DIRECTING HIS DEPARTURE ON OCTOBER 1 WERE SUBSEQUENTLY AMENDED TO REFLECT THE ACTUAL LATER DATE OF HIS DEPARTURE. THAT CHANGE EXCLUDED THE PERIOD OF DELAY FROM HIS TIME IN TRAVEL STATUS, THUS PRECLUDING PAYMENT OF PER DIEM FOR THAT TIME. SINCE THE REASON FOR OBLIGATING HIMSELF IN ADVANCE TO PAY FOR THE RENTAL QUARTERS WAS TO SECURE QUARTERS AT A REDUCED RATE, MAJOR POMERANCE ACTED IN A REASONABLE MANNER IN INCURRING THE COSTS. THIS IS PARTICULARLY SO IN VIEW OF HIS 2-1/2- MONTH ASSIGNMENT TO LIMA, THE HIGH COST OF SUITABLE LODGING THERE, AND THE FACT THAT HE WAS FOLLOWING THE ESTABLISHED PRACTICE OF THE OTHER PARTICIPANTS IN THE PROGRAM. THUS, MAJOR POMERANCE'S CLAIM FALLS WITHIN THE AMBIT OF 59 COMP.GEN. 609, AND 59 COMP.GEN. 612. ALSO SEE B-196851, AUGUST 6, 1981.

THEREFORE, IF OTHERWISE CORRECT MAJOR POMERANCE IS AND 59 COMP.GEN. 612. ALSO SEE B-196851, AUGUST 6, 1981. ENTITLED TO REIMBURSEMENT FOR LODGING COSTS INCURRED IN CONNECTION WITH HIS ASSIGNMENT TO LIMA, PERU, FROM OCTOBER 1 THROUGH OCTOBER 15, 1978.

BY LETTER DATED TODAY WE ARE ADVISING SENATOR NUNN, WHO EXPRESSED INTEREST IN THE MATTER, OF THIS ACTION.

ATTACHMENT

THIS IS IN RESPONSE TO YOUR LETTER OF JUNE 5, 1981, REGARDING THE CLAIM OF MAJOR GLENN N. POMERANCE, M.C., U.S.A., FOR LODGING EXPENSES HE INCURRED AS A RESULT OF HIS TEMPORARY DUTY ASSIGNMENT IN LIMA, PERU, IN 1978.

WE HAVE CAREFULLY REVIEWED MAJOR POMERANCE'S CLAIM, AND FIND THAT HE MAY BE REIMBURSED ALLOWABLE LODGING EXPENSES, EVEN THOUGH HE WAS NOT IN A TRAVEL STATUS DURING THE PERIOD OF THE CLAIM. WE FIND THAT HE WAS UNABLE TO OCCUPY THE SECURED LODGINGS AS SCHEDULED BECAUSE OF ADMINISTRATIVE CONDITIONS BEYOND HIS CONTROL AND THAT HE ACTED IN A REASONABLE MANNER IN INCURRING THOSE EXPENSES. ACCORDINGLY, WE HAVE ISSUED INSTRUCTIONS FOR PAYMENT ON HIS CLAIM AND HE WILL RECEIVE A SETTLEMENT IN DUE COURSE.

WE HOPE THIS IS RESPONSIVE TO YOUR INQUIRY.