B-162510, OCT. 10, 1967

B-162510, OCT. 10, 1967

EMPLOYEES - TRANSFERS - PUBLIC LAW 89-516 - TEMPORARY LODGING DECISION TO AIR FORCE ACCOUNTING OFFICER CONCERNING REIMBURSING AN EMPLOYEE FOR COSTS OF SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS INCIDENT TO TRANSFER. EMPLOYEE WHO INCIDENT TO TRANSFER MOVED INTO AN APARTMENT AT THE NEW STATION WITH INTENT OF PURCHASING A HOME AT SOME INDEFINITE FUTURE DATE BUT WAS UNABLE TO PREPARE MEALS FOR SOME TIME BECAUSE OF DEFECTIVE GAS APPLIANCES MAY NOT BE REIMBURSED FOR COSTS OF MEALS OBTAINED FROM COMMERCIAL SOURCES SINCE MOVE INTO APARTMENT CONSTITUTED PERMANENT QUARTERS RATHER THAN TEMPORARY QUARTERS AND, THEREFORE, SUBSISTENCE EXPENSES MAY NOT BE REIMBURSED.

TO MAJOR BERT NEWMARK, USAF:

THIS REFERS TO YOUR LETTER OF AUGUST 11, 1967, REQUESTING OUR ADVANCE DECISION AS TO THE PAYMENT OF THE VOUCHER TRANSMITTED THEREWITH IN FAVOR OF MR. FRANCIS G. MESARICK, AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, FOR REIMBURSEMENT OF THE COSTS OF SUBSISTENCE WHILE PURPORTEDLY OCCUPYING TEMPORARY QUARTERS AS AUTHORIZED BY SECTION 23 (3) OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS ADDED BY PUB.L. 89-516, APPROVED JULY 21, 1966, 80 STAT. 323.

THE PERTINENT FACTS OF THE EMPLOYEE'S CLAIM ARE STATED IN YOUR LETTER AS FOLLOWS:

"BY TRAVEL AUTHORIZATION DATED 13 DECEMBER 1966, AS AMENDED, MR. MESARICK WAS AUTHORIZED TO PERFORM PERMANENT DUTY TRAVEL FROM OLMSTED AFB, PENNSYLVANIA, TO TINKER AFB, OKLAHOMA, WITH A REPORTING DATE OF 16 JANUARY 1967. MR. MESARICK ARRIVED AT NORMAN, OKLAHOMA, ON 13 JANUARY 1967 AND OCCUPIED QUARTERS AT THE HOLIDAY INN IN THAT CITY UNTIL 20 JANUARY 1967 AT WHICH TIME HE MOVED INTO HIS PRESENT DWELLING AT 1616 ROSEMONT DRIVE, NORMAN, OKLAHOMA. MR. MESARICK WAS REIMBURSED FOR THE TEMPORARY SUBSISTENCE EXPENSES WHICH HE INCURRED WHILE RESIDING AT THE HOLIDAY INN, INCLUDING THE COST OF MEALS ON 20 JANUARY 1967.

"MR. MESARICK IS NOW SEEKING REIMBURSEMENT OF TEMPORARY SUBSISTENCE EXPENSES WHICH HE INCURRED DURING THE PERIOD 20 JANUARY 1967 THROUGH 12 FEBRUARY 1967, EXCLUDING THE COST OF MEALS ON 20 JANUARY 1967. HIS CLAIM IS BASED ON THE CONTENTION THAT HIS PRESENT DWELLING IS IN FACT TEMPORARY (BY HIS DEFINITION) AND THAT CERTAIN APPLIANCES (NAMELY A COOK STOVE) WHICH WERE FURNISHED WITH THE DWELLING WERE INOPERATIVE, THEREBY, NECESSITATING THE PURCHASE OF ALL MEALS FROM COMMERCIAL SOURCES.'

IN ADDITION TO THE ABOVE, THE RECORD REVEALS THAT THE EMPLOYEE'S HOUSEHOLD GOODS WERE MOVED INTO THE APARTMENT AT THE ABOVE-STATED ADDRESS ON OR ABOUT JANUARY 21, 1967.

MR. MESARICK CONTENDS THAT THE APARTMENT IN QUESTION SHOULD BE REGARDED AS TEMPORARY QUARTERS SINCE HIS INTENT WAS TO REMAIN THEREIN ONLY UNTIL HE COULD PURCHASE A HOME AT HIS NEW OFFICIAL STATION. HOWEVER, HE STATES FURTHER THAT THE PURCHASE OF A NEW HOME WAS DEPENDENT UPON THE PRIOR SALE OF HIS RESIDENCE AT HIS OLD OFFICIAL STATION. IN THAT REGARD, MR. MESARICK, BY LETTER DATED JUNE 20, 1967, REPORTS AS FOLLOWS:

"RECENT SALE OF RESIDENCE IN HERSHEY, PA. (26 MAY 1967) HAS MADE IT POSSIBLE TO ARRANGE FOR PERMANENT QUARTERS BY PRESENTLY SUBMITTING PLANS FOR CONSTRUCTION WITH CONTRACTORS AT NORMAN, OKLAHOMA.'

THAT STATEMENT INDICATES THAT MR. MESARICK AND HIS FAMILY STILL ARE OCCUPYING THE APARTMENT IN QUESTION.

SECTION 2.5B OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966, PROVIDES, WITH RESPECT TO TEMPORARY SUBSISTENCE EXPENSES, IN PART, AS FOLLOWS:

"/1) SUBSISTENCE EXPENSES OF THE EMPLOYEE, FOR WHOM A PERMANENT CHANGE OF STATION IS AUTHORIZED OR APPROVED, AND EACH MEMBER OF HIS IMMEDIATE FAMILY (DEFINED IN SUBSECTION 1.2D), FOR A PERIOD OF NOT MORE THAN 30 DAYS WHILE NECESSARILY OCCUPYING TEMPORARY QUARTERS SHALL BE ALLOWED WHEN THE NEW OFFICIAL STATION IS LOCATED IN THE 50 STATES, THE DISTRICT OF COLUMBIA, UNITED STATES TERRITORIES AND POSSESSIONS, THE COMMONWEALTH OF PUERTO RICO AND THE CANAL ZONE, PROVIDED A WRITTEN AGREEMENT AS REQUIRED IN SUBSECTION 1.3C IS SIGNED IN CONNECTION WITH SUCH TRANSFER.

"/3) TEMPORARY QUARTERS REFER TO LODGING OBTAINED TEMPORARILY, AFTER A TRANSFER HAS BEEN AUTHORIZED OR APPROVED AND AFTER THE EMPLOYEE AND/OR MEMBERS OF HIS IMMEDIATE FAMILY VACATE THE RESIDENCE QUARTERS IN WHICH THEY WERE RESIDING AT THE TIME OF THE TRANSFER, UNTIL THE EMPLOYEE MOVES, WITHIN THE ALLOWABLE 30 OR 60 DAYS' TIME LIMIT, INTO PERMANENT RESIDENCE QUARTERS.

"/4) THE SPECIFIED TIME LIMITS ARE MAXIMUM PERIODS AND THE NORMAL LENGTH OF NECESSARY OCCUPANCY OF TEMPORARY QUARTERS IS EXPECTED TO AVERAGE MUCH LESS. TEMPORARY QUARTERS SHOULD BE REGARDED AS AN EXPEDIENT, TO BE USED ONLY IF, OR FOR AS LONG AS, NECESSARY UNTIL THE EMPLOYEE CONCERNED CAN MOVE INTO RESIDENCE QUARTERS OF A PERMANENT TYPE.'

WE HAVE HELD THAT A DETERMINATION AS TO WHAT CONSTITUTES TEMPORARY QUARTERS IS NOT SUSCEPTIBLE OF ANY PRECISE DEFINITION AND, THEREFORE, EACH CASE MUST BE DECIDED ON THE BASIS OF THE PARTICULAR FACTS INVOLVED. SEE B -161960, JULY 31, 1967, AND B-162239, AUGUST 28, 1967 (COPIES ENCLOSED). THE DURATION OF A LEASE, MOVEMENT OF HOUSEHOLD EFFECTS INTO THE QUARTERS, TYPE OF QUARTERS, EXPRESSIONS OF INTENT, AND THE PERIOD OF OCCUPANCY ON THE PART OF AN EMPLOYEE ARE ALL FACTORS TO BE CONSIDERED IN DETERMINING WHETHER THE QUARTERS OCCUPIED ARE TEMPORARY IN NATURE. THE OWNERSHIP OF PERMANENT QUARTERS AT THE OLD STATION MAY NOT BE REGARDED PER SE AS ESTABLISHING THAT RENTAL QUARTERS AT THE NEW STATION ARE TEMPORARY.

THE PERTINENT FACTORS OF THIS CASE ARE THAT THE EMPLOYEE AND HIS FAMILY MOVED INTO AN APARTMENT (WITH THEIR HOUSEHOLD EFFECTS) ON JANUARY 21, 1967, WITH THE INTENT OF PURCHASING A HOME AT SOME INDEFINITE FUTURE DATE, AND, AS OF THE PRESENT DATE, ARE STILL RESIDING IN SUCH APARTMENT. ON THE BASIS OF THOSE FACTS WE MUST CONCLUDE THAT SUCH APARTMENT CONSTITUTED PERMANENT QUARTERS.

THE FACT THAT THE EMPLOYEE WAS UNABLE TO PREPARE MEALS IN HIS NEW APARTMENT DUE TO THE DEFECTIVE GAS APPLIANCES HAS NO BEARING ON HIS CLAIM FOR SUBSISTENCE EXPENSES. SEE B-161348, MAY 31, 1967, AND B 162044, AUGUST 9, 1967 (COPIES ENCLOSED).

THEREFORE, THE VOUCHER MAY NOT BE PAID AND IS RETAINED IN THE FILES OF THIS OFFICE.