B-173585, SEP 17, 1971

B-173585, SEP 17, 1971

CIVILIAN EMPLOYEE - CHANGE OF STATION - TEMPORARY QUARTERS ADVISING THAT MR. MERTON M. SIROTA MAY BE REIMBURSED FOR TEMPORARY QUARTERS EXPENSES INCURRED INCIDENT TO HIS TRANSFER FROM OKINAWA TO SAVANNAH, GEORGIA. EVEN THOUGH THE SIROTA FAMILY OCCUPIED TEMPORARY QUARTERS IN THE SAME APARTMENT BUILDING AS HIS PERMANENT RESIDENCE, AND BOTH APARTMENTS WERE EQUIVALENT IN SIZE AND EQUIPMENT, UNDER SECTION 2.5 OF OMB CIR. NO. A 56, THE EXPRESSED AND MANIFEST INTENT OF THE EMPLOYEE AND THE FACTS IN THE CASE DETERMINE WHETHER THE LIVING ARRANGEMENT CONSTITUTES TEMPORARY QUARTERS. HERE, THE EMPLOYEE GAVE SUFFICIENT EVIDENCE TO SHOW THAT HE OCCUPIED THE FIRST APARTMENT WHILE AWAITING THE AVAILABILITY OF HIS PERMANENT QUARTERS.

TO MR. JAMES K. LYNN:

THIS WILL REFER TO YOUR LETTER OF JULY 12, 1971 (REFERENCE SASCF), REQUESTING OUR DECISION AS TO CERTIFICATION FOR PAYMENT OF A VOUCHER IN FAVOR OF MR. MERTON M. SIROTA WHICH INCLUDES A CLAIM FOR TEMPORARY QUARTERS ALLOWANCE FOR EXPENSES INCURRED INCIDENT TO HIS TRANSFER FROM OKINAWA TO SAVANNAH, GEORGIA.

YOUR LETTER INFORMS US THAT MR. SIROTA, ACCOMPANIED BY THREE DEPENDENTS, ARRIVED AT SAVANNAH ON APRIL 5, 1971. THE FAMILY SPENT THE NIGHTS OF APRIL 5 AND 6 AT A MOTEL IN SAVANNAH, THEN MOVED ON APRIL 7 TO AN UNFURNISHED APARTMENT (NO. 77) OF THE ALHAMBRA APARTMENTS, USING FURNITURE BORROWED FROM THE MANAGEMENT. MEANWHILE, ON APRIL 6 MR. SIROTA SIGNED A LEASE FOR 1 YEAR FOR ANOTHER UNIT, APARTMENT NO. 53, OF THE SAME BUILDING INTO WHICH THE FAMILY MOVED FOR PERMANENT RESIDENCE ON MAY 30, 1971. STATEMENT OF THE RESIDENT MANAGER OF THE ALHAMBRA APARTMENTS CONFIRMS THAT APARTMENT NO. 53 WAS OCCUPIED BY OTHER TENANTS UNTIL THAT DATE AND THAT THE ARRANGEMENT FOR LEASING APARTMENT NO. 53 WHILE OCCUPYING APARTMENT NO. 77 WAS MADE BY MR. SIROTA IN ORDER TO BE CERTAIN OF OBTAINING APARTMENT NO. 53 AS SOON AS IT BECAME AVAILABLE.

MR. SIROTA FURTHER EXPLAINS HIS REASONS FOR THESE ARRANGEMENTS AS FOLLOWS:

"I CHOSE TO OCCUPY THE SPECIFIC TEMPORARY QUARTERS BECAUSE OF THE ADEQUATE SPACE AND CONVENIENCES, AND BECAUSE THEY WERE IN THE SAME SCHOOL ZONE THAT MY PERMANENT QUARTERS WOULD BE IN, AVOIDING ANOTHER DISLOCATION OF MY CHILDREN FROM ONE SCHOOL TO ANOTHER. MY PERMANENT QUARTERS WERE STILL OCCUPIED BY ANOTHER TENANT, AND MINOR REPAIRS HAD TO BE ACCOMPLISHED TO READY THEM FOR MY PERMANENT OCCUPANCY. HAD I CHOSEN TO LIVE IN A MOTEL OR HOTEL THE SPACE WOULD HAVE BEEN INADEQUATE, BUT THE CONVENIENCES OF CARPETS, DRAPES, ETC. WOULD STILL HAVE BEEN AVAILABLE TO ME. THE SCHOOL ZONE WOULD HAVE BEEN DIFFERENT AND MY CHILDREN WOULD HAVE BEEN FORCED TO MOVE TO A THIRD SCHOOL IN A PERIOD OF ABOUT TWO MONTHS. IN ORDER TO GET ADEQUATE PERMANENT QUARTERS I SIGNED A ONE YEAR LEASE ON MY PERMANENT QUARTERS, EVEN THOUGH THEY WERE NOT THEN AVAILABLE TO ME. I DID NOT HAVE ANY HOUSEHOLD GOODS AND THE MANAGER OF THE APARTMENT COMPLEX SUPPLIED ME WITH MY BASIC NEEDS IN FURNITURE AT NO CHARGE. *** "

MR. SIROTA HAS ALSO SUBMITTED TWO RECEIPTS FOR PAYMENTS ON APARTMENT NO. 53. ONE IS A RECEIPT FOR AN AMOUNT INCLUDING 1 MONTH'S RENT, A $100 DEPOSIT, AND A $25 PET DEPOSIT AND THE OTHER IS DESCRIBED AS "MAY'S RENT" AT A RATE OF $205, SHOWING NO. 53 AS THE UNIT RENTED BUT ALSO INCLUDING A NOTATION, APPARENTLY BY THE MANAGER, "FOR TEMPORARY QUARTERS THRU 15 MAY."

YOUR QUESTION AS TO MR. SIROTA'S ELIGIBILITY FOR TEMPORARY QUARTERS ALLOWANCE ARISES FROM THE FACT THAT BOTH THE APARTMENT INITIALLY OCCUPIED AND THE APARTMENT LEASED FOR PERMANENT RESIDENCE WERE IN THE SAME APARTMENT BUILDING, WERE SUBSTANTIALLY EQUIVALENT IN SIZE AND EQUIPMENT, AND THE RENTAL WAS THE SAME FOR EACH. IN YOUR VIEW, MR. SIROTA IN EFFECT OCCUPIED APARTMENT NO. 53 FROM THE DATE HE LEFT TRANSIENT QUARTERS AT THE MOTEL AND THE MANAGEMENT'S ARRANGEMENT FOR HIS USE OF THE ALTERNATE APARTMENT NO. 77 WAS SO CLOSELY RELATED TO THE LEASE OF NO. 53 THAT THE USE OF NO. 77 CANNOT BE REGARDED AS TEMPORARY OCCUPANCY.

THE TERM "TEMPORARY QUARTERS" IS NOT DEFINED EITHER IN SUBSECTION 5724AA)(3) OF TITLE 5, UNITED STATES CODE, OR IN SUBSECTION 2.5 OF OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. A-56. THEREFORE, WE HAVE IN OTHER DECISIONS STATED THAT A DETERMINATION AS TO WHETHER OR NOT A PARTICULAR LIVING ARRANGEMENT CONSTITUTES TEMPORARY QUARTERS DEPENDS UPON THE FACTS OF EACH CASE, GIVING WEIGHT TO THE EXPRESSED INTENT OF THE EMPLOYEE AS MANIFESTED BY WORDS AND ACTIONS AT THE TIME THE QUARTERS IN QUESTION ARE OCCUPIED. SEE 47 COMP. GEN. 84 (1967); B 161816, AUGUST 4, 1967, AND B-162239, AUGUST 28, 1967, COPIES ENCLOSED.

IN THIS CASE WE BELIEVE THE EMPLOYEE GAVE SUFFICIENT EVIDENCE OF HIS INTENT TO OCCUPY APARTMENT NO. 77 TEMPORARILY WHILE AWAITING THE AVAILABILITY OF APARTMENT NO. 53 TO WARRANT FINDING THAT HIS STAY IN THE FIRST APARTMENT WAS TEMPORARY.

AS YOUR LETTER STATES, OCCUPANCY OF TEMPORARY QUARTERS BEGAN ON APRIL 5 AND 6 WHEN THE SIROTA FAMILY STAYED AT A MOTEL. HOWEVER, THE CLAIM FOR REIMBURSEMENT DOES NOT INCLUDE THESE EXPENSES. IN LIEU OF APRIL 6 IN THE MOTEL MR. SIROTA INCLUDES THAT DATE AS THE FIRST DAY OF OCCUPANCY AT THE ALHAMBRA APARTMENTS AND CLAIMS REIMBURSEMENT ON THAT BASIS. WE SEE NO REASON TO QUESTION THE BASIS FOR CLAIMING TEMPORARY SUBSISTENCE ON APRIL 6. MOREOVER, SINCE THE EMPLOYEE HAS ELECTED TO BEGIN HIS PERIOD OF TEMPORARY QUARTERS ON APRIL 6, THE EXPENDITURE ON APRIL 5 MAY BE DISREGARDED.

SUBSECTION 2.5D(2), OMB CIRCULAR NO. A-56, AND SUBSECTION 8255-2, JTR, VOLUME 2, PROVIDE THAT REIMBURSEMENT OF TEMPORARY QUARTERS ALLOWANCE WILL BE THE LESSER OF ACTUAL EXPENSES INCURRED FOR EACH 10 DAY PERIOD OR AN AMOUNT COMPUTED ACCORDING TO THE FORMULA PROVIDED BY SUBSECTION 2.5D(2) OF OMB CIRCULAR NO. A-56. SUBSECTION C 10012-2 OF JTR STATES THAT:

" *** EVEN THOUGH REIMBURSEMENT MAY BE ALLOWABLE UNDER THE APPLICABLE LIMITATION AMOUNTS, IF SUBSISTENCE EXPENSES CLAIMED CLEARLY APPEAR TO BE UNREASONABLE, AN APPROVING OFFICIAL OR CLAIM SETTLEMENT OFFICIAL MAY REQUIRE THE EMPLOYEE CONCERNED TO EXPLAIN AND JUSTIFY THE QUESTIONABLE AMOUNT CLAIMED."

WE NOTE THAT MR. SIROTA WAS ASKED FOR AN EXPLANATION OF HIS EXPENDITURES FOR MEALS SINCE THE AMOUNTS ITEMIZED APPEARED TO BE EXCESSIVE. ACCORDANCE WITH SUCH REQUEST HE SUPPLIED A STATEMENT INDICATING THAT THE EXPENDITURES WERE CORRECT BECAUSE HE KEPT A RECORD OF EACH DAY'S EXPENSE. IN VIEW OF SUCH STATEMENT, AS WELL AS THE FACT THAT MR. SIROTA'S SONS ARE APPROXIMATELY 14 AND 17 YEARS OF AGE, HIS ITEMIZATIONS OF MEAL EXPENDITURES ARE ACCEPTABLE.

THE VOUCHER IS RETURNED HEREWITH AND MAY BE CERTIFIED FOR PAYMENT UPON RECOMPUTATION OF THE AMOUNT DUE FOR TEMPORARY QUARTERS IN ACCORDANCE WITH THE REGULATION QUOTED ABOVE (TENTATIVELY COMPUTED HERE AS AMOUNTING TO $1,115.33).