B-174648, JAN 18, 1972

B-174648, JAN 18, 1972

CIVILIAN EMPLOYEES - TEMPORARY QUARTERS ALLOWANCE - CLAIM DENIED AS QUARTERS WERE PERMANENT DECISION DENYING CLAIM OF MR. ALBIEN L. TAYLOR, EMPLOYEE OF THE DEPARTMENT OF THE ARMY, FOR REIMBURSEMENT OF TEMPORARY QUARTERS, SUBSISTENCE EXPENSES AND MISCELLANEOUS EXPENSES, INCURRED INCIDENT TO HIS CHANGES OF DUTY STATIONS. AS EMPLOYEE MAY NOT BE REIMBURSED TEMPORARY QUARTERS AND SUBSISTENCE EXPENSES AFTER HE OCCUPIES THE RESIDENCE IN WHICH HE INTENDS TO REMAIN, REGARDLESS OF THE FACT THAT HOUSEHOLD GOODS DID NOT ARRIVE ON TIME, UNLESS CLAIMANT INTRODUCES EVIDENCE THAT REASONABLY DEMONSTRATES AN INTENT TO USE THE QUARTERS ON A TEMPORARY BASIS. HERE, NO EVIDENCE EXISTS THAT CLAIMANT DID NOT INTEND AB INITIO TO STAY IN THE HOUSE ON OTHER THAN A PERMANENT BASIS. THEREFORE, THE CLAIM FOR TEMPORARY QUARTERS MAY NOT BE ALLOWED. INASMUCH AS CLAIMANT WAS REIMBURSED $200 FOR MISCELLANEOUS EXPENSES WITHOUT SUPPORTING DOCUMENTATION, AS PERMITTED BY SECTION 3.3A OF OMB CIR. NO. A-56, THE CLAIM FOR $75 MISCELLANEOUS EXPENSE IS ALSO DENIED.

TO MR. ALBIEN L. TAYLOR:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 15, 1971, WHICH IN EFFECT REQUESTS REVIEW OF THE ACTION OF OUR CLAIMS DIVISION IN DENYING YOUR CLAIM FOR REIMBURSEMENT OF TEMPORARY QUARTERS, SUBSISTENCE EXPENSES, AND CERTAIN OTHER MISCELLANEOUS EXPENSES INCURRED INCIDENT TO YOUR CHANGE OF OFFICIAL DUTY STATIONS AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY.

AS STATED IN OUR SETTLEMENT CERTIFICATE DATED NOVEMBER 3, 1971, THE RECORD SHOWS THAT:

" *** BY TRAVEL ORDER NO. 70-336 DATED JULY 14, 1970, YOU EFFECTED A PERMANENT CHANGE OF STATION FROM GALVESTON, TEXAS, TO HUNTSVILLE, ALABAMA, WITH A REPORTING DATE OF JULY 23, 1970. IN CONNECTION THEREWITH, ON JULY 25, 1970, YOU STATE THAT YOU RENTED A HOUSE IN HUNTSVILLE WHICH YOU PURCHASED ON AUGUST 26, 1970, AND THAT YOUR HOUSEHOLD GOODS DID NOT ARRIVE THERE UNTIL SEPTEMBER 14, 1970. YOU NOW CLAIM REIMBURSEMENT FOR TEMPORARY QUARTERS AND SUBSISTENCE EXPENSES FROM JULY 25, 1970, TO AUGUST 21, 1970, OR IN THE ALTERNATIVE, A DIRECT COST DIFFERENCE BETWEEN REASONABLE EXPENSES AND ACTUAL EXPENSES INCURRED DUE TO THE MOVE AND LATE DELIVERY OF YOUR HOUSEHOLD GOODS. IN ADDITION YOU CLAIM REIMBURSEMENT OF A LEGAL FEE FOR A TITLE EXAMINATION ON YOUR PROSPECTIVE RESIDENCE IN HUNTSVILLE.

"IMMEDIATELY PRIOR TO THIS CHANGE OF STATION, YOU HAD EFFECTED A PERMANENT CHANGE OF STATION FROM SEOUL, KOREA, TO GALVESTON. INCIDENT THERETO ON JUNE 30, 1970, YOU PAID EARNEST MONEY TO BIND THE SALE OF A HOUSE IN TEXAS CITY, TEXAS. DUE TO YOUR SUBSEQUENT PERMANENT CHANGE OF STATION TO HUNTSVILLE, YOU WERE FORCED TO CANCEL THIS SALE AT A CHARGE OF $75.00. YOU CLAIM REIMBURSEMENT FOR THIS CHARGE."

YOU HAVE TAKEN EXCEPTION TO OUR DECISION WITH RESPECT TO THE CLAIM FOR TEMPORARY QUARTERS AND SUBSISTENCE EXPENSES AS WELL AS THE RATIONALE WITH REGARD TO THE DENIAL OF $75 IN MISCELLANEOUS EXPENSES. IN ADDITION, YOU HAVE CALLED TO OUR ATTENTION A BASIS FOR ALLOWING YOUR CLAIM FOUNDED UPON AN ALTERNATIVE COMPUTATION OF EXPENSES CONCERNING:

" *** A DIRECT COST DIFFERENCE OF $1,174.41 BETWEEN REASONABLE EXPENSES AND ACTUAL EXPENSES INCURRED DUE TO THE MOVE AND LATE DELIVERY OF MY HOUSEHOLD GOODS, WHICH WERE UNDER THE SOLE MOVEMENT, CONTROL AND RESPONSIBILITY OF THE UNITED STATES ARMY."

SECTION 2.5B(3) OF OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. A- 56, REVISED JUNE 26, 1969, STATES:

"(3) TEMPORARY QUARTERS REFERS TO LODGING OBTAINED TEMPORARILY BY THE EMPLOYEE AND/OR MEMBERS OF HIS IMMEDIATE FAMILY WHO HAVE VACATED THE RESIDENCE QUARTERS IN WHICH THEY WERE RESIDING AT THE TIME THE TRANSFER WAS AUTHORIZED."

IN 46 COMP. GEN. 709 (1967), WE STATED THAT:

" *** PUBLIC LAW 89-516 AUTHORIZES REIMBURSEMENT OF CERTAIN SUBSISTENCE EXPENSES ONLY WHEN TEMPORARY QUARTERS ARE OCCUPIED AT THE NEW OFFICIAL STATION. *** "

YOU STATED IN YOUR LETTER DATED APRIL 16, 1971, THAT:

"AT THIS TIME, THE LAST WEEK IN JULY 1970, I WAS UNABLE TO FIND ANY APARTMENT TO RENT - ALL THOSE WHOM I CONTACTED HAD A WAITING LIST EXTENDING INTO THE FIRST WEEK IN SEPTEMBER, AT LEAST, BEFORE ANY PROBABILITY OF AN OPENING FOR A THREE BEDROOM UNIT. AS THE CHILDREN ARE ALL IN SCHOOL AND HAVING BEEN PROMISED MY HOUSEHOLD GOODS WOULD BE DELIVERED ON SCHEDULE, I EXTENDED MY SEARCH TO PURCHASE OR RENTING OF A HOUSE. ON 25 JULY 1970, I FOUND THE OWNER-TENANT AT 5804 LENLOCK CIRCLE, SE, MR. HAROLD E. ROTH, IN THE FINAL PROCESS OF MOVING TO PENNSYLVANIA. WAS ABLE TO LEASE THIS UNFURNISHED UNIT ON THE 25TH OF JULY AND MOVED IN IMMEDIATELY, FULLY EXPECTING MY HOUSEHOLD GOODS AT ANY DAY. *** "

UNDER THE ABOVE-CITED SECTION OF THE OMB CIRCULAR, WE HAVE CONSISTENTLY HELD THAT AN EMPLOYEE MAY NOT BE REIMBURSED TEMPORARY QUARTERS AND SUBSISTENCE EXPENSES AFTER HE OCCUPIES THE RESIDENCE IN WHICH HE INTENDS TO REMAIN - REGARDLESS OF THE FACT THAT HIS HOUSEHOLD GOODS HAVE NOT YET ARRIVED. WE HAVE NEVERTHELESS MADE EXCEPTION TO THIS POLICY WHEN THERE IS EVIDENCE IN THE RECORD THAT THE EMPLOYEE HAD REASONABLY DEMONSTRATED HIS INTENT TO USE THE QUARTERS ON ONLY A TEMPORARY BASIS.

THERE IS NO EVIDENCE IN THE RECORD INDICATING THAT YOU DID NOT INTEND AB INITIO TO STAY IN THE HOUSE IN QUESTION ON A PERMANENT BASIS EVEN THOUGH YOU MAY HAVE ONLY DESIRED TO RENT IT DUE TO THE FACT THAT APARTMENTS WERE NOT AVAILABLE. IN SUCH LIGHT, WE MUST AFFIRM THE ACTION OF OUR CLAIMS DIVISION DENYING THE REIMBURSEMENT OF SUCH EXPENSES ON THE BASIS OF THE PRESENT RECORD.

WITH REGARD TO YOUR ARGUMENT CONCERNING THE DIRECT COST DIFFERENCE BETWEEN REASONABLE AND ACTUAL EXPENSES INCIDENT TO YOUR MOVE, YOU ARE ADVISED THAT THE LAW AND REGULATIONS MAKE NO PROVISION FOR ANY ALLOWANCE ON THAT BASIS.

WITH REGARD TO YOUR CLAIM FOR REIMBURSEMENT OF $75 MISCELLANEOUS EXPENSES INCURRED AS A RESULT OF CANCELING A CONTRACT TO PURCHASE REAL ESTATE AT YOUR OLD OFFICIAL STATION, SECTION 3.3A OF OMB CIRCULAR NO. A 56 STATES:

"A. ALLOWANCES IN THE FOLLOWING AMOUNTS WILL BE PAID WITHOUT SUPPORT OR OTHER DOCUMENTATION OF EXPENSES:

"(2) $200 OR THE EQUIVALENT OF TWO WEEKS' BASIC PAY, WHICHEVER IS THE LESSER AMOUNT, FOR AN EMPLOYEE WITH IMMEDIATE FAMILY."

SECTION 3.3B OF CIRCULAR NO. A-56 STATES IN PERTINENT PART:

"B. ALLOWANCES IN EXCESS OF THOSE PROVIDED IN 3.3A, ABOVE, MAY BE AUTHORIZED OR APPROVED, IF SUPPORTED BY ACCEPTABLE STATEMENTS OF FACT AND EITHER PAID BILLS OR OTHER ACCEPTABLE EVIDENCE JUSTIFYING THE AMOUNTS CLAIMED; *** "

INASMUCH AS YOU HAVE ALREADY RECEIVED REIMBURSEMENT FOR $200 MISCELLANEOUS EXPENSES WITHOUT SUPPORTING DOCUMENTATION, NO FURTHER REIMBURSEMENT WOULD BE PERMITTED UNDER SECTION 3.3A IN EXCESS OF $200 UNLESS DOCUMENTATION IS PROVIDED FOR ALL EXPENSES AS REQUIRED BY SECTION 3.3B.

IN SUMMARY, THE ACTION OF OUR CLAIMS DIVISION WITH RESPECT TO THE CLAIM FOR $75 MISCELLANEOUS EXPENSES IS AFFIRMED AS WELL AS THE DENIAL OF REIMBURSEMENT FOR TEMPORARY QUARTERS AND SUBSISTENCE EXPENSES.