B-177546, FEB 8, 1973

B-177546, FEB 8, 1973

CIVILIAN PERSONNEL - TEMPORARY QUARTERS SUBSISTENCE - OCCUPANCY OF PERMANENT QUARTERS DECISION DENYING THE CLAIM OF WILLIAM R. COONCE, AN EMPLOYEE OF THE BUREAU OF NARCOTICS AND DANGEROUS DRUGS, FOR REIMBURSEMENT OF TEMPORARY QUARTERS EXPENSES INCURRED IN CONNECTION WITH A TRANSFER OF OFFICIAL STATION. AN EMPLOYEE WHO MOVES INTO QUARTERS WHICH HE INTENDS WILL LATER BECOME HIS PERMANENT RESIDENCE IS NOT ENTITLED TO TEMPORARY QUARTERS SUBSISTENCE. B-174971, FEBRUARY 28, 1972. FURTHERMORE, THE FACT THAT THE EMPLOYING AGENCY'S GUIDELINES REGARDING THIS OCCUPANCY WERE MISLEADING IS IMMATERIAL, SINCE SUCH FAILURE TO PROPERLY NOTIFY THE EMPLOYEE OF THE RIGHTS TO WHICH HE WAS ENTITLED CANNOT ENLARGE THE EMPLOYEE'S STATUTORY RIGHTS. B-175499, APRIL 21, 1972.

TO MRS. JUNET M. BLEDSOE:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 28, 1972, REQUESTING AN ADVANCE DECISION AS TO WHETHER A TRAVEL VOUCHER SUBMITTED BY MR. WILLIAM R. COONCE, AN EMPLOYEE OF THE BUREAU OF NARCOTICS AND DANGEROUS DRUGS (BNDD), IN THE AMOUNT OF $452.24 FOR REIMBURSEMENT OF TEMPORARY QUARTERS EXPENSES INCURRED BY MR. COONCE IN CONNECTION WITH A TRANSFER OF OFFICIAL STATION MAY BE CERTIFIED FOR PAYMENT.

YOUR LETTER STATES THAT BY A TRAVEL ORDER DATED JULY 6, 1970, MR. COONCE WAS TRANSFERRED ON A PERMANENT CHANGE OF STATION FROM LOS ANGELES, CALIFORNIA, TO SEATTLE, WASHINGTON. BY THIS TRAVEL ORDER, MR. COONCE WAS AUTHORIZED TEMPORARY QUARTERS SUBSISTENCE FOR A PERIOD OF 30 DAYS.

IT APPEARS THAT MR. COONCE REPORTED FOR DUTY AT HIS NEW STATION ON AUGUST 4, 1970, AND THEREAFTER ENTERED A CONTRACT FOR THE PURCHASE OF A RESIDENCE. ON AUGUST 17, 1970, MR. COONCE MOVED HIS FAMILY INTO THIS RESIDENCE ON A RENTAL BASIS UNTIL THE PURCHASE WAS CONSUMMATED BY A CLOSING DATE OF SEPTEMBER 16, 1970.

MR. COONCE HAS BEEN PAID TEMPORARY QUARTERS SUBSISTENCE FOR THE PERIOD OF AUGUST 4, 1970, TO AUGUST 17, 1970, THE DATE HE MOVED INTO HIS RESIDENCE. HOWEVER, MR. COONCE CLAIMS THAT HE IS ENTITLED TO ADDITIONAL TEMPORARY QUARTERS SUBSISTENCE FOR THE REMAINDER OF THE PERIOD AUTHORIZED BY THE TRAVEL ORDER, AUGUST 17, 1970, TO SEPTEMBER 3, 1970, WHICH WAS DENIED BY YOUR OFFICE ON THE BASIS THAT EXPENSES FOR TEMPORARY QUARTERS ARE NOT ALLOWABLE WHEN PERMANENT QUARTERS ARE OCCUPIED, CITING B-160904, MARCH 7, 1967. IN ADDITION TO THE TRAVEL ORDER, MR. COONCE STATES THAT HE RELIED ON THE GUIDELINES ISSUED BY BNDD RELATING TO EXPENSES INCURRED INCIDENT TO AN OFFICIAL TRANSFER WHICH DID NOT REFER TO THE DECISION BY OUR OFFICE UPON WHICH HIS DISALLOWANCE WAS BASED. HE FURTHER STATES THAT THE HOUSE WAS NOT INITIALLY CONNECTED TO GAS OR POWER LINES, THAT THERE WAS NO FURNITURE IN THE HOUSE, AND THAT HIS ACTIONS HAVE RESULTED IN A SAVINGS TO THE GOVERNMENT.

IN 46 COMP. GEN. 709, 712 (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. ***"

THE BENEFITS AUTHORIZED BY THE PROVISIONS OF PUBLIC LAW 89-516 ARE IMPLEMENTED BY OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED, JUNE 26, 1969. IN THIS REGARD SECTION 2.5B(3) OF CIRCULAR NO. A-56 STATES:

"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."

WE HAVE CONSISTENTLY HELD THAT THE DETERMINATION OF THE TYPE OF RESIDENCE OCCUPIED, I.E., TEMPORARY OR PERMANENT, IS BASED ON THE INTENT OF THE EMPLOYEE AT THE TIME HE OR A MEMBER OF HIS FAMILY MOVES INTO THE QUARTERS WHICH LATER BECOMES HIS PERMANENT RESIDENCE. B 174971, FEBRUARY 28, 1972, COPY ENCLOSED.

IT IS APPARENT IN THE PRESENT CASE THAT, DURING THE PERIOD FOR WHICH MR. COONCE HAS CLAIMED TEMPORARY QUARTERS SUBSISTENCE, HE HAD NO INTENTION OF OCCUPYING THE RESIDENCE ON A PURELY TEMPORARY BASIS. THE FACT THAT MR. COONCE WAS PAYING RENT FOR THE RESIDENCE, THAT FURNITURE AND UTILITIES WERE NOT AVAILABLE, OR THAT THERE WAS A SAVINGS TO THE GOVERNMENT IS IMMATERIAL TO THE DETERMINATION OF THE INTENT WITH WHICH HE OCCUPIED HIS RESIDENCE. B-174971, SUPRA, AND B-175913, JUNE 19, 1972, COPY ENCLOSED. FURTHERMORE, MR. COONCE'S BELIEF THAT THE BNDD GUIDELINES WERE EITHER MISLEADING OR INCOMPLETE IS ALSO IMMATERIAL, SINCE AN ADMINISTRATIVE OFFICIAL CANNOT ENLARGE THE RIGHTS GRANTED BY STATUTE AND REGULATION BY MISLEADING OR FAILING TO INFORM THE INDIVIDUAL OF THE RIGHTS TO WHICH HE IS ENTITLED. B-175499, APRIL 21, 1972. SINCE MR. COONCE MOVED INTO HIS RESIDENCE WITH THE INTENTION OF REMAINING THERE PERMANENTLY, WE MUST CONCLUDE THAT AS OF AUGUST 17, 1970, HE WAS OCCUPYING A PERMANENT RESIDENCE WHICH UNDER THE APPLICABLE REGULATIONS PRECLUDES HIM FROM ANY FURTHER ENTITLEMENT TO TEMPORARY QUARTERS SUBSISTENCE.

ACCORDINGLY, THE VOUCHER IS RETURNED AND MAY NOT BE CERTIFIED FOR PAYMENT.