B-181549, JAN 27, 1975

B-181549, JAN 27, 1975

EMPLOYEE WHO, INCIDENT TO TRANSFER OF OFFICIAL STATION UNDER TRAVEL ORDERS THAT AUTHORIZED TEMPORARY QUARTERS AND SUBSISTENCE EXPENSES, OCCUPIED FURNISHED APARTMENT WHICH COULD NOT ACCOMMODATE HIS HOUSEHOLD EFFECTS AND DID NOT CONTAIN ADEQUATE SLEEPING FACILITIES FOR HIS IMMEDIATE FAMILY FOR PERIOD OF APPROXIMATELY 2 MONTHS BEFORE ACCEPTING INVOLUNTARY RETIREMENT, MAY BE ALLOWED TEMPORARY QUARTERS ALLOWANCE FOR CLAIMED 30-DAY PERIOD SINCE EMPLOYEE MANIFESTED INTENT TO OCCUPY QUARTERS ONLY ON TEMPORARY BASIS.

ROBERT BOLLINGER - TEMPORARY QUARTERS ALLOWANCE:

THE FINANCE AND ACCOUNTING OFFICER, U.S. ARMY FIELD ARTILLERY CENTER AND FORT SILL, DEPARTMENT OF THE ARMY, HAS REQUESTED OUR ADVANCE DECISION AS TO WHETHER A VOUCHER IN THE AMOUNT OF $468.73 IN FAVOR OF MR. ROBERT BOLLINGER, AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, MAY BE CERTIFIED FOR PAYMENT UNDER THE CIRCUMSTANCES HEREIN-AFTER RELATED.

MR. BOLLINGER WAS AUTHORIZED A CHANGE OF OFFICIAL STATION FROM ANKARA, TURKEY, TO FORT CHAFEE, ARKANSAS, PURSUANT TO TRAVEL ORDER NUMBER SO AD-8, DATED JANUARY 26, 1973. AMONG OTHER THINGS, THE TRAVEL ORDERS AUTHORIZED REIMBURSEMENT FOR SUBSISTENCE EXPENSES OF MR. BOLLINGER AND HIS IMMEDIATE FAMILY WHILE OCCUPYING TEMPORARY QUARTERS INCIDENT TO THE TRANSFER.

THE RECORD INDICATES THAT THE EMPLOYEE OCCUPIED A FURNISHED APARTMENT AT FORT SMITH, ARKANSAS FROM APRIL 6, 1973, UNTIL HIS INVOLUNTARY RETIREMENT JUNE 1973. MR. BOLLINGER REQUESTS TEMPORARY QUARTERS ALLOWANCE FOR THE PERIOD APRIL 6, 1973, TO MAY 5, 1973, THE MAXIMUM 30 DAY PERIOD AUTHORIZED BY REGULATION.

MR. BOLLINGER HAS EXPLAINED HIS ARRANGEMENTS AS FOLLOWS:

"DUE TO MY PRECARIOUS POSITION, IT WAS NOT TO THE ADVANTAGE OF MY SON'S EDUCATION TO ESTABLISH HIM IN A SCHOOL AT FORT SMITH, ARKANSAS. I MAY BE MOVED AT ANY TIME BASED ON THE AVAILABILITY OF A FIRM JOB OFFER COMPARABLE TO THE POSITION HELD AT FORT CHAFFEE PRIOR TO MY DEPARTURE TO TURKEY IN 1965.

"FURTHER, AS NOTED ON THE DAILY ITEMIZATION OF EXPENSES PAID, MY TOTAL EXPENSES ARE UNDOUBTEDLY MUCH LOWER THAN THOSE THAT WOULD HAVE BEEN INCURRED IF I HAD MOVED INTO A HOTEL OR TOURIST COURT EVEN WITH THE ADDED COST OF PAYING MY SON'S EXPENSES IN BROWNSVILLE, TEXAS. I DO NOT BELIEVE IT IS THE INTENT OF THE U.S. GOVERNMENT TO FORCE EMPLOYEES WHO ARE AUTHORIZED TEMPORARY QUARTERS AND SUBSISTENCE EXPENSES TO LIVE IN EXPENSIVE PLACES WHILE IN AN UNSTABLE POSITION. I WAS SIMPLY UNABLE TO DO SO BECAUSE OF THE LACK OF IMMEDIATE FUNDS.

"I WAS INFORMED, AFTER THE FACT, THAT TO QUALIFY FOR TEMPORARY QUARTERS, SUBSISTENCE ALLOWANCES ONE MUST MOVE INTO A TRANSIT TYPE DWELLING, SUCH AS A TOURIST COURT OR HOTEL, EVEN THOUGH SUCH DWELLINGS NORMALLY COST MUCH MORE THAN THE OVER-ALL COST OF RENTING AN APARTMENT. I WAS ALSO INFORMED THAT AFTER MOVING INTO A TRANSIT TYPE DWELLING AND LIVING THERE A REASONABLE LENGTH OF TIME ONE MUST SUBSEQUENTLY MOVE INTO A PERMANENT TYPE DWELLING TO SHOW GOOD INTENT. IF WHAT I HAVE BEEN TOLD IS SUBSTANTIALLY CORRECT, INDIVIDUALS INVOLVED SHOULD BE INFORMED IN ADVANCE OF THE INTRICATE DETAILS OF THE REGULATIONS. IF THE REGULATION IS NOT FLEXIBLE ENOUGH TO FIT THE VARIOUS SITUATIONS THAT GOVERNMENT EMPLOYEES MAY FIND THEMSELVES TO BE IN, THEN ONLY THOSE WHO ARE WELL INFORMED WILL REAP THE BENEFITS OF SUCH A REGULATION AND THOSE WHO DO NOT KNOW THE DETAILS WILL BE PENALIZED.

"AS PREVIOUSLY MENTIONED, BECAUSE OF THE LACK OF IMMEDIATE FUNDS MY FAMILY AND I WERE UNABLE TO MOVE INTO THE MORE EXPENSIVE TYPE TRANSIT LIVING QUARTERS. FOR THE SAME REASON, I DO NOT ELECT TO MOVE FROM THE APARTMENT IN WHICH MY FAMILY AND I ARE NOW RESIDING BECAUSE I AM RESIGNING FROM GOVERNMENT EMPLOYMENT TO ACCEPT INVOLUNTARY RETIREMENT. I AM TAKING THIS STEP BECAUSE THE POSITION OFFERED TO ME AFTER MY RETURN TO FORT CHAFFEE FROM AN OVERSEAS ASSIGNMENT IS SUBSTANTIALLY BELOW MY CAPACITY. TO ACCEPT SUCH A POSITION WOULD CAUSE ME TO BE UNDERUTILIZED AND, AS A RESULT, SET A BAD EXAMPLE FOR THE U.S. GOVERNMENT. HOWEVER, AFTER LEAVING MY PRESENT ASSIGNMENT ON OR ABOUT 30 JUNE 1973, MY FAMILY AND I WILL MOVE INTO A MORE SUITABLE RESIDENCE. OUR SON, WHO RECENTLY REJOINED THE FAMILY AFTER COMPLETING THE SCHOOL YEAR IN BROWNSVILLE, TEXAS, IS SLEEPING ON A CAMP COT BECAUSE OF THE INADEQUATE SLEEPING FACILITIES. THIS IS MENTIONED TO EMPHASIZE THE FACT THAT WE ARE LIVING IN TEMPORARY QUARTERS, NEITHER SPACIOUS ENOUGH TO ACCEPT OUR HOUSEHOLD GOODS OR PROVIDE ADEQUATE SLEEPING FACILITIES FOR ALL MEMBERS OF THE FAMILY."

FEDERAL TRAVEL REGULATIONS (FPMR 101-7) PARA. 2-5C (MAY 1973), FORMERLY SECTION 8.2C OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A 56 REVISED, AUGUST 17, 1971, IN FORCE AT THE TIME IN QUESTION, GOVERNS SUBSISTENCE EXPENSES OF EMPLOYEES AND THEIR FAMILIES WHILE OCCUPYING TEMPORARY QUARTERS WHEN AN EMPLOYEE IS TRANSFERRED TO A NEW OFFICIAL STATION. THAT SECTION DEFINES TEMPORARY QUARTERS AS FOLLOWS:

"C. WHAT CONSTITUTES TEMPORARY QUARTERS. THE TERM 'TEMPORARY QUARTERS' REFERS TO ANY LODGING OBTAINED FROM PRIVATE OR COMMERCIAL SOURCES TO BE OCCUPIED TEMPORARILY BY THE EMPLOYEE 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 ACCORDANCE WITH THE ABOVE-QUOTED REGULATION WE HAVE CONSISTENTLY HELD THAT AN EMPLOYEE MAY NOT BE REIMBURSED FOR TEMPORARY QUARTERS AND SUBSISTENCE EXPENSES AFTER HE OCCUPIES THE RESIDENCE IN WHICH HE INTENDS TO REMAIN. WE HAVE NEVERTHELESS MADE EXCEPTIONS TO THIS POLICY WHEN THERE IS EVIDENCE IN THE RECORD THAT THE EMPLOYEE HAS REASONABLY DEMONSTRATED HIS INTENT TO USE THE QUARTERS ON ONLY A TEMPORARY BASIS. B-174648, JANUARY 18, 1972.

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, 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).

WE BELIEVE THE EVIDENCE IN THE PRESENT RECORD INDICATES THAT MR. BOLLINGER INTENDED TO USE HIS FURNISHED APARTMENT ON ONLY A TEMPORARY BASIS. HIS STATEMENT THAT THIS WAS HIS INTENT IS SUPPORTED BY THE FACT THAT THE APARTMENT COULD NOT ACCOMMODATE HIS HOUSEHOLD GOODS, AND THAT THE APARTMENT DID NOT CONTAIN ADEQUATE SLEEPING FACILITIES FOR HIS IMMEDIATE FAMILY.

THE EMPLOYEE'S VOUCHER MAY THEREFORE BE PAID IN ACCORDANCE WITH THE FOREGOING IF OTHERWISE CORRECT.