B-182185, NOV 7, 1974

B-182185, NOV 7, 1974

NOTWITHSTANDING EMPLOYEE WAS NEVER ADVISED AS TO WHAT CONSTITUTED "TEMPORARY QUARTERS," HE IS NOT ENTITLED TO REIMBURSEMENT FOR TEMPORARY QUARTERS SUBSISTENCE ALLOWANCE INCIDENT TO TRANSFER OF DUTY STATION SINCE HE, IN FACT, MOVED INTO PERMANENT QUARTERS IMMEDIATELY UPON ARRIVAL AT NEW DUTY STATION.

MATTHEW ETEROVICH - SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS - DEPARTMENT OF THE NAVY:

IT WAS REQUESTED THAT RECONSIDERATION BE GIVEN TO THE DISALLOWANCE BY OUR TRANSPORTATION AND CLAIMS DIVISION IN ITS SETTLEMENT CERTIFICATE OF AUGUST 2, 1974, OF THE CLAIM OF MR. MATTHEW ETEROVICH FOR REIMBURSEMENT OF TEMPORARY QUARTERS SUBSISTENCE ALLOWANCE INCIDENT TO HIS CHANGE OF DUTY STATION DURING 1973 FROM SAN FRANCISCO TO LONG BEACH, CALIFORNIA, AS A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE NAVY.

THE SETTLEMENT CERTIFICATE IN PERTINENT PART STATES:

"THE RECORD SHOWS THAT YOU AND YOUR FAMILY LIVED IN A RENTED HOUSE AT 4317 STANBRIDGE AVENUE, LONG BEACH, CALIFORNIA. HOWEVER, YOU STOPPED RENTING AND PURCHASED THE RESIDENCE.

"PARAGRAPH C8250 OF THE DEPARTMENT OF DEFENSE JOINT TRAVEL REGULATIONS, VOLUME II, PROVIDES IN PERTINENT PART, THAT QUARTERS OCCUPIED UPON INITIAL ARRIVAL AT A NEW DUTY STATION LOCATION WHICH FACTUALLY ARE PERMANENT TYPE RESIDENCE QUARTERS INTO WHICH AN EMPLOYEE MOVES HIS HOUSEHOLD GOODS AND CONTINUES OCCUPANCY INDEFINITELY WILL NOT BE CONSIDERED TEMPORARY QUARTERS FOR WHICH EXPENSE REIMBURSEMENT IS ALLOWABLE.

"IN VIEW THEREOF, WE KNOW OF NO LEGAL BASIS BY WHICH TO AUTHORIZE PAYMENT. ***"

IT IS STATED THAT MR. ETEROVICH WAS NEVER TOLD WHAT CONSTITUTED "TEMPORARY QUARTERS," BUT THIS FACT, IF TRUE, IN NO WAY ALTERS HIS ENTITLEMENTS. ADDITIONALLY THE POINT IS MADE THAT HE RENTED THE HOUSE IN QUESTION WITH GOOD REASON SINCE SEVERAL MEMBERS OF HIS FAMILY ARE HANDICAPPED AND THE HOUSE HAD A POOL WHICH, ACCORDING TO A DOCTOR'S STATEMENT, WOULD BE OF THERAPEUTIC VALUE TO AT LEAST ONE OF THE HANDICAPPED PERSONS. IT WAS CONCLUDED THAT MR. ETEROVICH'S SITUATION HARDLY LENT ITSELF TO "TEMPORARY" QUARTERS AND THAT IN VIEW OF THE ALMOST CONSTANT SUPERVISION AND CARE REQUIRED FOR THE HANDICAPPED PERSON, A MOTEL OR HOTEL WOULD NOT SUFFICE. THIS INFORMATION APPEARS TO LEND FURTHER WEIGHT TO THE FINDING THAT THE QUARTERS OCCUPIED WERE NOT INTENDED TO BE TEMPORARY AT THE TIME THEY WERE FIRST OCCUPIED SINCE THEY MET THE EMPLOYEE'S SPECIAL NEEDS MUCH BETTER THAN OTHER, MORE TRANSIENT QUARTERS. THE FACT THAT HE FIRST RENTED THE QUARTERS BEFORE EFFECTING THEIR PURCHASE HAS NO BEARING ON THE CHARACTERIZATION OF THE QUARTERS AS PERMANENT RATHER THAN TEMPORARY. THE RECORD DOES NOT SHOW THAT HE CONTINUED TO LOOK FOR OTHER, MORE PERMANENT QUARTERS DURING THE PERIOD IN QUESTION. SEE B- 177244, FEBRUARY 20, 1973; B-173326, OCTOBER 27, 1971. CF. B-175913, JUNE 19, 1972.

MR. ETERVOCH ON HIS VOUCHER FOR TEMPORARY QUARTERS ALLOWANCE STATES

THAT HE MOVED INTO 4317 STANBRIDGE STREET, LONG BEACH, CALIFORNIA, ON AUGUST 12, 1973, ALONG WITH HIS DEPENDENTS AND HOUSEHOLD EFFECTS. ON THE PRIOR VOUCHER FOR RELOCATION BENEFITS MR. ETEROVICH STATED THAT TRAVEL WAS PERFORMED BY HIMSELF AND ALL DEPENDENTS AND THAT HE HAD DISCONTINUED HIS RESIDENCE AT THE OLD DUTY STATION AND ESTABLISHED RESIDENCE AT THE NEW DUTY STATION - 4317 STANBRIDGE STREET, LONG BEACH AND THAT HE AND HIS DEPENDENTS MOVED INTO PERMANENT QUARTERS ON AUGUST 12, TOGETHER WITH HIS HOUSEHOLD EFFECTS.

THERE IS NOTHING IN THE RECORD TO SHOW THAT MR. ETEROVICH INTENDED TO OCCUPY TEMPORARY QUARTERS AT HIS NEW DUTY STATION. ON THE CONTRARY, HIS INTENT TO OCCUPY PERMANENT QUARTERS SEEMS QUITE CLEAR AND THUS HE WOULD COME WITHIN THE PROVISION OF PARAGRAPH C8250 CITED IN THE SETTLEMENT CERTIFICATE.

SECTION 2-5.2C OF THE FEDERAL TRAVEL REGULATIONS, FPMR 101-7, MAY 1973, ISSUED BY THE GENERAL SERVICES ADMINISTRATION TO IMPLEMENT 5 U.S.C. 5724AA)(3) DEFINES TEMPORARY QUARTERS AS FOLLOWS:

"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 MEMBER 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 SECTION OF THE REGULATIONS 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, REGARDLESS OF WHETHER HE HAS OR HAS NOT CONSUMMATED THE PURCHASE OF THE PROPERTY AT THE TIME OF ENTRANCE THEREON. SINCE MR. ETEROVICH DID NOT OCCUPY TEMPORARY QUARTERS INCIDENT TO HIS TRANSFER, WITHIN THE MEANING OF THE REGULATION, WE MUST SUSTAIN THE DISALLOWANCE OF HIS CLAIM.