B-245811, Jan 9, 1992

B-245811, Jan 9, 1992

DIGEST: 1. A transferred employee executed a 1-year lease on a furnished apartment at his new duty station for his own use when he reported for duty. He occupied it for more than 1 year before he vacated it, went on annual leave moved to another location 148 miles from his duty station and retired. Since there is no showing that the employee intended that the apartment occupied was to be other than his only residence at his new station and thus, permanent, subsistence expenses authorized by the Federal Travel Regulations incident to occupancy of temporary quarters may not be paid. 2. A transferred employee reported for duty in July 1988 and leased a furnished apartment for his own use for 1 year at his new duty station. His immediate family did not vacate the residence at his old duty station until August 1989 when they joined the employee at a location approximately 148 miles from his new duty station, after he vacated the apartment at his new duty station and went on annual leave for the month of September 1989, in anticipation of his retirement on September 30 at that new location. Since there was no demonstrable connection between the quarters occupied by the employee's family in September 1989 and the employee's duty station, subsistence expenses incident to temporary quarters occupancy may not be paid on their behalf.

William A. Mason, III:

The Chief, Travel Section, U.S. Customs Service, Department of the Treasury, /1/ questions the entitlement of an employee to be reimbursed temporary quarters subsistence expenses incident to his permanent change of station in July 1988. We conclude that he may not be reimbursed.

Mr. William A. Mason, III, an employee of the Customs Service, was transferred from Virginia Beach, Virginia, to Charleston, South Carolina. He performed unaccompanied travel to Charleston, leased a furnished apartment there for 1 year and reported for duty at his new station on July 18, 1988.

His wife, also an employee of the Custom Service in Norfolk, Virginia, and their children remained in their residence in Virginia Beach for more than 1 year. Then, on August 29, 1989, they sold that residence to a relocation service company and traveled to Newberry, South Carolina, which was approximately 148 miles from Mr. Mason's duty station in Charleston.

On August 31, 1989, Mr. Mason vacated the Charleston apartment and moved into a furnished single family residence which he rented month to month in Newberry, South Carolina. His wife and children joined him there on September 1, 1989.

On September 6, 1989, Mrs. Mason returned to the Virginia Beach area to continue working in Norfolk as a Customs Service employee. She remained there until October 1990, when she was able to transfer to another position with the Customs Service in Charlotte, North Carolina.

In the meantime, Mr. Mason went on annual leave for the entire month of September 1989. He then retired from the Customs Service on September 30, 1989. On October 31, 1989, the family moved into permanent quarters elsewhere in Newberry, South Carolina, where they presently reside.

Mr. Mason claimed subsistence expenses incident to temporary quarters for himself for the period August 1-31, 1989, while occupying the leased quarters in Charleston and for the period September 1-30, 1989, while occupying the rented house in Newberry.

The agency disallowed his subsistence expense claim for both periods. Mr. Mason has appealed that disallowance.

The regulations governing payment of subsistence expenses incident to temporary quarters occupancy during the period in question are contained in Chapter 2, Part 5 of the FTR, as amended by Supp. 10, November 14, 1983. /2/ Paragraph 2-5.2e of the FTR provides that the period of temporary quarters for which a claim is made must begin not later than 30 days after the date the employee reports for duty at his new station. not begun then, it must begin within 30 days from the date the employee's family vacates the residence at the old official station, but not beyond the maximum time for beginning allowable travel and transportation.

Quarters Occupancy in Charleston

Paragraph 2-5.2c of the FTR provides that the term "temporary quarters" refers to lodging obtained from private or commercial sources for the purpose of occupying it temporarily after vacating the residence occupied in connection with the old duty station when the transfer was authorized. The threshold determination as to whether the quarters were temporary in nature is the intent of the employee when he occupied them. /3/

Mr. Mason executed a 1-year lease on the apartment in Charleston and remained there for more than 1 year. By his own admission, because he planned to retire from government service shortly after he became eligible in July 1989, he intended that the rented quarters in Charleston would be his only quarters during the period of his Customs Service employment in Charleston. Therefore, we conclude that for the purpose of Chapter 2, Part 5 of the FTR, the quarters Mr. Mason occupied in Charleston were permanent and subsistence expenses incident to their occupancy may not be paid.

Quarters Occupancy in Newberry

Paragraph 2-5.2d of the FTR provides that as a general rule temporary quarters must be in the vicinity of the old or new official station. That paragraph further provides that "Occupancy of temporary quarters shall not be approved for ... reasons unrelated to the transfer." We have held that where there is no demonstrable connection between the quarters occupied by the employee's family at a location away from the employee's new duty station and that duty station, subsistence expenses incident to temporary quarters may not be paid. /4/

The record shows that Mr. Mason's purpose for moving from Charleston into rented quarters in Newberry was to prepare for his voluntary retirement from the Customs Service and establish a permanent retirement residence in Newberry. There is nothing in the record to indicate that his family intended residing at his new duty station in Charleston. To the contrary, other than living in the Virginia Beach area, the only place the family resided was in Newberry and then not until after Mr. Mason went on annual leave for the month of September in anticipation of his retirement on September 30. In such circumstances, we do not consider Mr. Mason's family as having occupied temporary quarters in connection with his transfer so as to entitle him to subsistence expense reimbursement on their behalf.

/1/ Mr. Ivan Lawson, Reference: FIS-8-CM:F:N:A:T LLL.

/2/ Incorp. by ref., 41 C.F.R. Sec. 101-7.003 (1988). The current provisions are contained in 41 C.F.R. Part 302-5 (1990).

/3/ Robert D. Hawks, B-205057, Feb. 24, 1982, and decisions cited.

/4/ Joseph E. Miller, 69 Comp.Gen. 493 (1990), and decisions cited. See also Krim M. Ballentine, B-206508, Mar. 9, 1987; and William H. Maine, B-185727, Mar. 2, 1976.