Matter of: Tyrone Carsten File: B-248943 Date: October 2, 1992

Matter of: Tyrone Carsten File: B-248943 Date: October 2, 1992

CIVILIAN PERSONNEL Relocation Temporary quarters Actual subsistence expenses Reimbursement Eligibility In accordance with 41 C.F.R. Sec. 302-5.2(c) (1991), an employee is not eligible for temporary quarters subsistence expenses since he did not vacate the residence occupied at his former duty station when the transfer was authorized.

DECISION

The Department of Health and Human Services (HHS) requests a decision on the claim of Mr. Tyrone Carsten for temporary quarters subsistence expenses (TQSE). For the following reasons, this claim may not be paid. [1]

On September 30, 1991, HHS issued travel orders transferring Mr. Carsten from Durango, Colorado, to Cortez, Colorado. [2] The effective date of this transfer (duty reporting date) was November 4, 1991. In connection with this transfer, HHS paid Mr. Carsten for the first 30 days of TQSE, and advanced him funds for the second 30 days of TQSE. In February 1992, it was discovered that Mr. Carsten had not vacated the residence in which he was living at the time he was notified of his transfer from Durango to Cortez. Rather, with the knowledge and permission of both his former supervisor in Durango and his current supervisor in Cortez, he worked approximately 3 days a week in Cortez and 2-1/2 days a week in Durango due to the workload and employee shortages. Based on this discovery, HHS initiated action to recover payment for the first 30 days of TQSE, and to recover the funds advanced for the second 30 days of TQSE. [3] Mr. Carsten also claims that he was not aware that he was required to move from Durango to Cortez in order to be eligible for TQSE.

The payment of TQSE is governed by the provisions of 5 U.S.C. Sec. 5724a (a) (3) (1988) and the implementing Federal Travel Regulation (FTR) provision in 41 C.A.R. Part 302-5 (1991). "Temporary quarters" refers to lodging obtained from private or commercial sources for the purpose of temporary occupancy after vacating the residence occupied at the old duty station when the transfer was authorized. 41 C.F.R. Sec. 302-5.2(c) (1991).

In accordance with 41 C.F.R. Sec. 302-5.2(c) Mr. Carsten is not eligible for TQSE incident to his transfer to Cortez since he did not vacate his residence in Durango, as the regulation requires. See Drew A. Perry, B-235329, Aug. 25, 1989; Edward Carlin, 67 Comp.Gen. 544 (1988). Also, although Mr. Carsten says he was not aware of this FTR provision, all federal employees are charged with constructive notice of the FTR. Roeder and Berniklau, B-223053, Nov. 10, 1986. Accordingly, his claim for TQSE is denied.

However, since HHS's payment to Mr. Carsten for the first 30 days of TQSE was clearly an erroneous payment, it may be considered for waiver under 5 U.S.C. Sec. 5584 (1988). Also, the travel advance for the second 30 days of TQSE is subject to waiver consideration since it was made to cover expenses erroneously authorized, but only to the extent that Mr. Carsten actually spent the advance in reliance on the erroneous travel order. See Mary F. Lopez, B-236856, Dec. 15, 1989, and cases cited therein. Thus, this matter may be submitted for waiver consideration in accordance with our revised waiver regulations in 4 C.F.R. Parts 91 and 92 (1992).

1. This request was submitted by Mr. Vaughn L. Roundy, Director, Division of Finance, Department of Health and Human Services, Denver, Colorado.

2. Mr. Carsten had been transferred to Durango from Tyler, Texas, in March 1991. He was authorized and paid 60 days TQSE incident to that transfer.

3. It is our understanding that HHS has recovered all funds which it considers due from Mr. Carsten.