B-179870, SEP 26, 1974

B-179870, SEP 26, 1974

WHEN AN EMPLOYEE OCCUPIES QUARTERS AT HIS NEW DUTY STATION WHETHER THEY ARE TEMPORARY OR PERMANENT DEPENDS ON THE INTENT AT THE TIME HE MOVES IN AND HIS INTENTION AT SOME TIME IN THE FUTURE TO MOVE TO A LESS EXPENSIVE LODGING IS TOO INDEFINITE TO SUPPORT A CONCLUSION THAT THE INITIAL QUARTERS WERE, IN FACT, TEMPORARY.

CHARLES L. AVERY - TEMPORARY QUARTERS SUBSISTENCE ALLOWANCE:

THIS IS A REQUEST FOR AN ADVANCE DECISION AS TO THE PROPRIETY OF REIMBURSING MR. CHARLES L. AVERY, AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, FOR TEMPORARY QUARTERS SUBSISTENCE ALLOWANCE INCIDENT TO A PERMANENT TRANSFER OF DUTY STATION. DUE TO A REDUCTION IN FORCE AT HUNTSVILLE, ALABAMA, MR. AVERY WAS OFFERED AND ACCEPTED A TRANSFER TO EGLIN AIR FORCE BASE (AFB), FLORIDA. BY TRAVEL ORDER DATED MAY 24, 1973, HE WAS AUTHORIZED TO TRAVEL FROM HUNTSVILLE TO EGLIN AFB AND THE TRAVEL ORDER AMONG OTHER THINGS, AUTHORIZED PAYMENT OF TEMPORARY QUARTERS SUBSISTENCE EXPENSE.

THERE IS CONFLICT IN THE RECORD AS TO WHETHER MR. AVERY ARRIVED IN FORT WALTON BEACH, FLORIDA, ON THE EVENING OF JUNE 6 OR JUNE 7, BUT IN EITHER CASE, ON HIS FIRST NIGHT HE STAYED IN A MOTEL AT A COST OF $12.48. THE FOLLOWING DAY, HE SECURED A ROOM ON A MONTH-TO-MONTH LEASE AT A RATE OF $110 PLUS A $35 DEPOSIT. THIS BREAKS DOWN TO AN EXPENDITURE OF $3.80 PER DAY FOR RENT FOR 29 DAYS. MR. AVERY RESIDED IN THIS ROOM FOR THE NEXT 29 DAYS AND AS FAR AS THE RECORD SHOWS CONTINUES TO LIVE THERE.

MR. AVERY CONTENDS THAT HE SHOULD BE REIMBURSED $399.83 FOR TEMPORARY QUARTERS SUBSISTENCE ALLOWANCE FOR HIS FIRST 30 DAYS IN FORT WALTON BEACH. THIS SUM ENCOMPASSES THE MONEY HE SPENT FOR LODGING, MEALS AND LAUNDRY DURING THOSE INITIAL 30 DAYS IN FORT WALTON BEACH.

PARAGRAPH C8250 OF THE JOINT TRAVEL REGULATIONS (JTR), VOLUME 2, STATES IN PERTINENT PART:

"WHEN IT IS NECESSARY TO OCCUPY TEMPORARY QUARTERS INCIDENT TO THE EMPLOYEE'S TRANSFER TO A NEW DUTY STATION, TEMPORARY QUARTERS SUBSISTENCE EXPENSES WILL BE AUTHORIZED, OR APPROVED SUBJECT TO THE CONDITIONS IN THIS PART, FOR THE PURPOSE OF DEFRAYING THE EXPENSES OF THE EMPLOYEE AND HIS DEPENDENTS. TEMPORARY QUARTERS REFERS TO ANY LODGING OBTAINED FROM PRIVATE OR COMMERCIAL SOURCES TO BE OCCUPIED TEMPORARILY BY THE EMPLOYEE AND/OR HIS DEPENDENTS WHO HAVE VACATED THE RESIDENCE QUARTERS IN WHICH THEY WERE RESIDING AT THE TIME THE TRANSFER WAS AUTHORIZED. TEMPORARY QUARTERS MUST, IN FACT, BE A TEMPORARY PLACE OF RESIDENCE. 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."

WHEN AN EMPLOYEE IN A NEW LOCATION MOVES INTO QUARTERS WHICH SUBSEQUENTLY BECOME HIS PERMANENT RESIDENCE, THE DETERMINATION OF WHETHER OR NOT THOSE QUARTERS WERE INITIALLY (FOR THE FIRST 30 DAYS) TEMPORARY IS BASED ON THE INTENT OF THE EMPLOYEE AT THE TIME HE MOVES INTO THE LODGINGS. SEE B- 174971, FEBRUARY 28, 1972. THE TYPE OF RESIDENCE HE OCCUPIES IS IMMATERIAL IN MAKING THIS DETERMINATION. ID.

WHEN MR. AVERY MOVED OUT OF THE MOTEL FOR WHICH HE HAS FORWARDED A RECEIPT SHOWING THE COST FOR THE ONE NIGHT AND INTO THE RENTED ROOM, HIS INTENT WAS TO MOVE INTO HIS PERMANENT RESIDENCE. THIS IS EVIDENCT BY THE STATEMENT IN HIS CLAIM FORM FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSE REIMBURSEMENT THAT HE OCCUPIED PERMANENT QUARTERS ON JUNE 7, 1973. HIS INTENTION AT SOME TIME IN THE FUTURE TO MOVE TO LESS EXPENSIVE LODGINGS IS TOO INDEFINITE TO SUPPORT A CONCLUSION THAT THE RENTED QUARTERS WERE, IN FACT, TEMPORARY. B-172228, APRIL 29, 1971. SINCE HIS INTENTION WAS TO REMAIN IN THAT ROOM INDEFINITELY UNLESS A BETTER PLACE CAME ALONG, THE ROOM MUST BE CONSIDERED HIS PERMANENT RESIDENCE.

PARAGRAPH C8255-2 OF THE JTR, VOLUME 2, PROVIDES THAT THE AMOUNT THAT MAY BE REIMBURSED FOR EACH DAY OF THE FIRST 10 DAY PERIOD WILL BE THE LESSER OF EITHER THE ACTUAL AMOUNT OF ALLOWABLE EXPENSES OR 75 PERCENT OF THE MAXIMUM APPLICABLE PER DIEM WHICH IS $25. SINCE $18.75 IS LESS THAN THE ACTUAL DAILY SUBSISTENCE EXPENSES CLAIMED FOR THE DAY MR. AVERY OCCUPIED TEMPORARY QUARTERS THIS IS THE MAXIMUM AMOUNT HE MAY BE REIMBURSED.