In the Matter of SCOTT A. LARSEN

September 28, 2017

CBCA 5732-RELO

In the Matter of SCOTT A. LARSEN

Scott A. Larsen, APO Area Europe, Claimant.

Yanir M. Hill, Assistant Deputy Chief of Staff, and Ilona M. Keller, Human

Resources Specialist, Civilian Personnel Directorate, Department of the Army, APO Area

Europe, appearing for Department of the Army.

LESTER, Board Judge.

Claimant, Scott A. Larsen, submitted to the Department of the Army (Army) a request

for reimbursement of travel costs associated with a permanent change of station (PCS) from

a duty station in the continental United States (CONUS) to one outside the continental United

States (OCONUS). In response, the office dealing with reimbursement of the CONUS

portion of his travel told him that some claimed lodging and meals costs incurred in the

United States should be covered by a temporary quarters subsistence allowance (TQSA) for

which his OCONUS duty station was responsible. The OCONUS duty station then informed

him that, because TQSA only applies to costs incurred after the employee’s arrival

OCONUS, the CONUS duty station must have meant that Mr. Larsen should claim the costs

as pre-departure subsistence expenses, which is a component of the foreign transfer

allowance (FTA). After Mr. Larsen requested FTA, the OCONUS duty station denied his

claim.

Mr. Larsen is seeking to be paid his travel costs. He has challenged the Army’s recent

denial of his FTA claim, after the agency told him to categorize his costs as FTA, but he

originally sought reimbursement of those costs as PCS travel costs. We agree with the Army

that, because all of the costs that Mr. Larsen seeks were incurred after he had made his final

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departure from the CONUS duty station from which he was transferring, FTA does not cover

them. Nevertheless, the costs are reimbursable as PCS travel costs, and we direct the agency

to calculate the appropriate per diem amount due Mr. Larsen as an expense of official travel.

Background

Mr. Larsen received orders for a PCS from his original permanent duty station (PDS)

at Fort Huachuca, Arizona, to a new OCONUS PDS at Hohenfels, Germany. The PCS

orders authorized Mr. Larsen to use multiple modes of transportation for his travel between

the old and new duty stations – government carrier, commercial carrier, personally owned

conveyance, rail, and/or air – and authorized per diem during travel for Mr. Larsen and his

wife. The order also authorized shipment of Mr. Larsen’s personally owned vehicle (POV)

from Fort Huachuca to Hohenfels. The vehicle processing center (VPC) closest to Fort

Huachuca, through which the Army would ship the POV, was in San Diego, California.

The Army’s transportation office scheduled Mr. Larsen and his wife to depart for

Germany from Baltimore, Maryland, on the “Patriot Express,” a government-chartered flight,

on Wednesday, February 22, 2017. After some modifications to his original travel orders,

he and his wife were authorized to fly to Baltimore from San Diego, rather than from the

airport nearest Fort Huachuca, so that they could deliver Mr. Larsen’s POV to the San Diego

VPC prior to their cross-country flight. Because the VPC is closed on weekends, would be

closed because of a federal holiday on Monday, February 20, 2017, and would not open in

time on Tuesday, February 21, to allow Mr. Larsen and his wife to catch a flight (after

delivering the POV) that could connect to the government-chartered February 22 flight, Mr.

Larsen was informed that he would need to deliver his POV to the VPC on Friday, February

17, 2017.

Mr. Larsen and his wife vacated their residence near Fort Huachuca on February 16,

2017, and departed in their POV for San Diego. They did not incur any temporary lodging

costs before departing the Fort Huachuca area. They arrived in San Diego later that day,

delivered their POV to the VPC on February 17, and stayed in a local San Diego hotel until

their scheduled flight to Baltimore on February 21, 2017.

Mr. Larsen subsequently submitted a travel voucher to the Defense Finance and

Accounting Service (DFAS) office in Rome, New York, seeking reimbursement for, among

other things, the costs of lodging and meals and incidental expenses (M&IE) while in San

Diego. DFAS authorized reimbursement of some claimed costs, including flight costs from

San Diego to Baltimore, per diem for February 21 and February 22, baggage fees, and

transport costs from a hotel to the airport. Nevertheless, a DFAS customer care center

representative informed Mr. Larsen by email message on April 25, 2017, that, “[f]or the hotel

CBCA 5732-RELO

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in San Diego, you are authorized TQSA so to have that reimbursed [it] would have to be

approved through your OCONUS [human resources] office.” Because TQSA is a

subsistence allowance covering costs of temporary quarters that the employee incurs after

arriving at the new OCONUS post of assignment, see Annette M. Zapf, CBCA 4231-RELO,

15-1 BCA ¶ 35,932, at 175,612 (citing 5 U.S.C. § 5923(a)(1)(A) (2012)), the parties here

agree that DFAS most likely meant to refer to entitlement to FTA, rather than TQSA.

On April 28, 2017, the civilian personnel office within the United States Army,

Europe, informed Mr. Larsen that it had received and reviewed his claim for FTA

pre-departure subsistence expenses incurred from February 16 to 21, 2017. It denied the

request, indicating that the expenses did not satisfy the FTA requirements.

Mr. Larsen subsequently submitted his claim to the Board for review, asking us to

grant him $1074.41 for lodging and M&IE incurred from February 16 to 21, 2017, while he

and his wife were in San Diego delivering their POV to the VPC and awaiting their flight to

Baltimore.

Discussion

I.

The FTA Claim

By statute, “agencies may grant as a cost of living allowance a transfer allowance for

extraordinary, necessary, and reasonable subsistence and other relocation expenses, not

otherwise compensated for, incurred by an employee incident to establishing himself at a post

of assignment in a foreign area.” Michael A. MacInerney, GSBCA 16309-RELO, 04-1 BCA

¶ 32,613, at 161,402 (citing 5 U.S.C. § 5924(2)(A) (2000)). The Department of State

Standardized Regulations (DSSR), which are promulgated by the Secretary of State and have

the force and effect of law, Gordon D. Giffin, GSBCA 14425-RELO, 98-2 BCA ¶ 30,100,

at 148,955, implement that statutory requirement through the FTA, which consists of four

separate components: (1) a lump sum miscellaneous expense portion, (2) a lump sum

wardrobe expense portion, (3) a pre-departure subsistence expense portion, and (4) a lease

penalty expense portion. DSSR 241.2. The Federal Travel Regulation (FTR) applies that

DSSR provision to federal civilian employees transferring through a PCS from a domestic

duty station to an OCONUS duty station. 41 CFR 302-3.101 (2016) (FTR 302-3.101).

Mr. Larsen’s claim involves pre-departure subsistence expenses, the third component

of the FTA. The DSSR defines that component as covering “lodging, meals (including tips),

laundry, cleaning and pressing expenses in temporary quarters for [the] employee and each

member of [his or her] family for up to 10 days before final departure from a post in the

United States to a post in a foreign area, beginning not more than 30 days after they have

CBCA 5732-RELO

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vacated residence quarters.” DSSR 241.2(c). Entitlement to the FTA’s pre-departure

subsistence expense begins when an employee who is being transferred from a domestic duty

station to an OCONUS station “has abandoned his [or her] residence [at his domestic duty

station] or the [domestic station] residence is no longer fit for permanent occupancy.” Stuart

L. Sumner, CBCA 1097-RELO, 08-2 BCA ¶ 33,897, at 167,769. So long as the employee

timely commences that ten-day FTA period within thirty days after vacating his or her

domestic duty station residence, “[t]he ten days may be [spent] anywhere in the U.S.

(calculated using the per diem rate of the U.S. Post of assignment) as long as [the] employee

or family members have not begun travel on orders and final departure is from the U.S. post

of assignment.” DSSR 242.3(c) (emphasis added).

The DSSR creates a hard-and-fast rule regarding the conclusion of the FTA

entitlement period. As we explained in Patrick S. Horan, CBCA 5424-RELO, 16-1 BCA

¶ 36,515, “once the employee and his family make their ‘final departure’ from the

employee’s U.S. post of assignment to begin their travel to the new foreign duty post, the

period for an FTA comes to an end.” Id. at 177,892. We explained our interpretation of that

rule as follows:

The agency is correct in asserting that, under the DSSR, any FTA expenses

have to be incurred before the employee or family members have “begun travel

on orders” and before “final departure” of the employee or his family “from

the U.S. post of assignment,” DSSR 242.3(c) . . . . “[T]he regulations

governing the FTA are unforgiving,” and “they do not allow granting the

allowance to anyone, no matter the circumstances, for any days after an

employee begins travel on orders.” MarieLouise R. Assing, CBCA

4921-RELO, 15-1 BCA ¶ 36,173, at 176,509. Accordingly, “[a]n employee

may be reimbursed for expenses of pre-departure [FTA] only if the [FTA]

occurred prior to departing his/her old duty station.” Jessica M. Koldoff,

CBCA 2656-RELO, 12-2 BCA ¶ 35,151, at 172,528.

Id.; see Lee Ethel Edwards, CBCA 5446-RELO, 17-1 BCA ¶ 36,643, at 178,460 (FTA

entitlement comes to an end when the employee makes his or her final departure from the

U.S. post of assignment); Karl W. Geyer, CBCA 3509-TRAV, slip op. at 3 (Dec. 19, 2013)

(for purposes of the FTA, “final departure” and the beginning of travel on orders occurred

when the employee left the employee’s duty station in Dayton, Ohio, in a rental car to drive

to an airport in New York City); Warren Shapiro, B-208590 (Nov. 24, 1982) (“under the

regulatory interpretation of the statute, the allowance only covers expenses incurred prior to

the employee’s departure from the old duty station”).

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Accordingly, in considering any FTA request, “[t]he dispositive issue . . . is

identifying when [the claimant] made his [or her] ‘final departure’ from his [or her] ‘U.S.

post of assignment.’” Patrick S. Horan, 16-1 BCA at 177,892. Here, Mr. Larsen’s “U.S.

post of assignment” was Fort Huachuca, Arizona. He made his “final departure” from that

post on February 16, 2017, when he and his wife left Fort Huachuca to drive to San Diego.

Mr. Larsen’s FTA entitlement ended at that time. Mr. Larsen has represented that he

incurred no costs for temporary lodging before departing Fort Huachuca. He cannot recover

FTA for the time that he spent in San Diego after he had already made his final departure

from Fort Huachuca. The Army properly denied Mr. Larsen’s request insofar as it might be

deemed to be for FTA.

To the extent that individuals within the Army informed him that he could receive

FTA if he departed from San Diego after delivering his POV at the VPC, such advice, even

if relied upon in good faith, “would not create a reimbursement entitlement because ‘[t]he

Government may not authorize the payment of money in violation of statute or regulation.’”

Patrick S. Horan, 16-1 BCA at 177,893 (quoting Gregory J. Bird, GSBCA 16110-RELO,

04-1 BCA ¶ 32,425, at 160,480 (2003)). We have no authority to revise the DSSR provision

defining when FTA entitlement concludes. See Tyler F. Horner, CBCA 4468-RELO, 15-1

BCA ¶ 35,899, at 175,504 (“The Board and claimant are not free to rewrite the [FTA] policy

and requirements expressed in the regulations.”).

II.

Recovery of Travel Costs

When Mr. Larsen submitted to the agency his request for reimbursement of lodging

costs and M&IE for his time in San Diego, he did not specifically request FTA. He instead

included his lodging and M&IE reimbursement requests in his travel voucher, treating them

as costs of his travel from Fort Huachuca to Germany. DFAS denied his request for travel

costs from February 16 to 21, 2017, stating that he must seek to recover those costs as TQSA

(or, as corrected, FTA) from his new OCONUS duty station agency. Although we agree with

the Army that these costs are not properly considered FTA (or TQSA), we can see no valid

reason for DFAS’s denial of Mr. Larsen’s original travel cost claim.

An employee is normally expected to take the usually traveled route, or another route

authorized by the agency as officially necessary, from the old PDS to a new PDS. Robert F.

Teclaw, CBCA 1572-TRAV, 09-2 BCA ¶ 34,166, at 168,904. Nevertheless, if the employee,

as part of his or her transfer, is authorized shipment of a POV to an OCONUS duty station,

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he or she must get the POV to a VPC, Joint Travel Regulation (JTR) 5276,1 of which there

are apparently only eleven in the continental United States. “Statute provides for the

shipment at government expense of an employee’s POV when that employee transfers ‘to,

from, and between the continental United States and a post of duty outside the continental

United States.’” Patrick L. Keller, CBCA 5151-RELO, 16-1 BCA ¶ 36,384, at 177,360

(quoting 5 U.S.C. § 5727(b) (2012)). FTR 302-9.104 implements that statutory provision,

stating that, “[i]f there is no port or terminal at the point of origin and/or destination, [the

employee’s] agency will pay the entire cost of transporting the POV from [the employee’s]

point of origin [or duty station] to [the employee’s] destination.” 41 CFR 302-9.104. In

addition, the FTR provides that the employee may “choose to drive [his or her] POV from

[his or her] point of origin at time of assignment to the nearest embarkation port or terminal”

– that is, the VPC – and “be reimbursed [the] one-way mileage cost.” Id. It also provides

for employee reimbursement for one-way travel from the “embarkation port or terminal”

back to the duty station. Id.

The JTR supplements the FTR provision and identifies three ways (inclusive of the

transportation method identified above) that the employee can transport the POV to the VPC:

First, the employee can pay another individual to drive the POV to the VPC

or can arrange to have the POV transported commercially, and the employee

can be authorized reimbursement for that cost. JTR 5726-A.1.

Second, before beginning permanent duty travel, the employee can drive the

POV to the VPC himself or herself, and the employee can then return to his or

her permanent duty station or actual residence before, at a later date, beginning

permanent duty travel to the new OCONUS duty station. The employee can

be reimbursed for the actual one-way transportation cost that he or she incurs

in returning from the VPC location to his or her permanent duty station or

actual residence (subject to a cost ceiling that is described in the regulation),

but cannot receive a M&IE or lodging per diem for that travel, separate and

apart from PCS travel. JTR 5726-B (citing FTR 302-9.104).

Third, the employee can deliver the POV to the VPC as a part of, and incident

to, his or her PCS travel. JTR 5726-C. In that situation, the employee may be

authorized a driving reimbursement (at the applicable rates identified in the

1

All references to the JTR in this decision relate to the JTR in effect in February

2017, when Mr. Larsen traveled.

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regulation) from his or her old PDS or actual residence to the VPC, plus

transportation cost reimbursement.

If an employee takes the second option, making a trip separate and apart from his PCS

travel to deliver his POV to a VPC and to return to the original PDS, he is not entitled to any

per diem for that trip. FTR 302-9.104; JTR 5726-B; see Mark E. Bradley, CBCA

4759-TRAV, 15-1 BCA ¶ 36,088, at 176,193 (no per diem for separate trip to the VPC);

Louis DeBeer, B-193837 (July 17, 1979) (same). That limitation does not apply if the

employee’s travel orders authorize him (as permitted by JTR 5726-C) to take his or her POV

to the VPC as a part of, and incident to, PCS travel and then to fly to his or her new

OCONUS PDS from the city in which the VPC sits. “Per diem includes lodging and other

expenses incurred by an employee while on official travel.” Patrick L. Keller, 16-1 BCA at

177,360 (emphasis added) (citing FTR 301-11.1, -11.5 (2015)).

In Warren Shapiro, B-208590 (Nov. 24, 1982), the Comptroller General considered

a situation in which an employee had received PCS orders to travel from his old duty station

in St. Louis, Missouri, to a new duty station in Korea. As part of his orders, he was

authorized to travel in his POV to Oakland, California, from which point his POV was to be

shipped to Korea. His travel orders authorized per diem on a constructive travel time basis,

allowing one day’s per diem for each 300 miles of official distance traveled, and he was paid

per diem for seven-and-a-half days on this basis. The employee departed St. Louis in his

POV on September 11, arrived in Oakland on September 15 – three days before he was to

deliver his POV to the VPC (on September 18) and five days before his actual departure for

Korea (on September 20). The Comptroller General denied the employee’s request for an

additional two-and-a-half days of per diem beyond the seven-and-a-half already granted,

stating that it knew “of no regulatory provision which authorizes per diem for early arrival

or delay at the port of embarkation caused by the delivery of an automobile for shipment.”

Nevertheless, the Comptroller General did not question the ability of the agency to grant per

diem for the necessary portion of the PCS travel spent driving to the VPC location, en route

to the new OCONUS PDS.

The record here indicates that Mr. Larsen departed for San Diego on February 16 only

because he was informed that he had to deliver his POV at the VPC no later than February

17 if he was to make the February 22 government-chartered flight from Baltimore to

Germany that the Army had scheduled. He had no ability to reschedule or postpone that

government-chartered flight, meaning that he could not delay or postpone his POV deposit

at the VPC. Mr. Larsen’s PCS travel orders authorized travel by means of POV (along with

several other modes of travel), and it authorized him to depart by air from San Diego, the city

in which the VPC sits. Once Mr. Larsen departed his PDS in Fort Huachuca, he had begun

his travel to his new OCONUS duty station. By delivering his POV to the VPC during PCS

CBCA 5732-RELO

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travel, he saved the Government the reimbursable costs for one-way return air travel from

San Diego to the Fort Huachuca area that he would have incurred had he made a separate

trip. In such circumstances, the agency had no basis for denying Mr. Larsen’s travel costs,

including per diem, from February 16 to 21, 2017.

Decision

For the foregoing reasons, Mr. Larsen’s claim, insofar as it asks for FTA, is denied,

but Mr. Larsen is entitled to recover his costs of lodging and M&IE from February 16 to 21,

2017, as official travel costs. We direct the agency to calculate the appropriate per diem

amount due to Mr. Larsen.

_________________________________

HAROLD D. LESTER, JR.

Board Judge