In the Matter of STEPHEN S.

November 6, 2008

CBCA 1214-RELO

In the Matter of STEPHEN S.

Stephen S., Washington, DC, Claimant.

Rod Baldwin, Assistant Director for Human Resources, Naval Criminal Investigative

Service, Department of the Navy, Washington, DC, appearing for Department of the Navy.

BORWICK, Board Judge.

In this matter, claimant, Stephen S., an employee of the Department of the Navy’s

Naval Criminal Investigative Service (agency or NCIS), contests the agency’s assessment of

a debt allegedly owed by claimant for erroneous temporary duty (TDY) reimbursement. The

agency also refused to pay claimant the amount he claims is due for his temporary quarters

subsistence allowance (TQSA). We grant the claim in part.

As to TDY reimbursement, we conclude that the agency correctly found that the TDY

orders were erroneous because it had authorized reimbursement of TDY benefits after

claimant had transferred to his new permanent duty station (PDS). The agency, in

accordance with the Federal Travel Regulation (FTR), properly took corrective action to

recover the difference between the amount claimant received on a TDY basis and the amount

claimant would have been reimbursed for a permanent change of station.

As for TQSA reimbursement, the agency may properly exercise its discretion, as it

says it intends to do, to extend the period of time for TQSA beyond the date claimant

reported for duty at his PDS on the basis of the existence of compelling circumstances. The

claim is thus granted in part and the matter is returned to the agency to determine the amount

of TQSA properly due claimant.

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Background

Permanent change of station or temporary duty

In January 2005, claimant, a senior employee with NCIS, was assigned as an

executive at the agency field office in a foreign country. His tour of duty was scheduled to

last through January 2008. While in the foreign country, claimant was accompanied by his

wife and children.

Claimant was subject to a mobility agreement and eligible for involuntary

reassignment to meet mission requirements. On February 6, 2007, NCIS issued an

announcement that claimant had been selected to become a senior manager at NCIS

headquarters in Washington, D.C., and that his selection would be effective in either the third

or fourth quarter of fiscal year 2007. The agency explains that claimant did not volunteer for

this reassignment, but was selected under the mobility agreement. The purported selection

was not a grade promotion, but a promotion to a position of greater responsibility within

NCIS. Such a reassignment entitles employees to a permanent change of station (PCS) and

associated benefits.

On February 26, 2007, NCIS announced that another agent had been selected to fill

the executive position in the field office in the foreign country and that his transfer would

occur in the fourth quarter of fiscal year 2007.

In order that his children finish the school year in the foreign country, claimant

requested that he be allowed to delay his PCS to Washington until December 2007, and if he

were needed before then in Washington, that he be briefly assigned to temporary duty there.

NCIS management agreed to delay his PCS until December 2007.

On August 3, NCIS directed claimant to report to Washington on a TDY assignment.

The NCIS field office issued the travel authorization on August 24, with a “proceed date”

of August 29. The TDY period was for 107 days, through December 14, 2007. Although

not reflected in the TDY authorization, while on TDY claimant occupied the senior

management position, the job for which he had been selected under the mobility agreement.

In the meantime, effective July 31, 2007, the other agent assumed the duties of the

executive position in the foreign country, the position from which claimant had been sent on

the purported TDY. However, the end of July and August 2007 was a transition period for

both claimant and the other agent. From August 16 through August 29, the other agent and

claimant jointly conducted turnover activities for the office in the foreign country.

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On August 29, 2007, claimant reported for duty on his purported TDY assignment.

On September 19, claimant completed a PCS questionnaire to be used by NCIS management

in Washington for what claimant thought would be his PCS to Washington in December.1

Claimant stated in the questionnaire that his PCS transfer would be on or about December 21,

with his family transferring on December 21. Claimant chose the fixed-rate method of

reimbursement of TQSE.

On September 25, 2007, the agency issued a PCS travel authorization for the

transportation of claimant and his family, with the travel occurring on December 21, 2007.

In early October 2007, the Department of the Navy’s Office of Inspector General

(OIG) commenced an investigation of NCIS’s issuance of TDY orders to claimant and two

other employees. NCIS requested permission to advise claimant of the investigation so that

he might cease incurring TDY expenses.

Claimant says he was informed of the OIG investigation during his meeting with

management on October 25, 2007. After that meeting, claimant checked out of his hotel,

turned in his rental car, and remained in Washington at his own expense.

Claimant submitted three TDY vouchers. On October 7, 2007, claimant submitted a

travel voucher for the period August 29 through September 28. On November 2, claimant

submitted a TDY voucher for the period September 29 and 30. On November 8, claimant

submitted a TDY voucher for the periods October 1 through 10, October 14 through 16, and

October 18 through 31. Claimant says that he has incurred expenses of $16,709.99 of what

he maintains should have been reimbursable TDY expenses.

The OIG requested an opinion from the Department of the Navy’s Office of Civilian

Human Resources (OCHR) as to the correctness of the TDY order NCIS had issued to

claimant. By memorandum of November 8, 2007, the OCHR determined: (1) that claimant

was definitively notified on February 6, 2007, of his selection and promotion; (2) that

claimant’s transfer was to be effective in the third or fourth quarter of fiscal year 2007; (3)

that claimant requested a delay in his PCS transfer until December to allow his children to

complete the school year in the foreign country and that the agency had so agreed as an

accommodation to claimant; (4) that when claimant reported for duty on TDY in Washington

1

The agency explains that NCIS field offices issue TDY authorizations for their

employees on TDY while NCIS headquarters in Washington, D.C., issues all PCS

authorizations for employees both at headquarters and at the NCIS field offices.

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in August, he was performing the duties of his new permanent position for which he had

been selected the previous February; and (5) that when claimant departed the foreign country

in August 2007, he had no reasonable expectation of returning there, since his old position

in the foreign country had been filled on July 31.

The OCHR recommended the following corrective action: (1) that claimant be

promoted to his new position effective August 29, 2007; (2) that his PCS be treated as if it

had occurred on August 29, 2007; (3) that it be established that the employee has two years

from August 29, 2007, to use his fixed rate TQSE benefit; (4) that all claimant’s home leave

rights and overseas allowances accruing by virtue of his occupying an overseas position

terminate as of August 29, 2007; and (5) that the employee be required to repay all

reimbursements from the erroneous temporary duty assignment, including the round-trip air

fare.

Throughout this period, the agency refused to permit claimant to return to the foreign

country on official business.

Claimant’s return trip to the foreign country and the move of claimant’s family into

temporary quarters

Claimant says that on October 1, 2007, his family packed the first of its two household

goods shipments and vacated its permanent military-supplied residence in the foreign

country. Claimant states that his family began incurring the TQSA expenses on or about that

date.

On December 13, 2007, claimant took annual leave to return to the foreign country

at his expense to assist his family in its move. Claimant also attended departure conferences

with the foreign country’s police officials and other farewell functions with foreign

government representatives. Claimant had originally been issued travel orders for this trip,

but according to claimant an agency official verbally advised him that the trip was no longer

authorized. Consequently, claimant canceled the government air ticket.

Discussion

Permanent change of station or temporary duty

Statute provides in pertinent part:

Per diem; employees traveling on official business

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(a)(1) Under regulations prescribed pursuant to section 5707 of this title, an

employee, when traveling on official business away from the employee’s

designated post of duty, . . . is entitled to any one of the following:

(A) a per diem allowance at a rate not to exceed that established

by the Administrator of General Services for travel within the

continental United States, and by the President or his designee

for travel outside the continental United States;

(B) reimbursement for the actual and necessary expenses of

official travel not to exceed an amount established by the

Administrator for travel within the continental United States or

an amount established by the President or his designee for travel

outside the continental United States; or

(C) a combination of payments described in subparagraphs (A)

and (B) of this paragraph.

5 U.S.C. § 5702 (2000) (emphasis added).

TDY per diem is authorized only to employees on official travel away from their posts

of permanent duty. Robert W. Arndorfer, B-214966 (Dec. 27, 1984) (employee receiving

definite notice of transfer not entitled to TDY per diem upon arrival at new duty station). As

our predecessor board settling claims for travel and relocation expenses explained, an

employee transferred to his or her new permanent duty station may not be placed on

temporary duty upon arrival at his new permanent duty station:

Payment of temporary duty per diem and allowances is authorized only when

an employee is traveling away from the employee’s permanent duty station.

5 U.S.C. § 5702(a); Kenneth E. Billings, GSBCA 15264-TRAV, 00-2 BCA

¶ 30,961. An employee’s permanent duty station is the place at which he

performs the major portion of his duties and where he is expected to spend the

greater part of his time. John P. DeLeo, GSBCA 14042-TRAV, 97-2 BCA

¶ 29,156. [Claimant’s] transfer to The Pentagon, for permanent duty, was

effective on the date he reported for duty there. 41 CFR 302-1.4(1) [now 41

CFR 302-2.4 (2007)]. Because [claimant’s] permanent duty station is The

Pentagon, he cannot be placed on temporary duty there. Any attempt to amend

his travel orders to place him on temporary duty at The Pentagon would be

ineffective. Erwin E. Drossel, B-203009 (May 17, 1982).

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Timothy C. Ford, GSBCA 15719-RELO, 02-1 BCA ¶ 31,752, at 156,839.

One exception to this rule occurs when an employee performs a period of temporary

duty at his new duty station between the time the employee receives his transfer orders and

the stated effective date of those orders if such a period of temporary duty is terminated by

a return to the old station on official business. Arndorfer.

Here, claimant’s old duty position in the foreign country had been filled effective

July 31, 2007. Claimant had been selected for the position in Washington, D.C., in February

2007 and the agency had directed him to report for duty on August 3. Claimant transferred

to his new duty station on August 29. When claimant traveled from the foreign country to

Washington, D.C., he was not “traveling on official business away from his designated post

of duty” as required by statute; rather, he was traveling from one permanent duty station to

another.

The agency might have relied upon the Arndorfer exception to approve claimant’s

temporary duty in Washington between August 29 and December 21 (the effective date of

claimant’s unamended PCS orders), if it had allowed claimant’s return to the foreign country

on official business. However, that exception does not apply because the agency refused to

allow claimant’s return to the foreign country for official business during that period. The

NCIS issuance of TDY orders for claimant’s transfer from the foreign country to

Washington, D.C., violated 5 U.S.C. § 5701. An agency is not bound by erroneously issued

orders. Defense Intelligence Agency Employee, CBCA 976-RELO, 08-2 BCA ¶ 33,900.

Therefore, the agency acted correctly in treating claimant’s PCS transfer orders effective as

of August 29.

Temporary Quarters Subsistence Allowance

The statute dealing with quarters allowances provides in pertinent part:

(a) When Government owned or rented quarters are not provided

without charge for an employee in a foreign area, one or more of the following

quarters allowances may be granted when applicable:

(1) A temporary subsistence allowance for the reasonable

cost of temporary quarters (including meals and laundry

expenses) incurred by the employee and his family–

....

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(B) for a period of not more than 30 days immediately before

final departure from the post after the necessary evacuation of

residence quarters.

(b) The . . . 30-day period under subsection (a)(1)(B) may . . . be

extended for not more than 60 additional days if the head of the agency

concerned or his designee determines that there are compelling reasons beyond

the control of the employee for the continued occupancy of temporary quarters.

5 U.S.C. § 5923.

The authority to issue regulations implementing the statue has been delegated by the

President to the Secretary of State, under Executive Order No. 10,903, § 2. William P.

McBee, Jr., CBCA 943-RELO, 08-1 BCA ¶ 33,760; Richard H. Whittier, GSBCA 16538RELO, 05-1 BCA ¶ 32,926. The Secretary has issued the Department of State Standardized

Regulations (DSSR) implementing the statute. McBee, 08-1 BCA at 167,114. The

Department of Defense’s Joint Travel Regulations (JTR) provide that the Department follows

the TQSA rules established in the DSSR. JTR C1003.

The DSSR provide in pertinent part:

122 Scope

122.1 Purpose

The temporary quarters subsistence allowance is intended to assist in covering

the average cost of adequate but not elaborate or unnecessarily expensive

accommodations in a hotel, pension, or other transient-type quarters at the post

of assignment, plus reasonable meal and laundry expenses for a period not in

excess of 90 days after first arrival at a new post of assignment in a foreign

area, ending with the occupation of residence quarters if earlier, or 30 days

immediately preceding final departure from the post following necessary

vacating of residence quarters.

122.2 Extension

The 90 and 30 day temporary quarters subsistence periods may be extended up

to but not more than an additional 60 days in each case if it is determined by

the head of agency that compelling reasons beyond the control of the employee

require continued occupancy of temporary quarters.

CBCA 1214-RELO

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124.1 Commencement

If the head of agency determines that it is necessary for an employee to occupy

temporary quarters immediately preceding final departure from the post, the

grant of a temporary quarters subsistence allowance may commence as of the

latest of the following dates:

a. the date following the necessary vacating of government owned or leased

quarters or termination of the living quarters allowance grant (exception: the

head of agency or designee may determine that up to five days are required for

payment of both the living quarters allowance and the temporary quarters

subsistence allowance because the employee must necessarily vacate

permanent residence quarters in order to comply with stringent lease

requirements for cleaning and repair);

b. the date expenditures for temporary lodging are first incurred following the

necessary vacating of residence quarters. However, see Section 124.33 for

employee occupying no cost temporary quarters.

The agency head or designee may authorize the grant of temporary quarters

subsistence allowance up to five days prior to the termination of the grant of

living quarters allowance if such agency head or designee determines that it is

necessary for the employee to vacate existing quarters in order to meet lease

requirements for cleaning and repair.

124.2 Termination

A temporary quarters subsistence allowance granted immediately preceding

the employee’s final departure from the post shall terminate as of the earliest

of the following dates:

a. on the 31st day following commencement of the grant unless an extension

is authorized under Section 122.2 by the head of agency;

b. the date expenses for temporary lodging are no longer incurred; however,

see Section 124.33 for employee occupying no cost temporary quarters;

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c. the date of the employee’s departure, or the date of departure of family

members if later, under transfer orders. Where the employee’s departure for

transfer precedes that of family members, the temporary quarters subsistence

allowance at the previous post shall not extend beyond the date preceding the

date of the arrival of the new employee at the new post; or

d. the date of separation from a Federal agency.

DSSR 122, 124.

In this matter, the agency states that it was compelled by DSSR 124.2(c) to deny

claimant’s family any TQSA allowance because the agency properly treated claimant as

having arrived at his new permanent duty station on August 29, 2007, well before claimant’s

family entered temporary quarters on October 1, 2007. The family entered temporary

quarters under the assumption that claimant’s permanent duty transfer would not occur until

December 21, 2007, under the erroneously issued PCS transfer orders of September 25, 2007,

later corrected to provide for his transfer on August 29.

In its submission of September 4, 2008, the agency states that it is prepared to pay

claimant the allowable TQSA allowance, if justified, consistent with the provisions of DSSR

124.2.

The “compelling reasons” provisions of 5 U.S.C. § 5923(b) and DSSR 122.2

contemplate an agency determination based upon an employee’s individual circumstances

as to extension of TQSA beyond the ending date. In short, the statute and provisions of the

DSSR allow a maximum of ninety days of TQSA, if the period is appropriately authorized.

Whittier, 05-1 BCA at 163,103. It is not an abuse of discretion for the agency to make a

determination that in this case compelling reasons exist that would justify the extension of

the TQSA beyond the initial termination date. The agency is therefore free to compensate

claimant for his family’s allowable TQSA (which in fact began on October 1, 2007), for the

period August 29 through November 27, 2007.

_______________________________

ANTHONY S. BORWICK

Board Judge