# In the Matter of STEPHEN S.

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URL: https://www.frixlaw.com/law-library/documents/agency%3Acbca%3A5fbd53f5941b173d

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

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.

CBCA 1214-RELO

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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.

CBCA 1214-RELO

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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.

CBCA 1214-RELO

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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–
....

CBCA 1214-RELO

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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
....
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;

8

CBCA 1214-RELO

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Acbca%3A5fbd53f5941b173d. Public record. Not legal advice.