In the Matter of JAMES L. HOLLINGSWORTH

August 10, 2012

CBCA 2581-RELO

In the Matter of JAMES L. HOLLINGSWORTH

James L. Hollingsworth, APO Area Europe, Claimant.

Thomas Rittershofer, Civilian Personnel Programs Branch, Directorate of Manpower,

Personnel and Services, Department of the Air Force, APO Area Europe, appearing for

Department of the Air Force.

McCANN, Board Judge.

Claimant, James L. Hollingsworth, a civilian employee of the Department of the Air

Force (agency or Air Force) stationed in Aviano, Italy, seeks review of the Air Force’s denial

of living costs he incurred incident to his relocation to Italy after his retirement from active

duty. Because none of the applicable travel regulations permit the reimbursement of

Mr. Hollingsworth’s claimed costs, we affirm the agency’s decision and deny his appeal.

Background

James L. Hollingsworth is a supervisory food and beverage specialist employed by the

Air Force at Aviano Air Base, Italy. He began working in this position on May 23, 2011.

Prior to holding this civilian position, Mr. Hollingsworth served as an active-duty member

of the Air Force from August 1, 1986, until his retirement on March 31, 2011. At the time

of his retirement, Mr. Hollingsworth was stationed in the United Kingdom.

Mr. Hollingsworth seeks reimbursement in the amount of $415 for temporary lodging

incurred for a ten-day period prior to his departure from the United Kingdom for Italy. He

had been informed orally that he was eligible to receive ten days of living quarters allowance

prior to leaving the United Kingdom. His orders indicate that temporary quarters subsistence

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allowance (TQSA) “may be authorized,” and that temporary quarters subsistence expense

(TQSE) is not authorized. The Air Force denied his request, and Mr. Hollingsworth appealed

to the Board.

It is undisputed that during the two-month gap between his retirement from active

duty and the beginning of civilian employment, Mr. Hollingsworth was entitled to return

home to the United States at taxpayers’ expense. He declined to do so, remaining instead in

England at his own expense. As the Air Force concedes, that decision “saved the

Government a significant amount of money.”

Discussion

The Air Force contends that Mr. Hollingsworth is not entitled to reimbursement for

his ten days of lodging because no regulation allows such recovery. The Air Force is correct.

Mr. Hollingsworth’s orders clearly indicate that the recovery of TQSE is not authorized.

Additionally, the Federal Travel Regulation (FTR) expressly reserves TQSE for an employee

moving to a new official duty station located within the United States. 41 CFR 302-6.4(a)

(2010). Furthermore, under the FTR, TQSE is not available to new appointees. 41 CFR 302­

6.5; Charles M. Russell, GSBCA 16000-RELO, 03-1 BCA ¶ 32,176. A new appointee is an

individual “who is employed with the Federal Government for the very first time.” 41 CFR

302-3.1(a). Since Mr. Hollingsworth retired from active duty before he took this job as a

civilian employee in Italy, he is a new appointee. See John B. Smith, GSBCA 15319-RELO,

01-1 BCA ¶ 31,338, at 154,771. The expenses that a “new appointee” may recover are

limited in comparison to the expenses that an employee may recover. See generally Barry

McGuire, GSBCA 15346-RELO, 01-1 BCA ¶ 31,343, at 154,779-80.

The only way that Mr. Hollingsworth might be able to recover would be as a new

appointee under the Department of State Standardized Regulations (DSSR). New appointees

assigned to a first official station outside the continental United States may recover certain

costs under the foreign travel allowance (FTA) or the TQSA of the DSSR. 41 CFR 302-3.2

(tbl. B, col. 2, no. 2). Under this regulation, the agency has discretionary authority to

reimburse pay a new appointee these allowances. Id.

With regard to TQSA, we note that the DSSR, even under the facts of this case, do

not permit reimbursement of Mr. Hollingsworth’s claimed costs. The DSSR allows TQSA

to begin no earlier than the date upon which the claimant “arrives at a new post.” DSSR

123.1(a). Because Mr. Hollingsworth had not arrived at his new post in Italy at the time he

incurred the costs for which he seeks reimbursement, he is not entitled to recover TQSA.

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With regard to potential payment under the FTA, the DSSR again does not permit

reimbursement. Predeparture subsistence expenses such as lodging and meals may be

recoverable for up to ten days prior to “departure from a post in the United States to a post

in a foreign area . . . .” DSSR 241.2 c. Since Mr Hollingsworth was not departing from a

post in the United States, but was departing from the United Kingdom, he may not be

reimbursed predeparture subsistence expenses.

It is unfortunate that we must deny Mr. Hollingsworth’s claim. Like the officials at

the Air Force, we recognize that Mr. Hollingsworth might have acted with the best of

intentions by deciding to remain in the United Kingdom before relocating to Italy, a decision

that subsequently saved the Government a significant amount of money. Be that as it may,

the fact that Mr. Hollingsworth acted with good intentions does not permit the Government

to reimburse expenses that are not authorized by law or regulation. It is well-established that

the “Government may not spend money in violation of statute or regulation.” Kevin S.

Foster, GSBCA 13639-RELO, 97-1 BCA ¶ 28,688 (1996) (citing Office of Personnel

Management v. Richmond, 496 U.S. 414 (1990); Federal Crop Insurance Corp. v. Merrill,

332 U.S. 380 (1947)).

Decision

For the foregoing reasons, the claim is denied.

R. ANTHONY McCANN

Board Judge