In the Matter of ROGER C. CASTRO

April 15, 2016

CBCA 5100-RELO

In the Matter of ROGER C. CASTRO

Roger C. Castro, APO Area Pacific, Claimant.

Debra L. Martin-Robillard, Civilian Personnel Officer, Pacific Air Forces, Department

of the Air Force, APO Area Pacific, appearing for Department of the Air Force.

LESTER, Board Judge.

Claimant, Roger C. Castro, requests that we review the decision of the Department

of the Air Force (Air Force) denying him temporary quarters subsistence allowance (TQSA).

We remand this claim to the agency for further evaluation and consideration.

Background

On July 1, 2014, the claimant retired as an officer in the United States Army and

returned to his home state, Hawaii, to pursue a degree at the University of Hawaii at Hilo.

Through the school’s “Study Abroad” program, Mr. Castro was selected as part of his degree

program to study in New Zealand from July through November 2015, after which he was

expected to return to Hawaii. Mr. Castro arrived in New Zealand on a student visa on July

8, 2015. Under the terms of that visa, he was required to “leave [New Zealand] before visa

expiry or face deportation.”

In late July 2015, the Air Force posted a job announcement on USAJOBS for a

contingency plans specialist position at Kadena Air Base (Kadena AB) in Okinawa, Japan.

While in New Zealand on his student visa, Mr. Castro applied for that position. On

August 24, 2015, he received a tentative job offer (subject to successful completion of drug

testing), which he accepted. Because of what the Air Force describes as an administrative

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error, the Air Force did not at that time send Mr. Castro a Questionnaire for Overseas

Benefits Determination, which would have provided the agency with the information that it

needed to determine whether Mr. Castro was entitled to a living quarters allowance (LQA)

and/or TQSA following his arrival in Okinawa.1 On November 5, 2015, the Air Force made

Mr. Castro a firm job offer, with an entrance duty date of November 16, 2015. Mr. Castro

arrived in Okinawa on November 15, 2015, to begin work the next day. On November 16,

2015, Mr. Castro completed the benefits determination questionnaire that the Air Force

provided him following his arrival.

On November 24, 2015, the Kadena AB Civilian Personnel Office informed Mr.

Castro that he was not eligible to receive LQA or TQSA based upon the answers that he had

provided on his response to the questionnaire.2 Mr. Castro has asserted that, had the agency

informed him before he moved to Okinawa that he was not eligible for such allowances, he

would not have accepted the job.

On December 11, 2015, Mr. Castro filed his claim with the Board, asking that we

review his request for TQSA. He has not challenged the LQA denial here.

The Air Force submitted a written response to Mr. Castro’s claim and supplied us with

several exhibits, one of which was a Standard Form (SF) 50, “Notification of Personnel

Action,” for Mr. Castro. That SF-50 indicates that, after filing his claim here, Mr. Castro

resigned from his position as a contingency plans specialist, effective December 31, 2015,

because the denial of overseas allowances, coupled with the cost of off-post housing, had

created too much of a financial burden for him. The Air Force does not address the effect

(if any) of that resignation on his claim.

Discussion

I.

The Overseas Differentials and Allowances Act

Pursuant to the Overseas Differentials and Allowances Act, 5 U.S.C. § 5923 (2012),

“when the Government does not provide free quarters for a civilian employee in a foreign

area, the Government may grant the employee several types of quarters allowances,” Albert

1

The agency acknowledges that it should have provided this questionnaire to Mr.

Castro after it made him a tentative offer so that it could have made determinations about his

eligibility for a transportation agreement, LQA, and TQSA before he traveled to Okinawa.

2

The record indicates that, although the agency denied LQA and TQSA, it found Mr.

Castro eligible for a transportation agreement.

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Carter, Jr., GSBCA 15435-RELO, 01-1 BCA ¶ 31,404, at 155,127, including TQSA “for a

period not in excess of 90 days after first arrival at a new post of assignment” (with the

possibility of an additional sixty-day extension). 5 U.S.C. § 5923(a)(1), (b). TQSA “is

meant to cover the reasonable lodging, meals, and laundry expenses of an employee and/or

family members while occupying temporary quarters after arriving at a new overseas post

and immediately preceding final departure from an overseas post.” Carter, 01-1 BCA at

155,127; see DSSR 121. The President is empowered to prescribe regulations governing

such allowances, see 5 U.S.C. § 5922(c), an authority that the President delegated to the

Secretary of State. See Exec. Order No. 10903, 26 Fed. Reg. 217, 217-18 (Jan. 9, 1961).

As set forth in the Department of State Standardized Regulations (DSSR), which

implement the statute, quarters allowances, including TQSA, “may be granted to employees

who were recruited by the employing government agency in the United States, the

Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, and the

possessions of the United States.” DSSR 031.11. If a new employee was “recruited outside

the United States,” however, he “may receive TQSA only if certain specified requirements

are met.” Carter, 01-1 BCA at 155,127. Those requirements are set forth in DSSR 031.12,

as follows:

Quarters allowances prescribed in Chapter 100 may be granted to employees

recruited outside the United States, provided that:

a.

the employee’s actual place of residence in the place to which the

quarters allowance applies at the time of receipt thereof shall be fairly

attributable to his/her employment by the United States Government; and

b.

prior to appointment, the employee was recruited in the United States,

the Commonwealth of Puerto Rico, the Commonwealth of the Northern

Mariana Islands, the former Canal Zone, or a possession of the United States,

by:

(1)

(2)

(3)

(4)

the United States Government, including its Armed Forces;

a United States firm, organization, or interest;

an international organization in which the United States

Government participates; or

a foreign government

and had been in substantially continuous employment by such employer under

conditions which provided for his/her return transportation to the United

States, the Commonwealth of Puerto Rico, the Commonwealth of the Northern

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Mariana Islands, the former Canal Zone, or a possession of the United States;

or

c.

as a condition of employment by a Government agency, the employee

was required by that agency to move to another area, in cases specifically

authorized by the head of agency.

II.

Whether Mr. Castro Was “Recruited Outside the United States”

It is clear that Mr. Castro was “recruited outside the United States.” Although Mr.

Castro indicates that he was still a resident of Hawaii the entire time that he was on a student

visa in New Zealand and suggests that the Board should consider his actual place of

residence in evaluating his right to TQSA, the relevant portions of the DSSR do not focus

upon residency. As our predecessor board for relocation and travel matters, the General

Services Board of Contract Appeals, previously recognized in James E. Pierce, Jr., GSBCA

15201-RELO, 00-1 BCA ¶ 30,816, the DSSR focuses upon where the person was physically

located when he was “recruited” for employment:

Mr. Pierce points out that he is a United States citizen, that his home of record

is Oregon, and that Oregon is his permanent residence within the United

States. However, the applicability of DSSR 031.11 does not depend upon Mr.

Pierce’s citizenship, the location of his home of record, or the location of his

permanent residence. Instead, the applicability of the regulation depends upon

whether he was recruited in the United States for the position at Camp Zama.

Because Mr. Pierce was in Japan, and not in the United States, when he was

recruited for his position at Camp Zama, he is not eligible to receive quarters

allowances as an employee who was recruited in the United States.

Id. at 152,113; see Thomas v. United States, 122 Fed. Cl. 53, 66 (2015) (“DSSR § 031.11,”

which addresses quarters allowances for employees recruited in the United States, “applies

only to those employees who were physically located in the United States at the time of their

hire”).

Mr. Castro suggests that different considerations should apply because his stay in New

Zealand was only a “temporary condition (akin to a long vacation)” and that, because of the

temporary nature of his student visa, he should be considered a “Stateside Hire.” The history

of DSSR 031.12 indicates the contrary. Many years ago, DSSR 031.12 identified students

temporarily engaged in formal study overseas as individuals who were considered to be

“recruited outside the United States,” but who would be entitled to benefits under 5 U.S.C.

§ 5923: the DSSR section expressly authorized quarters allowances if “the employee was

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temporarily in the foreign area for travel or formal study and immediately prior to such travel

or study had resided in the United States.” DSSR 031.12d (effective Apr. 2, 1961), quoted

in Barbara E. Meyer-Wendt, B-160107 (Oct. 7, 1966); see Ronald H. Davis, 54 Comp. Gen.

149, 151-52 (1974) (discussing DSSR provision). Under that provision, Mr. Castro’s fourmonth stay in New Zealand would plainly have qualified him for quarters allowances. See

Trifunovich v. United States, 196 Ct. Cl. 301, 311 (1971) (granting entitlement to quarters

allowances where new employee was hired during an eighteen-month overseas travel period).

The Department of State (DOS) removed that subsection from DSSR 031.12 long ago,

meaning that Mr. Castro cannot rely on it now as a basis for TQSA entitlement.

Nevertheless, its original inclusion in section 031.12 shows that DOS considers students who

are on temporary overseas formal study as falling within the definition of individuals

“recruited outside the United States.”

III.

Whether Mr. Castro Meets the Specific Requirements of DSSR 031.12

Because Mr. Castro was recruited outside the United States, the agency can grant him

TQSA only if he meets the specific requirements of DSSR 031.12. Mr. Castro satisfies the

first part of those requirements – subsection (a) of DSSR 031.12 – given that his “actual

place of residence” in the Okinawa area was “attributable to his/her [new] employment by

the United States Government.” That is, he moved to Okinawa because of his new job.

In addition to satisfying subsection (a), Mr. Castro must also satisfy either

subsection (b) or subsection (c) of DSSR 031.12 to qualify for TQSA. He does not satisfy

subsection (b) because he did not travel to New Zealand after having been recruited for

employment there by the United States Government, a foreign government, a United States

organization, or an international organization “in which the United States Government

participates”; he was not in “substantially continuous employment” with such an employer

during his time in New Zealand; and such an employer had not guaranteed his return

transportation to the United States. DSSR 031.12b.3 Accordingly, if Mr. Castro is entitled

to TQSA, he must rely upon subsection (c) of DSSR 031.12.

The agency asserts that Mr. Castro does not satisfy subsection (c) because the

subsection could apply only if, “as a condition of employment by the Government,” Mr.

3

The requirements of subsection 031.12b “may be waived by the head of agency

upon determination that unusual circumstances in an individual case justify such action,”

DSSR 031.12, but DoD Instruction 1400.25-v1250 (Feb. 23, 2012) (DoD Instruction) limits

waiver approvals to circumstances generally associated with marital or domestic partner

situational changes, see DoD Instruction Enclosure 2 ¶ 2.c(1), which are not applicable here.

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Castro “was required to move to New Zealand” before he applied for the Kadena AB

position. Agency Submission at 2. The agency misunderstands subsection (c). It applies if,

“as a condition of employment by a Government agency, the employee was required by that

agency to move to another area.” DSSR 031.12c. That does not mean that the Government

originally had to hire Mr. Castro in the United States for a job in New Zealand, after which

it then required him to move to Okinawa. The “move to another area” at issue here is the

move from New Zealand to Okinawa. Mr. Castro was in New Zealand when he applied for

the Kadena AB position, and he was required to move to Okinawa for the job. That meets

the literal language of subsection (c). See Frank Lacks, Jr., CBCA 1785-RELO, 10-1 BCA

¶ 34,374, at 169,732 (in considering DSSR 031.12c requirements, reviewing whether, “as a

condition of his employment,” claimant “was required to move” from one area in Germany

“to another area in Germany” as a new hire for a new job).4

Nevertheless, entitlement to TQSA under DSSR 031.12c is limited to “cases

specifically authorized by the head of agency” or his delegate. The Air Force has not made

that discretionary determination as it applies to Mr. Castro, but instead used a faulty rationale

to find DSSR 031.12c inapplicable to his situation. We remand this matter to the Air Force

for an appropriate review.

4

We note that, at one point in time, the applicable DoD Instruction stated that the

provision now at DSSR 031.12c “will not be applied to new hires,” Costas Mountanos,

B-189463 (Nov. 23, 1977) (quoting DoD Instruction 1418.1 ¶ III.B.1.d (Sept. 16, 1974) (now

superseded)), which made it relevant only to an existing federal employee transferring from

one foreign-area agency position to an agency position in a new foreign area. Mrs. D.

Russelle Hedley, B-168161 (Nov. 16, 1973). That “new hire” language, however, does not

exist in the current DoD Instruction, and it has been replaced by language about DSSR

031.12c suggesting a change from the old policy: “[s]electing a person to be relocated is

based on regulatory guidance, leaving management little option to recruit a new employee

or select an employee receiving LQA.” DoD Instruction Enclosure 2 ¶ 2.h (emphasis added).

Further, paragraph 3.1.3.1.2 of the United States Air Forces in Europe Instruction 36-705

(Oct. 29, 2012) indicates that quarters allowances may be granted under DSSR 031.12c “if

the assignment entails a move ‘within or between countries’ and management requires the

employee to move to another area as a ‘condition of employment’ which ‘. . . if not fulfilled,

results in failure to gain or retain employment.’” Id. (emphasis added) (quoting DSSR

031.12c & DoD Instruction Enclosure 2 ¶ 2.g). In the absence of any citation by the Air

Force to language in the current DoD Instruction or elsewhere expressly precluding DSSR

031.12c’s application to new hires, we cannot reject Mr. Castro’s claim for TQSA on that

basis.

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Decision

For the foregoing reasons, we remand this matter to the Air Force for further

consideration. To the extent that Mr. Castro’s resignation from his position effective

December 31, 2015, affects his entitlement to TQSA, the Air Force may consider that fact

on remand.

______________________________

HAROLD D. LESTER, JR.

Board Judge