In the Matter of LEE ETHEL EDWARDS

January 31, 2017

CBCA 5446-RELO

In the Matter of LEE ETHEL EDWARDS

Lee Ethel Edwards, APO Area Europe, Claimant.

Ilona M. Keller, Human Resources Specialist, Civilian Personnel Directorate, Office

of the Deputy Chief of Staff, Department of the Army, APO Area Europe, appearing for the

Department of the Army.

O’ROURKE, Board Judge.

A claim for pre-departure subsistence expenses was denied by the agency due to a

misinterpretation of the regulations governing payment of foreign transfer allowance (FTA).

We grant the claim in part.

Background

Claimant, Lee Ethel Edwards, is a Department of the Army employee who was

assigned to the Kingdom of Saudi Arabia in March 2016. Prior to assuming her current

duties, she was stationed at Fort Campbell, Kentucky. Due to delays in her receiving the

required diplomatic passport, claimant’s reporting date to Saudi Arabia was changed from

February 7 to March 6, 2016. Her permanent change of station (PCS) orders were amended

to reflect that change.

In conjunction with her move overseas, claimant was authorized a pre-departure

allowance to cover meals, temporary lodging, and laundry costs. Her PCS orders contained

the following provision: “Foreign Transfer Allowance (FTA), Pre-Departure Subsistence

Expense portion (DSSR 242.3) [not to exceed] 30 days for quarters occupied temporarily

before departure from [continental United States] location for a [permanent duty station] in

a foreign area.” For travel to claimant’s new duty station, all modes of transportation were

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authorized: rail, air, and privately owned conveyance (POC). Any excess travel time to her

new duty station would be charged as leave.

Claimant returned from a six-month deployment in Afghanistan on January 8, 2016.

After completing redeployment processing at Fort Bliss, Texas, she flew to her permanent

duty post at Fort Campbell, Kentucky, where she resided with friends until January 12, 2016,

at which time she checked into temporary quarters at Fort Campbell in anticipation of her

departure to Saudi Arabia. According to the FTA worksheets that claimant submitted to the

agency, claimant spent twenty-three nights in temporary lodging, from January 12 through

February 2, 2016, at Fort Campbell, as well as on March 5, 2016, in Jackson, Mississippi.

Claimant’s household goods were picked up on February 2, 2016, from a storage unit in

Tennessee.1 At that time, however, she had not received her official passport, and she was

not permitted to travel without it. Due to her imminent reporting date of February 7, 2016,

claimant’s orders were amended on February 3, 2016, to allow for additional time to receive

the passport. Her amended PCS orders reflected a new reporting date of March 6, 2016.

On or about February 3, 2016, claimant departed Fort Campbell by POC and traveled

to Mississippi, where she remained on leave until she received her passport and departed for

her new assignment.2 Claimant departed the continental United States from Jackson,

Mississippi, on March 6, 2016, and flew to Saudi Arabia.

On June 28, 2016, claimant submitted a claim under the FTA for twenty-three days

of meals and lodging costs that she incurred in the United States prior to her departure to

Saudi Arabia. The agency denied her claim due to the fact that she departed the United

States from Jackson, Mississippi, rather than from her post (Fort Campbell, Kentucky), which

the agency understood the regulations to require. Claimant’s request for reconsideration was

denied for the same reason.3

1

The record shows that while claimant was deployed, her household goods were in

temporary storage at Summerhaven Self Storage, in Clarksville, Tennessee.

2

Although claimant was authorized thirty days of temporary lodging, she explained

that she had reached the credit limit for lodging on her government travel card and departed

temporary quarters after twenty-two days.

3

In accordance with the Board’s Rules of Procedure, the agency submitted a written

response to the claim. In its response, the agency noted a second basis for denying the claim:

that claimant vacated her “permanent quarters” in a manner inconsistent with the regulations.

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On August 18, 2016, claimant filed a request with the Board to review the agency’s

denial. The agency responded to the request with a more detailed explanation of its reasons

for denying her FTA expenses, to which claimant replied with factual clarifications.

Discussion

Entitlement to FTA Expenses

The Department of State Standardized Regulations (DSSR) govern official travel

overseas by federal civilian employees. The DSSR define the FTA as “an allowance under

5 U.S.C. 5924(2)(A) for extraordinary, necessary and reasonable expenses, not otherwise

compensated for, incurred by an employee incident to establishing him or herself at any post

of assignment in a foreign area . . . prior to departure for such post.” DSSR 241.1(a). The

FTA consists of four distinct components, one of which is pre-departure subsistence

expenses. The regulation describes the scope of this component as “applicable to lodging,

meals (including tips), laundry, cleaning and pressing expenses in temporary quarters for

employee and each member of family for up to 10 days prior to 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 vacated residence quarters.” DSSR 241.2(c)

Additional guidance on pre-departure subsistence expenses can be found in DSSR

242.3(c). It states,

The ten days may be anywhere in the U.S. (calculated using the per diem rate

of the U.S. Post of assignment) as long as employee or family members have

not begun travel on orders and final departure is from the U.S. post of

assignment. If in an agency’s judgment unusual circumstances cause an

employee or family member to be unable to travel within the ten day limit, the

agency may permit additional days beyond the ten allowed. (One example of

a reason to approve beyond the ten days may be if employee submitted

application for passport/visa in a timely manner and still did not receive

documents in time to proceed to the foreign area.)

Here, the agency does not dispute that claimant was authorized FTA, nor does it

dispute the nature of her expenses or the amount of her claim ($2427.42).4 Rather, the

4

The record does not provide a total claim amount, but it does contain three FTA

worksheets which claimant submitted to the agency in support of her claim. The three

worksheets total $2427.42.

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agency’s denial was based on its interpretation of the provision that states, “[T]he ten days

may be anywhere in the U.S. . . . as long as employee or family members have not begun

travel on orders and final departure is from the U.S. post of assignment.” The agency denied

her FTA claim because she flew to Saudi Arabia from Jackson, Mississippi, rather than

driving back to Fort Campbell and then flying to Saudi Arabia. While we understand how

an agency might read the regulation in this way, such an interpretation is incorrect.5

The Board recently addressed this issue in Patrick S. Horan, CBCA 5424-RELO, 16-1

BCA ¶ 36,515, and Gregory P. Walker, CBCA 5496-RELO, 17-1 BCA ¶ 36,594. In both

cases, the employees stayed in temporary lodging, departed their U.S. posts of assignment

in their personal vehicles, drove several hundred miles, and then sometime later flew to their

new overseas assignments. Significantly, neither employee drove back to his U.S. post of

assignment in order to fly overseas. Rather, they both flew from airports that were located

hundreds of miles away from their U.S. posts. In each case, however, the Board granted the

employee request for FTA for qualifying expenses incurred prior to final departure from their

posts. Requests for costs incurred after their departure from their U.S. posts were denied as

FTA, since they could appropriately be considered under travel regulations.

In Horan, we noted that the dispositive issue in such cases is identifying when the

employee makes his or her final departure from the U.S. post of assignment. In this case,

claimant made her final departure from Fort Campbell on or about February 3, 2016. She

departed her post in her personal vehicle and drove to Jackson, Mississippi, where she

remained on leave, waiting for her diplomatic passport–a required document for traveling to

her new post.6 Approximately two weeks after claimant received her passport, she flew to

Saudi Arabia from the airport in Jackson, a decision the agency contends deprived her of

receiving any pre-departure subsistence benefits under the FTA.

However, as we explained in Horan:

5

The regulation provides extensive guidance and examples related to various possible

calculations of per diem in DSSR 242.3(a) and (b), but provides no examples related to the

provisions in paragraph 242.3(c).

6

The record shows that claimant had reached the credit limit on her government

travel card. Additional nights in temporary lodging at Fort Campbell would have been her

responsibility. She maintained that she went home on leave to avoid incurring these costs,

which is reasonable since her PCS orders state that any additional travel time to the new

permanent duty station, for the convenience of the employee, would be charged as leave.

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When read in conjunction with DSSR 242.1(c), it is clear that the language in

DSSR 242.3(c) means only that, 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. The

provision cannot mean that the employee is required directly to depart the

United States itself from the U.S. post of assignment – if it did, employees

assigned to relatively remote United States posts without any nearby local air

service could never qualify for an FTA because they could not fly directly out

of the United States from their remote United States posts to their new foreign

duty posts. We do not read the DSSR as limiting FTAs to employees who

happen to be stationed in urban areas with easy access to international airports.

To the contrary, the DSSR provisions, read together, provide for an FTA for a

limited period of time up until the employee makes his or her “final departure”

from the original post for the new foreign post, but without defining how long

it might take the employee to get to his or her new foreign duty station or the

modes of transportation that the employee might take to get there. The Army’s

application of a requirement for a “final departure” from the United States itself

from the airport closest to the original United States post of assignment finds

no support in the DSSR.

16-1 BCA at 177,892-93.

According to the FTA worksheets she submitted, claimant seeks payment for twentythree days of lodging and meals. With the exception of one of those days (March 5, 2016),

all costs claimed were incurred prior to her final departure from Fort Campbell and prior to

her beginning travel to her new duty station. The fact that claimant flew out of Jackson

rather than driving back to Fort Campbell is of no consequence to her qualifying for payment

of predeparture subsistence benefits under the FTA. As the Board decided in Horan and

Walker, once an employee makes his or her final departure from the U.S. post of assignment,

entitlement to FTA expenses comes to an end.

The agency cites two previous Board cases in support of its decision to deny the

claim: Tyler F. Horner, CBCA 4468-RELO, 15-1 BCA ¶ 35,899, and MarieLouise R. Assing,

CBCA 4921-RELO, 15-1 ¶ BCA 36,173. Neither case supports denying this claim. The

Board distinguished Horner in the Horan decision, stating:

To the extent that the Army believes that the Board’s decision in Tyler F.

Horner, CBCA 4468-RELO, 15-1 BCA ¶ 35,899, supports its position, the

Army is misreading that decision. Horner dealt with an employee who sought

an FTA for expenses that he incurred at an alternate location in the United

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States after he had already made his final departure from his original United

States post of assignment. Horner 15-1, BCA at 175,504. It was because the

employee had already made his final departure from his original United States

post before incurring expenses at the alternate location, and did not return to

or depart from the post of assignment after incurring those expenses, that the

employee was precluded from reimbursement for an FTA. Horner did not

purport to change or add to the requirements of the DSSR.

16-1 BCA at 177,893.

In Assing, the Army denied the claim because the employee requested reimbursement

of temporary lodging costs which she incurred after she departed her U.S. post of assignment

and began traveling on orders. Notably, the fact that the employee departed the United States

from Maryland rather than from her U.S. post of assignment in Arizona was not the principal

issue. In its review of the decision, the Board explained: “We agree with the Army that the

regulations governing the FTA are unforgiving; they do not allow granting the allowance to

anyone, no matter the circumstances, for any days after an employee begins travel on orders.”

Assing, 15-1 BCA at 176,506 (emphasis added).

In the instant case, the vast majority of lodging expenses claimed were incurred prior

to claimant departing her U.S. post of assignment and prior to beginning travel on orders to

her new duty assignment. A single day of lodging costs was incurred after departing her U.S.

post and after beginning travel on orders. Consistent with the Board’s previous decisions,

costs incurred prior to claimant’s final departure from her U.S. post are payable, while costs

incurred after her final departure are not.

Although claimant’s request for reimbursement was initially denied based solely on

her departure location (Jackson, Mississippi), the agency raised a second basis for denying

the claim. The agency reasoned:

[I]t appears that her household goods pick-up did not occur until [on or about]

02 February 2016, immediately followed by her leaving Robinson Hall,

Kentucky. As a result, it is unclear from the record when Ms. Edwards

vacated her residence that would have warranted her stay in temporary lodging

as of 12 January 2016, and subsequently consideration of payment of the

allowance; rather, a complete vacating of the residence did not occur until 02

February 2016. Since the vacating of permanent quarters is a requirement for

authorizing the allowance under DSSR 241.2c in connection with DSSR

242.3c, we take the position that Ms. Edwards did not meet those

requirements.

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In a supplemental communication to the agency and the Board, claimant explained

that her household goods were held in temporary storage while she was deployed, not at a

residence. This clarification precludes any linking of her household goods pick-up date with

the date she vacated her residence, and removes any doubt about her compliance with the

regulation.

The DSSR provides for pre-departure subsistence expenses for “lodging . . . in

temporary quarters for [an] employee . . . for up to 10 days prior to 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 vacated residence quarters.” Here, claimant stayed with friends after very recently

returning to Fort Campbell from Afghanistan. She left her friends’ residence quarters on

January 12, 2016, and moved into temporary quarters on the same day. Therefore, she falls

well within the required start time for temporary quarters (within thirty days of vacating

residence quarters).

Amount of FTA Expenses

Although the DSSR provides up to ten days of pre-departure subsistence expenses in

support of overseas PCS moves, agencies may authorize additional days when circumstances

warrant more time. The example provided in the regulation is a delay due to the employee

not yet having an official passport, which is precisely the situation in this case. Here, the

agency authorized thirty days of FTA on her orders; she requested reimbursement for twentythree days. We find that the days between January 12 and February 2, 2016 are compensable

under the regulation. The one day in March, however, is not because the expenses were

incurred after her final departure from Fort Campbell. The agency may consider the March

expenses appropriate for payment under other travel regulations.

Decision

The claim is granted in part. Claimant is entitled to twenty-two days of FTA. We

remand the case to the agency to calculate the correct amount of FTA.

__________________________

KATHLEEN J. O’ROURKE

Board Judge