In the Matter of JAMES W.

September 4, 2024

CBCA 8126-RELO

In the Matter of JAMES W.

Robert D. Stewart II, Supervisory Air Traffic Specialist, G3 Aviation, United States

Army Europe and Africa, Department of the Army, APO Area Europe, appearing for

Claimant.

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

Department of the Army, APO Area Europe, appearing for Department of the Army.

SULLIVAN, Board Judge.

Claimant seeks review of the anticipated denial by the Department of the Army

(Army) of his claim for foreign transfer allowance (FTA) lodging expenses for temporary

lodging procured through Airbnb. Because we conclude that the agency’s denial is based

upon an incorrect interpretation of regulation, we grant the claim. The agency has yet to

determine the amount that claimant should be reimbursed.

Background

In November 2023, claimant, a civilian employee of the Army, was selected for an

assignment in Germany. His reporting date was March 2024. Prior to his flight to Germany,

claimant spent seven days in two different Airbnb units in the United States. He seeks

reimbursement of his expenses.

Claimant submitted a reimbursement worksheet and was informed that “there [was]

a problem with the type of lodging” because the Army’s Civilian Human Resource Agency

(CHRA) “ha[d] denied recent submissions of Airbnb lodging requests based on” section

242.3(b) of the Department of State Standardized Regulations (DSSR), which the Army

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claimed does not permit reimbursement for “[n]on-[c]onventional [l]odging.” Claimant did

not resubmit his FTA worksheet and has not submitted a claim package to CHRA.

Claimant and his supervisor, through the exchange of a series of emails, questioned

the justifications provided by Army Human Resources (HR) staff.1 It appears that Army HR

staff changed the justification several times in response, first citing DSSR 242.3(b), then an

“Overseas Benefits [Branch] Allowances and Differentials Guide” (the Guide) published

after claimant’s arrival in Germany, then a “State Department policy” which had “not

change[d] since April 2023,”2 and finally a “confirmation” from the State Department about

reimbursement for temporary duty travel. Neither party included a copy of the Guide or the

“confirmation.” Army HR staff acknowledged “that a clearer or more specific

communication would . . . have helped to avoid this situation.” When asked why the Army

was no longer reimbursing Airbnb expenses, the management analyst answered: “There are

many things in [regulations] that are policed or not based on ‘this is the way it[’]s been’ and

when challenged or changed, look like new policy but are not.”

In June 2024, claimant’s supervisor, as claimant’s authorized representative, filed the

claim with the Board.3 In response to the claim, the Army asserted that consideration by the

Board was premature because the Army has not yet formally denied the claim. However, the

Army further explained that, “if a formal claim package would be submitted . . . to the

CHRA Overseas Benefit Branch . . . , this office would, as it has done previously, support

non-payment of the [Airbnb] lodging expenses.”

1

Claimant and his supervisor exchanged emails with the Army management

analyst assigned to process the claim, a supervisory management analyst, the Chief of the

CHRA European Branch Overseas Benefit Center (CHRA Europe), and a HR specialist with

the Army’s Europe and Africa Civilian Personnel Directorate. These individuals are referred

to collectively as Army HR staff.

2

Presumably this is another reference to DSSR 242.3(b). If this refers to another

policy, neither party has clarified which policy nor provided a copy to the Board.

3

Rule 402(a)(1) permits the claimant, claimant’s attorney, or claimant’s

authorized representative to file a claim with the Board. 48 CFR 6104.402(a)(1) (2023). The

claim submitted to the Board includes a statement from claimant that his supervisor is

authorized to act as his representative.

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Discussion

I.

The Board May Resolve the Claim

The Administrator of General Services has authority to hear “claims

involving . . . relocation expenses incident to transfers of official duty station.” 31 U.S.C.

§ 3702(a)(3) (2018). The Administrator has delegated that authority to the Board. Roy L.

Edgar, CBCA 1985-RELO, 11-1 BCA ¶ 34,702, at 170,893; Rule 401(a), (b)(2). “Any claim

for entitlement to . . . relocation expenses must first be filed with the claimant’s own

department or agency,” which “shall initially adjudicate the claim.” Rule 401(c). However,

this requirement is subject to an exception when further progress with the agency would be

futile. See Scott E. Beemer, CBCA 4250-RELO, 15-1 BCA ¶ 35,960, at 175,712.

As claimant has not resubmitted his FTA worksheet or a complete claim package to

the CHRA Overseas Benefits Branch, he fails to meet the requirements of Rule 401(c).

However, Army HR staff repeatedly informed claimant and his supervisor that Airbnb

lodging expenses would not be approved. In its response to the claim before the Board, the

Army also admitted that claimant’s request would not be approved. Therefore, it would be

futile to require claimant to resubmit his FTA worksheet and claim package to CHRA. We,

thus, address the merits of his claim.

II.

Payment for Airbnb-Procured Lodging is Permitted

Travel reimbursements and payments for Department of Defense (DoD) civilian

employees stationed overseas are governed by several regulations. The Federal Travel

Regulation (FTR) applies to all civilian employees and is supplemented by the Joint Travel

Regulations (JTR) for DoD employees. See Fernando B., CBCA 7725-RELO, 23-1 BCA

¶ 38,377, at 186,422; Scott M. Torrice, CBCA 2431-TRAV, 11-2 BCA ¶ 34,839, at 171,386.

The DSSR, promulgated by the Secretary of State, provide specific requirements for

allowances related to employees stationed outside of the United States, including FTA, and

carry the force of law. Steven Fuller, GSBCA 16337-RELO, 04-1 BCA ¶ 32,623, at

161,422; see also DSSR 013 (permitting agency heads to grant allowances subject to the

DSSR); Department of Defense Instruction (DoDI) 1400.25, vol. 1250 ¶ 1.b(1) (Feb. 2012)

(authorizing payment of allowances pursuant to the DSSR). For permanent change of station

moves, the determination as to which expenses may be reimbursed is based on the

regulations in effect at the time the employee reports to the new official duty station. 41 CFR

302-2.3 (FTR 302-2.3).

FTA “may be granted” to federal civilian employees “for extraordinary, necessary,

and reasonable subsistence and other relocation expenses . . . incurred by an employee

incident to establishing himself at a post of assignment in” a foreign area. 5 U.S.C.

CBCA 8126-RELO

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§ 5924(2). CHRA Europe implements the above regulations by publishing Army in Europe

Regulation 690-500.592 (Sept. 2018), which provides that “FTA may be authorized” for an

employee eligible for living quarters allowance. Id. ¶ 12.b. The Army concedes that

claimant met all requirements of that regulation and the DSSR but believes that the expenses

cannot be reimbursed because lodging procured through Airbnb falls into the prohibited

category of “non-commercial provider.” Below, we discuss each authority upon which the

Army relies and explain how those authorities do not support the Army’s denial.

A.

FTR

FTR chapter 301 governs travel allowances for temporary duty. In chapter 301,

conventional lodging is described as a “hotel/motel, boarding house, etc.” FTR

301-11.12(a)(1). Non-conventional lodging “includes college dormitories or similar facilities

or rooms not offered commercially but made available to the public by area residents in their

homes.” Id. 301-11.12(a)(4). Chapter 301 permits reimbursement of non-conventional

lodging expenses for temporary duty travel only when conventional lodging in the area is

nonexistent or in short supply because of a special event. Id. The FTR also requires that

employees traveling for temporary duty use the agency’s travel management system (TMS),

id. 301-50.3, and prevents recovery of “service fees . . . or other additional costs” which

“result[] from” the employee’s failure to use the agency’s TMS. Id. 301-50.5.

FTR chapter 302 governs relocation allowances, which are at issue here. Chapter 302

defines “temporary quarters” as “lodging obtained for the purpose of temporary occupancy

from a private or commercial source.” FTR 302-6.1 (emphasis added). Employees

transferring more than fifty miles within the continental United States are permitted to

receive an allowance for temporary quarters subsistence expense (TQSE) to reside in

temporary quarters at or near the old or new duty stations. Id. 302-6.4, -6.10. Although

TQSE is not available to travelers who are transferring outside the continental United States,

id. 302-6.4, those travelers are permitted to receive FTA pursuant to the DSSR “for quarters

occupied temporarily before departure.” Id. 302-3.101, tbl. B. Recent decisions demonstrate

that agencies have provided reimbursement to federal employees for stays in Airbnb units.

See, e.g., Brian I., CBCA 7875-RELO, 24-1 BCA ¶ 38,473, at 187,001-03 (2023) (granting

claim for reimbursement of the full expense of an Airbnb stay, including service fee, after

agency paid part of lodging and denied service fee); Richard W., CBCA 7786-RELO, 23-1

BCA ¶ 38,432, at 186,779 (agency reimbursed all FTA expenses other than service fee for

Airbnb stay).

Assuming, without deciding, that the Army is correct that FTR 301-11.12(a) prohibits

reimbursement of Airbnb for temporary duty because it is non-conventional lodging, the

structure of the FTR does not support the Army’s position that a similar prohibition applies

to relocation expenses. The FTR expressly authorizes payment of TQSE for private

CBCA 8126-RELO

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temporary quarters. Although neither chapter 301 nor chapter 302 actually governs

reimbursement for FTA, the structure of chapter 302 and the substantial similarity of TQSE

to FTA prevent a rote transfer of the restrictions on non-conventional lodging in chapter 301

into chapter 302. Moreover, because the TMS penalties only apply to travel for temporary

duty, the FTR does not prohibit claimant from seeking reimbursement for Airbnb’s service

and cleaning fees. See Brian I., 24-1 BCA at 187,001–02.

B.

JTR

“The guiding principle behind the JTR is to travel responsibly. The word

‘responsibly’ means that the traveler exercises the same care in incurring expenses for

Government travel that a prudent person would exercise if traveling at personal expense.”

JTR 010102 (Mar. 2024). “A traveler must use the [DoD TMS] to the maximum extent

possible to arrange all” travel.4 Id. 010205. If the traveler instead obtains lodging through

another source, “reimbursement is authorized only when the traveler provides a documented

itemized receipt” which shows the daily hotel room costs, taxes, and miscellaneous fees.

Id. 020303-A.4 (citing Scott M. Torrice).

In the JTR, “conventional lodging” is described as “hotel and motel lodging

establishments.” JTR 020303-G, tbl. 2-16. By contrast, “nonconventional lodging” is

described as lodging “obtained in other than a commercial facility.” Id. 020303-F, tbl. 2-15.

Although the term “commercial lodging” is never described, the contrast between

“commercial lodging facility” and “nonconventional lodging” in table 2-15 implies that

commercial and conventional lodging may be equivalent in the JTR. Id.

Our predecessor board in considering these matters, the General Services Board of

Contract Appeals (GSBCA), analyzed a similar case arising under the JTR almost twenty

years ago. Joanne M. Barry, GSBCA 16845-RELO, 06-2 BCA ¶ 33,354. In that case,

claimant found a room available on the Internet as a sublease from a private individual. Id.

at 165,388. The Army Corps of Engineers initially denied the claimant’s request for TQSE

because it determined that she had stayed in “non-conventional lodging.” Id. The JTR at

that time defined non-conventional lodging as including “college dormitories, similar

facilities, and rooms generally not offered commercially that are made available to the public

by area residents in their homes.” See id. In granting the claim, that board agreed that the

claimant’s “transaction [did] not clearly fall under conventional lodging,” but held that the

nature of the arm’s-length transaction made the lodging expenses eligible for reimbursement.

Id. at 165,388-89. In the repeated updates to the JTR since Joanne M. Barry was issued,

4

Unlike the FTR, the JTR does not prohibit reimbursement of service fees when

an employee fails to book travel via the agency TMS.

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DoD has not added any language which compels a different analysis. Accordingly, the JTR

does not prohibit reimbursement for stays in an Airbnb or similar establishment.

The Army has not alleged that claimant’s incurred expenses were not the product of

arm’s-length transactions. Here, as in Joanne M. Barry, the fact that the property was owned

by a private, rather than commercial, entity is not dispositive as to whether the lodging was

obtained through a commercial transaction. Moreover, the Army agrees that the Airbnb

lodging provided a cost savings to the Government, which is in line with the “guiding

principle” to travel responsibly and prudently.

C.

DSSR

Under the DSSR, agencies are authorized to reimburse employees’ pre-departure

lodging expenses, subject to per diem rates for the locality. DSSR 242.3. Reimbursement

for commercial lodging is allowed, but receipts are required; reimbursement for “noncommercial lodging” is not allowed. Id. 242.3.b. The DSSR does not define commercial or

non-commercial lodging, but it defines commercial housing as “housing that is occupied on

a short-term basis, such as a hotel, motel, commercially-leased house or apartment, or other

transient-type commercial establishment.” Id. 242.3. “Examples of non-commercial housing

include employee-owned housing, living with family or friends, and apartment rentals where

the lease term is longer than six months.” Id. (emphasis added). The DSSR does not use the

terms “conventional lodging” or “non-conventional lodging.”5

The Army concedes that Airbnb is a commercial platform for obtaining lodging but

insists that employees may not be reimbursed the costs for staying at a unit made available

through Airbnb because “the actual provider[s] of the lodging facilities . . . are private

individuals.” The inclusion of “commercially-leased house[s] or apartment[s]” as

commercial housing under the DSSR undercuts the Army’s argument: houses or apartments

which are leased commercially are commercial in nature. This statement is not qualified or

limited by whether the owner or “actual provider” is a “private individual[].” Moreover, the

Army’s reading of the DSSR would preclude reimbursement for staying at privately-owned

hotels or motels, such as traditional bed-and-breakfast establishments.

5

The Army suggests that a recent change to the DSSR required the Army to

refuse to reimburse Airbnb and other purportedly non-commercial lodging providers.

However, the oldest version of the DSSR posted on the State Department’s website contains

substantially the same language as the current version. DSSR 242.3(b) (Oct. 2005).

CBCA 8126-RELO

D.

7

Federal Statutes

The Administrator of the Federal Emergency Management Agency (FEMA) must

approve “hotels, motels, and other places of public accommodation” which meet the

requirements of the Federal Fire Prevention and Control Act of 1974. 5 U.S.C.

§ 5707a(f)(2); see also 15 U.S.C. § 2225. In turn, the Administrator of General Services

cannot include any “hotel, motel, or other place of public accommodation” that FEMA has

not approved “in any directory which lists lodging accommodations.” 5 U.S.C. § 5707a(c).

Agencies must ensure that, for at least ninety percent of the nights, employees book

commercial lodging in FEMA-approved units. Id. § 5707a(a)(1).

Despite the Army’s contention that this statute precludes federal employees from

booking lodging through Airbnb, the statute does not place any such restrictions or

obligations on federal employees. See Miles K. Frampton, CBCA 6451-TRAV, 19-1 BCA

¶ 37,378, at 181,713 (“Thus, the requirement [in 5 U.S.C. § 5707a] is for the agency, not an

employee. . . .”).6

E.

Army Policy or Guide

Finally, the Army relies upon a purported Army policy change as the basis for its

denial of the claim. In its response to the claim, the Army contends that “CHRA Overseas

Benefits Branch advised their serviced commands and organizations . . . of the change of the

DSSR.” Agency Response at 4. In the exchange of emails between claimant and his

supervisor, the change is described as guidance that was made explicit in the Overseas

Allowances and Differentials Guide, published in April 2024.

As noted, this new policy or guide was not provided to the Board. If it was issued in

April 2024, it would not apply to claimant since he arrived at his new duty station in March

2024. The Guide is not posted on CHRA Europe’s website. See Overseas Entitlement

Information, CHRA Portal, https://portal.chra.army.mil/hr_public?id=kb_article &kb_base=

15f7dc56f0b78700d85301ff8e12e28f&sys_id=62e93d88cce9e780d8534310fbbb92c0 (last

visited Aug. 30, 2024). The CHRA Europe website also does not contain the words

6

The Army argues that Airbnb units most likely would not be certified as fire

safe. In fact, FEMA’s list of approved places of public accommodations contains 241 entries

categorized as “Short Term Rental”; seventy-five of these entries appear to be individual

residential units because the “Name” column simply shows the street address, not the name

of a commercial lodging provider. List of Approved Hotels and Motels for Federal

Travelers, FEMA, https://apps.usfa.fema.gov/hotel (last visited Aug. 30, 2024) (on website,

click “Download all listings CSV ~ 8MB”).

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“Airbnb,” “commercial,” or “conventional.” Id. The Department of Defense Overseas

Allowances and Differentials Guide—to which the CHRA Europe website links—has not

been updated since 2012, and it only mentions “commercial lodging” in one sentence that

is not directly related to FTA. DoDI 1400.25, vol. 1250, encl. 2 ¶ 2.b. Likewise, Army in

Europe Regulation 690-500.592 does not contain any language relevant to whether CHRA

will limit FTA payments for non-conventional or non-commercial lodging facilities.

The payment of FTA is discretionary, not mandatory. Under 5 U.S.C. § 5924(2), the

Army could decide not to pay FTA at all or issue prohibitions on reimbursement for specific

commercial or non-commercial providers. However, this discretion is not “unfettered” and

must “be applied in a manner that [is] not arbitrary and capricious.” Charles A. Houser,

CBCA 2149-RELO, 11-1 BCA ¶ 34,769, at 171,112.

It appears that the Army has made essentially no effort to notify travelers that it would

no longer be reimbursing expenses for lodging procured through Airbnb, and the comment

by the Army’s management analyst that this policy was “policed or not based on ‘this is the

way it[’]s been’” indicates that the Army has been enforcing this policy inconsistently. If

claimant diligently read all applicable parts of the FTR, JTR, DSSR, relevant statutes, and

recent decisions of the Board, he would have reasonably concluded that FTA reimbursement

was not prohibited for lodging procured through Airbnb. The Army may opt to end

discretionary reimbursement for Airbnb-procured lodging, assuming that its actions are

consistent with the FTR and the JTR, but it must apprise travelers of that fact.7 Without

having done so, the Army’s denial of this claim is contrary to applicable regulations and

guidance.

Decision

We grant the claim. The agency shall determine the amount to be reimbursed.

Marian E. Sullivan

MARIAN E. SULLIVAN

Board Judge

7

Both the Navy and the Air Force have published explicit guidance on their

Airbnb reimbursement policies for “widest dissemination.” Message from MyNavy Career

Center, Pay and Personnel Information Bulletin 22-15, (May 27, 2022); Memorandum from

Eric I. Cuebas, Director, Air Force Accounting and Finance Office, to AFIMSC/RMF,

NGB/FM, AFRC/FM, and All Comptroller Squadrons and Flights, Clarifying Guidance for

Nonconventional Lodging (Airbnb, VRBO etc.), (Sept. 20, 2021).