In the Matter of DAVID R. BIENVENUE

March 8, 2016

CBCA 4983-RELO

In the Matter of DAVID R. BIENVENUE

David R. Bienvenue, San Diego, CA, Claimant.

Jacqueline D. Thompson, Director, Human Resources Office, Department of the

Navy, FPO Area Europe, appearing for Department of the Navy.

GOODMAN, Board Judge.

Claimant, David R. Bienvenue, is a civilian employee of the Department of the Navy.

He has asked this Board to review the agency’s denial of reimbursement of costs incurred

incident to a permanent change of station (PCS).

Background

Claimant was issued travel orders for a PCS to return from his permanent duty station

(PDS) in Rota, Spain, to his residence in San Diego, California. He was authorized thirty

days of temporary quarters subsistence allowance (TQSA), from June 3 through July 3, 2015,

prior to his departure, in accordance with the Joint Travel Regulations (JTR) and Department

of State Standardized Regulations (DSSR).

Five years previously, on May 5, 2010, apparently when claimant began his duty in

Rota, Spain, claimant signed a statement prepared by the agency which read in relevant part:

The DSSR provides that TQSA shall include meals and that reimbursement

will be limited to actual expenses incurred, not to exceed the maximum

authorized. Employees must submit to the [agency] a signed statement of

actual expenditures including a certified statement indicating a per meal per

day cost, and receipts or other appropriate documentation for the daily cost of

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temporary quarters, laundry/dry cleaning, and for all meal expenses which

exceed reasonable (average) cost. Employees are not required to submit

receipts with their meal claims.[1] However, employees are highly encouraged

to maintain receipts for meals, for auditing purposes, until final payment is

received. . . .

Please initial each of the following, sign and date below: . . . .

I fully understand that I must maintain a daily log of lodging, meals and

laundry expenses. I am required to maintain and submit receipts for hotel

lodging and laundry dry cleaning. I understand that I am not required to

submit receipts for meals, however, I acknowledge the requirement to maintain

receipts for meals, for auditing purposes, until final payment is received.

According to the agency, claimant received an email message with substantially the

same information as the statement above, on May 22, 2015, before his TQSA began.2

Claimant’s TQSA period began June 3, 2015, and concluded July 2, 2015. Claimant states

that on July 3, 2015, he submitted a certified statement of actual expenses to the agency for

actual lodging, meals and incidental expenses for his TQSA in the amount of $15,462.46.

The maximum authorized allowance, as provided in his travel orders, was $15,930. The

agency reimbursed claimant $10,420.85, and denied reimbursement of $5041.61.3

1

An earlier version of DSSR 125 required the employee to provide supporting

receipts or other appropriate documentation for the daily cost of both “temporary lodging and

laundry/dry cleaning,” permitting a certified statement only for the daily cost of meals. The

current version of DSSR 125, last updated August 30, 2009, changes the laundry and dry

cleaning reimbursement requirement, providing for a certified statement in lieu of supporting

receipts.

2

The agency cannot locate the email message or prove that claimant received the

message, because the agency states that the computer of the employee who sent the email

message has “crashed.” Claimant denies having received the email.

3

Claimant has submitted a copy of his certified statement which contains entries in

both euros and dollars. The agency has submitted two lists indicating costs that were not

reimbursed which also contain entries in euros and dollars.

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Claimant states:

[The agency] eliminated any expenses which did not have a receipt, including

minor expenses under $75. Since the JTR and DSSR do not require receipts

for every transaction, we did not maintain all receipts as later requested by [the

agency]. [The agency] reconciliation which reduced my actual expenses

reimbursement by $5,041.61, through illegally eliminating all expenses that

did not have a receipts [sic] or that did not provide the US-style details desired

on the receipts issued in a foreign country (Spain). I am requesting full

reimbursement of my actual TQSA expenses of $15,462.46.

[The agency] violates [the applicable] JTR and DSSR regs by unrealistically

requiring receipts for ALL expenses, including ALL minor expenses under

$75 from all family members. My daily actual expenses were determined by

discussing the actual expenses incurred by each of my family members and

recording the daily total on the worksheet. I turned in required receipts for

lodging and whatever receipts my family was able to obtain and save during

our PCS transition in a foreign country. [The agency] policy is not in

compliance with JTR and DSSR regulations for TQSA reimbursement.

The agency filed a response, citing the relevant regulations and further stating that

claimant had failed to follow agency policy which required submission of receipts in order

to substantiate actual expenses:

It is the determination and at the direction of Commander Navy Region

Europe, Africa, Southwest Asia (CNREURAFSWA) Regional Program

Director. . .[that] actual expenses can only be determined by the collections of

receipts. . . . The Region has a long standing policy and practice to require

employees to submit receipts for their expenses . . . . This is not an internal

nor local policy of [claimant’s duty station in Spain], but rather the . . . long

standing policy throughout CNREURAFSWA (i.e., Naples [Italy], Sigonella

Sicily, Bahrain, Souda Bay Creek, Rota [Spain], Romania and Poland).

The agency’s response also noted that it appeared from receipts submitted in some

instances that claimant was not within reasonable proximity to his duty station during the

TQSA period. This Board therefore requested that both claimant and the agency identify

where claimant was located for each day of the TQSA period, and that the agency identify

for each charge denied the basis for denial.

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Claimant responded that he was with his family every day of the TQSA period. From

June 3 through June 19, 2015, they lodged in a hotel near Rota, Spain. On June 19 they

traveled by air to Santorini, Greece, via Italy and on June 26 returned to Spain, where they

stayed again in a hotel near Rota, through July 3, 2015. He states:

I remained within the local proximity European countries and remained

professionally available to provide telephone assistance necessary during this

travel. As my location in Europe was close enough to provide any needed

professional support, this is “in reasonable proximity” as per DSSR 125

requirement.

Discussion

“Congress has authorized agencies to pay a TQSA to employees in foreign areas who

live in temporary quarters and are not provided Government owned or rented quarters

without charge. The TQSA is to cover the reasonable cost of lodging, meals, and laundry

expenses incurred by an employee and his or her family.” Miriam E. Bolaffi, CBCA 4029RELO, 15-1 BCA ¶ 35,962, at 175,716; Okyon Kim Ybarra, GSBCA 15407-RELO, 01-1

BCA ¶ 31,334, at 154,762; see 5 U.S.C. § 5923(a)(1) (2012).

“The President has delegated to the Secretary of State authority to issue regulations

which implement statutes providing for overseas pay differentials and allowances, including

TQSA.” Ybarra, 01-1 BCA at 154,762; see Exec. Order No. 10,903, § 2, reprinted as

amended in 5 U.S.C. § 5921 app. (2012). Those regulations are set forth in the Department

of State DSSR, which “have the force and effect of law.” Gordon D. Giffin, GSBCA

14425-RELO, 98-2 BCA ¶ 30,100, at 148,955.

DSSR 121(b) allows TQSA for a period not to exceed thirty days immediately

preceeding final departure from the post subsequent to the necessary vacating of residence

quarters. In this case, the agency denied claimant reimbursement of certain expenses

incurred during his TQSA period because 1) he failed to submit receipts for meals, and 2)

he was not within reasonable proximity to his duty station for a portion of the TQSA period.

Reimbursement for Meals Does Not Require Receipts

DSSR 125 states that “[e]vidence of the daily cost of meals, laundry, and dry cleaning

shall be a certified statement by the employee.” There is no requirement that the employee

submit receipts as evidence of actual costs for meals, laundry, and dry cleaning, despite the

admonition of the agency that the employee should retain receipts for auditing purpose until

final payment.

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Claimant correctly asserts that the agency’s policy of requiring receipts as proof of

costs for meals, laundry and dry cleaning is contrary to DSSR 125. We addressed this issue

in Miriam E. Bolaffi:

[T]he agency’s demand that [the employee], and apparently other employees

. . . be able to support every meal cost with a receipt directly conflicts with

DSSR 125, which provides that “[e]vidence of the daily cost of meals . . . shall

be a certified statement by the employee.” It is true that the Department of

Defense (DOD) has issued its own instruction, DOD Instruction 1400.25, Vol.

1250 (Feb. 23, 2012), providing that DOD officials are entitled to require

receipts for meals “that they consider extravagant” . . . Yet, assuming the

enforceability of that language in the DOD instruction, that language is limited

to receipts for meal costs considered “extravagant.” . . . It appears from the

record that the [agency] instead routinely requires employees to submit receipts

for all meal costs, which finds no support in either the DSSR or the DOD

instruction.

15-1 BCA at 175,718-19 (Emphasis added).

As in Bolaffi, the agency’s policy of requiring receipts as proof of actual costs for

meals, laundry, and dry cleaning is contrary to DSSR 125, which only requires a certified

statement of the employee of the costs incurred. Under well-settled principles, federal

statutes and the regulations implementing them trump agency policies. Charles A. Houser,

CBCA 2149-RELO, 11-1 BCA ¶ 34,769. Thus, “an agency cannot issue rules or regulations

which run afoul of the express purpose stated by Congress or as implemented through

regulation by the properly charged agency.” 11-1 BCA at 171,112.

Claimant states that he kept a log of the actual costs of meals, laundry and dry

cleaning. The cost of each meal varies, and the costs for laundry and dry cleaning vary and

are intermittent throughout the TQSA period, as one would expect. The agency has

identified no reason to question claimant’s certified statement that the costs recorded are

actual costs. Even though claimant does not have a receipt to support every meal, by

recording the actual costs and certifying his statement, he has complied with the regulation,

to the extent that the agency has not questioned any cost as extravagant or has other

legitimate reasons to deny reimbursement.4

4

In Bolaffi, the employee submitted a certified statement requesting reimbursement

for meals but did not submit receipts. We held that she was correctly denied reimbursement

because she did not keep a log of her actual costs, but only submitted estimates in the same

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Costs Must Be Incurred within Reasonable Proximity to the Post

DSSR 125 also requires that “[t]he location of the temporary quarters must be within

reasonable proximity of the post.” This Board has recognized that neither statute nor the

DSSR “draws a concentric circle around the site noted on the travel orders and provides that

any lodging outside of a certain mile limit from center city is not allowable.” Yong-Hee

Andrean, CBCA 2632-TRAV, 12-2 BCA ¶ 35,076, at 172,273 (reimbursement for TQSA

was allowed when the employee commuted for an hour between two different cities in

Germany). In Annette M. Zapf, CBCA 3788-RELO, 14-1 BCA ¶ 35,754, this Board found,

“as a matter of generally accepted experience, that commutes in excess of an hour are hardly

uncommon in metropolitan areas within the United States. Similarly, commutes in excess

of an hour appear to have been typical for some . . . employees [at the foreign post at issue].”

Id. at 174,960.

As illustrated by this Board’s previous decisions, a determination of “reasonable

proximity of the post” must consider the employee’s ability to commute the distance between

the place of TQSA to the duty station and back within a reasonable time. While claimant

asserts that he “remained professionally available to provide telephone assistance” and his

“location in Europe was close enough to provide any needed professional support,” claimant

did not commute, nor could he have commuted, from Santorini to his post during that

period–a distance of approximately 1760 air miles via airplane, or approximately a forty-five

hour journey via automobile in addition to a boat trip between Santorini and the mainland of

Greece. We, therefore, find that claimant was not in reasonable proximity to his post during

his travel to and from and stay in Santorini, Greece, from June 19 to June 26, 2015.

Claimant’s interpretation–that phone availability complied with the regulation–would place

an employee in reasonable proximity to his post anywhere there was phone service. This is

clearly not the intent of the regulation, which pertains to reasonable commuting distance

from a physical location.

Decision

This case is returned to the agency for reconsideration and recalculation based on our

findings herein. Lack of receipts is not a sufficient reason to deny reimbursement for meals,

laundry, and dry cleaning as claimant has complied with the DSSR by keeping a certified log

of actual expenses. This does not prevent the agency from denying reimbursement for other

amount for most meals. Her estimates were not reliable evidence of actual costs, as there

was no evidence that they were made contemporaneously when the meals occurred.

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reasons previously asserted, such as non-reimbursement for alcohol, inability to identify an

expense item, or similar reasons. Claimant is not entitled to reimbursement of expenses

incurred during his travel to and from and stay in Santorini, Greece, as he was not within

reasonable proximity of his post on those days.

_____________________________

ALLAN H. GOODMAN

Board Judge