In the Matter of ANNETTE M. ZAPF

March 18, 2015

CBCA 4231-RELO

In the Matter of ANNETTE M. ZAPF

Annette M. Zapf, FPO Area Pacific, Claimant.

Major Michelle L. Over, Marine Corps Installations Pacific, United States Marine

Corps, FPO Area Pacific, appearing for Department of the Navy.

DANIELS, Board Judge (Chairman).

The Department of the Navy transferred Annette M. Zapf from Italy to Okinawa,

Japan, in February 2014. In doing so, the agency authorized payment of a temporary quarters

subsistence allowance (TQSA) after her arrival in Okinawa. Ms. Zapf objects to the

limitations the agency has placed on the amount of her TQSA.

Background

Ms. Zapf and her husband arrived in Okinawa on February 21. They stayed at

Westpac Lodging from February 21 to March 3, and then at commercial hotels from

March 4 to 24. The period for which she seeks TQSA began on February 24 and ran for

thirty days.

Her orders have a single line regarding this benefit: “Temporary Quarters Subsistence

Allowance (TQSA) after arrival in OKINAWA is authorized.” On February 24, at the

agency’s request, she signed the following statement:

All employees who do not stay at Government temporary quarters must

provide a nonavailability statement from the WEST PAC INN [evidently, the

same entity as Westpac Lodging] before starting the TQSA process.

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I understand that the nonavailability statement is required for claiming lodging

expenses from non-Government temporary quarters. I further understand that

if I desire to stay in non-Government temporary quarters without obtaining the

non-availability statement from the WEST PAC INN, I will be responsible to

borne [sic] any amount beyond the government rate.

In signing the statement, Ms. Zapf added, “Dispute; will address with GSA Contract Board

of Appeal.”

Ms. Zapf did not submit a non-availability statement from Westpac Lodging for the

days on which she and her husband stayed in hotels, and she acknowledges that she does not

have such a statement. The cost of rooms at the hotels was somewhat greater than the cost

of rooms at Westpac Lodging.

The agency has shown that it paid a TQSA to Ms. Zapf for the days during which she

stayed at Westpac Lodging. The record is not clear as to whether the agency paid a TQSA

to her for the days during which she stayed at hotels.

Ms. Zapf’s principal dispute with the agency’s position is that she believes that her

TQSA should be limited by the established maximum lodging rate for government employees

who travel to Okinawa on official business, not the rate at Westpac Lodging.

Discussion

The Overseas Differentials and Allowances Act authorizes agencies to pay to

employees who are stationed abroad but not provided Government quarters without charge

“[a] temporary subsistence allowance for the reasonable cost of temporary quarters

(including meals and laundry expenses) incurred by the employee and his family . . . for a

period not in excess of 90 days after first arrival at a new post of assignment in a foreign area

or a period ending with the occupation of residence quarters, whichever is shorter.” 5 U.S.C.

§ 5923(a)(1)(A) (2012). This period “may . . . be extended for not more than 60 additional

days if the head of the agency concerned or his designee determines that there are compelling

reasons beyond the control of the employee for the continued occupancy of temporary

quarters.” Id. § 5923(b).

The authority to issue regulations implementing this Act has been delegated by the

President to the Secretary of State. Exec. Order No. 10,903, § 2, reprinted as amended in

5 U.S.C. § 5921 app. The Secretary of State has exercised this authority by promulgating

sections 120 through 129 of the Department of State Standardized Regulations (DSSR),

which label the allowance provided by statute as TQSA. The Department of Defense’s Joint

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Travel Regulations (JTR) expressly provide that that Department follows the TQSA rules

established in the DSSR. JTR C1255; William P. McBee, Jr., CBCA 943-RELO, 08-1 BCA

¶ 33,760.

The DSSR includes a section, DSSR 125, regarding determination of TQSA rates.

It provides, in pertinent part, as follows:

The rate at which the temporary quarters subsistence allowance may be granted

shall be the total amount of the reasonable and necessary expenses for the

employee and family members for meals, including tax, service charges and

tips, laundry/dry cleaning and temporary lodging (including room and bath,

heat, light, fuel, water and the cost of service fees and taxes imposed by the

management or local government upon the occupant during the period or

periods allowed by Sections 123 and 124) or the total of the maximum rates

for such period or periods, whichever is less.

This rate is not required to be the same rate prescribed for employees who travel on

temporary duty assignments. Thus, the rules established for official travel, such as JTR

C2550-2 (“An employee may not be . . . [l]imited to the GOV’T QTRS cost for lodging

reimbursement”), and our decisions regarding official travel, such as Leland G. Newport,

CBCA 2291-RELO, 11-1 BCA ¶ 34,746, and Harry John Halverson, CBCA 2551-TRAV,

11-2 BCA ¶ 34,878, do not apply to TQSA. Ms. Zapf’s contentions to the contrary are not

correct.

The commanding general of the Marine Corps base to which Ms. Zapf was assigned

has directed that:

The Temporary Quarter[s] Subsistence Allowance (TQSA) [is] designed to

cover substantially all average allowable costs for suitable, adequate quarters,

including utilities. [It is] not intended to reimburse 100 percent of all

employees’ quarters costs or to provide ostentatious housing or extravagant

meals. . . . Employees who use non-government lodging must provide a nonavailability statement from the WESTPAC Lodge. Failure to comply with this

order will result in the termination of the allowance.

Ms. Zapf has given us no reason to believe that lodging at Westpac does not meet the

DSSR standard of “adequate but not elaborate or unnecessarily expensive accommodations”

necessary for TQSA recipients. Consequently, we find that limiting the lodging portion of

TQSA at this location to the rate charged by Westpac is reasonable.

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We do have a concern, however, about an inconsistency between the general’s

directive and the TQSA form the agency required Ms. Zapf to sign. The directive says that

failure to provide a non-availability statement from Westpac “will result in the termination

of the allowance.” The form, on the other hand, says that an employee who fails to provide

such a statement “will be responsible to borne [sic] any amount beyond the government rate.”

The form’s understanding of TQSA is consistent with the purpose of the allowance.

Although placing a cap on the daily amount is appropriate, denying any recovery for TQSA

during an authorized period is not. If the agency has not already provided TQSA to Ms. Zapf

for the days during which she stayed in a hotel, it should do so now, limiting payment for

accommodations to the daily rate for lodging at Westpac.

Ms. Zapf also complains that the agency evaluated her TQSA voucher on a day-byday basis, rather than over a thirty-day period, and thereby refused to make payment in an

amount above the daily rate for each of the few days on which she incurred greater expenses

for meals. As she points out, DSSR 125 contemplates that all documented expenses for a

thirty-day period (or lesser period, if that is all that is authorized) are to be compared to the

daily rate times the number of days in the period, and the lesser of the two totals is to be paid

to the employee.

_________________________

STEPHEN M. DANIELS

Board Judge