In the Matter of XAVIER I. MIMS

November 15, 2010

CBCA 2063-RELO

In the Matter of XAVIER I. MIMS

Xavier I. Mims, Nashua, NH, Claimant.

Charles E. Henry, Travel Approving Official, Defense Commissary Agency, Fort Lee,

VA, appearing for Defense Commissary Agency.

SHERIDAN, Board Judge.

Claimant, Xavier I. Mims, a civilian employee of Defense Commissary Agency

(DeCA or agency), contests the agency’s refusal to reimburse him for temporary quarters

subsistence expenses (TQSE) for meals. The agency asserts that claimant has failed to

provide further substantiation that the claimed meal expenses were actually incurred. We

conclude that claimant is entitled to reimbursement for meal expenses, as sufficient

documentation exists showing the costs claimed were actually incurred and reasonable.

Background

In February 2010, claimant received a management-directed permanent change of

station (PCS) from the Oceana Naval Air Station Commissary in Virginia Beach, Virginia,

to the Hanscom Air Force Base Commissary in Bedford, Massachusetts. Claimant and his

spouse were authorized thirty days of TQSE actual expenses (AE) associated with the PCS.

The instructions relating to claimant’s TQSE advised him that all expenses were to be

itemized and receipts were required for lodging expenses, laundry and dry cleaning expenses

(except coin operated), and any single expense of $75 or more (including meal expenses).

On April 5, 2010, claimant submitted his voucher for TQSE, which included $1800.72

for meal expenses in the Virginia Beach area from March 5 through March 25, 2010, and

$853.17 for meals from March 28 through April 3, 2010, in the Burlington, Massachusetts,

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area near his new duty station. Claimant verified the itemized daily expenses with his

signature and request for payment.

Claimant’s voucher included two TQSE worksheets itemizing each day’s

expenditures. Regarding expenditures for meals, the worksheets indicated the date, meal

type (breakfast, lunch, or dinner), amount expended, and whether the meal was taken at

“home” or in a commercial establishment. With the exception of one meal, each of

claimant’s itemized meal costs was well below the $75 amount triggering the requirement

for a receipt. While in Virginia Beach, claimant’s and his spouse’s breakfast meals typically

ranged from $18 to $23 ($19.36 daily average), lunch typically ranged from $30 to $39

($32.37 daily average), and dinner typically ranged from $20 to $40 ($33.98 daily average).1

In Burlington, breakfast meals typically ranged from $27 to $30 ($27.81 daily average),

lunch typically ranged from $39 to $42 ($48.24 daily average)2 , and dinner typically ranged

from $49 to $52 ($45.82 daily average).3

In reviewing claimant’s voucher, a DeCA approving official (AO) opined that the

meals expenses “appeared to be high” for the times and locations where claimant and his

spouse were temporarily residing.4 Believing that the claimed meals expenses “appeared to

not reflect actual expenses,” the AO required claimant to provide further substantiation for

his claimed meal expenses. To substantiate the claimed meal expenses, the AO asked

claimant to send him statements or receipts for automatic teller machine (ATM) withdrawals,

grocery receipts, checking and savings accounts, credit cards, or the names of the restaurants

in which he and his spouse had eaten. Claimant told the AO that except for a $95.14 receipt

dated April 1, 2010, for a lunch at Legal Sea Foods in Burlington, he did not have any

receipts because he did not think he had to keep receipts for meals under $75. He forwarded

to the AO a list of fifteen restaurants at which he and his spouse had eaten, and two grocery

stores. These included: International House of Pancakes, Texas Steakhouse, Texas

Roadhouse, Wing Zone, Outback Steakhouse, Golden Corral, Olive Garden, Long John

Silver, Red Lobster, Legal Seafood, Chili’s, Borders, Papa John’s Pizza, Domino’s Pizza,

Firebox BBQ, Kroger Grocery Store, and Food Lion Grocery Store.

1

Claimant and his spouse spent an average of $85.71 per day on meals while in

Virginia Beach.

2

One lunch was $95.14, which skewed the daily average.

3

Claimant and his spouse spent an average of $121.87 per day on meals while in

Burlington.

4

During the periods in issue, the meals and incidental expenses (M&IE) rate for an

individual staying in Virginia Beach was $56 per day and for Burlington it was $71 per day.

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Finding the list to be “just a generic list of all the local restaurants (other than fast

food establishments),” the AO determined that “the list by itself didn’t actually substantiate

anything.” The AO again asked claimant to provide substantiation in the form of receipts,

ATM withdrawal slips, grocery store receipts, checking and savings accounts statements, or

credit card statements.

Claimant objected to providing further the substantiation:

You wrote me earlier and stated that I needed to send you a list of places that

we ate at, which I did. I have a paperless account and must pay in order to get

a copy of my statements. Sometime[s] I used my credit cards[,] sometimes

cash, and then again sometime[s] I used my checking account. I will not send

all of my personal information to you because you do not believe what I have

entered on the form. I followed the rules that I read in the PCS packet and I

did what it said to do. Please let me know the outcome so I can do what I have

to do.

On April 9, 2010, the AO determined that only the lodging expenses would be paid,

and that when claimant “provides receipts to substantiate meals they will be reviewed by this

office and a supplemental claim will be filed to reimburse those meals that were substantiated

and consumed at the old and new PDS [permanent duty station].” The AO later determined

that claimant “has not provided actual meals expenses, and that accordingly, without further

adequate substantiation, those claimed meals should not be paid. This agency will reimburse

[claimant] for that single meal [the Legal Sea Foods lunch in which claimant provided the

receipt for $95.14 dated April 1, 2010].” The agency states:

The JTR [Joint Travel Regulations] [are] clear. A traveler on TQSE must be

as prudent when expending government funds for subsistence expenses as he

would be when spending his own funds. Further, although a traveler on TQSE

is not “required” to keep meal receipts for expenses of less than $75.00, when

the travel approving official requires the traveler to substantiate claimed

expenses, the traveler must do so.

Since [claimant] has refused to provide any substantiation, including cancelled

checks, statements from banks, ATM receipts or credit card receipts, other

than the single receipt mentioned by [the AO], this portion of [claimant’s]

TSQE claim was properly denied.

Claimant appealed the agency’s refusal to compensate him for his meal expenses to

the Board.

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Discussion

When an agency transfers an employee from one permanent duty station to another

in the interest of the Government, it may authorize reimbursement to the employee for the

subsistence expenses incurred by him and his family while they occupy temporary quarters.

5 U.S.C. § 5724a(a)(3) (2006). The Federal Travel Regulation (FTR), which implements this

statutory provision, provides that “[t]he TQSE allowance is intended to reimburse an

employee reasonably and equitably for subsistence expenses incurred when it is necessary

to occupy temporary quarters.” 41 CFR 302-6.3 (2009). Where TQSE (AE) is authorized,

agencies will pay an employee’s actual expenses, “provided the expenses are reasonable and

do not exceed the maximum allowable amount.” 41 CFR 302-6.100.

Employees who are authorized TQSE (AE) are required to document their TQSE “by

itemizing each expense,” including meals, and providing “a lodging receipt and a receipt for

every expense over $75.” 41 CFR 301-11.25, -11.306, 302-6.12. The FTR permits agencies

to prescribe the manner in which their employees must itemize actual expenses. In this case,

the Joint Travel Regulations (JTR), which are applicable to civilian Department of Defense

(DoD) employees, contain the following relevant requirements with regard to claimant’s

TQSE(AE):

C5368 RECEIPTS AND SUPPORTING DOCUMENTATION

A. Receipts and Supporting Statement

1. General. Receipts and a written supporting statement must accompany

a TQSE(AE) claim as prescribed in pars. C5368-A2 and C5368-A3.

2. Receipts. Receipts are required for:

a. Lodging costs paid, showing location, dates, and by whom occupied;

b. Any single expense of $75 or more (including a single meal expense

of $75 or more).

3. Supporting Statement. The supporting statement must include:

a. The cost of each meal, for each day, by date, and where and by

whom consumed . . . .

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C5370 PAYMENT

A. General. TQSE(AE) reimbursement is for the lesser of the actual

allowable expenses incurred for each day of the prescribed period or the

maximum allowable amount payable for that same eligibility period.

TQSE(AE) is:

....

2. Limited to actual expenses incurred, up to the maximum authorized,

providing the expenses are:

a. Directly related to temporary lodging occupancy with the TQSE eligibility

period (par. C5366);

b. A reasonable amount; and

c. Substantiated.

3. The AO may deny reimbursement of any claimed TQSE expenses that

appear to be unreasonable if the traveler cannot justify the expenses with

supporting documentation. If denied, the remaining TQSE expenses of the

same TQSE period may be paid. See par. C5352-D4.

a. Example 1. An employee with a dependent was authorized TQSE for 30

days at the new PDS [permanent duty station] and utilized temporary lodgings

with available cooking facilities. The employee claimed TQSE meal expenses

for purchased groceries during the 30-day TQSE period. The AO believes the

grocery expenses to be excessive without supporting documentation. The AO

may request supporting documentation, including required receipts, for any

individual grocery/meal expense of $75 or more to determine the appropriate

reimbursement, IAW [in accordance with] par. C1310-A2.

b. Example 2. An employee was authorized TQSE for 45 days at the new

PDS and utilized temporary lodgings without cooking facilities. The employee

claimed actual daily TQSE meal expenses equal to (or nearly equal to) the

maximum daily M&IE rate for each day during the 45-day TQSE period. The

AO believes the same-expenses-every-day meal costs to be unjustified without

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supporting documentation. The AO may request supporting documentation

including receipts for any meal expense of $75 or more to determine the

appropriate reimbursement, IAW par. C1310-A2.

While receipts are not required for any meal expense less than $75, the above

regulations require the agency to review and to make a determination of reasonableness for

the various expenses claimed as TQSE. However, “[b]y not requiring receipts for all but

very expensive meals, the JTR place the agency in a position of accepting employee

assertions as to meal costs unless the agency can demonstrate that those assertions are not

true.” Luis Rodriguez, GSBCA 16077-RELO, 04-1 BCA ¶ 32,434 (2003), at 160,493; see

also Christine Griffin, GSBCA 15818-RELO, 02-2 BCA ¶ 31,925.

We have reviewed in detail the submissions of both claimant and the agency.

Claimant provided the supporting worksheets required by the agency, itemizing each day’s

meal, the date of the meal, whether it was taken at a commercial establishment or at home,

the type of meal (breakfast, lunch, or dinner), and the cost of the meal.5 The one meal

receipt, for a meal costing more than $75, was submitted. Claimant also provided the AO

with a list of the restaurants and grocery stores where he purchased the meals.

While claimant refused to provide more documentation, that refusal does not in and

of itself justify a finding that the expenses claimed were unreasonable or not reimbursable.

The expense records maintained and provided by claimant to the agency meet the

requirements of the FTR and JTR to provide an adequate itemization of expenses such that

the agency could properly review the expenditures to determine if the costs are reasonable

and reimbursable. The daily meal expenses claimant itemized are not on their face

unreasonable. There is no indication in the record that the claimed meal expenses were in

any way suspicious, inaccurate, or that the worksheets contained false information. Based

on the amounts listed on the worksheets, we do not see any justification for the AO’s

skepticism regarding the amounts claimed. The listed meal expenses are within the range of

what would be acceptable for two individuals on travel -- even though they may be at the

high end of that range. Given the reasonableness of the amounts claimed and the absence

of a showing of fraud or impropriety, there are no bases in the existing record to deny the

requested reimbursement.

5

The expenses that claimant recorded on his TQSE worksheets appear not to exceed

the maximum allowable amount set for claimant and his spouse as calculated pursuant to

provisions of the FTR and the JTR. 41 CFR 302-6.100, -6.102; JTR C5360.

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Under the facts presented here, the mere suspicion on the part of the AO that the meal

expenses appear to be high is an insufficient basis to support the agency’s decision to deny

claimant reimbursement of his meal expenses.

Decision

Based on the foregoing analysis, claimant is entitled to reimbursement of meal

expenses, not to exceed the maximum allowable amount.

_________________________

PATRICIA J. SHERIDAN

Board Judge