BNUMBER: B-260907
DATE: January 26, 1996
TITLE: Dennis W. Hancock
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Matter of:Dennis W. Hancock
File: B-260907
Date: January 26, 1996
DIGEST
A Certifying Officer for the Department of Defense (DOD) asks whether
the agency may reimburse an employee for lodging expenses he incurred
while on a temporary duty (TDY) assignment. The claims may not be
paid. The employee did not stay in government-leased quarters,
although they remained available for him. Section 1589 of title 10,
United States Code, prohibits the reimbursement of lodging expenses
for DOD employees when adequate government quarters are available, but
are not used.
DECISION
A certifying officer of the Department of Defense Finance and
Accounting Service requests an advance decision on lodging claims
submitted by Mr. Dennis W. Hancock, an employee of the Department of
the Navy, for lodging expenses he incurred after vacating
government-leased quarters. In addition, the agency states that Mr.
Hancock erroneously received lodging expenses, and that he is indebted
in the amount of $6,922.22. The claims may not be paid, and Mr.
Hancock is indebted for the balance due of $6,922.22.
BACKGROUND
At the time he incurred the lodging expenses at issue here, Mr.
Hancock was serving as an Engineering Technician. Although the agency
designated his official duty station as Puget Sound Naval Yard, his
specific job was to serve as the On-Site Representative (OSR) to the
Naval Air Station, North Island, California. He occasionally traveled
to other installations. The OSR acts as a liaison between the design
division at Puget Sound and various ship repair facilities. The
position description for an OSR Engineering Technician states "Travels
as necessary to perform duties."
On April 8, 1993, Mr. Hancock began a temporary duty (TDY) assignment
at North Island, which is near San Diego, that, through a number of
extensions, did not end until December 23, 1994. Because Mr. Hancock
is a single parent with two children, personnel from Puget Sound and
North Island sent letters to the Central Travel Unit requesting
special accommodations for Mr. Hancock.
After a stay in Bachelor Officer's Quarters (BOQ), and a short TDY
assignment, Mr. Hancock obtained private lodgings for himself and his
children on May 28 at the Oakwood Coronado Corporate Apartments, which
he paid for himself. Subsequently, the Navy arranged a direct lease
of the apartment for Mr. Hancock for the period July 1 through
December 22, 1993, at a monthly rate of $1,591.00.
Because of problems with his children, which are not detailed in the
record, the apartment's contract housing manager notified Mr. Hancock
that he was being evicted. Mr. Hancock remained in the apartment
until the end of December and then arranged for other lodgings for
himself and his children for the duration of his TDY at North Island.
Mr. Hancock did not obtain a certificate indicating that government
quarters were not available in BOQ or elsewhere.
A statute applicable to the Department of Defense (DOD), prohibits
that agency from using its available funds to pay the lodging expenses
of its civilian employees on official travel "where adequate
Government quarters are available but are not occupied by such
employee or person." 10 U.S.C. sec. 1589. Quarters leased from private
contractors are considered government quarters for the purpose of this
statute. See Katherine H. Briley, B-256982, June 10, 1994, reversed
on other grounds, B-256982.2, Jan. 17, 1995, and Robert Samalis,
B-252291, June 18, 1993. Consequently, after he left the Oakwood
apartments, the agency did not authorize reimbursement for lodgings
and, instead, limited his reimbursement to 55 percent of the rate for
miscellaneous and incidental expenses (M&IE).
The Commander, Puget Sound Naval Shipyard, states that, based on the
extensive travel required for his position, Mr. Hancock should have
been authorized to stay in nongovernment quarters under the authority
of a regulatory exception to the statute.[1] This exception permits
reimbursement for nongovernment quarters "when it is determined by the
DOD component concerned that an employee's duties will require
official travel in excess of 50 percent of the total number of the
employee's basic administrative work weeks during the current fiscal
year." 2 Joint Federal Travel Regulation (2 JTR), para. C1055-A-4
(Ch. 343, May 1, 1994.). According to the Commander, the travel
order, simply by authorizing travel for more than 50 percent of Mr.
Hancock's administrative workweeks, represents the agency's
determination that he is exempt from the requirement to stay in
government quarters.[2]
Furthermore, the Commander states that Mr. Hancock was told that he
(Mr. Hancock) could procure private lodgings at a monthly rate up to
$1,400 and that Mr. Hancock relied in good faith on this advice when
he obtained private lodgings following the eviction. However, this
was not noted on Mr. Hancock's travel orders.
The certifying officer, on the other hand, states that if adequate
government quarters are available, but unused, the lodging portion of
per diem is zero. Government-contracted quarters were available up to
the period of eviction, and Mr. Hancock did not submit a
nonavailability statement of BOQ for the period after eviction.
OPINION
Generally, dependents who accompany an employee on temporary duty must
travel at the employee's expense. B-148529, May 18, 1962; See also
Geoffrey Arn, B-192548, Nov. 23, 1979. Therefore, with regard to Mr.
Hancock's claims, we may consider only the reimbursement to which he
was entitled as if he was traveling alone.
As we noted above, DOD employees generally are expected to lodge in
government quarters, when available. The exceptions authorized by 2
JTR all require the component involved to justify the decision to
exempt an employee from this requirement. In the case of the
exception noted above, 2 JTR provides further:
"[T]he requirement to use available Government quarters is not
applicable to an employee who is identified by the DOD component
concerned as being employed under conditions in which normal
duties require official travel in excess of 50 percent of the
total number of the employee's basic administrative work weeks
during the current fiscal year. . . . The identification
required by this subparagraph may be by statement in the related
travel order, or an amendment thereto, or by such other means
desired by the Service concerned." 2 JTR, para. C1055 (Ch. 343,
May 1, 1994).
According to the Finance Office, although there is no Navy regulation
requiring that the identification required by 2 JTR be done in a
particular way, the Navy practice is to note this identification on
the employee's travel order. In this case, the appropriate DOD
component at Puget Sound did not indicate on Mr. Hancock's travel
orders that he was exempt from the requirement to stay in government
quarters. Nonetheless, as we noted above, the Commander asserts that
the travel orders themselves, because they authorized travel in excess
of 50 percent of the fiscal year, exempted Mr. Hancock from this
requirement. We disagree.
By its own terms, 2 JTR, para. C1055-E requires some affirmative act
to identify employees who may be reimbursed for staying in
nongovernment quarters. Moreover, the regulation does not prohibit
agencies from authorizing government quarters for employees who
otherwise might be exempt under para. 1055-E. For any number of
reasons related to cost, efficiency or the nature of the assignment,
DOD components still may choose to require an employee to lodge in
government quarters, if available. This may be especially relevant
for employees who, like Mr. Hancock, perform extended TDY at one
location, in contrast to employees who are frequently checking into
and out of installations.
Accordingly, since no determination had been made to designate Mr.
Hancock as exempt under 2 JTR, para. C1055-E, and because unoccupied
government quarters remained available for him, he may not be
reimbursed for the lodging expenses he incurred after he moved out of
the Oakwood apartment. Mr. Hancock is also liable for the amount he
was erroneously reimbursed for lodging expenses.
However, under the circumstances of this case, the agency may wish to
consider the amount of the erroneous overpayment for waiver under the
provisions of 5 U.S.C. sec. 5584, and in accordance with the provisions
of 4 C.F.R. part 91.
/s/Seymour Efros
for Robert P. Murphy
General Counsel
1. The regulation is similar to and promulgated pursuant to the
statutory exception in 10 U.S.C. sec. 1589(b).
2. The regulation noted above permits three other exceptions not
applicable here that permit DOD employees to be reimbursed for private
lodgings when government quarters are available.