November
17, 2009
CBCA
1573-RELO
In the Matter of RAYMOND W.
MARTIN
Raymond W. Martin, APO Area
Pacific, Claimant.
Anne Schmitt-Shoemaker, Deputy
Director, Finance Center, United States Army Corps of Engineers, Millington,
TN, appearing for Department of the Army.
McCANN,
Board Judge
Claimant, Raymond W. Martin, a
civilian project engineer with the United States Army Corps of Engineers, has
asked the Board to review the agency=s denial
of his claim for reimbursement of temporary quarters subsistence expenses
(TQSE) and real estate settlement expenses incurred in connection with his
permanent change of station (PCS) from Kansas City, Missouri, to Fort Riley,
Kansas.
Background
In connection with his PCS
transfer, claimant was initially authorized sixty days of TQSE. Subsequently, his orders were amended to add
an additional sixty days for a total of 120 days. Beginning April 22, 2008, claimant rented a
house in Manhattan, Kansas, near his new duty station. Mr. Martin states that the lessor is not a
friend or a relative.
Claimant submitted a request for
reimbursement for TQSE for 120 days beginning on April 22, 2008. In support of his claim, claimant submitted
copies of checks, with a notation in the memo portion of each that the check is
for rent for the house in question. Six
checks were submitted, one for $282 for part of the month of April 2008, and
five checks for $650 for the months of May through September 2008. In addition, claimant submitted an undated
memorandum signed by the lessor stating that claimant had paid a deposit of
$650 in March 2008, $282 in rent for the month of April 2008, and $650 in rent
for the months of May and June 2008.
The Corps rejected claimant=s claim for reimbursement of this TQSE lodging
expense, citing paragraph C4555-B.4 of the Joint Travel Regulations (JTR),
which proscribes reimbursement of lodging expenses for accommodations from
non-conventional sources without an acceptable written explanation of the
circumstances. Claimant submitted no written
explanation. The Corps, without
explanation, has also cited to JTR C4555-A, which deals with lodging location,
as additional support for its position.
Discussion
The initial question to be
answered here is what is the appropriate regulation that pertains to the rental
of a house when an employee is on TQSE travel.
The Corps cites to JTR C4555-B.4, which states:
Lodging in Non-conventional Facilities. The cost of
non-conventional lodging facilities is allowed.
These facilities include college dormitories or similar facilities and
rooms generally not offered commercially that are made available to the public
by area residents in their homes. In
these cases, a traveler must provide a written explanation of the circumstances
that is acceptable to the DOD Component.
The Corps seems to assume that
because the house was privately owned that it is a non-conventional facility,
similar to a college dormitory, requiring a Awritten
explanation of the circumstances that is acceptable to the DOD component.@ We do not
think that C4555‑B.4 is determinative.
Additional sections of the JTR shed light on this issue. JTR C4555-B.1 deals with conventional lodging
and indicates that:
Conventional Lodging. When an employee uses
conventional commercial lodging facilities (hotel, motel, boarding house, etc.)
the allowable lodging expense is based on the single room rate for the lodging
used. For double occupancy, see par.
C4555-I1. See par. C4555-G for computing
the daily lodging expense when lodging is rented on a weekly or monthly basis.
Further, JTR C4555-D deals with apartments and houses:
Allowable Expenses when an Apartment, House, or
Recreational Vehicle Is Rented or Used for Quarters. When an
employee on TDY [temporary duty] rents a furnished/unfurnished apartment, house
or recreational vehicle (includes a mobile home, camper, camping trailer, or a
self-propelled mobile recreational vehicle) for use as quarters, per diem is
computed IAW [in accordance with] the provisions of par. C4553 and par. C4559
when a recreational vehicle is used for lodging. Allowable lodging expenses
are . . . :
1. Apartment, house, or recreational vehicle
rent (see par. C4559-B);
. . . .
In determining the daily amount of expense items which
do not accrue on a daily basis such as cost for connection/disconnection of
utilities, dumping fees, shower fees, cleaning charges, monthly telephone use
fee, etc., these expenses may be averaged over the number of days the employee
is authorized per diem during the entire TDY trip.
Upon review of these regulations
it seems apparent that a house should be not classified as either a
conventional or a non-conventional facility.
It is simply classified as a house.
Accordingly, neither JTR C4555-B.1 nor JTR C4555-B.4 applies. JTR C4555‑D does apply, however, as
this is the regulation that specifically applies to the rental of a house. Under this regulation a TDY or TQSE employee
is entitled to reimbursement for the rental of a house, and there is no
requirement that the employee provide a Awritten
explanation of the circumstances that is acceptable to the DOD component.@
The Corps, without explanation,
has also cited to JTR C4555-A as support for its position. This provision deals
with lodging location, which is not in issue in this case. Accordingly, C4555-A does not support the
non-payment of claimant=s TQSE claim.
In this case, claimant has
provided sufficient evidence (the checks and the memorandum) that he did,
indeed, rent the house during the TQSE time period. Claimant has also stated that the lessor is
not a friend or relative. Thus, the
provisions of the JTR dealing with renting from friends or relatives do not
apply. Accordingly, this rental expense
must be reimbursed.
Claimant also has claimed $438 in
real estate settlement expenses for the purchase of property in Randolf,
Kansas. Claimant did not file a DD Form
1705 as required by JTR C5759-A.
Additional necessary documentation may also be missing. Furthermore, no review has been made by the
reviewing official concluding that the claimed expenses are reasonable and
customarily paid by the buyer in the locality where the property is
located. JTR C5759-C. As it currently stands, claimant=s claim for real estate settlement expenses cannot be
granted.
Decision
The claim is granted in part.
___________________________________
R. ANTHONY McCANN
Board Judge
The
JTR C4555 lodging provisions are found in chapter 4 of the JTR, which deals
with TDY. Nevertheless, these particular
provisions also apply to TQSE, which is covered in chapter 5 of the JTR. See Frank J. Salber, GSBCA
16836‑RELO, 06-2 BCA & 33,330.
