___________________________ July 29, 1997 ___________________________ GSBCA 14042-TRAV In the Matter of JOHN P. DELEO John P. DeLeo, Laguna Niguel, CA, Claimant. James A. Stepien, Chief, Financial Management Division, Defense Investigative Service, Alexandria, VA, appearing for Department of Defense. DeGRAFF, Board Judge. John P. DeLeo, a former employee of the Defense Investigative Service (DIS), asks to be reimbursed for the mileage expenses he incurred when he made 144 trips using his privately owned automobile. At the time Mr. DeLeo made the trips, he and DIS expected that he would spend the greater part of his time in San Diego, California, which made San Diego Mr. DeLeo's permanent duty station. DIS may reimburse Mr. DeLeo for the mileage expenses he incurred while on official business for DIS, but not for the mileage expenses he incurred commuting between his home and his permanent duty station in San Diego. Facts In early 1995, DIS transferred Mr. DeLeo from Orange, California to San Diego as part of an agency realignment. Mr. DeLeo continued to work in Orange until February 1995, when DIS agreed to permit him to work out of an office in his home in Laguna Niguel, California. Mr. DeLeo provided two Standard Forms 50-B, Notification of Personnel Action, from January and February 1995, which state that his duty station was Orange in January 1995, and Laguna Niguel as of February 1, 1995. DIS says that San Diego was Mr. DeLeo s duty station, although DIS permitted him to work out of his home in Laguna Niguel because his primary duties were performed at various government contractor sites. On September 18, 1995, DIS instructed Mr. DeLeo to report to San Diego until further notice, because DIS was conducting an investigation concerning Mr. DeLeo. Mr. DeLeo says that, in October 1995, he asked his supervisor whether he was being reassigned from his home office in Laguna Niguel and his supervisor said that he was not being reassigned. The Regional Director for DIS says that he directed Mr. DeLeo to report to San Diego and told him that he would no longer be working out of his home. The Regional Director also says that he made it clear to Mr. DeLeo that San Diego was his duty station effective September 19, 1995. After September 19, 1995, DIS gave Mr. DeLeo no duties to perform from his home and no contractor sites to visit, and his duties were limited to those that he could perform in San Diego. In January 1996, Mr. DeLeo submitted to DIS a claim for reimbursement of $129.60 for mileage expenses he incurred in connection with four trips. Two of the trips, made on September 26 and 27, 1995, were round trips between Laguna Niguel and a DIS office in Long Beach, California. The other two trips, made on November 22 and December 7, 1995, were from San Diego to Long Beach, and from Long Beach to Laguna Niguel. DIS neither paid nor denied this claim. Mr. DeLeo reported to San Diego until May 13, 1996, when DIS removed him from service. Mr. DeLeo appealed his removal and settled the appeal by agreeing to retire not later than September 3, 1996. On September 9, 1996, Mr. DeLeo submitted to DIS a claim for reimbursement of $5,542.80 for mileage expenses he incurred in connection with 144 trips that occurred between September 19, 1995, and May 13, 1996. Four of these were the trips for which he asked to be reimbursed in January 1996. Of the remaining 140 trips, 138 were round trips between Laguna Niguel and San Diego, a one-way distance of sixty-four miles. One of the remaining trips was a round trip between Laguna Niguel and Orange, and the other trip included three segments -- from Laguna Niguel to San Diego, from San Diego to Long Beach, and from Long Beach to Laguna Niguel. DIS never issued Mr. DeLeo a travel authorization for any of the trips for which he claims reimbursement, and Mr. DeLeo does not say that he ever requested a travel authorization. DIS says that if Mr. DeLeo had been assigned to temporary duty at a station other than his assigned duty station, DIS would have authorized him to use a government-owned automobile. Mr. DeLeo never requested and DIS never authorized the use of a government-owned automobile. DIS says that Mr. DeLeo never asked to use his own automobile and to be reimbursed for mileage, but Mr. DeLeo says that he was told by supervision/management that he could use his automobile to make the four trips to Long Beach that made up his January 1996 claim, as well as the trip to Long Beach that was a part of his September 1996 claim. DIS denied Mr. DeLeo s September 9, 1996 claim. DIS says that the expenses for which Mr. DeLeo seeks reimbursement were his commuting expenses. Mr. DeLeo asks us to review DIS s action. Mr. DeLeo says that he did not consent to a change in duty station from Laguna Niguel and no paperwork was ever completed to change his duty station from Laguna Niguel to San Diego. Mr. DeLeo also provided Standard Forms 50-B from September 1995, and January, May, and August 1996, which show his duty station as Laguna Niguel. Mr. DeLeo says that he kept substantial amounts of government furnished equipment at his home in Laguna Niguel and maintained a post office box for DIS in Laguna Niguel from September 1995 through May 1996. Mr. DeLeo says that because his duty station was Laguna Niguel, he should be reimbursed for the expenses he incurred making trips from September 19, 1995, through May 13, 1996, between Laguna Niguel and DIS offices at other locations. Discussion The 138 trips between San Diego and Laguna Niguel Mr. DeLeo's claim includes a request for reimbursement for mileage for 138 round trips between Laguna Niguel and San Diego. Statute provides that an employee who is engaged on official business for the Government is entitled to a rate per mile . . . for the use of a privately owned automobile when that mode of transportation is authorized or approved as more advantageous to the Government. 5 U.S.C.  5704(a)(1) (1994). This statutory provision is implemented by the Federal Travel Regulation and the Joint Travel Regulations (JTR), applicable to civilian employees of the Department of Defense. Neither the statute nor the regulations authorize reimbursing an employee for commuting expenses. Whether Mr. DeLeo was engaged on official business for DIS when he made these trips depends upon whether San Diego was his permanent duty station or a temporary duty station. If San Diego was Mr. DeLeo's permanent duty station, his trips to San Diego were simply the commute he was required to make each day in order to report for work, and not official business, and he cannot be reimbursed for mileage for those trips. If San Diego was a temporary duty station, then he was engaged on official business for DIS when he made those trips and he is entitled to be reimbursed for mileage. The General Accounting Office (GAO), which formerly resolved the travel claims of government employees, decided that whether a duty station is temporary or permanent is a question of fact and is determined by where an employee expects and is expected to spend the greater part of his time. GAO determined that the papers processed by an agency and an agency s statements were not conclusive proof of the location of an employee s duty station. GAO was less interested in the paper trail created by the agency and the employee, and more interested in the facts establishing where the employee was expected to spend the greater part of his time performing his duties. Bertram C. Drouin, 64 Comp. Gen. 205 (1985); Frederick C. Welch, 62 Comp. Gen. 80 (1982); Kenneth L. Peck & Mark N. Snow, B-198887 (Sep. 21, 1981). The Department of Defense uses GAO's rationale in order to determine whether a post of duty is temporary. JTR 4455-A. GAO s approach has merit, and we will use it in this case. Mr. DeLeo established that, prior to September 19, 1995, he expected that he would spend the greater part of his time in Laguna Niguel. DIS acknowledges that Mr. DeLeo worked out of his home in Laguna Niguel and was not expected to report to San Diego before September 19, 1995. Therefore, Mr. DeLeo s permanent duty station was Laguna Niguel until September 19, 1995. Mr. DeLeo says that San Diego never became his permanent duty station because DIS never prepared any paperwork to make San Diego his duty station, and because DIS prepared several Standard Forms 50-B after September 1995, showing his duty station as Laguna Niguel. As we explained above, paperwork alone does not establish the location of an employee s permanent duty station. Mr. DeLeo says that if DIS had told him that it was changing his duty station, he would have been entitled to relocate to San Diego at DIS s expense. There is no point in speculating as to whether Mr. DeLeo would have been entitled to relocation expenses, because he did not move from Laguna Niguel. In order to determine whether San Diego became Mr. DeLeo s permanent duty station after September 18, 1995, we will look at the facts in order to decide where Mr. DeLeo and DIS expected he would spend the greater part of his time. The actions of DIS establish that the agency expected Mr. DeLeo to spend the greater part of his time in San Diego, beginning on September 19, 1995. DIS ordered Mr. DeLeo to begin reporting to San Diego on that date. DIS gave Mr. DeLeo no further duties to perform from his home and only gave him work that he could perform in San Diego. The Regional Director for DIS told Mr. DeLeo that he could no longer work out of his home and that San Diego was his duty station effective September 19, 1995. DIS never issued Mr. DeLeo any authorization for travel between Laguna Niguel and San Diego, never told Mr. DeLeo that his trips between Laguna Niguel and San Diego were reimbursable, and never provided Mr. DeLeo with a government-owned car, which it says it would have done if he had been assigned to a temporary duty station. DIS s actions are consistent with Department of Defense regulations which provide that temporary duty assignments are limited to six months, with certain exceptions not applicable here. JTR C4455-B. There are no facts to establish that DIS placed any time limit upon Mr. DeLeo's San Diego assignment. Mr. DeLeo reported to San Diego for nearly eight months, from September 19, 1995, until May 13, 1996. Mr. DeLeo s actions also establish that he expected to spend the greater part of his work time in San Diego, beginning on September 19, 1995. Mr. DeLeo reported for duty in San Diego beginning on September 19, 1995, and except for a few trips to other DIS offices, Mr. DeLeo continued to report to work in San Diego until May 13, 1996. Even though he did not return his government furnished equipment and did not cancel the post office box in Laguna Niguel, the record does not show that he did any work from Laguna Niguel. Mr. DeLeo never asked for a travel authorization, never asked for a government-owned car, and never asked for reimbursement for his round trips to San Diego until September 1996. Although Mr. DeLeo claimed in September 1996, that he was entitled to be reimbursed for his trips to San Diego because that was a temporary duty station, this is not what he claimed in January 1996. In his January 1996 claim, Mr. DeLeo asked only to be reimbursed for four trips to Long Beach, and not for any trips between his home and San Diego. If Mr. DeLeo believed that all of his trips to San Diego were reimbursable because San Diego was a temporary duty station, it was inconsistent for him not to have included mileage for those trips in his January 1996 claim, when he had been making the drive for more than three months. Beginning on September 19, 1995, both Mr. DeLeo and DIS expected that he would spend the greater part of his time in San Diego, and so San Diego became his permanent duty station on that date. Mr. DeLeo is not eligible to be paid mileage for the trips he made between his home in Laguna Niguel and his permanent duty station in San Diego. The remaining six trips Mr. DeLeo's claim includes a request for reimbursement for mileage for six trips that were not round trips between Laguna Niguel and San Diego. One trip was a round trip between Laguna Niguel and Orange. The remaining five trips involved travel to Long Beach. Mr. DeLeo states that all of the trips were for official business and that DIS said he could use his car to make the trips to Long Beach. Mr. DeLeo does not say whether he was authorized to use his car to travel to Orange. The JTR explain the circumstances in which the use of a privately owned automobile is authorized, how to determine if the use of a privately owned automobile is advantageous to the Government, and how to calculate the amount to be paid for the use of a privately owned automobile. JTR ch. 2, pt. D. Neither party has provided us with enough facts to determine whether it is proper for DIS to reimburse Mr. DeLeo for these six trips and, if so, what amount DIS should pay. Although Mr. DeLeo has not met his burden of persuading us that he should be reimbursed for these six trips, we are reluctant to deny his claim because DIS's reason for rejecting the claim (the expenses were commuting expenses) clearly does not apply entirely to these six trips. DIS should reconsider Mr. DeLeo's claim for these six trips and, if DIS denies the claim, Mr. DeLeo can ask us to review DIS's action. ________________________________ MARTHA H. DeGRAFF Board Judge