December 23, 1996 GSBCA 13660-RELO In the Matter of LARRY N. VITATOE Larry N. Vitatoe, Nashua, NH, Claimant. William E. Allan, Chief, Finance and Accounting Liaison Office, Directorate of Support Services, Denver, CO, appearing for the Department of Defense. GOODMAN, Board Judge. Mr. Larry N. Vitatoe is a civilian employee of the Department of the Air Force. On August 6, 1993, he was terminated from employment as the result of an Air Force investigation which determined that he had made deliberate misrepresentations of material fact in his claim for temporary quarters subsistence expenses (TQSE) in connection with his permanent change of station (PCS) move from Peterson Air Force Base, Colorado to Hanscom Air Force Base, Massachusetts. Upon notification of his removal action, the financial service office (FSO) established a debt collection action against his final pay in the amount of $10,122.50, the TQSE which he had been paid. This action was taken on the basis of a provision of the Joint Travel Regulations (JTR), the Department of Defense regulations which implement and supplement the Federal Travel Regulation, which reads, in relevant part: C4352 HANDLING OF FALSIFIED TRAVEL CLAIMS When there is reasonable cause to suspect that an employee has falsified one or more claimed expenses on a travel voucher (other than the cost of lodging, meals, or incidentals), the suspect expense(s) will not be allowed. When there is reasonable cause to suspect that an employee has falsified a claimed expense for lodging, meals, or incidentals, per diem or actual expense allowance (AEA) (as applicable) will be denied for the entire day on which the suspect expense is claimed. In the event payment is made prior to discovery of what is suspected to be a falsified expense, the employee will be required to reimburse the Government . . . . Mr. Vitatoe filed a grievance, and a grievance arbitration was held under the provisions of the Memorandum of Agreement between the National Association of Government Employees and the Commander of the 3245th Air Base Group. This memorandum reads, in relevant part: The arbitrator s decision will be in writing and will include an analysis of the basis of his/her decision. The arbitrator s decision . . . will be binding, unless a timely exception is filed with the Federal Labor Relations Authority or other appropriate authority as may be applicable to the grievance. The arbitrator was appointed by the Federal Mediation and Conciliation Service. The matter was arbitrated in hearings held on March 29 and June 1, 1994. A written decision was issued on June 10, 1994. The purpose of the arbitration was to determine whether the Government had just cause to remove the grievant. In reaching this determination, the arbitrator focused upon the allegations of deliberate misrepresentations of material facts in the TQSE claim. The arbitrator s decision addressed specific allegations as follows: The Notice of Proposed Removal states in the key section (e) . . . that the issuing official concluded that Mr. Vitatoe deliberately misrepresented the facts in his TQSE forms because (1) he rounded off meal costs rather than entering actual costs ; (2) he gave his children $7. each per day for lunch when they were on a $5. per school week school lunch program, recording the $7. per day per child as part of the family s daily lunch expenses, rather than actual expenses, and thus engaging in deliberate misrepresentation; and (3) he listed laundry expenses which he did not know were accurate. . . . . Accordingly, I will examine below each of the specific reasons relied on for the Removal decision to see whether the charges are supported by the evidence . . . . The arbitrator discussed the factual allegations supporting the misrepresentation charges and made the following findings: (1) Rounding off . . . The Government charge is that [grievant] was not actually aware of how much each family member spent, but that you required them to give you the change at the end of the day and that he rounded off rather than entering actual costs. I assume that the Government cannot be seriously charging the Grievant with deliberate misrepresentation warranting removal on the basis of the fact that he relied on his family members to report truthfully to him their expenses. All that is left then is the charge that he rounded off his figures. But the tracking sheets submitted with the two TQSE s made it entirely obvious that he was rounding off . . . . The Grievant knew that these sheets would be reviewed as well by [the auditor]. It is incomprehensible how the Government can charge him with deliberate misrepresentation in rounding off when he made the fact that he was rounding off so extraordinarily obvious. Moreover the deciding official . . . admitted that with respect to home-prepared meals, an appropriate way to list expenses would be to total grocery costs and list a daily average on the tracking sheets. There is simply no basis for belief that the Grievant was engaged in deliberate misrepresentation, as charged, in rounding off his expenses. . . . . (2) Child lunch expenses - The Government charges the Grievant with deliberate misrepresentation because he gave his children $7. per day for lunch when, unbeknownst to him, they were on a $5. per week school lunch program. As above, I find that the Grievant had a right to rely on his family members to report their expenses to him honestly; I note that there was no allegation by the Government that the Grievant acted in anything other than good faith. (3) Laundry Expenses - The Grievant submitted laundry expenses which were generally in the range of $4-5 per day, and stated in the investigation that he had relied on what his wife told him in assessing these expenses. The Government provided no evidence or other reason to believe that the figures were inaccurate, or that Grievant was not operating in good faith, charging him with deliberate misrepresentation solely on the basis of his admission that he had no independent knowledge that the amounts listed were the correct actual expenses. This is a frivolous ground on which to rely in attempting to justify this removal decision. The arbitrator also reviewed various allegations supporting charges by the Air Force that Mr. Vitatoe failed to cooperate with investigators and found these charges without merit. In conclusion, the arbitrator stated: All that is left of the charges on which the Government relied in making its Removal Decision is the Grievant s failure to come forward earlier than he did come forward to volunteer that he had been mistaken in assuming that his children needed $7. per day for lunch money on the school days covered by the $5. per school week lunch program; . . . this charge alone obviously does not warrant imposition of the discipline here at issue. Accordingly, I find that the Government failed to demonstrate just cause for the Grievant s Removal. AWARD: The Grievance is sustained. The Grievant is entitled to immediate reinstatement, expungement of all reference to the removal from his U.S. Air Force records, and retroactive benefits as of date of removal. The record contains no indication that any exception to the arbitrator s award has been filed with the Federal Labor Relations Authority or other appropriate authority. Thus the arbitrator s award is binding on the parties. By memorandum dated May 9, 1995, Mr. Vitatoe requested that the General Accounting Office review his claim for TQSE and that all funds should be immediately reinstated. The Air Force opposes reconsideration of the claim for TQSE. By memorandum dated May 30, 1995, the Air Force states: We contend that the decision arrived at by the arbitrator was solely based on the removal action as being too severe a punishment for the act committed by the employee in falsifying his TQSE claim and did not mean to imply cancellation of his debt and pay back of the money collected. The evidence is very clear from the AFOSI report that he deliberately misrepresented facts pertaining to his TQSE claims with the intent to fraud [sic] the government. Thus, the Air Force maintains its position that Mr. Vitatoe committed deliberate misrepresentation, despite the fact that the arbitrator reviewed the facts and circumstances and found no deliberate misrepresentation. The Air Force ignores the binding decision of the arbitrator which specifically reviewed the allegations of deliberate misrepresentation, found such allegations unsupported by the evidence, and determined that such allegations could not form the basis for just cause to remove Mr. Vitatoe. Mr. Vitatoe s travel voucher should be reconsidered by the Air Force on its merits. Reimbursement should be determined based upon the sufficiency of the information presented and the applicable regulations, without regard to allegations of deliberate misrepresentation. _________________________ ALLAN H. GOODMAN Board Judge