February 28, 1997
                                                  


                             GSBCA 13718-RELO


                    In the Matter of ALFRED J. COSTANZO


     Alfred J. Costanzo, Charlottesville, VA, Claimant.

     J. Patrick O'Toole, Director, Division of Travel Management,
Social Security Administration, Baltimore, MD, appearing for Social
Security Administration.

DANIELS, Board Judge (Chairman).

     The Social Security Administration (SSA) transferred Alfred J.
Costanzo, an administrative law judge in the agency's Office of
Hearings and Appeals, from Pittsburgh, Pennsylvania, to
Charlottesville, Virginia.  Judge Costanzo's travel orders, as
amended, authorized him and his family to receive a maximum of 120
days of temporary quarters subsistence expenses (TQSE) in
connection with this permanent change of duty station.

     Judge Costanzo and his dependent daughter moved into temporary
quarters in Charlottesville on August 21, 1995.  During the next
120 days, the judge was away from these quarters on several
occasions, totaling forty-two days, while he was performing
official duties in other locations.  On each of these days, he was
on temporary duty travel status.  He claims that as a result, he
(though not his daughter) is entitled to TQSE for forty-two
additional days.

     According to the Federal Travel Regulation (FTR), TQSE is to
be authorized for periods of consecutive days, but such a period --

     may be interrupted for the time that is allowed . . . for
     circumstances attributable to official necessity as, for
     example, an intervening temporary duty assignment.

41 CFR 302-5.2(a)(1) (1995).  Thus, as SSA recognizes, if Judge
Costanzo were the only individual for whom a TQSE allowance was
being sought, the agency should surely pay his travel expenses (but
not TQSE) for each of the forty-two days in question, and extend
the TQSE period by an identical number of days.  The judge points
out that he was unable to search for a permanent residence while he
was out of town, and this extension of time would equitably permit
him the same period in which to conduct this search as the original
authorization contemplated.

     The difficulty with extending the period, according to SSA, is
that the claimant was not alone in the temporary quarters; his
daughter was there with him, and TQSE was being paid for her as
well.  The FTR provides:

     The time period [of eligibility for TQSE] shall run
     concurrently for the employee and all members of the
     immediate family. . . .  The period of eligibility shall
     terminate when the employee or any member of the
     immediate family occupies permanent residence quarters or
     when the authorized period of time expires, whichever
     occurs first.

41 CFR 302-5.2(f).  SSA has referenced several cases in which the
General Accounting Office applied this provision to dictate that
where some family members moved to temporary quarters after the
employee did so, the eligibility of all for reimbursement of TQSE
ended when the employee's authorized period expired.  Huai Su,
B-215701 (Dec. 3, 1984); Gary E. Pike, B-209727 (July 12, 1983);
Earl B. Amey, 60 Comp. Gen. 281 (1981).

     SSA views the two portions of the FTR as being in conflict
with each other -- the first provision as requiring that the period
of Judge Costanzo's eligibility for TQSE be extended, since it was
interrupted due to official necessity; and the second provision as
commanding that the period be ended, since the judge's daughter's
eligibility expired.  In denying the claim on the basis of the
second provision alone, the agency thoughtfully confesses that this
result is not fair.  It would cause the claimant to forego moneys
to which he was entitled, solely because he was traveling for the
benefit of the Government during much of the period that his
daughter's eligibility was running.  (This situation is
considerably different from the one addressed in the cited cases,
where family members lived in temporary quarters for different
lengths of time for reasons of the convenience of the individuals,
rather than the Government.  Roy C. Hitchcock, 57 Comp. Gen. 696
(1978)).

     In our view, the equitable result is also the one which gives
the greatest meaning to both regulatory provisions.  The period of
eligibility of Judge Costanzo for TQSE was interrupted due to
official necessity on forty-two days; it therefore may be extended
by an identical number of days.  In keeping with the general rule
that within the regulation's constraints, the employee may choose
when a period of TQSE begins, Robert L. Sprute, GSBCA 13866-RELO
(Feb. 20, 1997), Judge Costanzo may elect to have the period
extended by forty-two days or to have it run as originally intended
notwithstanding his having been away on official business.  Gerald
K. Schultz, 57 Comp. Gen. 700 (1978).  Whichever option he elects,
his daughter's period of eligibility for reimbursement of TQSE must
run concurrently with his; she was eligible only on each of the
days that her father could receive such reimbursement.

     The claimant has chosen an impermissible option -- having his
daughter's period of eligibility run for 120 consecutive days and
his own interrupted so that it will expire 162 days after it began. 
The claim makes apparent, however, that he did not make a knowing
election, and that if he had realized the choice open to him, he
would have chosen to have the time cover non-consecutive days. 
This option permits him to receive reimbursement for his own
expenses of lodging, meals, and incidental expenses while on
temporary duty travel, and for similar expenses during each of 120
days while in temporary quarters in Charlottesville.

     With this understanding, we can see that Judge Costanzo should
not have claimed, and SSA should not have allowed, TQSE for the
daughter during the forty-two days that the father was traveling on
temporary duty.  If the claimant has no records of expenses
incurred for his daughter during the forty-two days by which the
eligibility period is extended, however, SSA may deem that the
expenses which were incurred on the earlier days, for which payment
has already been made, were identical to the expenses incurred in
the later period.  Thus, as a result of SSA's transferring Judge
Costanzo to Charlottesville and authorizing TQSE for 120 days, SSA
will have paid what it expected to pay, and the judge will have
received what he expected to receive: temporary quarters
subsistence expenses for him and his daughter for 120 days.





                                   _________________________
                                   STEPHEN M. DANIELS
                                   Board Judge