______________ March 31, 1997 ______________ GSBCA 13802-RELO In the Matter of PAUL E. DYER Paul E. Dyer, Mustang, OK, Claimant. Carolyn Dunn, Financial Policy and Administration Branch, Federal Aviation Administration, Washington, DC, appearing for Department of Transportation. VERGILIO, Board Judge. The claimant, Mr. Paul E. Dyer, an employee of the Federal Aviation Administration, seeks reimbursement for temporary quarters at his new duty station. The agency reasonably found no entitlement, because the Dyers purchased the premises they were renting and have not demonstrated that their intent at the time they moved in was to make those premises a temporary residence. Mr. Dyer has demonstrated no impropriety by the agency in assessing moving charges for excess weight and limiting reimbursement for meals and incidental expenses. On October 27, 1995, Mr. Dyer reported for duty at his new duty station. It appears that his first thirty-day period of temporary quarters began on or shortly before October 25--some travel time between duty stations occurred and the second thirty- day period commenced on November 24. He and his family first stayed in a motel at the new duty station. The Dyers entered into a three-month lease, effective November 1, 1995, although November 6 is the first date Mr. Dyer claimed the premise as temporary quarters. On November 30, the Dyers closed the sale of their residence at the old duty station. On December 29, 1995, they closed on the purchase of a residence at the new duty station, the same premises in which they resided as tenants under the lease. Temporary quarters subsistence expenses Mr. Dyer seeks reimbursement for temporary quarters at the rented unit for the period November 6 through December 23. The agency concluded that the premises were not temporary quarters. It denied the request, in light of the Dyers' purchase of those premises on December 29, and the understanding that it takes at least forty-five days to process a VA loan. Mr. Dyer has quoted a portion of the applicable regulation: "occupancy of temporary quarters that eventually become the employee's permanent residence shall not prevent payment of the temporary quarters allowance, if, in the agency's judgment, the employee shows satisfactorily that the quarters occupied were intended initially to be only temporary," 41 CFR 302-5.2(c) (1996). He has explained his initial intent: Having not utilized a house hunting trip, the Dyers arrived at the new duty station and stayed initially in a motel, which was insufficient to enable the children to enrol in school. The Dyers entered into a three-month lease, because they did not want their children to have to adjust to a third school within a few weeks. Also, while the residence at the old duty station was unsold, they could not qualify for the purchase of another residence. The regulation also contains guidance for the agency regarding temporary versus non-temporary quarters, following the sentence quoted above: "In making this determination, the agency should consider factors such as the duration of the lease, movement of household effects into the quarters, type of quarters, expressions of intent, attempts to secure a permanent dwelling, and the length of time the employee occupies the quarters." 41 CFR 302-5.2(c). The explanation provided by Mr. Dyer and the facts surrounding the move make reasonable the agency conclusion that the Dyers did not intend the premises to be a temporary residence. Aware of the regulation, Mr. Dyer has not stated that he continued looking for a residence after signing the lease and he is silent on the date he entered into a contract for the purchase. Approximately one-fifth (by weight) of his household goods were delivered to the new residence on November 6; the remainder was delivered on December 28. Given the desire to not relocate the children, that a purchase could not be consummated until the residence at the old duty station was sold, and the lack of further specifics from Mr. Dyer, it was reasonable for the agency to conclude that the Dyers intended to make the premises their permanent residence from the time they signed the lease (purchase awaited only the sale of the residence at the old duty station). Having already reimbursed Mr. Dyer $2,114.97 for temporary quarters subsistence expense (TQSE) for the period November 6 through 23, 1995, the agency properly seeks to recoup that amount. Also, the agency appropriately denied approval of TQSE for the second thirty-day period and seeks recoupment of the amount advanced, because the Dyers were not in temporary quarters beginning November 6. Mr. Dyer has submitted a voucher for the payment of $2,615.50 for costs associated with the sale/purchase of residences. The agency has approved and authorized the amount for payment, and has withheld the amount to offset amounts due, because of the disallowance of TQSE paid and advanced. Mr. Dyer seeks payment of $2,615.50. However, the agency has acted correctly in retaining that amount. Moving expenses Mr. Dyer disputes a transportation charge of $72.70 itemized as "extra pickup" at the old residence; he states that an extra pickup did not occur. A signed and dated certificate from the shipper, which forms a part of the voucher, states, in part, that the individual certifies that "the account stated hereon, as evidenced by the attached subvouchers, is correct and just; that services have been rendered." Mr. Dyer has not satisfactorily rebutted the statement in the certification, such that the Board concludes that the charge is appropriate. Further, Mr. Dyer takes issue with the agency's computation of charges for the excess weight of moving and storing goods. Regulation specifies that "the employee shall reimburse the Government for the cost of transportation and other charges applicable to the excess weight, computed from the total charges according to the ratio of excess weight to the total weight of the shipment." 41 CFR 302-8.3(b)(5). The agency has properly applied the ratio to the various transportation charges (storage in transit, warehouse handling, delivery, etc.). Food allowances Mr. Dyer also objects to the agency limiting reimbursement for meals and incidental expenses to 46% of the TQSE amount. The agency disallowed amounts in excess, with the explanation that it applied the 46% rule, "a routine process that has been done since 1986 (CG [Comptroller General] Decision B-218988)." The referenced Federal Aviation Administration rule specifies: "The 46 percent rate for meals and incidental expenses as defined below is NOT an entitlement. Receipts are not generally required for claims meeting the 46 percent guideline. Claims exceeding the 46 percent will require receipts for the total amount of expenses incurred during the total period of temporary quarters." While it would be improper to apply the rule as a per se prohibition against reimbursing for meals and expense in excess of 46% of the TQSE amount, Mr. Dyer has not submitted receipts or other information in connection with his objection. He has not established an agency impropriety. ____________________________ JOSEPH A. VERGILIO Board Judge