Board of Contract Appeals General Services Administration Washington, D.C. 20405 ______________________ May 22, 1998 _______________________ GSBCA 14355-RELO In the Matter of PHILLIP A. JONES Phillip A. Jones, Kingsland, GA, Claimant. Judy Hughes, Travel Policy, Defense Finance and Accounting Service, Columbus Center, Columbus, OH, appearing for Department of Defense. PARKER, Board Judge. In June 1992, Phillip A. Jones, a civilian employee of the Department of the Navy, was transferred from the Portsmouth Naval Shipyard in Portsmouth, New Hampshire to the Naval Submarine Base at Kings Bay, Georgia. Shortly after arriving at Kings Bay, Mr. Jones signed a contract to purchase a house which was the subject of a Department of Veterans Affairs foreclosure action. Mr. Jones was told by the real estate agent that closing would occur in approximately ninety days. Since the estimated closing date was beyond the sixty-day period for which Mr. Jones had been authorized to receive temporary quarters and subsistence expenses (TQSE), Mr. Jones applied for a sixty-day extension of the TQSE period. His request was approved by the base's Acting Director of Human Resources. When Mr. Jones later submitted his claim for reimbursement of these expenses, the disbursing officer for the Navy's Personnel Support Activity in Jacksonville, Florida rejected Mr. Jones' claim for the extended period of TQSE. In the opinion of the disbursing officer, Mr. Jones' situation failed to meet the regulatory requirements for an extension of the original sixty-day period. The matter was forwarded to the Defense Finance and Accounting Service, which agreed with the disbursing officer that there was no regulatory basis for extending the period for TQSE. Mr. Jones has asked the Board to review DFAS's decision. Discussion An agency may allow a second sixty-day period of TQSE "if the head of the agency concerned or his designee determines that there are compelling reasons for the continued occupancy of temporary quarters." 5 U.S.C. 5724a (a)(3) (1988). At the time of Mr. Jones' transfer, the Federal Travel Regulation (FTR), which implements this statute, provided that the initial sixty- day TQSE period may be extended only in situations where there is a demonstrated need for additional time due to circumstances which have occurred during the initial 60-day period of occupancy and which are determined to be beyond the employee's control and acceptable to the agency. 41 CFR 302-5.2(a)(2) (1992). The Department of Defense's Joint Travel Regulations (JTR), which supplement the FTR for civilian employees of the Department of Defense, contained similar language. JTR C13004-A.2. A transferred employee who knows at the time he applies for a mortgage that the earliest projected settlement date will not occur before the last day of his initial sixty-day period for TQSE is not eligible for an extension of the TQSE period. William M. Stoddard, B-248012 (Aug. 25, 1992). This is because, in such a situation, the need for additional time is not due to circumstances which have occurred during the initial TQSE period and which are beyond the employee's control.[foot #] 1 Here, of course, Mr. Jones was fully aware at the time he applied for the mortgage on his new home that settlement would not occur during the initial sixty-day TQSE period. Although it is unfortunate that his request for an extension was initially approved by an official at Kings Bay, it is well settled that errors of this nature made by a Government official are not binding and provide no independent basis for reimbursement. Office of Personnel Management v. Richmond, 496 U.S. 415 (1990); Roland J. Landis, GSBCA 13690-RELO, 97-2 BCA 29,157.[foot #] 2 ----------- FOOTNOTE BEGINS --------- [foot #] 1 The FTR no longer requires that the "compelling reason" relate to "circumstances which have occurred during the initial 60-day period of occupancy." 41 CFR 302-5.104 (1997). We do not know what effect, if any, this change would have had on Mr. Jones' claim. In any event, the latest version of the regulation does not apply to the claim because the date of Mr. Jones' transfer preceded the effective date of the amended regulation. See 62 Fed. Reg. 13,756 (1997). ___ [foot #] 2 This is not a case like John Patrick Pede, __________________ GSBCA 13862-RELO, 97-2 BCA 29,023, in which the Board held that the Air Force could not revoke its discretionary decision to pay a transferred employee relocation expenses after the employee had already sold his house at the old duty station and bought one at the new duty station. There, the decision to allow relocation expenses was a discretionary decision which was clearly permitted (continued...) ----------- FOOTNOTE ENDS ----------- Decision For the reasons discussed above, the claim is denied. ________________________ ROBERT W. PARKER Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 2 (...continued) by the regulations. In this case, because Mr. Jones did not meet the regulatory requirements for an extension of the TQSE period, the agency did not have the discretion to grant the request. The initial decision to grant the extension was thus an error rather than a discretionary decision by the official charged with exercising that discretion. As explained above, such errors do not provide an independent basis for reimbursement.