Board of Contract Appeals General Services Administration Washington, D.C. 20405 ________________________________________ February 25, 1998 ________________________________________ GSBCA 14412-RELO In the Matter of MICHAEL E. PEREZ Michael E. Perez, Rock Island Arsenal, IL, Claimant. Col. Julius G. Scott, Jr., Chief of Staff, United States Army Aviation and Troop Command, Department of the Army, St. Louis, MO, appearing for Department of the Army. BORWICK, Board Judge. Claimant, Michael E. Perez, a civilian employee of the Department of the Army, seeks reimbursement of temporary quarters subsistence expenses (TQSE) in connection with his permanent change of station (PCS) relocation. Claimant incurred the expenses after the expiration of the sixty day TQSE period authorized by his travel orders. Claimant requested an extension of the TQSE period because he was unable to sell his house at his old station before the expiration of the original sixty day period. The agency denied the request, reasoning that claimant had not shown a compelling reason for an extension of the TQSE period. Claimant then filed a claim at this Board. We conclude the agency permissibly denied claimant's request. On May 7, 1997, claimant was issued travel orders for his PCS move from United States Army Aviation and Troop Command (ATCOM) in St. Louis, Missouri, to the Rock Island Arsenal, Illinois. The agency authorized claimant sixty days of TQSE. Claimant was not alone in his move. His relocation was part of the base realignment and closure (BRAC) initiative which, among other things, eliminated ATCOM and relocated its functions elsewhere. In anticipation of the base closure, the Civilian Personnel Office (CPO) published a number of pamphlets on employ- ee entitlements upon relocation. For example, pamphlet AMSAT-B- R-02-95, a CPO Employee Assistance Bulletin, explained that employees would be entitled to "temporary quarters subsistence expense [not to exceed] 60 days when conditions warrant," which "may be extended an additional 60 days when there are compelling reasons beyond the employee's control." In addition to written material, the Defense Finance and Accounting Service, in conjunc- tion with the CPO, provided training sessions from October 1996 through February 1997 on PCS entitlements to all interested ATCOM employees. On July 21, claimant wrote the CPO at ATCOM that he was unfamiliar with TQSE rules, asked if he was only entitled to sixty days of TQSE, stated his understanding that he could apply for up to 120 days of TQSE, which was his desire, and stated that his wife and children "are still in [St. Louis], still trying to sell our home." He also complained that he had telephoned the CPO ten times in the past two weeks and had left messages on voice mail, but never received return telephone calls. Later that day, claimant wrote the CPO again, requesting an extension of TQSE for the reason that my wife and children have remained in [St. Louis]. Our home has not yet been sold. To date, we have no offer to buy the home. The agency denied claimant's request for an extension of the TQSE period. On October 14, the Chief of Staff explained the reasons for the denial: "I have received your request to review your denial of TQSE. Unfortunately, I am unable to grant your extension. The JTR [Joint Travel Regulations] allow for an extension only in situations where there is a demonstrated need for additional time in temporary quarters due to circumstances which have occurred during the initial 60-day period of TQSE, and which are determined to be beyond the employee's control." Claimant maintains that he is entitled to extension of the TQSE period because of a "clear pattern of neglect" by the civilian personnel officer in responding to claimant's telephonic requests for assistance. Claimant maintains: I asked for and received assurances from [the civilian personnel officer]. I clearly explained that I needed her help because I did not understand TQSE rules. She told me that my extension request would be routine. I sent her exactly what she told me to send to support the request. She volunteered to personally follow through with my requested extension. Claimant continues: However, [after numerous attempts to contact the civil- ian personnel officer,] for whatever reasons, she made a complete about-face. She claimed inability to recall any more than a few voice mails from me. She said she could not recall the substance of any of my numerous and almost daily voice mail messages. She claimed to have assigned my case to another worker, but could not provide me the name of that worker. She said she could not tell me whether her assigned worker had ever con- tacted me. In response, the agency explained that the CPO "worked very hard to make available for all employees the vital information for accomplishing PCS moves." These efforts included distribu- tion of information and the training sessions. As to the claim- ant's complaints as to how he was specifically treated, the agency explained: "We received a large volume of requests, and our intent was to process them accurately and expeditiously. All requests were processed and evaluated based on the specific situation supported by available documentation. There were no routine cases and verbal approvals were not given in any circum- stances." We set out the applicable law in Baron L. Hudson, GSBCA 14294-RELO (Jan. 14, 1998): Employees who are "transferred in the interest of the Government from one official station or agency to another for permanent duty" are to be reimbursed for certain expenses incident to the transfer. These expenses include "[s]ubsistence expenses of the employ- ee and his immediate family for a period of [up to] sixty days while occupying temporary quarters when the new official station is located within the United States." Reimbursement of TQSE may be extended for [up to] an additional sixty days 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) (1994). The payment of expenses of relocation is also subject to the provisions of the Federal Travel Regulation (FTR), which implements the provisions of the statute. With respect to extensions of TQSE, the applicable FTR provisions in effect at the time of claimant's reloca- tion provide as follows: [The] agency may authorize [the relocating employee] to claim actual TQSE in 30-day increments, not to exceed 60 consecutive days. However, if [the] agency determines that there is a compelling reason for [the employee] to continue occupying temporary quarters after 60 consecutive days, it may authorize an extension of up to 60 additional consecutive days. Under no circumstances may [the relocating employee] be authorized to claim actual TQSE reimbursement for more than a total of 120 consecutive days. 41 CFR 302-5.104 (1997). A "compelling reason" is an event that is beyond [the relocating employee's] control and is acceptable to [the] agency. Examples include, but are not limited to: (a) Delivery of [the employee's] household goods to [the] new residence is delayed due to strikes, customs clearance, hazardous weather, fires, floods or other acts of God, or similar events. (b) [The employee] cannot occupy the new permanent residence because of unanticipated problems (e.g., delay in settlement on the new residence, or short-term delay in con- struction of the residence). (c) [The employee is] unable to locate a permanent residence which is adequate for [his/her] family's needs because of housing conditions at [the] new official station. (d) Sudden illness, injury or death of em- ployee or immediate family member. 41 CFR 302-5.105. The JTR is to the same effect. The JTR provide that subsistence expenses beyond the initial TQSE period "may be allowed for an additional period of time not to exceed 60 consecutive days provided the head of the DOD component concerned or his/her designee, determines there are compelling reasons for the contin- ued occupancy of temporary quarters." JTR 13004-A.2; see Thomas Potts, GSBCA 13700-RELO, 97-1 BCA 20,938. The JTR require that the employee justification and subse- quent administrative approval be in writing. When an additional period of TQSE allowance is allowed, written justification and documentation must be provided. JTR 13004-A.2. The employee must provide the approving official a written justification which describes circumstances demonstrating a need for additional time in temporary quarters that occurred during the initial sixty-day period of temporary quarters occupancy and that are clearly shown to be beyond the employee's control. JTR 13004-A.3. The justi- fication accompanied by "documentation from the approving offi- cial indicating his/her reasons for approving or denying the requested extension[,] will be retained in a management file and available for review." JTR C13004-A.3. In Baron Hudson, we concluded that the agency permissibly exercised its discretion in refusing to extend an employee's authorized TQSE period although the employee encountered diffi- culties in selling a residence at the old station. The agency here found that claimant's inability to sell his residence at his old station was not a compelling reason. The agency correctly exercised its discretion. Claimant, nevertheless, contends he is entitled to an extension of the TQSE period because of the alleged neglect in instructing him of his TQSE entitlements and allowances by the CPO. We conclude there was no neglect. Following the BRAC initiative, the CPO issued numerous pamphlets concerning PCS entitlements, including the rules pertaining to the TQSE period, and gave classes on the subject through DFAS. Even if communica- tion between the claimant and the agency had been ineffective, statute and regulation do not make effective communication a criterion for determining whether claimant was entitled to an extension of the TQSE period. Claimant implies that the civilian personnel officer misled him when she stated that his request would be "routine." That statement is not necessarily a commitment to grant the requested extension; it could just as easily mean that many employees were routinely requesting an extension of TQSE period. Even if one strained the meaning to infer an oral commitment to grant the extension of the TQSE period, the JTR requires written approval of that extension. The civilian personnel officer lacked the authority to grant oral extension of the period. The claim is denied. ________________________ ANTHONY S. BORWICK Board Judge