Board of Contract Appeals General Services Administration Washington, D.C. 20405 _________________ April 16, 1998 _________________ GSBCA 14426-RELO In the Matter of BLASE J. CIANFRANI Blase J. Cianfrani, Chesapeake, VA, Claimant. Judy Hughes, Travel Policy, Defense Finance and Accounting Service, Columbus Center, Columbus, OH, appearing for Department of Defense. NEILL, Board Judge. Mr. Blase J. Cianfrani is an employee of the United States Navy. Early in 1996, he was advised that he was to make a permanent change of station (PCS) move from the Naval Shipyard in Philadelphia, Pennsylvania to Sunship in Portsmouth, Virginia. His orders listed July 29 as the reporting date for his new duty station. Mr. Cianfrani was fortunate to find a buyer promptly for his residence in Pennsylvania. The contract of sale for the residence provided that closing would occur on or before July 31. Due to rising interest rates, however, the buyer of Mr. Cianfrani's residence later requested that settlement take place on June 27. In exchange for early settlement, he offered to permit Mr. Cianfrani to remain in the house as a renter until ready to move to Portsmouth. On contacting his personnel office, Mr. Cianfrani was told that he could claim reimbursement of temporary quarters subsistence expenses (TQSE) while renting his former residence. Mr. Cianfrani and his family occupied his former home as renters from June 27 to July 22. His claim for TQSE for this period was later denied by the Defense Finance and Accounting Service (DFAS) on the ground that under the Joint Travel Regulations (JTR) of the Department of Defense (DOD), an employee renting his former home from the new owner is not eligible for TQSE. Mr. Cianfrani asks that we review this determination. The determination of DFAS is correct. By statute, TQSE may be paid only for days during which a transferred employee is "occupying temporary quarters." 5 U.S.C. 5724a(a)(3) (1994).[foot #] 1 At the time Mr. Cianfrani rented his former home from its new owner, the Federal Travel Regulation (FTR), the regulation which implements this statute, provided: [T]he term "temporary quarters" refers to lodging obtained from private or commercial sources for the purpose of temporary occupancy after vacating the residence occupied when the transfer was authorized. 41 CFR 302-5.2(c)(1996). The JTR, which apply to Mr. Cianfrani as a civilian employee of the Department of Defense, had an identical provision in section C13000.[foot #] 2 It is undisputed that Mr. Cianfrani and his family did not vacate the residence they occupied when Mr. Cianfrani's transfer was authorized. Regulation, therefore, prohibits paying Mr. Cianfrani TQSE for the period during which he remained in his former home as a renter. Patricia A. Tobin, GSBCA 14483-RELO (Mar. 25, 1998); Randall L. Thurman, GSBCA 14067-RELO, 97-2 BCA 29,160; Karl A. Hoglund, GSBCA 13716-RELO, 97-1 BCA 28,716 (1996). In requesting our review of the DFAS determination, claimant asks that we bear in mind that the personnel office in Norfolk has paid TQSE to another employee who, like himself, remained in his home as a renter after its sale. We know nothing of the situation referred to by claimant and it is not before us. Nevertheless, if the facts are as alleged, then the payment was unauthorized. One incorrect and unauthorized payment, however, can hardly be relied upon as justification for an unauthorized payment to Mr. Cianfrani. Claimant also asks that we bear in mind that the personnel office in Philadelphia advised him that he would qualify for TQSE if he rented his home back from its new owner. Unfortunately for Mr. Cianfrani, this fact, like that of the alleged erroneous payment to a fellow employee, is of no real legal significance. It is well established that the Government simply may not spend money in violation of statute or regulation. Kevin S. Foster, GSBCA 13639-RELO, 97-1 BCA 28,688 (citing Office of Personnel Management v. Richmond, 496 U.S. 414 (1990); Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947)). Payment, in the absence of proper ----------- FOOTNOTE BEGINS --------- [foot #] 1 This statute has been subsequently amended by the Federal Employee Travel Reform Act of 1996, Pub. L. No. 104-201, 1711-12, 110 Stat. 2752, 2753 (1996). The provision in question now appears at 45 U.S.C.A. 5724a(c)(1)(A) (West Supp. 1997). [foot #] 2 Both the FTR and the JTR provisions have recently been amended. These revisions, however, are of no significance for this case since they are inapplicable to the period in 1996 for which Mr. Cianfrani is seeking TQSE. ----------- FOOTNOTE ENDS ----------- authorization, cannot be justified solely by the fact that a claimant relied to his or her detriment on incorrect advice provided by a Government official. The claim is denied. _____________________ EDWIN B. NEILL Board Judge