Board of Contract Appeals General Services Administration Washington, D.C. 20405 ____________________________ March 13, 1998 ____________________________ GSBCA 14446-RELO In the Matter of JERRY L. LANDERS Jerry L. Landers, McConnell Air Force Base, KS, Claimant. R. Michael Imphong, Chief, Allowances Unit, Air Force Personnel Operations Agency, Department of the Air Force, Washington, DC, appearing for Department of the Air Force. DeGRAFF, Board Judge. After an agency agrees to reimburse an employee for temporary quarters subsistence expenses for a certain period of time, the agency may extend that time period if there is a compelling reason, beyond the control of the employee and acceptable to the agency, for the employee to remain in temporary quarters. An agency cannot reimburse an employee amounts in excess of those authorized by statutes and regulations. Background On March 18, 1997, the Department of the Air Force (Air Force) authorized one of its civilian employees, Jerry L. Landers, to travel from North Carolina to Kansas in connection with his permanent change of station. Mr. Landers travel authorization stated that the Air Force would reimburse him for up to sixty days of temporary quarters subsistence expenses (TQSE). Mr. Landers says that before he left North Carolina, someone told him that there "should be no problem in obtaining an extension" of the TQSE period. Mr. Landers travel orders say, "To extend TQSE, provisions of HQ USAF/DPC Ltr, 30 Aug 91, Subj: Temporary Quarters Subsistence Expense Policy must be met. Requests for extension must be submitted prior to expiration of the initial period to your servicing personnel office." Mr. Landers reporting date in Kansas was March 31, 1997. His family remained in North Carolina. Mr. Landers TQSE period began on April 3, 1997, and ran through June 2, 1997. On June 2, 1997, Mr. Landers asked the Air Force to extend his TQSE period for an additional sixty days. The Air Force asked Mr. Landers for information to support his request, including the date that he anticipated occupying permanent quarters and a copy of the purchase contract or lease for the permanent quarters. On June 4, Mr. Landers replied that he anticipated occupying permanent quarters on August 1, 1997, but that he had no purchase contract or lease. The Air Force initially denied Mr. Landers request for an extension based upon the information he provided and based upon the August 30, 1991 policy letter referred to in Mr. Landers travel orders. The policy letter says that the Air Force will grant extensions only where there is a demonstrated need for additional time due to circumstances which arose during the initial TQSE period, which were beyond the employee s control, and which are acceptable to the Air Force. The policy letter explains that the guidance contained in the letter is to be used in conjunction with the Joint Travel Regulations (JTR) issued by the Department of Defense. The letter gives examples of circumstances that do, and do not, justify extending the initial TQSE period. For instance, an extension is not justified if an employee has not actively sought a permanent residence during the initial TQSE period. In denying Mr. Landers request for an extension, the Air Force explained that his request did not address whether he had been actively seeking a permanent residence. Mr. Landers pursued an appeal of the Air Force s decision within that agency. In the course of the appeal, Mr. Landers told the Air Force that he was basing his request for an extension upon the fact that he was not permitted to take leave when he transferred to Kansas, which would have allowed him time to get his affairs in order, and that he was not given any information about TQSE extensions before his transfer. Mr. Landers also stated that he had looked for a home in Kansas, but that he could not afford to pay for his family's quarters in North Carolina and, at the same time, pay a deposit and rent a home in Kansas. Mr. Landers pointed out that he had been required to transfer to Kansas very quickly, and this meant that he was required to maintain two residences because his daughter was in school and his wife had a job in North Carolina. In its final decision, the Air Force denied Mr. Landers request for an extension of the TQSE period. The Air Force based its decision upon the August 30, 1991 policy letter and the JTR. The Air Force told Mr. Landers that the policy letter and the JTR permitted extensions of the TQSE period only if an employee was prevented from occupying permanent quarters during the first sixty days due to circumstances beyond the employee s control. The Air Force was not convinced that Mr. Landers needed to continue to occupy temporary quarters due to any circumstances beyond his control. Mr. Landers asked us to review the Air Force s decision. In response, the Air Force explained that it denied Mr. Landers request for an extension because there were no compelling reasons that would justify granting an extension. The Air Force also stated that Mr. Landers had not provided any evidence to establish that events beyond his control warranted an extension of the TQSE period. The Air Force relied upon the JTR, the Federal Travel Regulation (FTR), and the August 30, 1991 policy letter in support of its position. Mr. Landers responded that, if he had been given a copy of the August 30, 1991 policy letter, the FTR, and the JTR before he transferred, then he would agree that he was not entitled to an extension of the TQSE period. Mr. Landers says that the "bottom line" is that he was not given these documents before he began occupying temporary quarters, and he believes that it is unjust to use these documents to deny his request. Discussion The statute and regulations that apply to this claim provide that, in order to grant Mr. Landers an extension of his initial TQSE period, the Air Force had to determine that there were "compelling reasons" for him to remain in temporary quarters. 5 U.S.C.A. 5724a(c)(2) (West Supp. 1997); 41 CFR 302-5.104 (1997); JTR C13004. The regulationss explain that a "compelling reason" is one that is beyond the control of the employee and is acceptable to the agency. 41 CFR 302-5.105; JTR C13004. The Air Force was required to determine why Mr. Landers needed to stay in temporary quarters for more than sixty days and to exercise its discretion in deciding whether to extend Mr. Landers' initial sixty-day TQSE period. We realize that Mr. Landers had to move to Kansas very quickly, that he could not afford permanent quarters there because he maintained quarters for his wife and child in North Carolina, and that the Air Force did not permit him to take leave before he began his assignment in Kansas. None of these events, however, explains why Mr. Landers was compelled to remain in temporary quarters for more than sixty days. When the Air Force asked Mr. Landers what efforts he had made to locate permanent quarters within the initial sixty-day TQSE period, Mr. Landers did not provide any information that persuaded the Air Force that he was using the TQSE period to look for permanent quarters. The Air Force did not abuse its discretion when it decided not to extend Mr. Landers' TQSE period beyond sixty days. Mr. Landers failed to establish that there were any compelling reasons, caused by events beyond his control, that justified his remaining in temporary quarters for more than sixty days. Mr. Landers asks us to decide that it would be unjust to apply the statutory and regulatory requirements to him, because the Air Force did not inform him of the requirements for receiving an extension of the initial TQSE period until after he began occupying temporary quarters. Mr. Landers also says that someone in the Air Force gave him incomplete information concerning extensions of TQSE periods. We cannot say that it would be unjust to apply the statutory and regulatory requirements to Mr. Landers. No matter what anyone told him about the requirements for extending his TQSE period, Mr. Landers could have learned the agency's true requirements if he had requested and read the August 30, 1991 policy letter mentioned in his travel orders. Even if, however, we believed that applying the statute and regulations would be unjust, we and the Air Force would still be bound to apply those rules. As the Supreme Court decided fifty years ago, agencies cannot use taxpayers' funds in a manner not permitted by statute and regulation, even if an agency employee provides incorrect or incomplete advice. Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947). The statute and regulations applicable to Mr. Landers permit the Air Force to use taxpayers' funds to reimburse him for more than sixty days of TQSE only if there were compelling reasons, caused by events beyond his control, that justified his remaining in temporary quarters for more than sixty days. As we explained above, Mr. Landers has not established that he meets these requirements, and so we cannot authorize the Air Force to reimburse Mr. Landers for more than sixty days of TQSE. We agree with the Air Force's decision to deny the claim. ______________________________ MARTHA H. DeGRAFF Board Judge