Board of Contract Appeals General Services Administration Washington, D.C. 20405 _______________________________________________ July 29, 1998 _______________________________________________ GSBCA 14479-RELO In the Matter of ALEX L. ROWE Alex L. Rowe, Virginia Beach, VA, Claimant. Judy Hughes, Travel Policy, Defense Finance and Accounting Service, Columbus Center, Columbus, OH, appearing for Department of Defense. BORWICK, Board Judge. Alex Rowe (claimant) seeks reimbursement of $7499 as reimbursement for non-temporary storage expenses of his household goods (HHG) incurred by him during a tour of duty in Japan. For the reasons discussed below, we return the matter to the agency for further necessary determinations. Claimant is a civilian employee of the Department of the Navy (agency), employed by the Naval Aviation Engineering Service Unit. Prior to October 11, 1991, Mr. Rowe was stationed at Naval Air Station (NAS) Miramar, California. On October 11, 1991, the agency issued travel orders transferring Mr. Rowe to a new permanent duty station (PDS) in Atsugi, Japan. The orders authorized the transport of claimant's personal vehicle and HHG to his PDS, as well as non-temporary storage of 3000 pounds of Mr. Rowe's HHG, at government expense. A short time after these orders were issued, the Personal Property Office at NAS Miramar told claimant his vehicles could not be shipped to Japan by the Government because they were post-1977 models. In late October of 1991, claimant departed NAS Miramar for Atsugi, Japan. At this time claimant concluded he could not use his HHG at his new PDS due to his living arrangements. During his tour of duty in Japan, claimant lived in the furnished bachelor officer's quarters, or aboard an aircraft carrier, thus removing the need for his HHG at his overseas duty station. Consequently, Mr. Rowe left his HHG and his personal vehicle at his home in California, where his wife and son resided. In October 1992, claimant scheduled two weeks of leave and returned to NAS Miramar. Because claimant's family was moving away from California, he desired to transfer the HHG and personal vehicle from his home to non-temporary storage at a Government storage facility. When he contacted the agency to make arrangements for non-temporary storage, the NAS Miramar Personal Property Office told Mr. Rowe he was not entitled to storage because he had been transferred the previous year. This advice was wrong. The Federal Travel Regulation (FTR) imposes no minimum time after change of duty station within which an employee must place HHG in non-temporary storage. Even when non- temporary storage is not approved in an employee's original travel authorization, non-temporary storage may be approved subsequently if the employee would otherwise be eligible. 41 CFR 302-9.2(b)(1996). Mr. Rowe next contacted the NAS Miramar Transportation Office, which told Mr. Rowe that no appointment to discuss the storage of his HHG could be made for him in less than thirty days. Believing he had no other alternative, on October 29, 1992, prior to returning to Japan, claimant stored his household goods and personal vehicle in a ten by twenty-five foot storage unit he leased at a private storage facility in San Diego, California. Claimant's goods remained in the commercial storage facility until June of 1996, when the agency transferred Mr. Rowe from Atsugi, Japan, to NAS Oceana, Virginia. On or about January 6, 1997, Mr. Rowe filed a travel voucher with the Deputy Disbursing Officer, Personnel Support Activity Detachment at NAS Oceana (PSAD) for reimbursement of the $7499, storage cost of his HHG and vehicles. Along with his claim, Mr. Rowe submitted his original travel authorization of October 11, 1991, and a modification to that authorization processed by a Naval Aviation Engineering Service Unit dated October 22, 1996. The modification authorized claimant to be reimbursed $7499 for his out-of-pocket non-temporary storage expenses at the commercial facility. On December 9, 1997, a Deputy Disbursing Officer issued a memorandum denying payment of the modified voucher because (1) the storage facility was obtained by the employee through commercial means, rather than through a Government facility; (2) part of the stored items was a car, which is not included in the definition of HHG; and (3) the modification represented an impermissible retroactive increase in entitlements described in the October 1991 travel authorization, which was valid on its face. On December 11, 1997, the Deputy Disbursing Officer forwarded the matter to the Defense Finance and Accounting Service (DFAS) for decision. On March 10, 1997, claimant requested an official opinion as to why he could not be reimbursed for the cost of his non- temporary storage since he saved the Government money by spending less on non-temporary storage than the cost he would have incurred had he obtained off-base housing and shipped his HHG to and from Japan. On January 20, 1998, DFAS referred the claim to this Board. DFAS maintained that the claim was properly disallowed because under the Joint Travel Regulations (JTR), the employee was not permitted to make his own arrangement for commercial storage, but rather must leave that decision to the agency transportation officer. In the absence of a decision by the transportation officer that commercial facilities were allowed, the employee was obliged to store HHG in Government facilities. Discussion The travel rules, allowances, and procedures for Government employees are contained within the FTR. 41 CFR 302-1.2. Some provisions of the FTR allow heads of agencies to prescribe additional regulations which complement those provisions. 41 CFR 302-9.2(a) (1998). The JTR applies to civilian employees of the Department of Defense. JTR C1000-A. As they pertain to the non- temporary storage of HHG and personal vehicles, the FTR and JTR contain nearly identical language. The authorization for the non-temporary storage of an employee's HHG is normally contained within the employee's travel orders. There are three ways an employee can be found eligible for non-temporary storage under the FTR: (1) The official station is one to which [the employee] is not authorized to take, or at which [the employee] is unable to use, the household goods; or (2) The storage is authorized in the public interest; or (3) The estimated cost of storage would be less than the cost of round-trip transportation (including temporary storage) of the household goods to the new official station. 41 CFR 302-9.2(a). Furthermore, "non-temporary storage at Government expense may be authorized for a period not to exceed the length of the employee's tour of duty at the overseas station plus 1 month prior to the time the tour begins." However, this eligibility terminates "on the last day of active duty at the overseas station." 41 CFR 302-9.2(d). A DOD civilian employee may store his or her HHG: in available Government-owned storage facilities or in suitable commercial or privately owned facilities obtained by the Government. Normally, Government-owned facilities are used; however, commercial or privately owned facilities are used if the use of commercial or privately owned facilities aren't [sic] available or if the use of commercial or privately owned facilities is determined to be more economical or suitable because of location, difference in transportation costs, or for other reasons considered to be in the best interest of the Government. The responsible transportation officer determines which storage facilities are used. JTR C8002-C.3(c); see also 41 CFR 302-9.2(c)(1). The agency contends that to allow retroactive modification of Mr. Rowe's travel orders would contradict the general rule that: [T]ravel orders may not be revoked or modified retroactively so as to increase or decrease the rights which have become fixed after the travel has been performed, except where there are errors apparent on the face of the original orders or where all the facts and circumstances surrounding the issuance of the original orders clearly demonstrate that some provision which was previously determined and definitely intended had been inadvertently omitted in their preparation. Wilbert D. Hammers, B-234696 (Nov. 3, 1989). Although the agency correctly states the rule on retroactive modification of travel orders, we do not consider it a bar to the agency making eligibility determinations allowed by regulation. Here, the travel authorization of October 1991 authorized claimant non-temporary storage of up to 3000 pounds of HHG, without specifying whether the storage was to be in Government facilities or in commercial facilities. The NAS Miramar Personal Property Office's erroneous advice that claimant was ineligible for non-temporary storage of HHG, plus the NAS Miramar Transportation Office's inability or unwillingness to provide timely assistance to claimant while he was on two-weeks' leave in San Diego, prevented the agency's transportation officer from making two eligibility determinations. Those determinations were the amount of claimant's HHG to be stored and where those HHG were to be stored. In William H. Fuhrman, B-256996 (Nov. 20, 1995), the General Accounting Office approved a retroactive administrative extension of the eligibility period for nontemporary storage so that an employee could be reimbursed for the nontemporary storage charges he incurred past the eligibility date. We follow that holding here. The agency may consider the claim and, in the exercise of its sound discretion, determine whether claimant was eligible for non-temporary storage of his HHG in excess of 3000 pounds, and whether it would have been in the best interest of the Government to provide commercial storage. If it makes those determinations in claimant's favor, it may reimburse claimant what it considers to be the appropriate cost of commercial non-temporary storage of claimant's HHG. Claimant is not entitled to the cost of storing his automobile. Both the FTR and JTR explicitly exclude automobiles from the definition of HHG. 41 CFR 302-1.4(j)(1)(i); JTR Appendix A. Decision The claim is returned to the agency to enable it to make the determinations described above. Mr. Rowe is not entitled to reimbursement for the cost of storing his automobile ____________________________________ ANTHONY BORWICK Board Judge