Board of Contract Appeals General Services Administration Washington, D.C. 20405 ________________________________ January 28, 1999 ________________________________ GSBCA 14617-RELO In the Matter of MARK D. GONZALES Mark D. Gonzales, Barstow, CA, Claimant. D. Lisenby, Director, Financial Policy and Systems Directorate, Defense Finance and Accounting Service, Kansas City, MO, appearing for United States Marine Corps. WILLIAMS, Board Judge. In this case claimant, Mark D. Gonzales, seeks reimbursement of subsistence expenses for his wife and son during his occupancy of temporary quarters incident to a transfer. Under the regulation in effect at the time of claimant's transfer, claimant's family had to vacate the former residence in order to be entitled to reimbursement of subsistence expenses during the temporary quarters subsistence expenses (TQSE) period. Here, the agency concluded that claimant had not established that his wife and son vacated the former residence on a permanent basis during claimant's TQSE period. Claimant has not demonstrated that the agency's conclusion was unreasonable. Findings of Fact Mark D. Gonzales, a civilian employee of the Marine Corps, was transferred from Oakland, California, to Barstow, California, with a reporting date of August 5, 1996. Claimant and his wife left their Vacaville, California, residence on August 27, 1996, and traveled to the Barstow area where they obtained lodging at a motel. Claimant had listed the house in Vacaville for sale beginning on July 29, 1996. The Gonzaleses made offers on two houses during the TQSE period, but neither sale materialized. The Gonzaleses left a fully furnished residence unsure of when it would be sold.[foot #] 1 Mr. Gonzales had an oral agreement with his in-laws to move into his home in Vacaville: "In exchange for rent, they agreed to take care of gardening, house cleaning, and maintenance of the property." The Gonzaleses withdrew their son from the school in Vacaville with the intention of enrolling him in school in Barstow, but after ten days of looking for a home they decided to send him back to school in Vacaville. Mr. Gonzales' ten-year-old son joined his parents at the motel for the ten-day period, but then returned to Vacaville and continued to reside at the Vacaville residence with his grandparents. Mrs. Gonzales returned to her residence in Vacaville after her husband's TQSE was no longer being reimbursed. Mrs. Gonzales remained in the Vacaville residence with her son until May 26, 1997, when the house was sold. The agency denied reimbursement of TQSE for Mrs. Gonzales and her son, reasoning that documentation that Mr. Gonzales had submitted did not support a conclusion that his family intended to vacate their residence in Vacaville on August 27, 1996. The agency explained: The fact that Mr. Gonzales left a fully furnished residence unsure of when it would be sold or when his family could move into a residence in the Barstow area does not support his claim that his wife and son intended to cease occupancy of that residence on a permanent basis. Rather, those facts indicate that Mr. Gonzales took steps to allow his wife and son to continue occupancy of that residence until it was sold. Discussion When an employee is transferred from one duty station to another, the employing agency may reimburse the employee for the subsistence expenses of the employee and his immediate family for sixty days while they occupy temporary quarters. 5 U.S.C. 5724a (1994). At the time of claimant's transfer, the term "temporary quarters" was defined in the implementing regulation, the Federal Travel Regulation (FTR), to mean lodging obtained for the purpose of temporary occupancy after vacating the residence occupied when the transfer was authorized. 41 CFR 302-5.2(c) ----------- FOOTNOTE BEGINS --------- [foot #] 1 Mr. Gonzales claims that he intended to place his furniture from the Vacaville residence in storage, but his real estate broker advised him against that since the house "shows better" when it is furnished. ----------- FOOTNOTE ENDS ----------- (1996); accord Joint Travel Regulations (JTR) C13000.[foot #] 2 Under these regulations, an employee is not eligible for TQSE on behalf of a dependent until the dependent vacates the old residence. E.g., John F. Best, B-259271 (May 16, 1995) (citing Loretta M. Carter, B-229403 (Aug. 8, 1988); Patsy S. Ricard, 67 Comp. Gen. 285 (1988); Edward Carlin, 67 Comp. Gen. 544 (1988)). A residence is vacated by an employee and his family when they stop occupying it for the purpose intended. Randall L. Thurman, GSBCA 14067-RELO, 97-2 BCA 29,160. In deciding whether a residence has been vacated, we will look at all of the facts and circumstances and see whether there is objective evidence demonstrating the employee's intention to vacate the residence. Karl A. Hoglund, GSBCA 13716-RELO, 97-1 BCA 28,716 (1996). Here, as the agency concluded, although claimant's wife accompanied her husband to the motel at the new duty station temporarily during his TQSE, she returned to her home where her son still resided, and she remained there for over five months until that home was sold. The home had been left fully furnished and her son was then attending school in Vacaville. As the Comptroller General recognized in Iqbal Singh, B-249028 (Nov. 10, 1992), where dependents remained at the old residence because bad weather and housing unavailability at the new duty station prevented them from leaving, the dependents had not vacated the former residence. Just as in Singh, claimant's family did not vacate the old residence since they left it fully furnished, unsure of when it would be sold, and returned to that residence and resided there until it was sold. Thus, under the circumstances, the agency reasonably determined that claimant's spouse and son had not permanently vacated the former residence, and that they were not entitled to TQSE. ----------- FOOTNOTE BEGINS --------- [foot #] 2 Since claimant was transferred, the portion of the FTR dealing with TQSE has been completely rewritten, for application to employees whose effective date of transfer is on or after March 22, 1997. See generally George S. Chaconas, _____________ ___________________ GSBCA 14278-RELO, 98-1 BCA 29,728. The term "temporary quarters" now means lodging obtained for the purpose of temporary occupancy from a private or commercial source. 41 CFR 302-5.1 (1997). The portion of the former definition limiting such quarters to those occupied after vacating the residence occupied when the transfer was authorized has been eliminated. Patricia ________ A. Tobin, GSBCA 14483-RELO, 98-1 BCA 29,663. The JTR, which ________ supplement the FTR with application to civilian employees of the Department of Defense, have been similarly modified. Compare JTR _______ C13000 (Mar. 1, 1996) with JTR C13100 (Mar. 1, 1998). ____ ----------- FOOTNOTE ENDS ----------- Decision The claim is denied. ________________________________ MARY ELLEN COSTER WILLIAMS Board Judge