Board of Contract Appeals General Services Administration Washington, D.C. 20405 June 8, 1999 GSBCA 14640-RELO In the Matter of WILLIAM E. DAY William E. Day, Fort Monroe, VA, Claimant. David L. Snyder, Director for Civilian Personnel, Management and Operations, Office of the Assistant Secretary, Manpower and Reserve Affairs, Department of the Army, Washington, DC, appearing for Department of the Army. GOODMAN, Board Judge. Claimant, William E. Day, is a civilian employee of the Department of the Army. The agency denied his claim for reimbursement of expenses which claimant states were incurred while on temporary duty (TDY) and as a result of a permanent change of station (PCS). Factual Background In 1991, claimant s permanent duty station was Alexandria, Virginia. A Memorandum of Agreement dated April 11, 1991, indicates that he was reassigned for a long-term training assignment to Fort Monroe, Virginia, for twenty-four months, from June 3, 1991, to May 29, 1993. The memorandum reads in part: Nature of assignment: Reassignment - PCS or TDY (whichever is more cost effective to the Govmt [sic]) Travel orders were issued May 22, 1991, which authorize claimant to be on TDY for 121 days. On October 8, 1992, travel orders were amended to increase the total number of days of TDY to 487. Accordingly, claimant was authorized TDY through September 30, 1992. Claimant was reimbursed the TDY expenses incurred during this period. According to claimant, the following events occurred in September 1992: In September, 1992 it became obvious that the project [to which he had been assigned] would continue into the distant future . . . . I requested a second extension of my orders and TDY coverage since my LTT [Long Term Training] assignment and my temporary duty status continued. Management disapproved my request and I was instructed by phone con from the Executive Officer, Civilian Personnel Management Directorate, U.S. Army Personnel Command (PERSCOM) (my home duty station of record) to close out my TDY orders even though my temporary duty and LTT assignment continued, and my time card and Official Personnel Folder (OPF) continued to be maintained at PERSCOM in Alexandria, Va. In protest to this inequity, I filed my final voucher with the hand written comment TDY complete, but will continue on at TRADOC duty station . The intent of this remark was to indicate my temporary duty was continuing even though I was directed to close out my orders, and to show -- for the record -- I was being financially disadvantaged by this inappropriate management decision . . . . The record contains claimant s detailed account of his attempt to clarify his status. Claimant asserts that after September 1992 he continued on TDY. The agency disputes claimant s assertion. In its initial assessment of claimant s claim (a memorandum dated April 10, 1998), the agency came to the conclusion that claimant had been entitled to a PCS at a certain point: Your records indicate you were assigned to long- term training, effective June 2, 1991, with a duty station of Hampton, VA. Your long-term training assignment was extended through September 30, 1994. Your travel orders authorized you to receive temporary duty pay for the period June 1991-September 1992. On October 8, 1992, you filed a travel voucher and received temporary duty pay for the first sixteen months (June 3, 1991-September 30, 1992) of your assignment. There is no provision of the Joint Travel Regulation[s] (JTR) that authorizes this office to issue you retroactive travel orders for the period September 1992-September 1994. On September 30, 1994 you completed your long term training assignment and received your post- developmental permanent assignment with no change in duty location (Hampton, VA). This personnel action was initiated by PERSCOM, Civilian Personnel Management Directorate (CPMD). At that time you were eligible for Permanent Change of Station (PCS) entitlements. Unfortunately, you did not file a PCS claim within the 2-year limitation (Joint Travel Regulation C1057 and C14000, para b), and there are no provisions for waivers to this limitation. The agency did not address directly the claimant s status between September 1992 and 1994. After claimant appealed this agency denial of his claim to this Board, the agency revised its position as to his prior entitlement to PCS expenses: I based my initial findings stated in my memo dated April 10, 1998 . . . on information contained in Mr. Day's Official Personnel File (OPF) and Long-Term Training (LTT) file. I found at that time that PCS entitlements should have been afforded Mr. Day, effective September 30, 1994; however, no PCS orders had been issued. The records were not clear as to why this occurred. My position at that time was that I had no authority to retroactively issue PCS orders because of the length of time that had passed since the event. . . . . TDY: Mr. Day was authorized TDY from May 31, 1991 through September 30, 1992 . . . . At the conclusion of that period, management directed Mr. Day to close out his TDY orders, but allowed him to remain at the Hampton, VA duty location at his request without TDY orders or TDY support . . . . Mr. Day acknowledged . . . that management informed him of the cessation of TDY support while approving his request to remain in Hampton through November 30, 1993. The travel voucher dated October 8, 1992 substantiates this where Mr. Day wrote TDY complete but will continue on at TRADOC duty station . Mr. Day also acknowledges Mission Complete by inserting the code MC . Mr. Day s explanation that this was written as a form of protest on his travel voucher . . . is irrelevant. The lack of PCS orders combined with Mr. Day s admission that he requested to remain at Hampton, VA, without TDY orders or support, demonstrate that management s decision to allow him to remain at that duty location was made at the personal request of the employee, rather than in the interest of the Government. Mr. Day s notes . . . state that he was informed he would receive no further TDY extensions and that PCS orders were not required due to the circumstances of his assignment. His notes here indicate he was informed of this in two phone conversations, both on September 23, 1992. Yet he continued to request he remain at the same duty station . . . . The agency is correct that the records are not clear as to why no PCS orders were issued to the claimant in September 1994. Had these orders been issued, this matter would have been resolved, or claimant could have availed himself of the appeal process at that time in order to clarify his status. The agency s assertion that claimant remained in Fort Monroe at his personal request is challenged by claimant: Requests I made during the duration of my temporary assignment were not about remaining at duty location, but were efforts to obtain appropriate financial, personnel management and administrative support and/or to seek clarification of management intent regarding continuation of my assignment: Information and support normally expected to voluntarily flow down the command chain to the employee, which in this case were not forthcoming from management. The extensive information supplied by both parties in this case indicate that claimant has remained working in Fort Monroe, Virginia, from September 1992 to the present. Claimant has submitted a claim in the amount of $111,810.50, which he explains with the following statement: The TDY computation is an estimated total based on the monthly total paid at 55% per diem when last paid in September 1992 ($1518.00 per month). This computation does not account for increases in per diem rates in succeeding years (1993-1998) and does not include annual interest at an appropriate rate on any funds owed me by the U.S. Government. The PCS amount is estimated based on cost of selling my home in Alex Va. and minimum relocation expenses of $9200.00. Estimated total is based on the following: TDY for 67 months @ $1518.00 = $101,706.00 Basic Telephone for 67 months @ $13.50 904.50 Estimated PCS costs: Cost of real estate sale = $8,500.00 Moving Expenses = 700.00 Sub Total $9,200.00 $9,200.00 $111,810.50 Discussion The issue in this case is the travel status of the claimant after September 1992. As of September 1992, when the Government terminated claimant s TDY status, claimant remained at Fort Monroe. His stay there must be deemed either a continuation of temporary duty or a change to permanent duty. Claimant cannot leave the question of his travel status open by protesting. In John P. DeLeo, GSBCA 14042-TRAV, 97-2 BCA 29,156, this Board noted that the General Accounting Office (GAO), which formerly resolved the travel claims of Government employees, decided that whether a duty station is temporary or permanent is a question of fact and is determined by where an employee expects and is expected to spend the greater part of his time. The Board stated: GAO determined that the papers processed by an agency and an agency s statements were not conclusive proof of the location of an employee s duty station. GAO was less interested in the paper trail created by the agency and the employee, and more interested in the facts establishing where the employee was expected to spend the greater part of his time performing his duties. Bertram C. Drouin, 64 Comp. Gen. 205 (1985); Frederick C. Welch, 62 Comp. Gen. 80 (1982); Kenneth L. Peck & Mark N. Snow, B-198887 (Sep. 21, 1981). The Department of Defense uses GAO s rationale in order to determine whether a post of duty is temporary. JTR 4455-A. GAO s approach has merit, and we will use it in this case. 97-2 BCA at 144,999. We must view the facts of this case in light of the regulatory requirements concerning TDY as of September 1992, which read in part: C4451 WHAT CONSTITUTES TDY TRAVEL Temporary duty travel for an employee includes the following situations: 1. assignments of a temporary nature in connection with official DOD business away from an employee s PDS [permanent duty station] (such assignments should not be of such frequency or duration that a place of assignment is, in fact, an employee s PDS even though administrative jurisdiction is at some other location; . . . . C4455 TIME LIMITATION ON TDY EXCEPT TDY FOR TRAINING A. General. Prior to authorizing a long-term TDY assignment, it is necessary to determine whether the assignment is in fact a TDY assignment or a permanent change-of-station (PCS) move. The criteria in items 1, 2 and 3 must be satisfied before a determination can be made that an assignment is a TDY assignment (see 68 Comp. Gen. 465 (1989)). 1. the duties to be performed are temporary in nature; 2. the assignment is for a reasonable duration of time; and 3. TDY costs for the assignment are less costly than round-trip PCS expenses. The temporary nature of the duties to be performed is by far the most difficult criterion to prove. The Comptroller General of the United States has consistently ruled that an employee s PDS is an issue of fact. It is where an employee spends and is expected to spend the greater part of his/her time. The mere designation of an employee s duty station as temporary on travel orders does not make it truly temporary. The threshold for long-term TDY is 6 months because Comptroller General decisions have rarely sanctioned TDY beyond 6 months (see 64 Comp. Gen. 205 (1985) and 62 Comp. Gen. 560 (1983)). A reduced fixed per diem, normally 55 percent of the of the rate prescribed for the TDY location . . . is payable to employees while on long-term TDY assignments of more than 180 calendar days at one location. Experience shows that a 55 percent rate is adequate in most cases to cover the cost of lodgings, meals and incidental expenses when the employee makes long-term arrangements for lodging, such as renting an efficiency or one bedroom apartment. B. Six Month Time Limitation. Except when authorized under subpar. C, TDY assignments at any one location will be limited to 6 months. This limitation does not apply to employees assigned to periods of TDY at more than one location which total more than 6 months if the period of duty at each location is 6 months or less. C. Approval of TDY in Excess of Six Months. TDY over 6 months can be permitted only under the following circumstances: 1. the mission of the DOD component, or unusual circumstances of the assignment, require that the employee be on TDY at one location for more than 6 months; 2. a determination has been made under the criteria in subpar. A that the assignment is a TDY assignment; and 3. the official designated in par. C3000 to authorize and approve temporary duty travel authorizes the TDY assignment beyond 6 months. The complete case file including written justification must be forwarded to the individual described in item 3 with the request for authorization. Normally, this authorization will be obtained before travel orders are issued. However, if it is not possible to get the authorization in advance, TDY orders can be issued, and the case submitted immediately to the authorizing official. D. Disapproval of TDY in Excess of 6 Months. If a request for authorization of TDY in excess of six months is disapproved, the official designated in par. 3000 to authorize and approve TDY travel will take one of the following actions: 1. disapprove the request, and direct that the TDY orders be terminated and the employee returned to his/her PDS; 2. disapprove the request and direct the TDY orders be canceled and PCS travel orders issued; or 3. direct the TDY orders be amended to a fixed period of 6 months or less from the date of reporting to the TDY station. The Period from September 1992 through September 1994 Based upon the facts as described by both parties, it appears clear that claimant was expected to spend his time performing duties at Fort Monroe, Virginia, from September 1992 to the present. The claimant s status during this period is admitted by the agency. First, in its memorandum dated April 10, 1998, the agency impliedly admits that claimant should have been issued an extension of his TDY orders from September 1992 through September 1994, when his long-term training assignment ended, as it states that he became eligible for a PCS at that time. However, his TDY orders were never amended, nor was he issued orders stating that he was subject to a PCS. In its memorandum dated August 28, 1998, the agency retracts this admission of TDY during the period September 1992-September 1994 by asserting that claimant s written notation on his travel voucher of September 1992 TDY complete, in combination with a lack of PCS orders was an indication that management allowed claimant to continue at Fort Monroe at his personal request. The Government s statement that management's decision to allow [claimant] to remain at [Fort Monroe] was made at the personal request of the employee, rather than in the interest of the Government does not appear credible in view of the factual circumstances as described above. The agency s interpretation is strained and clearly not what actually occurred. It is apparent that the agency wanted claimant to remain at Fort Monroe through September 1994, when his long-term training assignment ended. The fact that it did not issue an extension of his TDY orders in increments of six months for the duration of this period, as required by regulation, was the agency s error, not the claimant s. Claimant cannot be penalized for his own written comments on his voucher. The agency can retroactively amend claimant s travel orders when the facts and circumstances clearly demonstrate that some provision previously determined and definitely intended has been omitted through error or inadvertence. Brian P. Byrnes, GSBCA 14195-TRAV, et al., 98-1 BCA 29,535. Since claimant was not directed to return to Alexandria, Virginia, his permanent duty station, but instead was directed to continue his long-term training assignment, he was either on an extension of TDY or PCS. As neither was indicated in his travel orders, the agency s own admission that he was entitled to PCS in 1994 at the conclusion of his long-term training indicates that his travel orders should have been amended to extend his TDY through September 1994. Accordingly, claimant is entitled to reimbursement for TDY expenses for the period September 1992-September 1994. Claimant should submit the necessary information to the agency for reimbursement. The Period from September 1994 through May 1998 Claimant has also made a claim for TDY expenses for the period September 1994-May 1998. As discussed above, claimant s TDY expired in September 1994. His travel orders can be retroactively amended due to administrative error to indicate his change of status to PCS at that time. Accordingly, he is not entitled to TDY expenses from that date. With regard to this period, the agency came to the conclusion on April 10, 1998, that claimant was entitled to a PCS on September 30, 1994, when he completed his long-term training assignment and received your post-developmental permanent assignment with no change in duty location (Hampton, VA). The agency further states: Unfortunately, [claimant] did not file a PCS claim within the 2-year limitation . . . and there are no provisions for waivers to this limitation. The agency admits that no PCS orders were issued when claimant was entitled to PCS. Claimant continued at Fort Monroe in various capacities which the agency clearly required. As discussed above, claimant s continuing duty at Fort Monroe was not at his personal request, but because the agency required it. Without PCS orders, he did not sell his home in Alexandria within the regulatory period. Now the agency says that claimant is not entitled to any PCS costs, as that regulatory period has expired. The claimant has made a claim for estimated real estate transaction costs for the sale of his residence which has not occurred. Presumably, claimant has made this claim because he would have incurred these costs had he been issued timely PCS orders. We cannot grant a claim for costs which have not been incurred. Were claimant to incur PCS costs now, the regulatory period has indeed expired, since it commences from the date the claimant reported for duty at the new permanent duty station (September 1994) and expires two years later, or at most three years later if extended for reasons set forth in the regulation. 41 CFR 302-6.1(e) (1998); JTR, C14000-B. While the agency should have issued PCS orders in 1994 when the TDY expired, claimant is not entirely blameless in this case. The record consists of detailed information submitted by claimant as to his efforts to resolve his travel status during this period with his agency. Claimant made consistent efforts to resolve his status, alleging that he remained on TDY status, but apparently he did not submit a travel voucher for TDY costs after the initial voucher which was paid for the period through October 1992. Had he done so, the agency would have either paid the voucher or denied payment, at which time claimant would have then been able to pursue his claim to an administrative settlement (by the GAO until July 1996, when this process was transferred to this Board). Claimant s status would have then have been determined to be a PCS move, and presumably resolved in sufficient time to issue PCS orders and for reimburseable costs to be incurred during the statutory period. Instead, claimant has waited almost four years since his TDY expired before pursuing a resolution outside his agency. The fact that the relevant period for the reimbursement of PCS costs has now expired leaves this Board with no remedy to grant. This limitation period has the force and effect of law and may not be waived or modified by the agency concerned or this Board. Mark W. Muirheid, GSBCA 14198-RELO, 98-1 BCA 29,594. Decision Claimant is entitled to reimbursement of TDY costs for the period from September 1992 to September 1994. Claimant should submit the necessary information to the agency for reimbursement. ______________________ ALLAN H. GOODMAN Board Judge