Board of Contract Appeals General Services Administration Washington, D.C. 20405 ___________________ November 6, 1998 ___________________ GSBCA 14745-RELO In the Matter of a DEFENSE INTELLIGENCE AGENCY EMPLOYEE A Defense Intelligence Agency Employee, Claimant. Col. Gerald E. York, Chief, Office of Operations, Defense HUMINT Service, Washington, DC, appearing for Defense Intelligence Agency. NEILL, Board Judge. On behalf of one of its employees, the Defense Intelligence Agency (DIA) asks that we review what it refers to as a "Joint Travel Committee Final Decision." The agency advises us that this committee recently denied a request of the claimant for an exception to the Government's policy concerning non-temporary storage of household goods for employees during assignment in the continental United States (CONUS). The determination is a correct one given the nature of the request. While affirming the decision, however, we suggest that the agency consider filing a request with the appropriate authority for a determination that, so far as this employee is concerned, his new permanent duty station (PDS) is an isolated PDS. Such a determination would not constitute a waiver or departure from official policy but rather would be in accordance with it, provided an adequate case can be made in support of the request for this regulatory exception. Background On October 29, 1998, the DIA filed its request for review with this Board. The agency representative explained that security classification requirements prevent the employee from forwarding the request in his own name. For the same reason, the agency declined to name the employee in its request to the Board. We are told only that the employee has been given a rotational assignment to Key West, Florida. This individual has contracted to buy a home in the Florida Keys for himself and his family. The new home costs ten percent more than his current home elsewhere in CONUS but is significantly smaller. The home near his old PDS has 2400 square feet of living area and an additional 1200 square feet of storage space. The new home has no more than 1200 square feet of living space and no storage area. The employee must, therefore, store a considerable portion of his household goods for the duration of his assignment to Key West. The agency explains that this may be for a period of three to five years. The employee, as a civilian employee of the Department of Defense, is subject to the Department's Joint Travel Regulations (JTR). Section C8001-B of the JTR provides that, when the household goods of an employee are shipped within CONUS, storage may be authorized on a temporary basis. This temporary storage is normally limited to a period not to exceed ninety days. Under certain conditions, this initial period may be extended but not in excess of an additional ninety days. Non-temporary storage may be authorized only in those cases when it is determined that the employee is assigned to an isolated duty station. Similar provisions appear in section 302-9.1 of the Federal Travel Regulation (FTR), 41 CFR 302-9.1 (1997). In its letter to the Board, the agency informs us that, at some unspecified date in the past, a request was made for an exception or waiver of the policy regarding storage of goods for an employee transferring from one PDS to another within CONUS. We have not been furnished a copy of that request. Instead, we have been given a copy of an E-mail message said to be from the Joint Travel Committee. The E-mail message denies the request for an exception or waiver of the policy regarding storage of goods for employees transferring within CONUS. It points out that the employee's transfer is considered to be within CONUS. It further notes that, for such transfers, the JTR, following similar provisions of the FTR, provide for temporary storage of no more than ninety days and that this period may be extended under certain circumstances but not for more than an additional ninety days. The message concludes with the observation that, if the employee disagrees with this final decision, appeal may be made to this Board. DIA has filed this appeal on behalf of the employee. Discussion The committee's determination is clearly correct. The ruling which DIA asks us to review states that an exception or waiver has been sought from the policy regarding the funding of long-term non-temporary storage. The policy is based upon provisions in statute, 5 U.S.C. 5726 (Supp. II 1996), which, in turn, are implemented through regulations found in the FTR and followed in the JTR. It is well established that neither an agency nor this Board has the authority to waive the applicability of travel statutes or regulations for any individual federal employee who is subject to them. Gordon D. Giffin, GSBCA 14425-RELO (Sept. 29, 1998); Murray Lumpkin, GSBCA 14513-RELO (Sept. 17, 1998); Thomas D. Thompson, GSBCA 14496- RELO, 98-1 BCA 29,799; Kelly A. Wells, GSBCA 14205-TRAV, 98-1 BCA 29,603; Thomas T. Matteson, GSBCA 14111-RELO, 98-1 BCA 29,413 (1997). This does not necessarily finish the matter. There is within the FTR and the JTR a regulatory exception to the normal rule that employees transferring within CONUS are entitled only to temporary storage. The exception is based upon a specific provision found in 5 U.S.C. 5726(c). Non-temporary storage may be allowed if the employee is assigned to a PDS at an isolated location in CONUS where he cannot take or use all of his household goods and personal property. In implementing this provision, the FTR defines an isolated PDS as one at which the employee is unable to use his or her household goods because the type of quarters he or she is required to occupy at the PDS will not accommodate all of the employee's household goods, or the residence quarters which would accommodate these goods are not available within reasonable daily commuting distance of the official station. The regulation also points out that, depending on the housing available and the characteristics of an employee's immediate family, a PDS designated as isolated for one employee may not necessarily be designated as isolated for another. See FTR 302-9.1. JTR C8001-B3 has substantially the same provisions. There is a considerable amount of information in DIA's letter to us and its attachment which suggests that the employee in question may qualify for this regulatory exception. We are told that housing at Key West and the adjoining Keys is extraordinarily limited and, therefore, also very expensive. The island of Key West itself is only two by four miles in dimension and is linked to the mainland by bridge and causeway running a total of 160 miles one way. As a rotational assignment of limited duration, this transfer is undoubtedly deemed to be in the Government's interest and not for the convenience of the employee himself. The record before us is not sufficiently complete for us to express an opinion as to the eligibility of the DIA employee for non-temporary storage under the regulatory exception for an isolated PDS. More importantly, this is not a matter which we would review unless and until a request for designation of a PDS as isolated for a specific employee were to be ruled upon by an appropriate authority at the agency level. Nothing in DIA's letter to us or in the final ruling provided to us for review indicates that this has occurred. Indeed, a passing reference in DIA's letter to the fact that Key West is not technically isolated because it can be reached by bridge and causeway suggests that DIA does not believe the exception is applicable.[foot #] 1 The JTR provide that, within the Department of Defense, requests for designation of a PDS as isolated should be submitted together with justification to the Per Diem, Travel and Transportation Allowance Committee (PDTATAC). JTR C8001-B3.c. If this is a matter primarily of concern to DIA and if, in the judgment of the agency, designation of Key West as an isolated PDS for this employee is clearly justified under conditions set out in the regulations, then we recommend the preparation of a request and justification and submission of the same to PDTATAC as directed. This submission would not involve a request for waiver but rather application of current policy as reflected in existing regulations. _____________________ EDWIN B. NEILL Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 1 This observation may stem from a mistaken application of the much more restrictive criteria set out in JTR C4112-D. These criteria apply to extreme situations where a given location may be categorically designated as remote or isolated without consideration of particular circumstances relating to an individual employee. The criteria in JTR C4112-D, however, are not to be confused with those which are applicable in this case and are found in FTR 302-9.1 and JTR C8001-B3.