Board of Contract Appeals
General Services Administration
Washington, D.C. 20405
_______________
April 9, 2001
_______________
GSBCA 15435-RELO
In the Matter of ALBERT CARTER, JR.
Albert Carter, Jr., Doraville, GA, Claimant.
James C. Brent, Assistant Agency Counsel, United States Army
Corps of Engineers, Department of the Army, Europe District, APO
Area Europe, appearing for Department of the Army.
DeGRAFF, Board Judge.
Albert Carter, Jr. asks us to review his agency's decision
not to pay a temporary quarters subsistence allowance and not to
reimburse him for the cost of immunizations and physical
examinations needed by his dependents in order to obtain visas to
enter the United States. Although DoD correctly concluded that
Mr. Carter may not receive the allowance he claims, DoD might be
able to reimburse Mr. Carter for his family's temporary quarters
expenses. DoD should reimburse Mr. Carter for the cost of the
immunizations that his dependents were required to receive in
order to obtain their visas. DoD did not abuse its discretion
when it decided not to reimburse Mr. Carter for the cost of his
family's physical examinations.
Background
In early January 2000, Albert Carter, Jr. learned that his
employer, the Department of Defense (DoD), intended to transfer
him from Germany to Norcross, Georgia. Later that month, Mr.
Carter and his fiancee were married. DoD issued travel orders to
Mr. Carter on February 11, and amended those orders on February
25, to state that Mr. Carter would report to his new duty station
on March 20. His wife and step-daughters wanted to delay their
departure from Germany until after the end of the school year and
Mr. Carter's travel orders approved delayed travel for his
dependents.
Mr. Carter's February 11 travel orders provided that he was
to receive a temporary quarters subsistence allowance (TQSA) "for
not to exceed a 30-day period to departure [sic] from overseas
duty station." Those orders also provided that Mr. Carter was
not to be reimbursed for temporary quarters subsistence expenses
(TQSE). DoD amended the travel orders on February 25 to make it
clear that Mr. Carter was to receive TQSA "for not to exceed a
30-day period prior to departure from overseas duty station." On
March 23, DoD again amended the orders to add an authorization
for reimbursable TQSE for sixty days.
Mr. Carter left Germany on March 18, in order to report to
his new duty station in Georgia. Mr. Carter's dependents
occupied temporary quarters in Germany from June 20 through July
19, when they left to join him in the United States. According
to Mr. Carter, DoD told him that he could receive TQSA after his
wife and step-daughters vacated their permanent apartment in
Germany and before they traveled to Georgia.
Mr. Carter submitted a travel voucher dated July 28, to
DoD's human resources office in Germany. In the voucher, Mr.
Carter claimed 10,620 German marks (approximately $5000) for
temporary lodging and meals for his dependents in Germany from
June 20 through July 19. Mr. Carter provided supporting
documentation and he itemized his claimed costs on a form that is
designed to be used to claim reimbursement for TQSE. The human
resources office forwarded Mr. Carter's voucher to an accounting
technician in the United States for review. The accounting
technician told Mr. Carter that her office did not have the
authority to process a request for TQSA and that he should submit
his claim for his family's lodging and meals to the human
resources office in Germany. The accounting technician also sent
an electronic mail message to the human resources office in which
she stated that Mr. Carter's submission included a form for TQSA
that her office could not process. She asked what else was
required in order for Mr. Carter to file a claim for TQSA. The
human resources office responded that Mr. Carter could not
receive TQSA for the lodging and meals he claimed, because that
allowance terminated when he reported to his new duty station.
After Mr. Carter received a copy of this exchange of electronic
mail messages, he asked us to review DoD's decision regarding
TQSA.
Mr. Carter's wife and step-daughters were required to have
physical examinations and immunizations in order to obtain visas
to enter the United States, and they did so in June and July.
Mr. Carter paid for these medical services and in his July 28
travel voucher, he asked to be reimbursed $600 for physical
examinations and $150 for immunizations.[foot #] 1 DoD
----------- FOOTNOTE BEGINS ---------
[foot #] 1 Mr. Carter submitted a receipt to DoD for 600
German marks, which is slightly less than $300, for the physical
examinations, and three receipts for 298.50 German marks, which
is approximately $150, for the immunizations. Apparently, Mr.
(continued...)
----------- FOOTNOTE ENDS -----------
decided not to reimburse Mr. Carter for these costs and he asks
us to review DoD's decision.
Discussion
DoD contends that we should dismiss Mr. Carter's claim for
his family's lodging and meals expenses because he did not file a
claim for TQSA with his agency and obtain an agency decision
regarding that claim, as our Rule 401(c) requires him to do
before proceeding here at the Board. 48 CFR 6104 (1999). DoD
explains that Mr. Carter should have submitted his claim for TQSA
on a form different from the one he used, which was a form used
to itemize expenses when making a claim for reimbursement of
TQSE. Because Mr. Carter never submitted what the agency calls
an "identifiable" claim for TQSA, it says that it never had the
opportunity to review Mr. Carter's documentation or to decide a
claim for TQSA. Therefore, DoD says, we should dismiss the claim
for TQSA. Mr. Carter says that his July 28 voucher contains his
claim for TQSA.
Although Mr. Carter might not have submitted his claim for
TQSA on the form that DoD wanted him to use, his July 28 voucher
provided DoD with the information that it needed in order to
review his claim. DoD had the opportunity to review Mr. Carter's
claim for TQSA and his supporting information, and it determined
that the claim should not be paid because the allowance
terminated when he arrived in Georgia. Mr. Carter asked us to
review DoD's determination after he received a copy of an
electronic mail message confirming that DoD would not pay his
claim. Nothing more is needed in order to satisfy the provisions
of our rules, so we will proceed to examine the merits of Mr.
Carter's claim.
The Overseas Differentials and Allowances Act says that when
the Government does not provide free quarters for a civilian
employee in a foreign area, the Government may grant the employee
several types of quarters allowances. 5 U.S.C. 5923 (1994).
The Department of State Standardized Regulations (DSSR), which
implement the statute, explain that one type of quarters
allowance is TQSA. This allowance is meant to cover the
reasonable lodging, meals, and laundry expenses of an employee
and/or family members while occupying temporary quarters after
arriving at a new overseas post and immediately preceding final
departure from an overseas post. Employees may receive TQSA if
they were recruited in the United States for duty in a foreign
area. If they were recruited outside the United States, they may
receive TQSA only if certain specified requirements are met. If
TQSA is granted for a period immediately preceding final
departure from an overseas post, and if the employee's family
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[foot #] 1 (...continued)
Carter forgot to convert the 600 German marks to United States
dollars when he submitted his voucher.
----------- FOOTNOTE ENDS -----------
members depart the post after the employee, the allowance
terminates when the employee arrives at the new post. DSSR
031.11, 031.12, 121, 122, 124.
DoD says that, for two reasons, Mr. Carter may not receive
the TQSA that he claims. First, DoD says that Mr. Carter was not
recruited in the United States for duty in a foreign area and
does not meet the requirements that must be fulfilled in order
for someone recruited outside the United States to receive TQSA.
Mr. Carter has not refuted DoD's statements, so we accept them as
true. Second, DoD says that even if Mr. Carter could receive
TQSA, he was not entitled to TQSA after he reported to his new
duty station in Georgia.
DoD correctly concluded that Mr. Carter may not receive the
TQSA that he claims. As explained above, an employee who is
recruited outside the United States for duty in a foreign area
must meet certain specified requirements in order to receive
TQSA. Apparently, Mr. Carter was recruited outside the United
States for duty in Germany. Mr. Carter has not rebutted DoD's
contention that he does not meet the requirements that must be
fulfilled in order for an employee who was recruited outside the
United States to receive TQSA. Even if Mr. Carter met the
requirements for receiving an allowance, DoD could not pay his
claim. The DSSR state that when TQSA is provided to an employee
who is leaving an overseas post before his family departs, the
allowance terminates when the employee arrives at his new post.
According to this regulation, any allowance would have terminated
when Mr. Carter arrived at his new post in March, several months
before his dependents moved into their temporary quarters in
June. It is certainly regrettable if Mr. Carter received faulty
advice from a DoD employee, but such advice does not authorize an
expenditure of public funds that is contrary to the regulations.
DoD might be able to reimburse Mr. Carter for his family's
temporary quarters expenses as TQSE. From the information
available to us, we cannot tell whether Mr. Carter ever made a
claim for TQSE, whether DoD ever considered reimbursing Mr.
Carter for his family's temporary quarters expenses as TQSE, or
whether he would be eligible to receive reimbursement for those
expenses as TQSE. If Mr. Carter lived in temporary quarters in
Georgia from June 20 through July 19, while his family lived in
temporary quarters in Germany, he might be able to be reimbursed
for their quarters expenses as TQSE. 48 CFR 302-5.10, -5.109
(2000); Joint Travel Regulations (JTR) C13205-C (Dec. 1,
1999).[foot #] 2 Whether Mr. Carter's quarters in
Georgia were temporary depends upon his intent at the time he
began occupying those quarters, regardless of whether the
quarters eventually became his permanent quarters. 48 CFR 302-
5.14; JTR C13205-B. As we said, we do not know whether Mr.
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[foot #] 2 We refer to the version of the regulations
that applies to Mr. Carter.
----------- FOOTNOTE ENDS -----------
Carter ever claimed TQSE and we cannot say for certain that he is
eligible to be reimbursed for his family's temporary quarters
expenses as TQSE. However, if Mr. Carter has not submitted a
claim for TQSE to DoD, he may wish to do so.
Regarding his claim for medical expenses, Mr. Carter says
that if DoD had issued identification cards to his dependents,
they could have obtained physical examinations and immunizations
at a DoD medical clinic. Because his family had no
identification cards, Mr. Carter had to pay for their physical
examinations and immunizations. According to Mr. Carter, DoD
told him that it would not issue identification cards for his
dependents because he would be departing Germany very shortly
after receiving his travel orders. DoD says that even if Mr.
Carter's dependents had been issued identification cards, they
could not have used the cards after Mr. Carter left Germany. We
cannot resolve a dispute regarding DoD's decision not to issue
identification cards because such a dispute is beyond the scope
of our authority. We can, however, look to see whether the
expenses can be reimbursed pursuant to the rules that govern
claims for relocation expenses. 48 CFR 6104.
DoD should reimburse Mr. Carter for the cost of the
immunizations that his dependents were required to receive in
order to obtain their visas. The Federal Travel Regulation
(FTR), which applies to all civilian federal government
employees, provides that the reimbursable travel expenses of the
dependents of a transferred employee include "[c]harges for
inoculations that cannot be obtained through a Federal
dispensary." 41 CFR 301-12.1, 302-2.2(a) (2000). The JTR, which
apply to civilian employees of DoD, list the fees and charges
that are reimbursable travel expenses of dependents when an
employee is transferred either to or from a permanent duty
station overseas. The list includes "charges for inoculations
which cannot be obtained through a Federal dispensary . . . ."
JTR C7002-E (Dec. 1, 1999), C7003-G (Nov. 1, 1998). DoD does not
dispute Mr. Carter's contention that he paid for immunizations
for his dependents because he could not obtain those
immunizations at a Government medical facility. According to the
regulations, therefore, DoD should reimburse Mr. Carter for the
cost of the immunizations.
Turning to Mr. Carter's claim for the cost of his family's
physical examinations, we note that the regulations give DoD
considerable discretion in deciding whether to reimburse an
employee for expenses incurred by the employee's dependents in
connection with a permanent change of duty station. The cost of
a physical examination required in order to obtain a visa is not
listed as a reimbursable expense in either the FTR or the JTR.
41 CFR 301-12.1; JTR C7002-E. The FTR, however, provides that
agencies can reimburse employees for expenses other than those
listed. Although the JTR do not say that expenses other than
those it lists can be reimbursed, the less restrictive provision
of the FTR supersedes the more limited provision of the JTR. C.
Ray Taylor, GSBCA 13688-TRAV, 97-1 BCA 28,783. Thus, DoD may
reimburse employees for expenses other than those listed in
paragraph C7002-E of the JTR, if it exercises its discretion and
decides to do so.
When evaluating Mr. Carter's claim for reimbursement of the
costs of his family's physical examinations, DoD relied upon
decisions issued by the General Accounting Office (GAO), which
resolved relocation claims until mid-1996. GAO decided that, as
a general rule, the Government could not pay for physical
examinations of employees or their dependents because medical
costs are not proper charges against appropriated funds. GAO
recognized exceptions to this rule only if the medical services
were primarily for the benefit of the Government. Payment for
Expenses of Medical Examinations, B-253159 (Nov. 22, 1993); 53
Comp. Gen. 230 (1973); 41 Comp. Gen. 531 (1962); 22 Comp. Gen. 32
(1942). GAO determined that the costs of physical examinations
of civilian employees and military members for the purpose of
obtaining visas were not reimbursable transportation expenses
because such examinations were primarily for the benefit of the
employee or military member and not for the benefit of the
Government. Because the costs of physical examinations of
civilian employees and military members were not reimbursable,
GAO ruled that such costs were also not reimbursable when they
were incurred by dependents. R.P. Hogan, B-164218 (June 10,
1968); Lawrence B. Weier, B-157347 (Aug. 26, 1965); 44 Comp. Gen.
339 (1964).[foot #] 3
GAO's decisions were predicated upon its determination that
the physical examinations at issue were primarily for the benefit
of the employee and not the Government. We cannot say that DoD's
decision to follow the GAO decisions was arbitrary or irrational,
so we will not disturb that decision. If, however, DoD
determines that the physical examinations at issue here were
primarily for the benefit of the Government, it may reimburse Mr.
Carter.
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[foot #] 3 GAO decided that when military members
changed permanent duty stations, DoD could reimburse the expenses
of their dependents "on the basis of the same elements of cost as
are authorized for the members themselves, as reimbursable
transportation expenses [in the JTR]." 41 Comp. Gen. 712, 714
(1962). Because regulations authorized DoD to reimburse a
transferred military member for taxi fares between terminals,
tips, port taxes, travelers checks, passport fees, visa fees, and
photographs and birth certificates needed to obtain passports and
visas as reimbursable transportation expenses, GAO determined
that these expenses were also reimbursable when they were
incurred by dependents of a military member in connection with a
change of permanent duty station. 51 Comp. Gen. 606 (1972); 46
Comp. Gen. 792 (1967); 44 Comp. Gen. 416 (1965); 41 Comp. Gen.
712.
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In summary, the claim is granted in part and denied in part.
DoD correctly decided not to pay Mr. Carter's claim for TQSA,
although it might be able to reimburse him for his family's
temporary quarters expenses as TQSE. DoD should reimburse Mr.
Carter for the cost of his family's immunizations, but is not
required to reimburse him for the cost of the physical
examinations.
________________________________
MARTHA H. DeGRAFF
Board Judge