Board of Contract Appeals
                 General Services Administration
                      Washington, D.C. 20405




                     _______________________

                          March 21, 2003
                     _______________________


                         GSBCA 15902-RELO


               In the Matter of MARILYN A. ROBINSON


     Marilyn A. Robinson, Bayonne, NJ, Claimant.

     Brenda H. Mixon, Chief, Travel Division, United States Army Corps of Engineers
Finance Center, Millington, TN, appearing for Department of the  Army. 

HYATT, Board Judge.

     When an agency inadvertently fails to offer an employee transferring in the interest
of the Government the fixed amount option for temporary quarters subsistence expenses
(TQSE), it may retroactively amend the employee's travel orders to authorize this option.

                            Background

     Claimant, Marilyn A. Robinson, returned to her job with the United States Army
Corps of Engineers following an overseas tour with the Department of Defense Dependent
Schools in Okinawa, Japan.  She returned to her original office of employment with the
Corps' district office in New York City, New York.  Her permanent change of station (PCS)
orders authorized TQSE not to exceed sixty days.  Upon returning to New York, Ms.
Robinson occupied temporary quarters for thirty days, from June 23 to July 23, 2001.  Ms.
Robinson stayed at a hotel in New York City before locating, and moving into, permanent
quarters.  

     Ms. Robinson encountered numerous difficulties with the processing of her PCS
orders prior to her return and subsequently in getting paid for the expenses she incurred.  The
last day of school in Okinawa was scheduled for June 15, 2001, and Ms. Robinson had
planned to travel back to New York immediately.  Although she diligently communicated
with the New York office for the Corps, her orders were not issued until June 8, 2001.  The
district office explains that much of the confusion and delay was attributable to the retirement
of its only PCS-experienced employee prior to Ms. Robinson's move and the inability to get
the replacement PCS coordinator fully trained until after claimant had returned to New York. 
The process was further hindered by difficulties in communicating with an overseas location. 
After Ms. Robinson returned to New York and sought reimbursement for her expenses, the
district office reviewed her travel orders and realized that the office had inadvertently
neglected to offer Ms. Robinson the option of fixed rather than actual expense TQSE.  Once
the option was offered, Ms. Robinson elected fixed amount TQSE.  The district office then
issued an amendment, dated August 15, 2001, to her travel orders specifying fixed amount
TQSE.  

     When Ms. Robinson's paperwork, based on the fixed amount TQSE, was submitted
for processing to the Corps' Finance Center in Tennessee, the Finance Center limited her
TQSE reimbursement to the amount available under the actual expense method.  It based this
determination on the fact that the travel orders initially issued, and in effect at the time Ms.
Robinson actually moved, provided for TQSE not to exceed sixty days.   This, according to
the Finance Center, demonstrated that the actual expense TQSE had been authorized since
fixed TQSE is limited to a maximum of thirty days.  The Finance Center rejected the district's
explanation that the office had not intended to authorize any particular type of TQSE and had 
inadvertently omitted to inquire as to the claimant's preference prior to her return.   The
Finance Center thus authorized payment of TQSE under the actual expense method, which
resulted in a significantly reduced payment to claimant. 

     Claimant used her Government credit card to pay for the temporary lodging expenses
incurred in connection with her return to the United States, but was not sufficiently
reimbursed by the Government to enable her to remit payment for the charges incurred in a
timely manner.  As a result, she incurred late payment fees and finance charges on her
Government credit card for which she also seeks reimbursement.  In addition, Ms. Robinson
was authorized the miscellaneous expense allowance in connection with her return to New
York.  She states that she never was paid this allowance.  Claimant further asks to be
compensated for "pain and suffering" caused by the agency's refusal to reimburse her what
she believes she is owed, a circumstance which led to the difficulties she encountered with
her credit card.  Finally, Ms. Robinson seeks reinstatement of sick leave and annual leave.



                            Discussion

     The principal question raised by this request arises from the disagreement between the
Corps' district office in New York and the Finance Center in Tennessee, as to whether
claimant's travel orders could properly be amended after her travel was completed to
effectuate an election of fixed rate TQSE.  This issue is of importance primarily because of
the level of compensation for TQSE provided under the alternate methods of reimbursement. 
Under the traditional actual expense method, the employee is compensated for actual costs
incurred, up to the amount of the standard per diem rate for the continental United States
(CONUS), for up to sixty days, and, if compelling reasons are found, for up to an additional
sixty days, for a total of no more than 120 days.  41 CFR 302-5.100 to -5.105 (2001); JTR
C13205.  Under the lump sum, or fixed, method of reimbursing TQSE, the employee is
limited to a fixed amount based on a percentage of the per diem rates set for the locality of
the permanent duty station, for a maximum of thirty days.  41 CFR 302-5.200; JTR C13305. 
Under fixed TQSE, the employee simply receives the amount authorized and is not required
to provide receipts or an accounting of how the TQSE payment was used.  JTR C13315.  No
extensions of time are allowed and the employee is not eligible for any additional payments
if the fixed amount is not adequate to cover the cost of occupying temporary quarters.  JTR
C13310; Sandra L. McCllellan-Whittle, GSBCA 15573, 02-1 BCA   31,781; see generally
Lori A. Hazenstab, GSBCA 15256-RELO, 00-1 BCA 30,886.  Here, because New York 
City has a high per diem rate, the election of fixed amount TQSE would yield a much higher
rate of compensation for the thirty day period than the actual expense method, which is
limited to the standard CONUS rate of $85 per day.

     The Board has previously addressed this issue in Richard J. Anderson, GSBCA
15870-RELO, 02-2 BCA   31,999, modified on other grounds, 2002 WL 31835731 (Dec. 18,
2002).  There, we stated:

               Travel 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.  Alex L. Rowe,
          GSBCA 14479-RELO, 98-2 BCA   29,919.  In this instance,
          facts and circumstances surrounding the issuance of the original
          orders clearly demonstrate that the choice afforded to the
          employee between reimbursement of actual or fixed TQSE was
          omitted.  Accordingly, claimant may now be afforded this
          choice.  

02-2 BCA at 158,109.  Similarly, the district office here has explained that it should have
offered this option to Ms. Robinson prior to travel and failed to do so because of staffing
changes occurring when claimant needed to return to New York and the difficulty of
communicating with an overseas location.  The form used simply provided for authorization
of TQSE; it did not differentiate between the actual expense and fixed amount options.  Since
Ms. Robinson was not told of her options and offered the opportunity to choose the method
she preferred, the district office determined it should try to rectify the situation.  Based on
this explanation, we believe the district office and claimant have demonstrated that the
subsequent decision to offer the option and to amend Ms. Robinson's travel orders was
appropriate.  As such, Ms. Robinson should be paid in accordance with the fixed amount
election for thirty days of TQSE.

     Ms. Robinson is also entitled to be paid the miscellaneous expense allowance
authorized in her travel orders.  Anderson.  The Board has no authority to review her claims
for compensation of out-of-pocket costs incurred in the form of penalties and interest charged
by  the credit card company, or for pain and suffering.  Jacqueline Butler, GSBCA 15478-
RELO, 02-1 BCA   31,681.  Finally, Ms. Robinson's claim for reinstatement of leave, if not
yet resolved, must be submitted to the Office of Personnel Management.  Walter W. Lee,
GSBCA 13669-TRAV, 97-1 BCA   28,686 (1996).




                                   __________________________________
                                   CATHERINE B. HYATT
                                   Board Judge