Board of Contract Appeals General Services Administration Washington, D.C. 20405 _____________________ October 22, 1999 _____________________ GSBCA 15054-RELO In the Matter of ARNOT BERRESFORD Arnot Berresford, Winter Springs, FL, Claimant. Judy Hughes, Travel Policy, Defense Finance and Accounting Service, Columbus Center, Columbus, OH, appearing for Department of Defense. NEILL, Board Judge. Mr. Arnot Berresford asks that we review a determination made by a disbursing officer disallowing a claim for an additional sixty days of temporary quarters subsistence expenses (TQSE) notwithstanding the fact that the extension was authorized by an agency official. For the reasons set out below, we conclude that the authorization given was contrary to existing regulation and that the disallowance is, therefore, proper. Background On September 4, 1997, claimant was issued orders transferring him from Philadelphia, Pennsylvania, to Orlando, Florida, consequent to a base closure. His reporting date to the new duty station was October 10, 1997. Mr. Berresford's orders authorized a ten-day house hunting trip and fifty days of TQSE. On December 3, 1997, he submitted to the commander at his old duty station a request that his original TQSE be extended by an additional sixty days. Mr. Berresford offered two reasons in support of his request. First he stated that he wished to build a new home but, because of the demand for new homes in the area, construction times were in excess of five months. His second reason for the request was that he had still not sold his home at the old duty station. He explained that the mortgage on that house would have to be satisfied before he would be able either to start construction of a new home or to purchase an existing home at his new duty station. 2 This request and justification for an extension of TQSE for an additional sixty days was approved by the commander at Mr. Berresford's former duty station on December 3, 1997. Mr. Berresford's orders were promptly amended to reflect the additional authorization. The record contains a copy of settlement sheets indicating that Mr. Berresford and his wife eventually purchased a home on May 22, 1998, and finally succeeded in selling their home at the former duty station on July 15 of the same year. On October 6, 1998, Mr. Berresford submitted a claim for TQSE which included the sixty-day extension approved in December of the previous year. The disbursing officer denied the additional sixty days of TQSE. The reason given reads: "Additional TQSE . . . do not comply with the JTR [Joint Travel Regulations]." Mr. Berresford has appealed the disallowance of his claim. Both he and the commander of the activity to which he is now assigned believe that the claim should be paid. They point out that the request for extension was approved by the commander of the order-issuing activity and that Mr. Berresford's orders were amended, as required, to reflect the approval. Under current regulations, this, according to the commander, should be sufficient. The commander distinguishes the present situation from those described in three cases provided to him for review by the paying office. He points out that, unlike those cases, in Mr. Berresford s situation, the authorizing official did not deny the request but rather approved it. Furthermore, he notes that, under Department of Defense (DOD) regulation, the disbursing office does not determine the number of TQSE days authorized. Rather, the official issuing the employee's orders must authorize the initial TQSE period. Any authorization of additional TQSE should be reflected in amended orders. At claimant s request, this case has been submitted to us for review. The case was forwarded to us through the Defense Finance and Accounting Service (DFAS). DFAS refers us to three Board decisions -- presumably the same three given to Mr. Berresford's commander for review, namely, Ralph M. Martinez, GSBCA 14654-RELO, 98-2 BCA 30,105; William T. Stowers, GSBCA 14099-RELO, 97-1 BCA 29,096; and Roland J. Landis, GSBCA 13690-RELO, 97-2 BCA 29,157. DFAS supports the disbursing officer and contends that, based upon the cases cited and similar Board decisions, the claim should be denied. Discussion Statute provides that an agency may allow a second sixty-day period of TQSE "if the head of the agency concerned or the designee of such head of the agency determines that there are 3 compelling reasons for the continued occupancy of temporary quarters." 5 U.S.C. 5724a(c)(2) (Supp. III 1997). The Federal Travel Regulation (FTR), which implements this statute, provided at the time of Mr. Berresford's transfer in 1997 and still provides the following explanation of what constitutes a "compelling reason" for continuing temporary quarters: A "compelling reason" is an event that is beyond your control and is acceptable to your agency. 41 CFR 302-5.105 (1997). An earlier version of the FTR contained an additional requirement for the extension of TQSE. The regulation had previously stated that TQSE could not be extended except where the need to extend arose due to circumstances beyond the control of the employee and occurring during the initial sixty-day period of temporary quarters occupancy. At the time of Mr. Berresford s transfer, the JTR, to which he was subject as a civilian employee of DOD, still retained this requirement. JTR C13004-A.2 (Aug. 1, 1995). It was, however, deleted shortly thereafter, effective March 1, 1998, in favor of a provision substantially the same as that found in the FTR. See JTR C13115- B.1 (March 1, 1998). In disallowing Mr. Berresford s claim, the disbursing officer states that there have been numerous decisions of this Board and the Comptroller General which have stated that reasons such as those cited by the claimant in his request for an extension of TQSE are not sufficient to justify an extension. Of the three decisions cited to us by DFAS and presumably reviewed by the local base commander, all discuss the prior regulatory requirement that the cause for the requested extension be beyond the control of the employee and arise from circumstances occurring during the first sixty days of TQSE. In Landis, the agency rescinded the authorization of additional TQSE precisely because the cause given did not arise from circumstances occurring during the first sixty days of TQSE. The authorization was contrary to regulation and, therefore, deemed to be invalid. In Stowers, we upheld an agency s denial of the employee s request on the ground that the reason for the request could not be tied to any circumstances arising during the initial period of TQSE which were beyond the employee s control. In Martinez, the third and most recent case, we refused to enforce the requirement that the reason for the requested extension be tied to circumstances arising during the first sixty days of TQSE. Our reason for doing so was that, by the time the claimant was transferred, this requirement had been deleted from both the FTR and the JTR. Nevertheless, we upheld the agency s denial of the claim because we agreed with the agency that the claimant had not demonstrated that his inability to sell his home 4 at the old duty station was a matter outside of his control. In this particular case, the timing of Mr. Berresford s transfer is of critical importance. His orders were issued in September 1997, after the FTR had been amended to give agency officials greater discretion in authorizing extensions of TQSE but before a similar amendment of applicable provisions in the JTR. This subsequent amendment of the JTR cannot, therefore, have any application to this case. Charles D. Parton, GSBCA 14463-RELO, 98-1 BCA 29,736. Consequently, the disbursing officer was entirely correct when he concluded that Mr. Berresford s request for an extension of TQSE did not comply with the JTR. At the time in question, the JTR, as the DOD travel regulation to which both Mr. Berresford and the authorizing official were subject, still required that the cause for requesting an extension of TQSE be related to circumstances occurring during the first sixty days of TQSE. The claimant s present commander insists that Mr. Berresford is entitled to payment because, under current regulations, approval from the order issuing authority and amendment of the travel orders to reflect this authorization should be sufficient. This is correct, but the key word in his statement is current. Under the JTR, as they now read, should the agency official make a similar ruling today, we would undoubtedly defer to his exercise of discretion. In the past, when asked to review agency rulings on requests for TQSE extensions, we have repeatedly stated that on matters such as these, which are entrusted to the discretion of agency officials, we will not overturn their determinations unless we find them to have been arbitrary, capricious, or contrary to law. Audrey J. Shegog, GSBCA 14621- RELO, 98-2 BCA 30,049; Rifat A. Ajjuri, GSBCA 14506-RELO, 98-2 BCA 29,788; Daniel A. Rishe, GSBCA 14444-RELO, 98-1 BCA 29,677; Baron L. Hudson, GSBCA 14284-RELO, 98-1 BCA 29,527. Unfortunately, in this case, we cannot defer to the discretion of the authorizing official because, at the time he made his determination, it was contrary to existing regulation, and, therefore, illegal. Under the JTR as they read on December 3, 1997, when Mr. Berresford s request was approved, there was a regulatory limit on the authorizing official s exercise of discretion. Neither of the causes presented by the claimant were related to circumstances which arose during the first sixty days of Mr. Berresford s TQSE. A valid extension, therefore, could not be given. It is of course regrettable that Mr. Berresford s request was granted and not questioned until long after the extended period had expired. Nevertheless, it is well settled that errors of this nature made by a Government official are not binding and provide no independent basis for reimbursement. Office of Personnel Management v. Richmond, 496 U.S. 414 (1990); Phillip 5 A. Jones, GSBCA 14355-RELO, 98-2 BCA 29,793; Roland J. Landis, 97-2 BCA at 145,002. The disallowance of Mr. Berresford s claim for extended TQSE is affirmed. The claim is denied. ____________________________ EDWIN B. NEILL Board Judge