June 6, 1997 GSBCA 13665-TRAV In the Matter of HARRY C. SIMPSON Harry C. Simpson, Westchester, OH, Claimant. John F. Best, Chief, Finance and Accounting Division, Directorate of Resource Management, Corps of Engineers, Washington, DC, appearing for Department of the Army. GOODMAN, Board Judge. Mr. Harry C. Simpson, Jr., is a civilian employee of the United States Army Corps of Engineers (the Corps). On February 20, 1994, he was detailed to Huntington, West Virginia, on a developmental assignment that was originally scheduled for one year. Mr. Simpson entered into a one-year lease for an apartment with a monthly rental of $385. He received notice on November 7, 1994, that his assignment would be terminated early by the Corps. He subsequently vacated his apartment on December 9, 1994. By letter dated December 22, 1994, he advised his landlord that he had vacated the apartment, enclosed payment of $770 for rent for January and February 1995 (the last two months of the lease), and requested that the landlord return his security and cleaning deposits. He received from the landlord his entire $100 security deposit plus $75.16, the balance of his $200 cleaning deposit after the landlord deducted a cleaning fee of $64 and a carpet cleaning fee of $60.84. Mr. Simpson claimed reimbursement from the Corps for the January and February 1995 rent. The Corps denied the claim, and Mr. Simpson requested review of his claim by the General Accounting Office. The Corps contends that even though Mr. Simpson s assignment was for one year, the notification on November 7, 1994, that his assignment was being terminated allowed sufficient time for Mr. Simpson to notify his landlord to meet the requirement in the lease for sixty-day advance notice of termination. Thus, the Corps believes that Mr. Simpson would have been able to avoid paying the last two month s rent (or at least the rent after January 6, 1995) and should not have waited until December 22, 1994, after vacating the apartment, to give written notice to the landlord. The operative term of the lease reads as follows: EMPLOYMENT TRANSFER: If the Lessee is transferred by his or her employer during the first year of this lease, the Lessee may vacate the apartment and terminate the lease by complying with the following provisions: 1. The Lessee must give 60 days written notice to the Lessor. . . . . 3. The Lessee will forfeit the entire Cleaning Fee and Security Deposit. If the Lessee fails to abide by this lease provision, the Lessee shall remain liable for all rents due hereunder. Mr. Simpson justifies payment of the last two months rent as follows: After my . . . Military Interdepartmental Purchase Request (MIPR) was signed and authorized, I was notified approximately 7 November 1994 to return from my assignment to the Ohio River Division office on 9 December 1994. The notification of my return date was established after the . . . MIPR was signed and authorized. This 32 day advance notification did not provide me with the required written 60 days notice, prior to my departure date, of intent to vacate the apartment. Although I gave immediate verbal notice of my intent to vacate the apartment on 9 December 1994, a 60 day written notice was not obtainable prior to 9 December 1994. Therefore, I could not have avoided the total expense of $770.00 incurred incident to the settlement of my unexpired lease. Since I could not provide the written 60 day notice prior to my departure date, I was liable for all rents due per paragraph 18 of the lease agreement. The return date of 9 December 1994 was established because there was no benefit to the Corps or myself to remain [in West Virginia] over the Christmas Holidays and this date was the last normal work day of the pay period prior to the holidays. Although I could not avoid the expense of the January and February 1995 apartment rental payments, I provided [the landlord] . . . written notice, dated 22 December 1994, that my final rent payment was enclosed, I had vacated the premises and my mailing address. This notice was my effort to eliminate my responsibility for any damage that could occur to the apartment after my 9 December 1994 departure. Mr. Simpson was on temporary duty. He was detailed for one year and therefore entered into a one-year lease. Under the Joint Travel Regulations (JTR), applicable to federal civilian employees of the Department of Defense, certain costs may be reimbursed when an employee has made advance arrangements for lodging with reasonable expectation of the travel assignment being completed as ordered or directed and subsequently the assignment is curtailed. JTR C4709 reads, in relevant part: E. Reimbursement of Nonrefundable Room Deposit or Prepaid Rent 1. Per Diem Computations When TDY is curtailed, Canceled or Interrupted for Official Purposes. When an employee has made advance arrangements for lodging with reasonable expectation of the travel assignment being completed as ordered or directed, and subsequently the TDY assignment is curtailed, canceled, or interrupted for official purposes, or for other reasons beyond the employee's control that are acceptable to the DOD component concerned, lodging costs may be calculated and paid as indicated herein or in subpar[agraph] . . . 3 (citations omitted). a. Travel Assignment Curtailed or Interrupted. When the TDY assignment is curtailed or interrupted for the benefit of the Government or for other reasons beyond the employee's control and the employee is unable to obtain a refund of prepaid rent, expenses incurred for unused lodging may be reimbursed under the conditions in subpars b and c. b. Determination of Reasonableness. The DOD component must determine the employee acted reasonably and prudently in incurring allowable lodging expenses pursuant to temporary duty travel orders. Included in this determination should be a consideration of whether the employee sought to obtain a refund of the prepaid lodging cost or otherwise took steps to minimize the cost once the temporary duty was officially curtailed or interrupted. . . . . 3. Forfeited Rental Deposits. If, in situations described in subpar[]. 1 . . . the employee was required by the terms of a lease or rental agreement to pay a rental deposit and all or part of the deposit is forfeited to cover unpaid lodging costs, the amount of the forfeited deposit may be reimbursed as a miscellaneous travel expense provided the conditions in subpar. 1b are met. Reimbursement for deposits forfeited for damages to lodging accommodations shall not be allowed. While the regulation speaks of reimbursement of "prepaid rent," we believe the two months rent Mr. Simpson paid as a penalty for failure to give the required sixty-day notice is substantially similar. The determination to be made is whether the employee acted reasonably and prudently in incurring such charges, and whether he otherwise took steps to minimize the cost once the temporary duty was officially curtailed. Mr. Simpson does not explain his allegation that "written notice was not obtainable prior to December 9, 1994." He is the one responsible for giving written notice; he did not have to "obtain" it from anyone else. There is nothing in the record that supports his alleged inability to give written notice to the landlord in November when he learned of his transfer. Instead, he waited until December 9, 1994, and paid the January and February rent totaling $770. He received from the landlord the entire $100 security deposit plus $75.16, the remainder of the cleaning fee. He was charged a cleaning fee of $64 and a carpet cleaning fee of $60.84, which presumably would have been incurred even if he had remained in the apartment for the duration of the lease. To determine the amount claimant should have been reimbursed, if any, we compare the amount the agency would have reimbursed claimant had he given prompt notice with the costs actually incurred by claimant. Had claimant given notice on November 7, immediately upon learning that his temporary duty was terminated, he would have been responsible for rent through January 7, and the agency would have paid the following costs: Rent [December 10 (day after apartment vacated) - January 7] 28/30 x $385 = $359.33 Forfeited Security Deposit 100.00 Forfeited Cleaning Deposit 200.00 $659.33 The costs actually incurred by claimant after vacating the apartment were as follows: Rent [December 10 - December 31] 21/30 x $385 = $269.50 Rent [January] 385.00 Rent [February] 385.00 Returned Security Deposit (100.00) Returned Cleaning Deposit ( 75.16) $864.34 The agency would have reimbursed claimant $659.33 had he given prompt notice. Claimant incurred $864.34 in costs as the result of satisfying the entire lease term. His actions resulted in his incurring costs greater than the amount to which he would have been entitled had he given prompt notice. While claimant did not act promptly, he is entitled to be reimbursed $659.33, the amount to which he would have been entitled had he given prompt notice. Claimant has not shown that his incurring costs in excess of this amount was reasonable. _______________________ ALLAN H. GOODMAN Board Judge