July 15, 1997 GSBCA 13709-TRAV In the Matter of ANTHONY J. KRYFKA Anthony J. Kryfka, Sherman, IL, Claimant. Doug Sawin, Regional Director, Office of Motor Carriers, Federal Highway Administration, Olympia Fields, IL, appearing for Department of Transportation. GOODMAN, Board Judge. Mr. Anthony J. Kryfka is an employee of the United States Department of Transportation, Federal Highway Administration. He has submitted a claim with regard to recoupment of miscellaneous and incidental expenses (M&IE) which have been denied by his agency. He requested review of the agency s denial by the General Accounting Office (GAO). Since 1990, Mr. Kryfka has been employed as a Safety Specialist for the Office of Motor Carriers (OMC). He traveled throughout Illinois and adjoining areas in contiguous states on an "as required" basis in conjunction with program responsibilities. His official duty station is the OMC division office in Springfield, Illinois, with approximately ninety percent of his field work in the southern half of the state. He and his family resided in St. Louis, Missouri, until January 1994, when they moved to Springfield, Illinois. His residence in St. Louis was 120 miles from his official duty station in Springfield. Mr. Kryfka explains that his staying in St. Louis, Missouri, was originally supposed to be a temporary situation until he could find permanent quarters in the Springfield, Illinois, area. His position required extensive travel--in excess of three weeks per month. Mr. Kryfka s previous Director and Federal Program Specialist both recommended that his family remain in St. Louis, Missouri, and that he rent an apartment or stay at a motel in Springfield, Illinois. He was assigned a substantial amount of work in the St. Louis, Missouri, area (including areas in Illinois) even though it was not his official duty station, and he would stay with his family using his residence as noncommercial lodging instead of paying for a motel in that area. According to Mr. Kryfka, this allowed his office to save approximately $200 per week in travel expenses, reducing the cost of his travel to the Government since he did not incur lodging expenses. When working in Springfield, Illinois, from 1990 to 1994, Mr. Kryfka acquired lodging at his own expense at a motel and commuted from the motel to his duty station in Springfield. When he was performing work in other parts of the state, the Government reimbursed him for lodging and M&IE he incurred. In April 1992, Mr. Kryfka was informed that he would no longer be eligible to claim M&IE while staying with his family in St. Louis, Missouri, since that was his place of residence. He was also told that lodging would not be provided if he chose to stay in a motel closer to his temporary duty station. Mr. Kryfka contends that although his residence was in St. Louis, Missouri, his place of abode when working at his duty station was the motel in Springfield, Illinois, where he would acquire a motel room when working at his duty station for periods of time of up to two consecutive weeks. The issue posed in this matter is whether Mr. Kryfka is entitled to M&IE (but not lodging expenses) while staying with his family in St. Louis, which was his residence but not his official duty station. If he is so entitled, Mr. Kryfka asks for a determination as to the M&IE rate which is applicable while lodging in St. Louis, Missouri, and working in East St. Louis, Illinois. Discussion The threshold question for resolution is whether Mr. Kryfka may be reimbursed for his expenses (other than lodging expenses, for which no claim is made) while staying at his family residence during his temporary duty assignments in the St. Louis, Missouri, area. Reimbursement for meal and lodging costs incurred by Government employees while traveling on official business is generally paid through a "per diem allowance." 5 U.S.C.  5702(a)(1)(A) (1994); 41 CFR pt. 301-7 (1994). This allowance consists of "the actual amount the traveler pays for lodgings plus an allowance for meals and incidental expenses (M&IE), the total not to exceed the applicable maximum per diem rate for the location concerned." 41 CFR 301-7.6. Maximum per diem rates for locations within the continental United States are prescribed by the Administrator of General Services. For all locations not specifically listed, the standard maximum per diem rate must be used. Id. 301-7.6(a)(1). The agency, in denying reimbursement of M&IE while claimant stayed in St. Louis, Missouri, which was his residence, relies upon Federal Travel Regulation (FTR) pt. 301-7.5 then in effect, which stated: General rules affecting entitlement to per diem. (a) No allowance at official station. A per diem allowance shall not be allowed within the limits of the official station . . . or at, or within the vicinity of, the place of abode (home) from which the employee commutes daily to the official station. Agencies may define a radius or commuting area that is broader than the limits of the official station within which per diem will not be allowed for travel within 1 calendar day. (b) Travel of 10 hours or less (10-hour rule). A per diem allowance shall not be allowed when the period of official travel is 10 hours or less. . . . . (d) Beginning and ending of entitlement. For computing per diem allowances, official travel begins at the time an employee leaves his/her home, office, or other authorized point of departure and ends when the traveler returns to his/her home, office, or other authorized point at the conclusion of the trip. The agency official's interpretation of this regulation is as follows: Per diem shall not be authorized within the limits of the employee's duty station or residence/place of abode. It is this author's opinion that they mean one and the same. Thus, the agency reads the above regulation to deny M&IE when an employee's temporary duty takes place at his residence and the residence is different than the employee's official duty station. This interpretation is contrary to the plain reading of the regulation. The regulation defines "place of abode" as the place from which the employee regularly commutes to his official duty station. It does not equate "place of abode" with "residence," as there are some employees in the same situation as Mr. Kryfka -- whose official duty station is not in close proximity to their residence, and they therefore do not regularly commute to their official duty station from their residence. In instances such as this, where the residence is not the place from which the employee regularly commutes to his official duty station, place of abode and residence are not synonymous. Prior decisions of the GAO which interpret the regulation also do not support the agency's interpretation. In Algie Horton, Jr., 64 Comp. Gen. 902 (1985), the GAO held in substantially similar circumstances that an employee was entitled to M&IE while staying at his residence away from his place of abode. In that case, an employee was transferred from Chicago to Springfield, Illinois, in a permanent change of station move. He maintained an apartment in Springfield and commuted daily to his duty station. He performed temporary duty travel on an "as required" basis throughout Illinois, including Chicago, where his family continued to reside. His subsistence expenses while staying with his family in Chicago were administratively disallowed since he stayed at his family's residence. GAO held that since Springfield was the employee's permanent duty station, the fact that he stayed with his family while on temporary duty does not bar reimbursement of his travel expenses. As in the instant case, the employee sought only M&IE, and no lodging expenses. See also Durel C. Patterson, B-211818 (Feb. 14, 1984). We find these decisions well-reasoned and persuasive, and apply their rationale to the instant case. Mr. Kryfka's official duty station was Springfield, Illinois, and his residence was St. Louis, Missouri. Accordingly, he was entitled to M&IE while on temporary duty and staying at his residence in St. Louis. The agency official also states: [I]f Mr. Kryfka's long-term travel plan was such that he could plan and accomplish/complete his operational responsibilities within the same calendar day enabling him to return to his residence at a reasonable hour at the end of each day to obtain his evening meal, then he is not entitled to any per diem, i.e., M&IE. This is also a misinterpretation of the previously-quoted regulation, as the official duty begins and ends when the employee departs from and returns to the official duty station (in this instance, Springfield, Illinois), not when the employee departs from and returns to the place of temporary duty (in this instance, the residence in St. Louis, Missouri). The record in this case contains various allegations by the agency as to the sufficiency of documentation presented by Mr. Kryfka to support the expenses claimed. We note that Mr. Kryfka supplemented his initial documentation with additional information. In light of this Board's determination that Mr. Kryfka is entitled to M&IE for the period claimed, the agency should again review the documentation and reimburse him for all expenses for which adequate documentation has been submitted. Mr. Kryfka has also asked for a determination as to which M&IE rate is applicable while lodging in St. Louis, Missouri, and working in East St. Louis, Illinois. It appears that this question is resolved by 41 CFR 301-7.9(a)(1), which reads, in relevant part: Lodging at temporary duty location. It is presumed that the employee will obtain lodging at the temporary duty location. However, if the employee obtains lodging away from or outside the temporary duty location because of personal preference or convenience, the allowable per diem shall be limited to the maximum per diem rate prescribed for the temporary duty location. _______________________ ALLAN H. GOODMAN Board Judge