Board of Contract Appeals

                    General Services Administration

                         Washington, D.C. 20405

 

 

 

                    ________________________________

 

                            January 19, 2000

                    ________________________________

 

 

                            GSBCA 14617-RELO

 

 

                   In the Matter of MARK D. GONZALES

 

    

        Mark D. Gonzales, Barstow, CA, Claimant.

 

        D.   Lisenby,  Director,   Financial   Policy  and   Systems

   Directorate, Defense Finance and Accounting Service, Kansas City,

   MO, appearing for United States Marine Corps.

 

   WILLIAMS, Board Judge.

 

        Claimant  seeks  reconsideration  of  our  decision  denying

   reimbursement of  temporary quarters subsistence  expenses (TQSE)

   to his  wife and son.   We denied reimbursement,  concluding that

   the  agency   reasonably   determined  that   claimant  had   not

   established that his wife and son vacated the former residence on

   a permanent basis during claimant's TQSE period.

 

        Claimant  based  his request  for  reconsideration on  three

   elements he claims were not addressed by the agency or the Board:

   (1) extreme  financial hardship  encountered  by claimant  during

   TQSE period;  (2) the  "non-issuance of  Rules,  Regulations,  or

   Guidelines  pertaining to  T.Q.S.E. allowance  for [himself]  and

   [his]  family"; and  (3) the case  of  Ernesto Montoya,  B-228623

   (Jan. 4, 1988).

 

        Claimant  has not submitted  any evidence to  contradict the

   findings in  our  decision that  the  Gonzales' son  returned  to

   school  in Vacaville  and continued to  reside at  that residence

   with his  grandparents and that  Mrs. Gonzales later  returned to

   the Vacaville residence and remained there with her son until the

   house was sold.   Rather, claimant's request  for reconsideration

   emphasizes  the  financial   hardship  involved  in   his  wife's

   returning to the  former residence.  Financial hardship  alone is

   not an acceptable reason for awarding TQSE to dependents. 

 

        Claimant contends  that he had  no knowledge of any  rule or

   regulation stating that  an employee is not eligible  for TQSE on

   behalf  of a  dependent  until  the  dependent  vacates  the  old

   residence.  Claimant's  lack of familiarity with  the regulations

   does  not  provide  a  basis   for  the  Board  to  ignore  those

   regulations.  Moreover, claimant is charged with knowledge of the

   regulations.   Elizabeth Lynn Taylor,  GSBCA 15128-RELO (Jan. 11,

   2000); Joseph Viggiano, GSBCA 14976-RELO (Sept. 22, 1999).

 

 

        Finally, claimant cites the Montoya  case in support of  his

   request  for reconsideration.   Montoya  is  distinguishable from

   claimant's  situation.    The Montoya  family  had  vacated their

   former residence  with the intention  of not returning  and moved

   all  of  their  household goods  to  the new  duty  station.   In

   contrast, the record here shows that claimant left  his residence

   fully furnished,  unsure  of  when  the  house  would  sell,  and

   claimant's wife and  son returned to  this residence and  resided

   there until it did sell.  

 

        We recognize,  as did  the agency, that  it is  difficult to

   determine an employee's intent, and we agree with the agency that

   a mere statement of an  employee's professed intent to vacate the

   former residence is not alone sufficient to establish entitlement

   to TQSE.   Rather, we must look to all of  the facts to ascertain

   the  weight  and  credibility   of  evidence  demonstrating   the

   employee's intention to vacate the residence.  Here, the evidence

   supporting such an intent is  not as compelling as other evidence

   relied upon by the agency.   Importantly, even though  claimant's

   ten-year old son withdrew from school at the former residence, he

   re-enrolled within a  very short period  -- only ten days  -- and

   returned  to  the   former  residence,  which  was   occupied  by

   relatives.    Further,  claimant's wife  returned  to  the former

   residence and resided  there for nine months until  the house was

   sold.   As  the agency  noted,  claimant never  provided  written

   documentation   at  the  time  demonstrating  that  his  son  was

   withdrawing from school  on a permanent basis or  that offers had

   been made  on his home.  Rather, this evidence was only submitted

   to the Board some  two years after the fact.   Given the totality

   of facts and circumstances, we  cannot say that the agency abused

   its discretion in denying claimant's dependents TQSE benefits.

 

                                Decision

 

        The request for reconsideration is denied.

   ________________________________

 

                                      MARY ELLEN COSTER WILLIAMS

                                      Board Judge