Board of Contract Appeals

                 General Services Administration

                      Washington, D.C. 20405

                     _______________________



                       September 13, 2002 

                     _______________________





                         GSBCA 15816-RELO





                   In the Matter of MARY M. KAY





     Mary M. Kay, APO Area Pacific, Claimant.



     Kuk-Yong Kim, Travel Clerk, A-Det 176th Finance Battalion, Department of Defense,

APO Area Pacific, appearing for Department of Defense.



PARKER, Board Judge.



                            Background



     In September 2001, Mary M. Kay, a civilian employee of the Department of Defense

(DoD), was transferred from Fort Polk, Louisiana, to Camp Humphreys in Pyongtaek, Korea. 

In connection with the one-year unaccompanied (without family) permanent change of

station, Ms. Kay claimed entitlement to a "Miscellaneous Expense" in the amount of $500. 

The agency informed Ms. Kay that, without receipts documenting her miscellaneous

expenses, she was entitled to be paid a maximum of $350.  Ms. Kay has appealed that

decision and requests that the Board require DoD to pay her the difference of $150.



                           Discussion



     Ms. Kay bases her claim on section 242.1 of the Department of State Standardized

Regulations (DSSR), which, on the effective date of her transfer orders, provided as follows:



     242.1 Miscellaneous Expense Portion



     a. The following amounts may be granted without receipts or itemizing

     required:

     (1) for an employee without family - $500 or the equivalent of one week's pay,

     whichever is the lesser amount[.]



     The DSSR implements the provisions of the Overseas Differentials and Allowances

Act, which is codified in chapter 59 of title 5 of the United States Code.  The purpose of the

Act was to improve and strengthen overseas activities of the Government by establishing a

uniform system for compensating all Government employees stationed overseas, regardless

of the agency by which they were employed.  The authority to promulgate regulations

implementing this Act is delegated to the Secretary of State.  Michael J. Krell, GSBCA

13710-RELO(REIN), 98-2 BCA   30,050.  Because the allowances permitted under this Act

are largely discretionary, the DSSR recognizes that agencies may, but are not required to,

authorize payment of the differentials and allowances permitted under the Act.  Id.; Frederic

S. Newman, Jr., GSBCA 15873-TRAV (Aug. 6, 2002).



     DoD and the Department of State have declared by regulation that the DSSR

miscellaneous expense allowance is inapplicable to DoD employees who are transferred from

the United States to a foreign country.  Paragraph C1004 (Sept. 1, 2001) of DoD's Joint

Travel Regulations (JTR), the regulations that implement the Federal Travel Regulation for

civilian employees of DoD, provides:



     Employees transferring from a CONUS [continental United States] or a non-

     foreign OCONUS [outside CONUS] area PDS [permanent duty station] to a

     PDS in a foreign country are entitled to the MEA [miscellaneous expense

     allowance] in JTR, Chapter 9 and NOT the [DSSR Miscellaneous Expense

     Allowance] (DSSR 242.6).



     The Department of State, in DSSR 242.6, says that if an employee is eligible for a

miscellaneous expense allowance under his or her own agency's regulations, the employee

is not eligible for the DSSR miscellaneous expense allowance:



     b. Employees eligible under their agencies' regulations for either a subsistence

     expense allowance or a miscellaneous allowance authorized by 5 U.S.C.

     5724a(a)(3) or 5724a(b) respectively, (under the Federal Travel Regulation)

     are not eligible for a comparable subsistence expense portion or a comparable

     miscellaneous expense portion of the foreign transfer allowance as authorized

     by these regulations.



Thus, because Ms. Kay was eligible for the JTR miscellaneous expense allowance, she was

not eligible for the DSSR miscellaneous allowance, and is entitled to be paid the amount

prescribed in the JTR, not the DSSR.

     At the time of Ms. Kay's transfer to Korea, paragraph C9004 of the JTR provided for

a miscellaneous expense allowance of up to $350 for employees without dependents, to be

paid with or without receipts or itemized statements.  The allowance was raised to $500,

effective Februrary 19, 2002 -- too late for Ms. Kay.  JTR C9004 (Feb. 1, 2002). 

Accordingly, DoD's payment of $350 was correct and Ms. Kay's claim properly denied.







                                   __________________________

                                   ROBERT W. PARKER

                                   Board Judge