Board of Contract Appeals

                 General Services Administration

                      Washington, D.C. 20405





                      _____________________



                         October 7, 2005          

                      _____________________       





                         GSBCA 16687-RELO





                  In the Matter of OPHER HEYMANN





     Opher Heymann, Arlington, VA, Claimant.



     Judy Hughes, Travel Management and Procedures Office, Defense Finance and

Accounting Service, Columbus Center, Columbus, OH, appearing for Department of

Defense.



BORWICK, Board Judge.



     Mr. Opher Heymann, claimant, seeks reimbursement of temporary quarters

subsistence expenses (TQSE) from the Department of the Army, agency, incident to his

travel to his first duty station as a new appointee.  As a new appointee, claimant was not

entitled to reimbursement of TQSE even though the agency's travel authorization purported

to authorize reimbursement and even though agency officials in e-mail messages implied he

would be reimbursed for TQSE.  The agency's reimbursement of claimant's voucher for

TQSE would have violated statute, the Federal Travel Regulation (FTR), and the Joint Travel

Regulations (JTR).  The Board denies the claim.  



     The record before the Board shows the following.  On or about December 15, 2004,

the agency by e-mail message advised claimant, who resided in Wurzburg, Germany, that it

would offer him a position with the agency at The Pentagon in Washington, D.C.  The

agency suggested January 24, 2005, as a convenient entry on duty date.  Claimant agreed that

January 24 would be a practical starting date.  Claimant and agency officials discussed

reimbursement for TQSE in the e-mail messages; the clear implication from the agency's e-

mail messages to claimant was that reimbursement of TQSE would be allowed.  



     On February 2, the agency issued a retroactive travel authorization, which erroneously

noted that claimant had traveled "between official stations" and properly noted claimant's

reporting date as January 24, 2005.  The authorization purported to grant claimant entitlement

to reimbursement of actual TQSE, although the number of days supposedly authorized was

not stated.  The authorization also granted claimant transportation by commercial air and

shipment of household goods.  



     Invoices in the record before the Board show that claimant rented quarters in

Arlington, Virginia, starting on January 19, 2005, and stayed in those quarters until February

18, 2005.  Claimant then rented other quarters in Arlington and stayed in those quarters from

February 19 through March 20.  



     On March 14, the agency issued an amendment to claimant's travel authorization

purporting to specify the number of days of TQSE for which claimant was eligible (sixty). 

On June 20, claimant submitted a voucher for reimbursement of $5898.89.  On June 22, the

agency, for a second time, amended the travel authorization, eliminated the entitlement to

TQSE reimbursement, and noted in block 22 of the order that the authorized travel was to

claimant's initial duty station.  



     On or about June 23, 2005, the agency's Permanent Change of Station (PCS) Division

denied claimant's reimbursement request for TQSE because he was a new appointee.  The

denial was referred through the agency's PCS Division and Appeals Travel Branch to the

Defense Finance and Accounting Service (DFAS), Travel Management and Procedures

Office.  On June 27, 2005, DFAS denied the claim because reimbursement of TQSE for new

appointees is not permitted under the JTR.  DFAS stated that erroneous information and

authorizations provide no basis for payment of expenses that are not allowed by statute or

regulation.  DFAS, at claimant's request, forwarded the matter to this Board as a claim.  



                            Discussion



     The agency hired claimant as a new appointee.  Statute and regulation provide limited

relocation benefits to a new appointee, and reimbursement of TQSE expenses is not one of

those benefits.  5 U.S.C.    5723(a) (1)-(3), 5724a (2000); 41 CFR 302-3.2, -3.3 (2004); JTR 

C5080-B.5.  The agency's original travel authorization and first amended authorization that

granted claimant reimbursement of TQSE were erroneous and cannot create an entitlement

that does not exist in statute and regulation.  Put another way, an agency may not pay monies

in violation of statute and regulation, even though the travel authorization purported to create

the entitlement and an employee relied upon the authorization to his detriment.  Federal Crop

Insurance Corp. v. Merrill, 332 U.S. 380, 384-85 (1947); Kevin R. Kimiak, GSBCA 16641-

RELO, 05-2 BCA   33,007; John J. Churchill, GSBCA 16419-RELO, 04-2 BCA   32,698. 

The same principle holds true for erroneous written or oral advice that new appointees are

eligible for TQSE reimbursement incident to first duty station travel.  Charles M. Russell,

GSBCA 16000-RELO, 03-1 BCA   32,716.  



     We understand that claimant is frustrated by the course of events resulting in the

agency's seeming to grant claimant an entitlement and then denying reimbursement after

claimant incurred the expense.  Nonetheless, the agency acted in accordance with statute and

regulation in denying reimbursement and we thus can not grant claimant relief. 



     We have seen many of these cases.  We encourage agencies to ensure that their travel

and transportation officials provide accurate advice to new appointees as to the proper scope

of their first hire relocation benefits, and ensure that travel authorizations are properly

prepared so that this situation does not occur.





__________________________

ANTHONY S. BORWICK

Board Judge