Board of Contract Appeals

                 General Services Administration

                      Washington, D.C. 20405





                         _______________



                         August 16, 2006

                         _______________





                         GSBCA 16911-RELO





               In the Matter of DANIEL D. LaCHANCE





     Daniel D. LaChance, Albuquerque, NM, Claimant.



     Colonel Mary Beth Shively, Chief of Staff, Department of the Army, Fort Huachuca,

AZ, appearing for Department of the Army.



GOODMAN, Board Judge.



     Claimant, Daniel D. LaChance, is a civilian employee of the Department of the Army.

He has asked this Board to review the agency's decision denying reimbursement of 

temporary quarters subsistence expenses (TQSE) arising from a permanent change of station

(PCS) move.



                        Factual Background



     Claimant has been issued travel orders for a PCS transfer from his current permanent

duty station (PDS) outside the continental United States (OCONUS), in Germany, to a new

PDS in the continental United States (CONUS).  The agency did not authorize

reimbursement of TQSE and claimant requested that it do so.  The agency denied his request,

stating that the decision not to authorize reimbursement of his TQSE was an exercise of

agency discretion, based upon "fiscal responsibility emanating from current budget and 

funding reductions."



     Claimant believes that reimbursement of TQSE is mandatory, based upon his reading

of the applicable regulations, and asks this Board to review the agency's decision.



                           Discussion

                                

     Claimant cites to the following provision of the Federal Travel Regulation (FTR),

which he believes makes payment of TQSE mandatory for an employee transferred from a

PDS OCONUS to another in CONUS:



      302-3.101  As a transferred employee what relocation allowances must my

     agency pay or reimburse me for incident to a permanent change of station? 



     As a transferred employee there are mandatory and discretionary relocation

     expenses.  Once an agency decision is made to pay or reimburse relocation

     expenses indicated for the type of transfer in tables (A) through (I) of this

     section, all the mandatory allowance must be paid or reimbursed, unless

     otherwise stated in the applicable parts.  The discretionary relocation

     allowances indicated in tables (A) through (I) of this section may or may not

     be paid by the agency.



     . . . .



     Table C:  Transfer From OCONUS Official Station to an Official Station in

     CONUS. . . .  Relocation allowances that the agency must pay or reimburse

     . . . TQSE (Part 302-6 of this chapter)



41 CFR 302-3.101.



     Claimant misreads this provision, as it does not make payment of TQSE mandatory.

The preamble provides an exception that "all the mandatory allowance must be paid or

reimbursed, unless otherwise stated in the applicable parts."  The applicable part referenced

in Table C with regard to TQSE is Part 302-6, which provides that the agency need not

authorize payment of a TQSE allowance, as the agency may determine whether it is in the

Government's interest to pay TQSE and that an employee will receive TQSE only if

authorized before the temporary quarters are occupied.  41 CFR 302-6.6, 6.7.  



     Authorization of TQSE is discretionary under the FTR, just as it is discretionary under

the Joint Travel Regulations (JTR) that govern civilian employees of the military.  JTR

C5350 states that "TQSE is a discretionary, not a mandatory, allowance." In Thomas G.

Tucker, GSBCA 16682-RELO, 06-1 BCA   33,168, a civilian employee of the military was

similarly transferred from a PDS OCONUS to another in CONUS and the agency did not

authorize TQSE.  As we stated in that decision:



     Whether to authorize reimbursement of TQSE to a relocating employee is a

     determination which is wholly within the discretion of the agency involved.

     TQSE is therefore a discretionary allowance and not an entitlement.  Joint

     Travel Regulation (JTR) C13105 [ ] [Foot # 1 ] ; see Vanessa G. Outenreath,

     GSBCA 16316-RELO, 04-2 BCA   32,681; Marvin R. McGee, GSBCA

     15829-RELO, 02-2 BCA   32,002.  Claimant's travel orders did not authorize

     reimbursement for TQSE.  While claimant has submitted information from his

     commanding officer subsequent to his relocation that he interprets as

     authorization for reimbursement of TQSE, there is no evidence that claimant's

     travel orders have been amended.  Under the present circumstances we cannot

     conclude that the agency's determination was an abuse of discretion. 



****************** Footnote Begin **********

[Foot # 1 ]         This provision was in effect at the time the claimant in Tucker reported to

his duty station and read substantially the same as the current provision.

****************** Footnote End ************





06-1 BCA at 164,356-57.



     Accordingly, the provision of the JTR which makes authorization of TQSE

discretionary does not conflict with the FTR.  The agency has decided for financial and

budgetary reasons not to authorize claimant to receive TQSE.  We cannot conclude that the

agency's determination was an abuse of discretion.  Tucker.



                             Decision



     The claim is denied.









                                   ___________________________________

                                   ALLAN H. GOODMAN

                                   Board Judge