_____________________

                              March 13, 1997
                           _____________________



                             GSBCA 13640-RELO


                     In the Matter of R. PATRICK COMEY


     R. Patrick Comey, Spring Valley, CA, Claimant.

     C. M. McCullough, Western Regional Office, Immigration and
Naturalization Service, Laguna Niguel, CA, appearing for
Immigration and Naturalization Service.

DeGRAFF, Board Judge.

     On March 15, 1988, R. Patrick Comey, an employee of the
Immigration and Naturalization Service (INS) in Washington, DC, was
selected to fill a vacancy in Manila, Philippines.  Mr. Comey
departed for Manila on June 27, 1988, leaving his wife and children
with relatives in southern California.

     Mr. Comey traveled from the Philippines to California on
August 2, 1988, intending to pick up his family and return with
them to Manila.  The day after Mr. Comey arrived in California, his
wife informed him that she could not travel to Manila because she
was afraid to fly.  On August 12, 1988, Mr. Comey returned to
Manila, without his family.  In October 1988, Mr. Comey applied for
a position with the INS in San Diego, California.  

     From June through October 1988, Mrs. Comey and the children
stayed with Mr. Comey's mother, Mrs. Comey's mother, and
Mrs. Comey's sister in southern California.  In late November 1988,
the Comeys rented a condominium in Valencia, California for
Mrs. Comey and the children. 

     On December 20, 1988, the INS notified Mr. Comey that he had
been selected for the position in San Diego.  The INS did not
authorize Mr. Comey's transfer to San Diego until December 2, 1989,
due to a service-wide hiring freeze.  In connection with the
transfer to San Diego, the INS authorized Mr. Comey to be
reimbursed for certain expenses, including sixty days of temporary
quarters subsistence expenses (TQSE).  The INS later agreed to
reimburse Mr. Comey for 120 days of TQSE.  

     Mr. Comey left Manila on February 17, 1990.  He leased an
apartment in San Diego and entered on duty in his new position
there on February 26, 1990.  In mid-August 1990, Mr. Comey found a
house to lease in San Diego.  He and his family moved into the
house on September 1, 1990. 

     On June 11, 1991, Mr. Comey submitted a travel voucher to the
INS.  He asked to be reimbursed for TQSE for himself and his family
for 120 days, beginning on February 26, 1990.  On August 14, 1991,
the INS disallowed TQSE for Mr. Comey's family because they resided
in quarters separate from Mr. Comey prior to his transfer and they
continued to occupy those quarters after his transfer.  The INS's
position is that subsistence expenses for Mr. Comey's family are
not reimbursable because the occupancy of Mrs. Comey and the
children in Valencia was not incident to Mr. Comey's transfer. 
Because the INS disallowed a TQSE allowance for Mr. Comey's family,
the agency asked Mr. Comey to repay part of an advance of funds he
received for his travel-related expenses.

     On September 8, 1993, Mr. Comey asked the General Accounting
Office (GAO) to review his claim, and the GAO denied the claim on
February 3, 1994.  R. Patrick Comey, Z-2868826 (Feb. 3, 1994).  On
June 27, 1995, Mr. Comey asked the GAO to reconsider his claim. 
Mr. Comey also asked the GAO to waive any amount that he is
obligated to repay the INS.

                                Discussion

     According to the statute that governs this matter, when an
employee is transferred in the interest of the Government from one
official station to another for permanent duty, an agency may
reimburse the employee for certain subsistence expenses of the
employee and his immediate family while they occupy temporary
quarters.  The statute provides that the agency will reimburse the
employee in accordance with prescribed regulations and to the
extent considered necessary and appropriate.  5 U.S.C.  5724a(a)
(1994).  

     The General Services Administration (GSA) implemented these
statutory provisions in the Federal Travel Regulation (FTR).  The
FTR provides that agencies are supposed to ensure that the
necessity for allowing subsistence expenses while occupying
temporary quarters is "justified in connection with the employee's
transfer to a new official station."  41 CFR 302-5.1 (1990). 
Temporary quarters is lodging obtained "for the purpose of
temporary occupancy after vacating the residence occupied when the
transfer was authorized."  41 CFR 302-5.2(c). 

     Mr. Comey asserts that the condominium in Valencia constituted
temporary quarters because his wife and children never intended to
stay there permanently.  Thus, says Mr. Comey, the INS should
reimburse him for the subsistence expenses that Mrs. Comey and the
children incurred for 120 days of their occupancy of the
condominium.  

     Reimbursement for TQSE is not automatic, even if Mrs. Comey
and the children did not intend to stay permanently in Valencia. 
The statute provides that reimbursement for TQSE is contingent upon
the employee being transferred to a new duty station.  Consistent
with this, the FTR requires that the need for TQSE be justified "in
connection with" the employee's transfer, and the FTR explains that
temporary quarters are those which are obtained after vacating the
residence that was occupied at the time of the transfer.  

     Mrs. Comey and the children did not occupy the condominium in
Valencia as a result of Mr. Comey's transfer to San Diego, and the
Comeys did not obtain the condominium "for the purpose of temporary
occupancy after vacating the residence occupied" when Mr. Comey's
transfer to San Diego was authorized.  Mrs. Comey and the children
occupied the condominium for fifteen months before, and for six
months after, Mr. Comey was transferred to San Diego.  In reviewing
a similar claim, the GAO decided that if an employee and his family
occupy separate quarters before he is transferred and if the family
continues to occupy the same quarters after his transfer as they
occupied before his transfer, the family's occupancy of those
quarters is not incident to the transfer and, therefore, the
employee cannot be reimbursed for his family's stay in those
quarters.  Garland M. Byrum, B-171780 (Mar. 17, 1971), aff'd on
reconsideration (June 15, 1971).  This rule is appropriate to apply
in this case.  We agree with the INS and GAO that Mr. Comey is not
entitled to be reimbursed for subsistence expenses for his family.
     
     The authority to waive a debt arises under 5 U.S.C.  5584 and
applies in cases where the collection of a claim against an
employee arising out of an erroneous payment of relocation expenses
would be contrary to equity and good conscience.  The Board does
not have the authority to consider a claim under this statutory
provision, however.  This authority, insofar as it pertains to
claims of $1,500 or more affecting the executive branch of
Government, was transferred from the Comptroller General to the
Director of the Office of Management and Budget (OMB) under Pub. L.
No. 104-316,  103(d)(3), 110 Stat. 3826, 3828 (1996).  On
December 17, 1996, the Director of OMB delegated this authority to
the agencies from which the original claims arose, in this case the
INS.  The INS may, if it wishes, consider exercising its delegated
authority with regard to Mr. Comey's claim.




                                   ______________________________
                                   MARTHA H. DeGRAFF
                                   Board Judge