_________________________ December 11, 1997 _________________________ GSBCA 13863-RELO In the Matter of SUSAN DRACH Susan Drach, APO Area Europe, Claimant. Elizabeth B. Throckmorton, Chief, Policy and Program Development Division, Department of the Army, Alexandria, VA, appearing for Department of the Army. DeGRAFF, Board Judge. According to Department of State Standardized Regulations, a civilian employee of the Department of Defense who resides in a foreign area is not eligible for a temporary lodging allowance unless the employee was recruited in the United States. The agency's interpretation of "recruited" is reasonable. Background In early 1995, Susan Drach lived in Portugal with her husband, an active duty military officer. In April 1995, Ms. Drach applied for a position as a civilian employee of the Department of the Army (Army) in Italy. The job announcement to which Ms. Drach responded stated, "Relocation services/expenses will be paid." In late May 1995, having heard nothing about Ms. Drach's prospects for a position in Italy, Mr. and Ms. Drach packed their furniture and made other arrangements to return to the United States, due to Mr. Drach's retirement. On May 24, 1995, Ms. Drach and her husband moved from their house in Portugal to a hotel, in preparation for their return to the United States. On May 31, 1995, an Army officer in Italy reached Ms. Drach by telephone and told her that he had selected her for the position in Italy, pending approval by the Office of the Judge Advocate General. On June 6, 1995, Ms. Drach left Portugal for the United States. Soon after Ms. Drach arrived in the United States, the Civilian Personnel Office (CPO) in Italy telephoned and formally offered her the position in Italy, still pending approval by the Office of the Judge Advocate General. Ms. Drach accepted the offer and on June 14, 1995, the Judge Advocate General approved her selection for the position. Based upon conversations that her husband had with CPO employees, Ms. Drach believed that she would receive a Living Quarters Allowance (LQA) if she accepted the position in Italy. The Army, however, decided not to provide Ms. Drach with an LQA and informed Ms. Drach of its decision.[foot #] 1 Ms. Drach's travel orders, dated July 5, 1995, said that the Army would not pay for her temporary quarters subsistence expenses. The CPO telefaxed the travel orders to Ms. Drach and she left for Italy on July 9, 1995. On July 21, 1995, Ms. Drach asked the Army to reconsider its decision concerning LQA. The Army denied the request for LQA on September 5, 1995. The Army explained that Ms. Drach was residing in Portugal when she applied for the position in Italy and was not, therefore, recruited in the United States. If Ms. Drach was not recruited in the United States, she was not eligible for LQA according to the applicable regulations. On October 16, 1995, Ms. Drach asked the Army to grant her both LQA and a Temporary Lodging Allowance (TLA). Ms. Drach had previously asked two Army employees about her eligibility for TLA, but the Army had not provided any response to her questions. In her October 16 letter, Ms. Drach noted that the job announcement stated that relocation expenses would be paid, without any qualifying language. She said that the first notice she received that TLA would not be paid was in her travel orders.[foot #] 2 On November 28, 1995, the Army sent a letter to Ms. Drach that addressed only her request for LQA. The Army denied her request for LQA because she was recruited from Portugal. The Army said that the rules concerning recruiting employees from outside the United States were consistent and well established. The Army's November 28, 1995 letter did not mention TLA. On January 22, 1996, Ms. Drach asked the General Accounting Office (GAO) to review the Army's decision concerning her request ----------- FOOTNOTE BEGINS --------- [foot #] 1 We mention LQA only to the extent necessary to understand Ms. Drach's claim for a Temporary Lodging Allowance. [foot #] 2 Ms. Drach's travel orders did not actually mention TLA. The orders mentioned temporary quarters subsistence expenses, which are paid for employees transferred to locations within the United States. 5 U.S.C. 5724a (1994). TLA is part of a temporary quarters subsistence allowance (TQSA), which is paid to employees transferred to a foreign area. 5 U.S.C. 5923(a)(1) (1994). ----------- FOOTNOTE ENDS ----------- for LQA and TLA. GAO informed Ms. Drach that it needed a written report from the Army before it could review Ms. Drach's claim. On February 27, 1996, Ms. Drach sent her claim for LQA and TLA to the Army so that the Army could send a report to GAO. In preparing its response to Ms. Drach's February 27, 1996 request, the Army noted that its prior letters had not addressed "TLA (TQSA) since Ms. Drach did not meet basic eligibility for allowances." The Army said that Ms. Drach was not paid TQSA because she did not meet the eligibility requirements set out in the applicable regulations for quarters or a quarters allowance. On August 26, 1996, the Army told Ms. Drach that she was not eligible for LQA because she was a locally hired employee. The Army did not mention Ms. Drach's request for TLA. In a letter dated September 3, 1996, to GAO, Ms. Drach asked to receive TLA and LQA, and to be reimbursed for certain other expenses that the Army told Ms. Drach are reimbursable only if an employee is receiving LQA. GAO's authority to consider claims such as those of Ms. Drach was divided among several different agencies in mid-1996. On October 23, 1997, the Office of Personnel Management (OPM) decided that Ms. Drach was not entitled to receive LQA because she was not recruited in the United States. OPM referred Ms. Drach's claim for TLA to us.[foot #] 3 Discussion The Overseas Differentials and Allowances Act says that when the Government does not provide free quarters for an employee in a foreign area, the Government may grant the employee several types of quarters allowances. 5 U.S.C. 5923 (1994). Regulations implementing this statute explain that the two types of quarters allowances authorized for civilian employees stationed in foreign areas are TLA and LQA. Under certain conditions, employees are eligible for TLA and LQA if they were recruited outside the United States for duty in a foreign area. If, as in Ms. Drach's case, those conditions are not met, employees are eligible for TLA and LQA only if they were ----------- FOOTNOTE BEGINS --------- [foot #] 3 The authority to settle claims for expenses incurred by federal civilian employees for official travel and transportation, and relocation expenses incident to transfers, was assigned to the Administrator of General Services, and the Administrator has delegated this authority to this Board. The authority to settle claims involving federal civilian employees' compensation and leave was assigned to OPM. 31 U.S.C.A. 3702(a) (West Supp. 1997). OPM has determined that TLA is more like a relocation expense than compensation, and consequently will not consider a claim for TLA. The Chairman of this Board has agreed to accept this determination so that claims such as Ms. Drach's may be resolved. ----------- FOOTNOTE ENDS ----------- recruited in the United States for duty in a foreign area. Department of State Standardized Regulations 031.11, 031.12; Department of Defense 1400.25-M, Civilian Personnel Manual 592, subch. 2-2. On June 27, 1995, the Army issued a memorandum concerning USAREUR Regulation 690-592, Quarters Allowances. The memorandum explained that employees who were "recruited from the United States" were eligible for a living quarters allowance. "Recruited from the United States" meant that the employee resided permanently in the United States, the Commonwealths of Puerto Rico or the Northern Mariana Islands, the former Canal Zone or a possession of the United States from the time the employee applied for a position until the date the employee accepted a formal employment offer. In preparing its response to Ms. Drach's February 27, 1996 request for review, and in preparing its response to the claim that Ms. Drach submitted to GAO, the Army said that its June 27, 1995 memorandum simply reduced to writing what had long been the Army's established practice. Ms. Drach argues that she is eligible for TLA because she was eligible for LQA. If Ms. Drach's eligibility for TLA hinges upon her eligibility for LQA, then her argument cannot succeed because OPM decided that she is not eligible for LQA. Ms. Drach says that she should be paid TLA because the job announcement said, without qualification, "Relocation services/ expenses will be paid." Payments from the federal treasury may be made only as authorized by law, regardless of incorrect or incomplete advice provided by a Government employee. If Ms. Drach is not legally authorized to receive TLA, the statement contained in the job announcement does not entitle her to TLA. Office of Personnel Management v. Richmond, 496 U.S. 414 (1990). Ms. Drach says that she is entitled to an exception to the regulations that control the payment of TLA. The regulations provide that the Army, not this Board, may waive certain TLA eligibility requirements when unusual circumstances exist. Department of Defense 1400.25-M, Civilian Personnel Manual 592, subch. 2-2. As far as we can tell, Ms. Drach never asked the Army to waive the TLA eligibility requirements. If Ms. Drach wants us to consider whether she is entitled to an exception to the regulations, she must first present her claim for an exception to the Army, and the Army must make a decision as to whether an exception is warranted. If Ms. Drach is not satisfied with the Army's decision, she can then present her claim to us for review. Ms. Drach's primary argument is that she was recruited in the United States and is therefore eligible for TLA. Neither the Department of State regulations nor the Department of Defense regulations defines "recruited." Ms. Drach asserts that she was recruited when she was in the United States, because that is where she was when the Army formally offered her the position in Italy, she accepted the Army's offer, and the Office of the Judge Advocate General approved her selection. Although the Army could have reasonably interpreted "recruited" as encompassing only the time after it extended a formal offer, the Army interpreted "recruited" as beginning when an employee applied for a position. The Army states that this was its established interpretation of "recruited" and Ms. Drach presents no facts to counter the Army's statements. Like OPM, we cannot say that the Army's interpretation of "recruited" is arbitrary, capricious, unreasonable, or erroneous. According to the Army's interpretation of the term "recruited," Ms. Drach was not recruited in the United States because she was not in the United States when she applied for her position. The controlling regulations provide that, except when conditions exist that are not presented by Ms. Drach's claim, employees are eligible for TLA only if they were recruited in the United States for duty in a foreign area. Therefore, Ms. Drach is not entitled to TLA. The claim is denied. ______________________________ MARTHA H. DeGRAFF Board Judge