Board of Contract Appeals
                    General Services Administration
                         Washington, D.C. 20405
 
 
 
                                                 
 
                              May 10, 1999
                                                 
 
 
                            GSBCA 14888-RELO
 
 
                 In the Matter of THOMAS R. MONTGOMERY
 
 
        Thomas R. Montgomery, Crane, IL, Claimant.
 
        Ray  E. York, Director  for Systems and  Procedures, Finance
   Directorate,   Defense   Finance   and   Accounting   Service   -
   Indianapolis Center, Indianapolis,  IN, appearing for  Department
   of Defense.
 
   DANIELS, Board Judge (Chairman).
 
        When a transferred employee's family  remains temporarily in
   its former residence after its belongings  have been removed from
   the house, may  that dwelling be considered  "temporary quarters"
   for  the purpose of entitlement to temporary quarters subsistence
   expenses  (TQSE)?   The  question is  posed in  a claim  filed by
   Thomas R. Montgomery,  who was reassigned in  September 1998 from
   the Savanna  Army  Depot Activity  in Savanna,  Illinois, to  the
   Naval Surface Warfare Center in Crane, Indiana.  
 
        Mr. Montgomery reported  to his new duty station  at the end
   of October.  His wife and three children remained in Illinois for
   two weeks.  On November 5, their household goods were packed in a
   moving van for delivery to Indiana.  For the next four days, they
   stayed in the  house, without furniture (they slept  on the floor
   in  sleeping bags)  or any  means of  preparing or  serving food.
   Then  they drove  to the  new  station and  moved into  permanent
   quarters.     The  Department   of  Defense   (DoD)  denied   Mr.
   Montgomery's  claim  for  reimbursement  of  the  cost  of  meals
   consumed by his  family during this period.   The agency believed
   that  "[t]ime  spent in  your old  residence is  not reimbursable
   regardless of whether or not  you have furnishings or a means  to
   prepare food."
 
        DoD's determination  was in  error in  two regards.   First,
   both  the   Federal  Travel   Regulation  (FTR),   which  defines
   relocation benefits  for Government employees  generally, and the
   Joint Travel  Regulations (JTR),  which supplement  the FTR  with
   application to DoD civilian employees, no longer make vacating an
   old residence a  condition of eligibility for TQSE.   Patricia A.
   Tobin,  GSBCA 14483-RELO,  98-1 BCA    29,663  (comparing 41  CFR
   302-5.1  (1997)  and  JTR  C13100  (Mar. 1,  1998)  with  41  CFR
   302-5.2(c) (1996) and  JTR C13000 (Mar. 1, 1996)).  Consequently,
   once an employee's  residence becomes temporary (for  example, by
   being sold and rented back until the time of a move), eligibility
   for TQSE  is established.  George S.  Chaconas, GSBCA 14278-RELO,
   98-1 BCA   29,728.
 
 
        Second,  even  under   the  old  rules,  which   forbade  an
   employee's family  from receiving TQSE  until it had  vacated its
   old home, both the Comptroller General and this Board held that a
   residence  was "constructively  vacated" when  it  was no  longer
   suitable for  permanent residence.   The  common example  of this
   situation was that household goods had been packed for moving and
   thus  unavailable  to  the  family.    Gordon  D.  Giffin,  GSBCA
   14425-RELO,  98-2 BCA    30,100 (citing  John  L. Reid,  B-227193
   (Oct. 16, 1987); Beverly L. Driver, B-181032 (Aug. 19, 1974)).
 
        The version  of  the  JTR  in effect  at  the  time  of  Mr.
   Montgomery's  transfer  defined  "temporary  quarters,"  for  the
   purpose  of eligibility  for  TQSE,  as  "private  or  commercial
   lodgings  occupied temporarily after  a PCS [permanent  change of
   station]  is  authorized."    C13100-A  (Mar.  1,   1998).    The
   Montgomerys' old residence  met all elements of  this requirement
   -- it was clearly private lodgings; once the household goods were
   packed  and unavailable  to  the family,  it  was being  occupied
   temporarily;  and  the  temporary   occupancy    occurred   after
   September  1998,  when  the  PCS  was  authorized.    Unless  DoD
   determines that the  amounts claimed by Mr. Montgomery  for meals
   consumed by his  wife and children during the  four-day period in
   question were unreasonable,  JTR C13125-A.3.b (Apr. 1,  1998), it
   should reimburse the employee for those sums.
 
                                 _________________________
                                 STEPHEN M. DANIELS 
                                 Board Judge