Board of Contract Appeals
                 General Services Administration
                      Washington, D.C. 20405




                         ________________

                          August 6, 2002
                         ________________


                         GSBCA 15873-TRAV


             In the Matter of FREDERIC S. NEWMAN, JR.


     Frederic S. Newman, Jr., APO Area Pacific, Claimant.

     M. LaPrell Murphy, Deputy Assistant Chief of Staff (Civilian Personnel),
Headquarters, Eighth United States Army, Department of the Army, APO Area Pacific,
appearing for Department of Defense.

DeGRAFF, Board Judge.

     An agency does not have to authorize educational travel unless an employee shows
that the employee's dependent will be returning to school.  An agency does not have to
approve travel that occurs without authorization.

                            Background

     Frederic S. Newman, Jr. is a civilian employee of the Department of Defense (DoD)
in Korea.  On October 1, 2001, Mr. Newman asked DoD to authorize his daughter to travel,
at government expense, from Korea to the United States where she would attend college. 
Although a senior management official in Mr. Newman's office signed a travel authorization,
the office that held the authority to issue a travel authorization was the Civilian Personnel
Advisory Center (CPAC).  On October 15, the CPAC told Mr. Newman that in order to
obtain a travel authorization, he needed to provide a certification from his daughter's college
stating that she was going to be a student there during the upcoming semester.  The CPAC
also suggested that if Mr. Newman had any questions, he should stop by the CPAC office and
talk to someone.  When Mr. Newman had difficulty obtaining such a certification, he
purchased his daughter's airline ticket with his own funds ($437.90).  His daughter returned
to the United States on December 29, 2001, and enrolled in college for the semester that
began in January 2002.

     In February 2002, Mr. Newman asked DoD to reimburse him for the cost of his
daughter's airline ticket.  Mr. Newman said that his daughter's college's policy was not to
provide a certification stating that someone was a student there until after the student began
attending classes.  DoD suggested that Mr. Newman provide some evidence to show that the
school would not have provided a certification in advance of his daughter's travel, but he did
not do so.  Mr. Newman also said that before his daughter traveled, he did not have any
documentation from the school to show that she was going to return for the following
semester.  The CPAC said that although other employees have had difficulty obtaining a
certification of a student's status before the student actually returns to school, this was the
first case in which an employee was unable to produce some sort of evidence from the school
to show that the student would be returning there.  

     DoD decided to deny Mr. Newman's request because his daughter traveled without
an authorization being issued, and DoD did not find that any urgent or unusual circumstance
prevented the authorization from being issued before the travel occurred.  DoD concluded
that the circumstance that prevented the authorization from being issued was Mr. Newman's
inability to provide evidence to show that his daughter would be returning to college in the
United States.  Mr. Newman asks us to review DoD's decision.

                            Discussion

     Before we turn to the merits, we must first determine whether settling a claim for
educational travel lies within the scope of our authority.  We are authorized to settle claims
"involving expenses incurred by Federal civilian employees for official travel and
transportation, and for relocation expenses incident to transfers of official duty station." 
31 U.S.C.  3702(a)(3)(2000).  We routinely settle claims involving expenses incurred for
travel, transportation, and relocation expenses authorized by chapter 57 of title 5, United
States Code.  The payment of educational travel, however, is addressed in chapter 59 of title
5, which authorizes the payment of allowances.

     We have concluded that some claims for allowances authorized by chapter 59 are
claims that involve expenses incurred by employees for relocation expenses, while other
claims for allowances do not involve such expenses.  For example, we have resolved claims
for temporary quarters subsistence allowances, including temporary lodging allowances,
because the temporary quarters subsistence allowance is more like a relocation expense than
an allowance.  Michael J. Krell, GSBCA 13710-RELO, 98-2 BCA   30,050;  Susan Drach,
GSBCA 13863-RELO, 98-1 BCA   29,442 (1997).  We have decided that a claim for a living
quarters allowance is not a claim involving an expense of travel, transportation, or relocation,
because a living quarters allowance accrues to an employee after he has traveled to a place
and relocated there.  Such a payment is more like compensation than a relocation expense. 
Donald E. Guenther, GSBCA 14032-RELO, 97-1 BCA   28,795. 

     In addition to the quarters allowances discussed above, chapter 59 also provides that
an employee in a foreign area may receive cost of living allowances.  5 U.S.C.  5924 (2000). 
One type of cost of living allowance is an education allowance, which is paid in order for an
employee to obtain educational services for a dependent as would ordinarily be provided for
free at an American public school.  5 U.S.C.  5924(4)(A).  [Foot # 1 ]  A second type of cost
of living allowance is the payment of travel costs so that a dependent can take one trip per
year to and from a school in the United States.  5 U.S.C.  5924(4)(B).  Both the education
allowance and the payment for educational travel are meant to assist an employee with the
extraordinary and necessary expenses, not otherwise compensated for and incurred because
of the employee's service in a foreign area, of providing an adequate education for the
employee's dependents.  5 U.S.C.  5924(4).  

     
****************** Footnote Begin **********
[Foot # 1 ]         Similar assistance is authorized by 20 U.S.C.  926 (2000), for military
members and civilian employees of the Department of Defense when an overseas Department
of Defense dependents school is not available.  The regulations implementing this provision
are found at 32 CFR pt. 71 (2001).  
****************** Footnote End ************

In the early 1980s, the General Accounting Office (GAO) had the authority to settle claims
involving travel expenses and it also had the authority to waive overpayments of pay and
allowances.  It did not yet, however, have the authority to waive overpayments of travel and
transportation expenses.  B-209292 (Feb. 1, 1983); B-202346 (Sept. 28, 1981).  When GAO
was asked to waive an overpayment for educational travel, it decided that it could not do so
because even though the statutory authorization for educational travel falls under the heading
of cost of living allowances, the amounts paid were actually for travel and transportation
expenses.  The Comptroller General explained:

     While section 5924 is generally entitled "Cost-of-living allowances," the travel
     expenses authorized by subsection 5924(4)(B) for dependents attending
     college are in addition to the educational allowance authorized by subsection
     5924(4)(A).  Prior to enactment of the Overseas Differentials and Allowances
     Act, Foreign Service employees had been authorized distinct entitlement to an
     educational allowance under 22 U.S.C.  1131(2)(iv) (1958) and educational
     travel expenses under 22 U.S.C.  1136(9) (1958).  As explained in S. Rept. 
     No. 1647 [86th Cong., 2d. Sess. (1960)], Section 221 "consolidated" the travel
     payment authority and extended it to nonforeign-affairs agencies.  Its
     consolidation under 5 U.S.C. 5924(4) with the education allowance authority
     does not change the character of the travel expense payment authorized.  The
     payment in question is an erroneous payment of travel and transportation
     expenses and, therefore, it is excluded from consideration for waiver under
     5 U.S.C.  5584.

B-209292 at 2.  

     After examining the history of the statute and GAO's decisions, we conclude that we
have the authority to settle claims for educational travel.  Although the payment for
educational travel is authorized in chapter 59 of title 5, which provides for the payment of
allowances, a claim for educational travel involves expenses incurred by an employee for
official travel and transportation of the employee's dependents.  As such, the claim falls
within our authority to settle.  

     Turning to the merits, we note that the authorizing statute does not require an agency
to pay for educational travel.  The statute leaves it to the discretion of the agency whether to
authorize educational travel when it provides that an agency "may" pay for such travel. 
5 U.S.C.  5924.  The statute is implemented by the Department of State Standardized
Regulations (DSSR), which also provide that an agency "may" authorize payment or
reimbursement to the employee for educational travel expenses.  DSSR  283.  The issue
here, then, is whether DoD abused its discretion either when it did not authorize educational
travel for Mr. Newman's daughter before she traveled to the United States, or when it did not
approve her travel after the fact.  [Foot # 2 ]  

     
****************** Footnote Begin **********
[Foot # 2 ]         Authorizations are given in advance of an event, while approvals are
given after the fact.  Samuel G. Baker, GSBCA 15408-RELO, 01-1 BCA   31,276, at
154,468-89; J. David Blanchet, B-246270 (May 19, 1992).  
****************** Footnote End ************

DoD did not abuse its discretion when it decided not to authorize educational travel before
Mr. Newman's daughter returned to the United States.  The purpose of the benefit afforded
by the statute is to provide for the travel of a dependent who is attending school in the United
States.  Before DoD issues a travel authorization for educational travel, it is understandable
that DoD wants to see some evidence that a dependent will actually be enrolled in school. 
Before Mr. Newman's daughter traveled, Mr. Newman did not provide DoD with anything
to show that his daughter was returning to the United States to attend school.  DoD's refusal
to issue a travel authorization in such circumstances was a responsible exercise of its
discretion.

     In some circumstances, an agency can approve travel after it occurs.  The DSSR
provides that educational travel shall be paid or reimbursed in accordance with the Federal
Travel Regulation (FTR) and the implementing regulations of the responsible Government
agency.  DSSR   285.2.  According to the FTR, if it is not practicable or possible to obtain
a travel authorization before travel occurs, the agency may approve the reimbursement of
travel expenses after the travel is completed.  41 CFR 301-2.1 (2001).  The implementing
regulations that apply to Mr. Newman as a civilian employee of DoD are the Joint Travel
Regulations (JTR), which provide that travel orders should be issued before travel begins
unless an urgent or unusual situation prevents the orders from being issued.  JTR C3050
(Dec. 1, 1999).  The JTR allow for a confirming travel authorization to be issued after travel
is performed if the travel was performed pursuant to proper oral, letter, or message authority,
and if the official who directed the travel justifies the delay in issuing a travel authorization
and ensures that confirming travel orders are issued as promptly as possible.  JTR C3051.  

     DoD did not abuse its discretion when it decided not to approve Mr. Newman's
daughter's travel after it occurred.  No urgent situation prevented DoD from issuing a travel
authorization before his daughter traveled.  Mr. Newman could have obtained a travel
authorization if he had provided a certification from her school stating that she was going to
be a student there during the upcoming semester.  If the school had a policy of not providing
such a certification until after a student began attending classes, Mr. Newman had more than
two months before his daughter traveled to discuss the situation with the CPAC, to establish
that the school would not provide a certification in advance of his daughter's travel, and to
provide CPAC with some sort of evidence from the school to show that his daughter would
be returning there.  DoD reasonably concluded that a confirming travel authorization does
not have to be issued because there was no urgent situation that caused Mr. Newman's
daughter to travel without an authorization, and the CPAC did not provide Mr. Newman with
authority for his daughter's travel before she returned to the United States.

     The claim is denied.




                                   __________________________________
                                   MARTHA H. DeGRAFF
                                   Board Judge