LAW REVIEW 1059

Reimbursement for Lodging Expenses while on Active Duty

By Captain Samuel F. Wright, JAGC, USN (Ret.)

In Re LTC Brent A. Carey, USAR, Claims Case No. 2009-CL-080602.2, Defense Office of Hearings & Appeals, July 7, 2010.

The Service Members Law Center has received several complaints about the way that the Army, in particular, reimburses Reserve Component members for lodging expenses incurred in connection with active duty.  This recent decision of the Defense Office of Hearings & Appeals (DOHA) will be useful to RC personnel with this sort of issue.

Lieutenant Colonel Brent A. Carey, USAR, a life member of ROA, came from his home to serve on active duty at the Pentagon for exactly one year, from April 28, 2008 to April 27, 2009.  His orders authorized 55 percent per diem of the locality rate during the active duty period—i.e., 55 percent of the maximum for lodging plus meals, incidentals, and expenses.  His orders stated that if lodging was not available or if the member was not assigned to an installation, the member should call “Lodging Success” (an Army office for temporary housing) to obtain housing or a statement of non-availability (SNA) to reside on the economy.

LTC Carey claimed 147 days of lodging from December 1, 2008 to April 27, 2009, at a rate of $114.95 per day (55 percent of the $209 per day maximum rate allowed for the Pentagon locality) for a total of $16,897.65.  The U.S. Army Installation Management Command (IMCOM) initially denied these lodging costs.  By e-mail dated June 25, 2009, IMCOM informed LTC Carey that he was not eligible for the lodging per diem because contract quarters were available but not utilized and that LTC Carey needed to submit an SNA and a lease for the quarters in which he was residing. 

In correspondence dated June 29, 2009, LTC Carey appealed to the Defense Finance & Accounting Service (DFAS), which promptly denied his appeal on July 6, 2009.  LTC Carey appealed to DOHA, which ruled against him on September 16, 2009.  LTC Carey requested reconsideration, and DOHA issued a new favorable decision on July 7, 2010.

LTC Carey made the following arguments, and on reconsideration DOHA largely accepted them.  First, LTC Carey argued that the All Army Activities (ALARACT) Message dated March 4, 2008 (“Army message”) was invalid because it violated the Joint Federal Travel Regulations (JFTR).  The JFTR establishes uniform rules for all federal agencies, and no single agency is permitted to establish rules that are inconsistent with the JFTR.

In its decision on reconsideration, DOHA wrote:  “The member [Carey] makes the additional argument that the JFTR defines ‘U.S. Installation’ … as ‘A base, post, yard, camp, or station:  1.  Under the local command of a uniformed service, 2. With permanent or semi-permanent-type troop shelters and a Government mess, and 3. Where there are U.S. Government operations.  Note:  This term includes only that area actually occupied by those operations (plus the minimum surrounding area necessary for close-in security) and excludes contracted hotels not contained on or operated by the installation.’  (Change 264, 12/1/08) (emphasis in original).  The member contends that the Pentagon does not meet the requirements to be considered a U.S. installation, and therefore the requirement to check for availability of government quarters does not apply.  Further, he notes that contract lodging such as Army Lodging Success would not meet the definition, and the note to the definition specifically excludes arrangements such as the Army Lodging Success Program.  He believes the government is therefore legally bound to pay his claim for lodging expenses.”

“The member alleges a second violation of the JFTR.  He argues that 1 JFTR U1045-A authorizes reimbursement for quarters of a member’s own choice even when government quarters are available.  As noted above, the provision allows for ‘when adequate Government quarters are available … and the member uses other lodgings as a personal choice, lodging reimbursement is limited to the Government quarters cost of the U.S. Installation to which assigned TDY.’  The member argues that even if contract lodging did qualify as Government quarters, which he contends it did not, the government is still legally bound to reimburse him to the limit of the Government quarters.”

“Finally, the member argues that the demand for a copy of his lease agreement constitutes a third violation of the JFTR, because the JFTR specifies that when a reduced rate of per diem is declared, reimbursement is a flat rate and receipts are not required to substantiate such claims.”

“The request for reconsideration is granted, and the Appeal Decision of September 16, 2009, is reversed.  DOHA has never received an accurate accounting of this member’s total reimbursed expenditures.  We remand this matter to DFAS to calculate and pay lodging owed under the 55 percent flat rate from December 1, 2008, through April 28, 2009, minus any previous reimbursements up to 55 percent of the maximum per diem rate.  In accordance with Department of Defense Instruction 1340.21, Par. E7.15, this is the final administrative action of the Department of Defense concerning the member’s claim.”

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