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Army Employee Entitled to TDY Expenses Where Agency Incorrectly Designated Her PDS

Written by FEDmanager on . Posted in Case Law Update

A U.S. Army civilian employee was entitled to temporary duty (TDY) expenses, even though she was performing work at her designated permanent duty station (PDS), because her PDS was assigned for "administrative convenience only," the U.S. Civilian Board of Contract Appeals (CBCA) ruled recently.

In this case, the claimant initially arrived at Fort Leavenworth, Kansas, as a contractor employee. She was a student in the Department of Army's (DOA) Human Terrain System (HTS) program. As a student, the contractor paid living and travel expenses. Upon completing her training, the claimant was immediately sent to the Combat Readiness Center and deployed to Afghanistan. During the fifteenth month of her twenty-two month deployment, HTS hired the claimant as a DOA civilian employee. It was at this point, while the claimant was still in Afghanistan, that the DOA designated Fort Leavenworth, Kansas, as her permanent duty station (PDS). After redeploying to Afghanistan, the claimant returned to her home of record in Texas to expend accumulated leave and compensatory time before her return to Afghanistan.

While on leave, HTS requested that the claimant report to Fort Leavenworth for approximately two weeks to work on updating program curricula. HTS officials informed her that she would be entitled to TDY expenses during this time. After completing her assignment, the DOA denied her request for TDY expenses because the Army had designated Fort Leavenworth, Kansas, as her PDS. This designation was made despite the fact that the claimant did not live or routinely work at Fort Leavenworth, Kansas. In fact, she did not even reside in the vicinity of Fort Leavenworth. Her home is in Texas. On average, the CBCA stated, the claimant spends less than four weeks a year at Fort Leavenworth. Under the HTS program, the claimant was on a perpetual deployment cycle. When she was hired, it was for the sole purpose of deploying to Afghanistan. Except for periods of leave and compensatory time, it was HTS's expectation that the claimant either would be deployed to Afghanistan or separated from the HTS program. The DOA has indicated that HTS designated Fort Leavenworth, Kansas, as her PDS for administrative convenience only.

In its decision, the CBCA explained that the DOA denied the claimant's TDY claim on the grounds that she was performing work at her PDS when she worked on updating the curricula at Fort Leavenworth. In denying the claimant's TDY expenses, the DOA argued that it has wide discretion in determining just where an employee's PDS is located, and that one cannot get TDY expenses at one's PDS.

The CBCA, however, concluded that the DOA's reasoning lacks merit. The Joint Travel Regulations (JTR), which apply to civilian employees of the Department of Defense, state: "An employee's PDS is where an employee spends, and is expected to spend, the most time." Further, the CBCA explained, prior case law says that whether a duty station is temporary or permanent is a question of fact and is determined by where an employee expects and is expected to spend the greater part of his time. The "paper trail" created by the agency and the employee was less important than the facts establishing where the employee was expected to spend the greater part of his time performing his duties.

Under the facts presented in this case, the CBCA concluded that Fort Leavenworth is not the claimant's PDS. Prior to the assignment at issue, the claimant spent little or no time at Fort Leavenworth as a DOA employee, and was not expected to spend any significant time there. Accordingly, the CBCA concluded that the claimant's assignment to Fort Leavenworth to update curricula was a temporary assignment and that she thus is entitled to TDY travel expenses.

The case is In the Matter of Audrey Roberts, U.S. Civilian Board of Contract Appeals, CBCA 2230-TRAV, June 21, 2011.

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