November 5, 2012 Legal Update
November 5, 2012 Legal Update- Revision of the DoD Instruction on Overseas Allowances and Shipment of 100 Pounds of Household Goods in Conjunction with RAT travel
To: FEA Leaders and Educators (For Immediate Distribution)
From: H.T. Nguyen, FEA Executive Director/ General Counsel
Re: November 5, 2012 Legal Update- Revision of the DoD Instruction on Overseas Allowances and Shipment of 100 lbs. of Household Goods in Conjunction with RAT
As I mentioned in my October 18, 2012 Legal Update, FEA had been informed by DoDEA that we would soon be receiving their positions regarding 1) the revision of DoD Instruction 1400.25, Subchapter 1250 and 2) the full reimbursement for the shipment of 100 pounds of household goods (HHG) in conjunction with RAT travel. This Legal Update provides the background and status of these issues, based on the responses we received from DoDEA. PLEASE NOTE CAREFULLY that the following information and guidance applies ONLY to educators in the FEA bargaining unit.
The Revision of DoD Instruction 1400.25, Subchapter 1250
I. Background of this Issue
In February 2012, DoD issued a revised DoD Instruction (DoDI) 1400.25, Subchapter 1250. FEA learned that the revised DoDI contained the following language concerning personally owned quarters (POQs):
"The annual rent payable for personally owned quarters (POQ) is based on the purchase price or appraised value of the property, converted to U.S. dollars at the exchange rate in effect at the time of purchase. Employees who own, or are purchasing a POQ, may not be paid quarters allowances under a rental contract if the POQ is within the employee's local area of work." (emphasis added)
The first line above is the general rule concerning payment of Living Quarters Allowance (LQA) to those who own POQs, which has been in effect for many years. However, the second line (underlined above) is completely new language.
II. What did FEA do about this Issue?
Following the issuance of the revised DoDI 1400.25, FEA sent an official request to DoDEA requesting their position on whether or not they intended to implement the above-cited language. In that request, FEA stated our position and legal arguments, namely that DoDEA cannot implement this new language in our bargaining unit, as this change violates the decisions of Arbitrators Seidenberg, Jascourt and Feldman, as well as the Negotiated Agreement.
DoDEA headquarters officials recently confirmed to FEA that DoDEA agrees that the changes to DoDI 1400.25, Subchapter 1250 will not be implemented in the Association's bargaining unit, as they conflict with the above-cited arbitration decisions and the Negotiated Agreement.
As a general matter, POQ owners are only entitled to receive LQA for 10 years. At the end of that 10 year period, they are entitled only to the cost of utilities for the POQ. This is commonly referred to as the "10 year rule." As a result of the above-mentioned arbitration decisions and the Negotiated Agreement, educators in the FEA bargaining unit have a number of options available to them at the end of that 10-year period. The FEA Legal Office drafted guidance some years ago to summarize the "10 year rule" options.
In light of DoDEA's response that they will continue to abide by and follow the three above-mentioned arbitration decisions and the Negotiated Agreement only in the FEA bargaining unit, FEA has updated the "10 year rule" guidance, with this most recent version dated November 5, 2012.
If you wish to review the FEA's updated "10 year rule" guidance, please use this link.
Full Reimbursement of Shipment of 100 pounds, each way, of HHG with RAT Travel
I. Background of this Issue
Several years ago, FEA learned that some bargaining unit educators, who elected to exercise their option to mail 100 pounds of household goods (HHG), each way, in conjunction with (ICW) their RAT travel, were not being fully reimbursed for the cost of such shipments. In fact, the educators affected were instead only reimbursed for a fraction of their out-of-pocket costs, based on an alleged "constructive cost" of this shipment.
FEA immediately filed an Association Grievance on this matter on behalf of the whole bargaining unit. The relief sought was to obtain full reimbursement with interest for the shipment/mailing of 100 pounds of HHG, each way, ICW RAT, retroactive to school year 2005-2006.
II. FEA Believed it had Resolved the issue in School Year 2011-2012
FEA spent significant time attempting to resolve this Association Grievance. After looking into the matter, the parties found that the problem was the result of the Travel Management Office's (TMO) interpretation of the regulations. While we were able to determine the problem rather readily, the resolution took some time due to personnel turnover at DoDEA headquarters.
FEA President Michael Priser and I had a meeting at DoDEA headquarters in late May 2012 with the DoDEA Director and DoDEA HR Director Lenoir Graham, in which Ms. Graham informed FEA that the problem would be resolved by removing the previous requirement of getting a letter from the TMO to ship these HHG.
At that meeting, FEA reminded Ms. Graham that while this solution would remedy the issue prospectively, the parties still had to resolve the Association Grievance to allow DoDDS educators in the FEA bargaining unit to receive the retroactive full payment for the shipment/mailing of the 100 pounds, each way, of HHG ICW RAT, with interest.
DoDEA Director Marilee Fitzgerald subsequently issued a memorandum, dated June 1, 2012, which stated that DoDDS educators do not need a letter from TMO in order to exercise their right to ship the 100 pounds, each way, of HHG ICW RAT, and that educators could now ship these HHG on your own.
In my June 12 Legal Update, I asked educators to take the following steps when submitting their requests for full reimbursement of the 100 pounds of HHG. First, when you shipped/mailed these HHG, to be sure you retained all of your receipts. Next, when you filed for reimbursement after completing your RAT, to attach these receipts and enter the cost of shipment of the 100 pounds, each way, of HHG on your voucher.
III. Major Problems Ensued
When educators who took RAT travel this summer returned and submitted their vouchers, seeking reimbursement for the shipment of their 100 pounds of HHG, most of them were told by DFAS that the payments were not allowed under the JTR. Some educators were also informed that any payments made for the shipment of the 100 pounds of HHG ICW RAT had been made in error.
IV. What did FEA do?
Once FEA became aware that many educators were not receiving reimbursement for the shipment of their 100 pounds of HHG in conjunction with RAT travel, we immediately contacted DoDEA. DoDEA has contacted DFAS about this problem, and is advising DFAS that educators in the FEA bargaining unit are to be fully reimbursed for the shipment of the 100 pounds of HHG in conjunction with RAT travel.
DoDEA is working with DFAS to determine whether educators must re-submit their travel vouchers or whether DFAS will be able to re-process the rejected HHG claims without any further action by the educator. As soon as our office receives more information about the process, this information will be sent out by another Legal Update.
In the meantime, to preserve our rights, we have filed an Association Grievance regarding this issue on behalf of ALL educators in the FEA Overseas bargaining unit. Based on our conversations with the DoDEA Director and other DoDEA officials, we expect this issue to be resolved without further litigation. We will, of course, litigate if this issue is not resolved in a timely manner.
IMPORTANT NOTICE: This update was issued on November 5, 2012. Any information contained in this update is based on the information and status of these issues as of that date. Please be aware that information contained in this update may have changed, been updated, or may be obsolete. Please visit the FEA website to check for any changes or updates to the information contained above. Thank you.