B-150742, MAR. 4, 1963

B-150742, MAR. 4, 1963

TO MRS. EVA L. SPENCER:

YOUR LETTER OF JANUARY 23, 1963, WITH ENCLOSURES, REQUESTS RECONSIDERATION OF THE DISALLOWANCE OF OFFICE SETTLEMENT DATED NOVEMBER 28, 1962, OF YOUR CLAIM FOR QUARTERS ALLOWANCE FOR THE PERIOD AUGUST 1, 1960 TO MAY 11, 1961, AT THE MAXIMUM RATE OF $1,100 PER ANNUM AND ADJUSTMENT OF QUARTERS ALLOWANCE FROM $1,000 PER ANNUM TO $1,100 PER ANNUM FROM MAY 11 TO AUGUST 1, 1961.

THE RECORD SHOWS YOU TRAVELED TO LEGHORN, ITALY, AS A DEPENDENT OF YOUR HUSBAND, AND THEREAFTER BECAME EMPLOYED BY THE DEPARTMENT OF THE ARMY AT LEGHORN. ON JULY 31, 1960, YOUR HUSBAND WAS TRANSFERRED TO ANKARA, TURKEY, AND SUBSEQUENTLY WAS TRANSFERRED TO IZMIR, TURKEY, ON FEBRUARY 14, 1961. YOU AND YOUR CHILDREN REMAINED IN LEGHORN.

ON NOVEMBER 28, 1960, YOU REQUESTED A QUARTERS ALLOWANCE AT THE FAMILY RATE WHICH REQUEST WAS DENIED ON THE GROUNDS THAT THE CONDITIONS OF YOUR APPOINTMENT HAD NOT CHANGED. YOUR ELIGIBILITY FOR QUARTERS ALLOWANCE AS AN EMPLOYEE WHO WAS TRANSPORTED TO A COUNTRY AS A DEPENDENT AND WHO REMAINED IN THE COUNTRY AFTER THE DEPARTURE OF YOUR SPONSOR, DEPENDED, IN FACT AND LAW, UPON A DETERMINATION BY LOCAL OFFICIALS AS TO WHETHER YOUR PRIMARY REASON FOR REMAINING IN LEGHORN WAS CONTINUED EMPLOYMENT WITH THE GOVERNMENT. SINCE THE DETERMINATION REFERRED TO REQUIRES THE EXERCISE OF JUDGMENT AND DISCRETION BY THE AUTHORIZED OFFICER, IT MAY BE MODIFIED BY US ONLY IF IT IS FOUND TO BE ARBITRARY OR CAPRICIOUS ON THE EVIDENCE. THE BURDEN OF ESTABLISHING THAT THE OFFICIAL ACTION WAS ARBITRARY OR CAPRICIOUS FALLS UPON YOU.

THE WHOLE PERIOD COVERED BY YOUR CLAIM AS DISCLOSED BY THE RECORD BEFORE US ROUGHLY MAY BE DIVIDED INTO THREE PARTS. THE FIRST BEGAN WITH THE DEPARTURE OF YOUR HUSBAND FOR ANKARA AND ENDED NOVEMBER 28, 1960, WHEN YOU APPLIED FOR A FAMILY QUARTERS ALLOWANCE.

THE TRAVEL ORDERS OF YOUR HUSBAND CONTAINED AUTHORITY FOR YOU AND THE CHILDREN TO TRAVEL AT A LATER DATE. ALSO, THERE IS EVIDENCE THAT A POSITION WAS BEING CONSIDERED FOR YOU IN TURKEY WHICH, HAD IT MATERIALIZED, COULD HAVE BEEN ACCEPTED BY YOU ON A TRANSFER WITHOUT A BREAK IN SERVICE. THESE FACTORS CREATE A DOUBT CONCERNING YOUR REASONS FOR REMAINING IN LEGHORN DURING THE FIRST FOUR MONTHS OF YOUR HUSBAND'S ABSENCE AND WE BELIEVE THAT THE RESPONSIBLE OFFICER WAS WARRANTED IN DENYING THE QUARTERS ALLOWANCE FOR THAT PERIOD.

REGARDING THE PERIOD BEGINNING ABOUT NOVEMBER 28, 1960, YOUR LETTER OF JANUARY 23, 1963, IS THE FIRST EVIDENCE RECEIVED BY US CONCERNING THE CONTENT OF YOUR APPLICATION OF NOVEMBER 28, 1960, FOR A QUARTERS ALLOWANCE. IN THAT REGARD WE HAVE BEFORE US ONLY THE PARAGRAPH QUOTED IN YOUR LETTER OF JANUARY 23, 1963, AND THAT QUOTATION STANDING ALONE WELL MIGHT BE CONSTRUED ONLY AS AN EXPLANATION OF WHY YOU HAD NOT THERETOFORE JOINED YOUR HUSBAND IN TURKEY. IF YOUR APPLICATION OF NOVEMBER 28, 1960, INCLUDES EVIDENCE OF YOUR INTENT TO REMAIN IN LEGHORN, ITS FULL CONTEXT SHOULD BE FURNISHED US. FURTHER, THE OFFICIAL REASON FOR DENYING YOUR REQUEST OF NOVEMBER 28, 1960, FOR A QUARTERS ALLOWANCE IS NOT A MATTER OF RECORD BEFORE US. HOWEVER, FROM THE CORRESPONDENCE OF THE CHIEF, PERSONNEL BRANCH, DATED MARCH 24, 1961, AND OCTOBER 11, 1962, IT DOES NOT APPEAR THAT THE DENIAL OF YOUR FIRST REQUEST FOR QUARTERS ALLOWANCE WAS BASED UPON THE QUESTION OF WHETHER YOUR PRIMARY REASON FOR REMAINING IN LEGHORN WAS FOR THE PURPOSE OF CONTINUED EMPLOYMENT. THEREFORE, IF YOUR REQUEST WAS FORMALLY DENIED, A COPY OF THAT ACTION SHOULD BE FURNISHED. OTHERWISE, AN OFFICIALLY CORROBORATED STATEMENT OF THE REASONS FOR THE DENIAL SHOULD BE SUBMITTED. THE OFFICIAL REASON, GIVEN AFTER THE FACT, IS THAT THERE IS NO EVIDENCE THAT YOU DID NOT INTEND TO JOIN YOUR HUSBAND AFTER HIS TRANSFER FROM ANKARA TO IZMIR, TURKEY, WHICH TRANSFER TOOK PLACE ON FEBRUARY 14, 1961. IF YOU HAVE EVIDENCE SUSCEPTIBLE OF CORROBORATION OF COLLATERAL FACTS WHICH WILL ESTABLISH A CONTRARY INTENT ON YOUR PART DURING THE PERIOD NOVEMBER 28, 1960, THROUGH FEBRUARY 14, 1961, THAT, TOO, SHOULD BE FURNISHED TO US, TOGETHER WITH THE CORROBORATING MATERIAL. THE RECORD BEFORE US WE CANNOT SAY THAT THE RESPONSIBLE OFFICER'S ACTION IN DENYING A QUARTERS ALLOWANCE DURING THAT PERIOD WAS ARBITRARY OR CAPRICIOUS.

CONCERNING THE PERIOD BEGINNING ON OR ABOUT FEBRUARY 14, 1961, AND ENDING THE GRANT OF YOUR ALLOWANCE EFFECTIVE MAY 7, 1961, NO SPECIFIC OFFICIAL REASON IS ASSIGNED FOR DENYING AN EARLIER ALLOWANCE OF THE GRANT. WHILE, AS YOU SAY, YOUR RELATIONS WITH YOUR HUSBAND RELIED ON IN PART BY THE DETERMINING OFFICER, AND CONDITIONS CONCERNING THE WELFARE AND EDUCATION OF YOUR CHILDREN ARE PRIVATE AFFAIRS, STILL IT IS APPARENT THAT THEY WOULD HAVE AN IMPORTANT BEARING ON THE QUESTION OF WHETHER YOUR PRIMARY REASON FOR CONTINUING TO REMAIN IN LEGHORN WAS EMPLOYMENT. THEREFORE, IF YOU CAN FURNISH EVIDENCE, OTHER THAN SELF SERVING STATEMENTS, THAT YOU DECIDED TO STAY IN LEGHORN FOR PURPOSES OF EMPLOYMENT AT THE TIME OF YOUR HUSBAND'S TRANSFER TO IZMIR, SUCH EVIDENCE WILL BE CONSIDERED.

ON THE PRESENT RECORD WE HAVE NO RECOURSE OTHER THAN TO SUSTAIN OFFICE SETTLEMENT OF NOVEMBER 28, 1962.