B-194893, MAY 20, 1980

B-194893, MAY 20, 1980

DIGEST: 1. EMPLOYEE RECRUITED OVERSEAS IS NOT ENTITLED TO LIVING QUARTERS ALLOWANCE. HE DID NOT QUALIFY FOR ALLOWANCE UNDER SECTION 031 OF STANDARDIZED REGULATIONS PROMULGATED BY DEPARTMENT OF STATE. ALSO, MATTER OF WAIVER OF REQUIREMENTS OF REGULATIONS BECAUSE OF UNUSUAL CIRCUMSTANCES IS FOR CONSIDERATION BY HEAD OF EMPLOYEE'S AGENCY, NOT BY GAO, AND REQUEST FOR WAIVER NEED NOT BE SUBMITTED TO HEAD OF AGENCY WHEN AGENCY PERSONNEL OFFICE DETERMINES THAT EMPLOYEE IS INELIGIBLE FOR ALLOWANCE. 2. EMPLOYEE WHO WAS REEMPLOYED AFTER SEPARATION OF MORE THAN 5 YEARS CLAIMS THAT HIS PAY RATE SHOULD HAVE BEEN SET AT STEP 3 OF GS-12, HIS HIGHEST PREVIOUS RATE, INSTEAD OF STEP 1. HE IS NOT ENTITLED TO RETROACTIVE STEP ADJUSTMENT AND BACK PAY SINCE AGENCY EXERCISED ITS DISCRETION UNDER CIVIL SERVICE REGULATIONS TO DENY THE BENEFIT OF THE HIGHEST PREVIOUS RATE TO PERSONS REEMPLOYED AFTER BREAK IN SERVICE OF MORE THAN 5 YEARS.

CHARLES V. LIEBSCHER - QUARTERS ALLOWANCE AND RETROACTIVE SALARY INCREASE - RECONSIDERATION:

THIS IS IN RESPONSE TO AN APPEAL BY MR. CHARLES V. LIEBSCHER, A FORMER EMPLOYEE OF THE U. S. ARMY, OF OUR DECISION B-194893, JANUARY 17, 1980, WHICH SUSTAINED THE DISALLOWANCE BY OUR CLAIMS DIVISION OF HIS CLAIM FOR LIVING QUARTERS. HE ALSO APPEALS THE DISALLOWANCE OF HIS CLAIM FOR "SENIORITY PAY" BY OUR CLAIMS DIVISION. FOR THE REASONS STATED BELOW WE SUSTAIN OUR PRIOR DECISION AND THE DISALLOWANCE OF OUR CLAIMS DIVISION.

THE RECORD SHOWS, IN SUMMARY, THAT MR. LIEBSCHER HAD BEEN EMPLOYED BY THE UNITED STATES GOVERNMENT IN EUROPE FROM MARCH 1967 TO JANUARY 1970. WHEN HE WAS SEPARATED IN A REDUCTION IN FORCE IN 1970 HIS PAY RATE WAS THAT OF A GS-12, STEP 3. HE RETURNED TO THE UNITED STATES AND REMAINED THERE UNTIL JANUARY 1975 WHEN HE TRAVELED, AT HIS OWN EXPENSE, TO EUROPE TO TAKE A POSITION WITH A GOVERNMENT CONTRACTOR. IN OCTOBER 1976 HE TERMINATED HIS EMPLOYMENT WITH THE GOVERNMENT CONTRACTOR AT KAISERSLAUTERN, GERMANY, AND ON NOVEMBER 29, 1976, HE ACCEPTED A GS-12 POSITION WITH THE U. S. ARMY AT FRANKFURT, GERMANY. AT THE TIME OF HIS APPOINTMENT IN 1976 THE ARMY DETERMINED THAT HE WAS INELIGIBLE FOR A LIVING QUARTERS ALLOWANCE AND HE WAS APPOINTED AT STEP 1 OF GS-12.

MR. LIEBSCHER LATER CLAIMED A LIVING QUARTERS ALLOWANCE. HE ALLEGES THAT IT WAS UNFAIR TO DENY HIM THE ALLOWANCE BECAUSE HE WAS A "LOCAL HIRE" AND THAT HIS REQUEST SHOULD HAVE BEEN FORWARDED TO THE SECRETARY OF THE ARMY FOR A WAIVER OF THE REQUIREMENTS OF THE PERTINENT REGULATIONS. REGARDING HIS PAY RATE, MR. LIEBSCHER ALLEGES THAT THE ARMY REGULATION DENYING THE BENEFIT OF THE HIGHEST PREVIOUS RATE RULE TO EMPLOYEES WITH A BREAK IN SERVICE OF MORE THAN 5 YEARS IS IMPROPER SINCE SOME OTHER GOVERNMENT AGENCIES DO NOT HAVE SUCH A REGULATION.

THE CONDITIONS FOR ENTITLEMENT OF EMPLOYEES RECRUITED OVERSEAS TO A LIVING QUARTERS ALLOWANCE IS PROMULGATED BY THE DEPARTMENT OF STATE IN SECTION 031 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS). SECTION 03.12B AND C PROVIDE, RESPECTIVELY, THAT AN EMPLOYEE MAY BE GRANTED AN ALLOWANCE IF HIS PRESENCE IN THE OVERSEAS AREA IS ATTRIBUTABLE TO EMPLOYMENT BY A UNITED STATES FIRM UNDER CONDITIONS WHICH PROVIDE FOR HIS RETURN TRANSPORTATION TO THE UNITED STATES AND THAT AN EMPLOYEE MAY BE GRANTED THE ALLOWANCE IF HE WAS REQUIRED TO MOVE FROM ONE (FOREIGN) AREA TO ANOTHER AS A CONDITION OF EMPLOYMENT. THE REGULATIONS ALSO PROVIDE THAT SECTION 031.12B MAY BE WAIVED BY THE HEAD OF AN AGENCY UPON A DETERMINATION THAT UNUSUAL CIRCUMSTANCES IN A PARTICULAR CASE JUSTIFY SUCH ACTION.

OUR DECISION OF JANUARY 17, 1980, SUSTAINED THE DISALLOWANCE OF THE CLAIM FOR A LIVING QUARTERS ALLOWANCE BECAUSE MR. LIEBSCHER DID NOT MEET THE CONDITIONS OF SECTIONS 03.12B AND C AND THAT THE REGULATIONS DO NOT REQUIRE THE SECRETARY OF THE ARMY TO CONSIDER THE MATTER OF WAIVER IN EACH CASE IN WHICH A LOCALLY HIRED EMPLOYEE FAILS TO MEET THE CONDITIONS OF SECTION 031.12B. THERE IS NO DISPUTE THAT MR. LIEBSCHER DID NOT MEET THE QUALIFICATIONS FOR A LIVING QUARTERS ALLOWANCE IN SECTIONS B OR C. THE MATTER OF WAIVER BECAUSE OF UNUSUAL CIRCUMSTANCES IS FOR CONSIDERATION BY THE HEAD OF AN EMPLOYEE'S AGENCY, NOT BY OUR OFFICE. MR. LIEBSCHER HAS NOT CITED ANY REGULATION REQUIRING A REQUEST FOR WAIVER TO BE SUBMITTED TO THE HEAD OF AN AGENCY WHEN THE AGENCY'S PERSONNEL OFFICE DETERMINES THAT AN EMPLOYER IS INELIGIBLE FOR A LIVING QUARTERS ALLOWANCE AND WE ARE UNAWARE OF SUCH A REQUIREMENT. ACCORDINGLY, MR. LIEBSCHER HAS NO ENTITLEMENT TO A LIVING QUARTERS ALLOWANCE AND OUR DECISION OF JANUARY 17, 1980, IS AFFIRMED.

REGARDING MR. LIEBSCHER'S CLAIM FOR "SENIORITY PAY" SECTION 531.203(C) PROMULGATED BY THE CIVIL SERVICE COMMISSION PURSUANT TO THE PROVISIONS OF 5 U.S.C. SEC. 5334 (1976) PROVIDES THAT WHEN AN EMPLOYEE IS REEMPLOYED AN AGENCY MAY PAY HIM AT ANY RATE OF HIS GRADE THAT DOES NOT EXCEED HIS HIGHEST PREVIOUS RATE. THAT REGULATION VESTS DISCRETION IN THE AGENCY REGARDING APPLICATIONS OF THE HIGHEST PREVIOUS RATE RULE IN ESTABLISHING AN EMPLOYEE'S RATE OF PAY. EACH AGENCY IS PERMITTED TO FORMULATE ITS OWN POLICY REGARDING THE RULE. B-186554, DECEMBER 28, 1976. WHERE AN AGENCY HAS NOT RELINQUISHED ITS DISCRETION THROUGH ADOPTION OF A MANDATORY POLICY OR ADMINISTRATIVE REGULATION, THE AGENCY IS UNDER NO OBLIGATION TO GRANT AN EMPLOYEE THE BENEFIT OF THE RULE. B-189378, DECEMBER 6, 1977, AND B-184280, FEBRUARY 17, 1977. THEREFORE, THE ARMY HAD IT WITHIN ITS DISCRETION NOT TO APPLY THE HIGHEST PREVIOUS RATE RULE WHEN THE EMPLOYEE WAS SEPARATED FROM GOVERNMENT SERVICE FOR MORE THAN 5 YEARS. ACCORDINGLY, SINCE MR. LIEBSCHER WAS SEPARATED FROM GOVERNMENT SERVICE FOR MORE THAN 5 YEARS, HE IS NOT ENTITLED TO ADDITIONAL PAY AND THE DISALLOWANCE BY OUR CLAIMS DIVISION IS SUSTAINED.