B-149229, JUL. 9, 1962

B-149229, JUL. 9, 1962

TO MR. BERNARDO A. USTARIS:

YOUR LETTER OF MARCH 13, 1962, WITH ENCLOSURES, REQUESTS RECONSIDERATION OF OUR SETTLEMENT OF AUGUST 10, 1960, WHICH FOR THE REASONS STATED THEREIN DISALLOWED YOUR CLAIM FOR HOUSING ALLOWANCE--- REPRESENTING REIMBURSEMENT OF COSTS OF HOUSING YOU PROCURED IN LIEU OF FREE HOUSING--- TAIWAN.

YOUR CLAIM, DATED DECEMBER 9, 1959, COVERED THE PERIOD FROM JANUARY 4, 1957, TO OCTOBER 10, 1958, AND YOU REQUEST THAT YOUR SUBSEQUENT TOUR OF DUTY ON TAIWAN, FROM MAY 22, 1960, TO JANUARY 14, 1962, BE ADDED TO YOUR PRIOR CLAIM. THE TOTAL AMOUNT YOU CLAIM NOW IS $2,360.

YOUR LETTER INDICATES THAT YOU BELIEVE THE MATTER IS GOVERNED BY THE OPINION OF THE LEGAL BRANCH, OKINAWA ENGINEER DISTRICT, AS SET OUT IN COMMENT NO. 2 DATED JANUARY 24, 1960. HOWEVER, THAT OPINION OVERLOOKS THE SUBSTANTIVE TERMS OF PARAGRAPH 4 OF THE AMERICAN EMBASSY'S NOTE OF MAY 13, 1947, WHICH WERE ACCEPTED ON BEHALF OF PHILIPPINE NATIONALS BY THE NOTE OF MAY 16, 1947, FROM THE ACTING SECRETARY OF FOREIGN AFFAIRS, REPUBLIC OF THE PHILIPPINES. WE VIEW THAT EXCHANGE OF NOTES AS AN AGREEMENT BY THE UNITED STATES TO PAY ONLY AN INCREASE OF WAGES PLUS A 25 PERCENT OVERSEAS DIFFERENTIAL AND THAT SUCH INCREASES OF COMPENSATION WOULD BE "IN LIEU OF FREE QUARTERS AND SUBSISTENCE" AS HAD BEEN SUGGESTED EARLIER BY THE PHILIPPINE GOVERNMENT. THE CLAUSE THEREIN AFTER QUESTIONED BY YOU IS THAT PART OF THE AMERICAN NOTE WHICH SAID THE UNITED STATES WOULD "THEN CHARGE ALL EMPLOYEES (FILIPINOS) FOR QUARTERS AND SUBSISTENCE AS FURNISHED.' THE LAST PHRASE,"AS FURNISHED," HAS BEEN CONSIDERED BY US TO MEAN THAT THE UNITED STATES WOULD COLLECT FROM EACH FILIPINO EMPLOYEE'S WAGES THE APPROPRIATE QUARTERS RENT OR SUBSISTENCE (FOOD, ETC.) COSTS, LISTED THEREUNDER, ONLY IF AND WHEN SUCH ITEMS WERE FURNISHED HIM BY THE UNITED STATES. THAT VIEW IS BORNE OUT BY THE RECORD WHICH SHOWS DURING THE TIME WHEN YOU, AND OTHER FILIPINOS, WERE STATIONED ON OKINAWA (SUBJECT TO THE SAME DIPLOMATIC NOTES AND EMPLOYMENT AGREEMENTS) THE NONFAMILY OR SO- CALLED "BACHELOR" TYPE QUARTERS WERE MADE AVAILABLE AT A RENTAL CHARGE TO YOU BY THE UNITED STATES, BUT OTHER FILIPINO EMPLOYEES WITH FAMILIES LIVING ON OKINAWA WERE NOT FURNISHED GOVERNMENT QUARTERS AND WERE NOT PAID ADDITIONAL ALLOWANCE OVER AND ABOVE THE BASIC OVERSEAS SUBSISTENCE ALLOWANCE WHICH WAS PART OF THEIR COMPENSATION. AS STATED IN THE SETTLEMENT LETTER OF AUGUST 10, 1960, TO YOU, THE INCREASE OF WAGES DESCRIBED ABOVE WAS FOR THE PURPOSE OF YOUR COSTS OF OVERSEAS QUARTERS AND SUBSISTENCE. THE RECORD SHOWS THAT GOVERNMENT QUARTERS WERE NOT FURNISHED OR AVAILABLE TO FILIPINOS SERVING ON TAIWAN, AND THE ABOVE NOTES OF 1947 DID NOT OBLIGATE THE UNITED STATES TO FURNISH FREE QUARTERS.

THEREFORE, AND SINCE YOU WERE COMPENSATED IN ACCORDANCE WITH YOUR EMPLOYMENT AGREEMENT, BASED UPON THE PRESENT RECORD AND FOR THE REASONS STATED ABOVE, YOUR ADDED CLAIM WOULD BE FOR DISALLOWANCE AND THE SETTLEMENT OF AUGUST 10, 1960, IS SUSTAINED.