Wyle Laboratories, Inc.

B-167629, AUG. 26, 1969

CIVIL PAY - OVERSEAS QUARTERS ALLOWANCE DECISION TO CLAIMANT, SUSTAINING SETTLEMENT OF DISALLOWANCE OF CLAIM FOR QUARTERS ALLOWANCE INCIDENT TO EMPLOYMENT WITH ARMY IN GERMANY. CLAIMANT WHO UPON DISCHARGE FROM ARMED FORCES OVERSEAS SERVED IN CIVILIAN CAPACITY UNDER TWO DIFFERENT APPOINTMENTS SEPARATED BY PRIVATE EMPLOYMENT MAY NOT HAVE FACT THAT QUARTERS ALLOWANCE WAS PAID FOR FIRST PERIOD OF SERVICE REGARDED AS CONTROLLING ON SUCCEEDING APPOINTMENT FOLLOWING BREAK- IN-SERVICE. THE EXECUTION OF A TRANSPORTATION AGREEMENT DOES NOT PROVIDE BASIS FOR MORE THAN TRANSPORTATION RIGHTS.

TO MR. HAROLD K. HATCH:

THIS REFERS TO YOUR LETTER OF JULY 17, 1969, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF OUR OFFICE SETTLEMENT OF APRIL 9, 1969, WHICH DISALLOWED YOUR CLAIM FOR QUARTERS ALLOWANCE INCIDENT TO YOUR EMPLOYMENT WITH THE DEPARTMENT OF THE ARMY IN GERMANY.

YOUR CLAIM WAS DISALLOWED BY OUR OFFICE SETTLEMENT PRIMARILY UPON THE GROUND THAT YOU WERE UNABLE TO ESTABLISH TO THE SATISFACTION OF THE DEPARTMENT OF THE ARMY THAT YOU WERE ELIGIBLE FOR QUARTERS ALLOWANCE UNDER SECTION 031.12D OF THE STANDARDIZED REGULATIONS, PROMULGATED BY THE DEPARTMENT OF STATE.

SECTION 031.12 OF THOSE REGULATIONS IS, IN PART, AS FOLLOWS:

"031.12 EMPLOYEES RECRUITED OUTSIDE THE UNITED STATES

"QUARTERS ALLOWANCES PRESCRIBED IN CHAPTER 100 MAY BE GRANTED TO EMPLOYEES RECRUITED OUTSIDE THE UNITED STATES, PROVIDED THAT

"A. THE EMPLOYEE'S ACTUAL PLACE OF RESIDENCE IN THE PLACE TO WHICH THE QUARTERS ALLOWANCE APPLIES AT THE TIME OF RECEIPT THEREOF SHALL BE FAIRLY ATTRIBUTABLE TO HIS EMPLOYMENT BY THE UNITED STATES GOVERNMENT; AND

"B. THE EMPLOYEE IS NOT A MEMBER OF THE HOUSEHOLD OF ANOTHER EMPLOYEE OR OF A MEMBER OF THE U.S. ARMED FORCES; AND

"C. PRIOR TO APPOINTMENT, THE EMPLOYEE WAS RECRUITED IN THE UNITED STATES, THE COMMONWEALTH OF PUERTO RICO, THE CANAL ZONE, OR A POSSESSION OF THE UNITED STATES, BY

"/1) THE UNITED STATES GOVERNMENT, INCLUDING ITS ARMED FORCES;

"/2) A UNITED STATES FIRM, ORGANIZATION, OR INTEREST;

"/3) AN INTERNATIONAL ORGANIZATION IN WHICH THE UNITED STATES GOVERNMENT PARTICIPATES; OR

"/4) A FOREIGN GOVERNMENT; AND HAD BEEN IN SUBSTANTIALLY CONTINUOUS EMPLOYMENT BY SUCH EMPLOYER UNDER CONDITIONS WHICH PROVIDED FOR HIS RETURN TRANSPORTATION TO THE UNITED STATES, THE COMMONWEALTH OF PUERTO RICO, THE CANAL ZONE, OR A POSSESSION OF THE UNITED STATES; OR

"D. THE EMPLOYEE WAS TEMPORARILY IN THE FOREIGN AREA FOR TRAVEL OR FORMAL STUDY AND IMMEDIATELY PRIOR TO SUCH TRAVEL OR STUDY HAD RESIDED IN THE UNITED STATES, THE COMMONWEALTH OF PUERTO RICO, THE CANAL ZONE, OR A POSSESSION OF THE UNITED STATES; OR"

THE RECORD SHOWS THAT UPON DISCHARGE FROM THE ARMED FORCES OF THE UNITED STATES IN FEBRUARY 1946, YOU WERE HIRED AS A CIVILIAN EMPLOYEE BY THE DEPARTMENT OF THE ARMY OVERSEAS AND SERVED CONTINUOUSLY UNTIL JUNE 15, 1964, AT WHICH TIME YOU VOLUNTARILY RESIGNED TO ACCEPT EMPLOYMENT IN PRIVATE ENTERPRISE. FROM JUNE 1964 TO FEBRUARY 1965 YOU WERE EMPLOYED BY THE CENTRE SPORTIF BOWLING AND THE BRUNSWICK CORPORATION IN FRANCE. YOUR APPLICATION FOR FEDERAL EMPLOYMENT, DATED MARCH 10, 1965, INDICATES YOUR REASON FOR RESIGNING FROM PRIVATE ENTERPRISE IN FRANCE WAS A DESIRE TO RETURN TO THE FEDERAL SERVICE. YOU WERE REHIRED ON JULY 2, 1965, ON A TEMPORARY APPOINTMENT AND REINSTATED TO A CAREER APPOINTMENT EFFECTIVE AUGUST 30, 1965.

ON YOUR APPLICATION FOR PAYMENT OF FOREIGN POST DIFFERENTIAL AND ALLOWANCES AS THE REASON FOR YOUR PRESENCE IN THE AREA YOU STATED "TEMPORARY TOURIST.' ON THE OTHER HAND, THE INFORMATION TRANSMITTED HERE BY THE DEPARTMENT OF THE ARMY IS TO THE EFFECT THAT YOU WERE NOT TEMPORARILY IN THE AREA FOR PURPOSES OF TRAVEL WHICH FACT IS AMPLY SUBSTANTIATED BY YOUR RESIDENCE IN EUROPE SINCE 1946 AND BY THE FACT THAT FOLLOWING YOUR RESIGNATION FROM YOUR GOVERNMENT EMPLOYMENT IN JUNE 1964 YOU WERE EMPLOYED BY A FRENCH COMPANY FOR APPROXIMATELY 9 MONTHS. YOUR ENTITLEMENT TO QUARTERS ALLOWANCE DURING YOUR EARLIER PERIOD OF FEDERAL EMPLOYMENT IS NOT CONTROLLING SINCE THE DETERMINATION OF ENTITLEMENT MUST BE MADE ON EACH SUCCEEDING APPOINTMENT IF AN EMPLOYEE HAS HAD A BREAK IN SERVICE. YOU ARE OF THE OPINION THAT YOUR REINSTATEMENT TO CAREER STATUS AND EXECUTION OF A TRANSPORTATION AGREEMENT ENTITLED YOU TO THE QUARTERS ALLOWANCE. HOWEVER, SUCH IS NOT THE CASE. REINSTATEMENT TO CAREER STATUS MERELY ENTITLES YOU TO PROTECTION AND RIGHTS ACCORDED EMPLOYEES UNDER CIVIL SERVICE LAWS. THE EXECUTION OF THE TRANSPORTATION AGREEMENT ENTITLED YOU TO NOTHING MORE THAN THE TRANSPORTATION RIGHTS PROVIDED FOR UNDER SUCH AGREEMENT.

YOUR ENTITLEMENT TO A QUARTERS ALLOWANCE IS CONTROLLED BY THE PROVISIONS OF 5 U.S.C. 5922 AND 5923 AND THE IMPLEMENTING REGULATIONS QUOTED ABOVE. FOR THE REASONS STATED YOU DO NOT QUALIFY FOR A QUARTERS ALLOWANCE UNDER THOSE REGULATIONS. ACCORDINGLY OUR OFFICE SETTLEMENT OF APRIL 9, 1969, IS SUSTAINED.