B-123750, AUG. 5, 1955

B-123750: Aug 5, 1955

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THE ACTION DENYING YOU ADDITIONAL COMPENSATION FOR QUARTERS ALLOWANCE WAS BASED UPON THE RECOMMENDATION OF THE EMPLOYING AGENCY WHICH DISCLOSED THAT SINCE 1919. YOU HAVE RESIDED IN FRANCE. IT WAS PROVIDED THAT THE HEAD OF AN AGENCY MAY GRANT QUARTERS ALLOWANCES TO EMPLOYEES WHO ARE CITIZENS OF THE UNITED STATES. 1948) STATING THAT QUARTERS ALLOWANCES COULD BE GRANTED TO EMPLOYEES WHO WERE CITIZENS OF THE UNITED STATES IN FOREIGN AREAS WHO OTHERWISE MEET THE REQUIREMENTS SPECIFIED IN SECTION 325.4. APPENDIX I OF THE REGULATIONS PERTAINING TO FOREIGN POST DIFFERENTIALS WHICH ARE. IN ORDER TO BE ELIGIBLE FOR FOREIGN POST DIFFERENTIAL AN EMPLOYEE MUST BE A CITIZEN * * * OF THE UNITED STATES AND THE EMPLOYING AGENCY MUST DETERMINE THAT THE EMPLOYEE IS LOCATED AT THE POST BECAUSE OF HIS EMPLOYMENT BY THE UNITED STATES.

B-123750, AUG. 5, 1955

TO MR. GEORGE F. DENIS:

YOUR LETTER OF MARCH 5, 1955, WITH ENCLOSURES, ACKNOWLEDGED APRIL 14, REQUESTS REVIEW OF OUR SETTLEMENT DATED NOVEMBER 1, 1954, WHICH DISALLOWED YOUR CLAIM FOR LIVING QUARTERS ALLOWANCE FOR THE PERIOD FROM JANUARY 1 TO NOVEMBER 15, 1949, WHILE A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, AMERICAN GRAVES REGISTRATION COMMAND, ST. GERMAIN DEPOT (PARIS, FRANCE), APO 58, UNITED STATES ARMY.

THE ACTION DENYING YOU ADDITIONAL COMPENSATION FOR QUARTERS ALLOWANCE WAS BASED UPON THE RECOMMENDATION OF THE EMPLOYING AGENCY WHICH DISCLOSED THAT SINCE 1919, WITH THE EXCEPTION OF APPROXIMATELY FOUR YEARS DURING WORLD WAR II, YOU HAVE RESIDED IN FRANCE.

UNDER REGULATIONS OF THE DEPARTMENT OF STATE ISSUED PURSUANT TO EXECUTIVE ORDER NO. 10011, DATED OCTOBER 22, 1948, IT WAS PROVIDED THAT THE HEAD OF AN AGENCY MAY GRANT QUARTERS ALLOWANCES TO EMPLOYEES WHO ARE CITIZENS OF THE UNITED STATES. THESE REGULATIONS ALSO STATED THAT THE HEAD OF AN AGENCY COULD ISSUE SUCH FURTHER IMPLEMENTING REGULATIONS AS DEEMED NECESSARY FOR THE GUIDANCE OF HIS AGENCY WITH REGARD TO THE GRANTING OF AND ACCOUNTING FOR SUCH ALLOWANCES. IN ACCORDANCE THEREWITH THE DEPARTMENT OF THE ARMY ISSUED IMPLEMENTING REGULATIONS (CIVILIAN PERSONNEL REGULATIONS T7.3-2, DATED DECEMBER 22, 1948) STATING THAT QUARTERS ALLOWANCES COULD BE GRANTED TO EMPLOYEES WHO WERE CITIZENS OF THE UNITED STATES IN FOREIGN AREAS WHO OTHERWISE MEET THE REQUIREMENTS SPECIFIED IN SECTION 325.4, APPENDIX I OF THE REGULATIONS PERTAINING TO FOREIGN POST DIFFERENTIALS WHICH ARE, IN PERTINENT PART, AS FOLLOWS:

"PERSONS ELIGIBLE. IN ORDER TO BE ELIGIBLE FOR FOREIGN POST DIFFERENTIAL AN EMPLOYEE MUST BE A CITIZEN * * * OF THE UNITED STATES AND THE EMPLOYING AGENCY MUST DETERMINE THAT THE EMPLOYEE IS LOCATED AT THE POST BECAUSE OF HIS EMPLOYMENT BY THE UNITED STATES. THIS INCLUDES, BUT IS NOT NECESSARILY LIMITED TO, UNITED STATES CITIZENS OR NATIONALS IN THE FOLLOWING GROUPS:

"/A)THOSE RECRUITED OR TRANSFERRED FROM THE UNITED STATES, EXCEPT IN THE CASE OF THE SPOUSE OF A PERSON EMPLOYED, STATIONED OR RESIDENT IN THE AREA, WHERE THE AGENCY CONCERN DETERMINES THAT THE SPOUSE'S PRESENCE THERE IS PRIMARILY IN ORDER TO BE WITH SUCH INDIVIDUAL.

"/B) THOSE TRANSFERRED TO THE AREA FROM ANOTHER FOREIGN AREA UNDER GOVERNMENT ORDERS.

"/C) THOSE RECRUITED LOCALLY WHO ARE NOT NORMALLY RESIDENT IN THE AREA AND WHOSE PRESENCE THERE AT THE TIME OF RECRUITMENT IS DUE TO ONE OF THE FOLLOWING REASONS:

"/1) TEMPORARY ABSENCE FROM RESIDENCE IN THE UNITED STATES FOR TRAVEL OR STUDY.

"/2)MILITARY SERVICE OF THE UNITED STATES.

"/3) EMPLOYMENT BY OTHER FEDERAL AGENCIES, U.S. FIRMS, INTERESTS OR ORGANIZATIONS, INTERNATIONAL ORGANIZATIONS IN WHICH THE UNITED STATES GOVERNMENT PARTICIPATES, OR FOREIGN GOVERNMENTS, PROVIDED THEY WERE ORIGINALLY RECRUITED FROM THE UNITED STATES, AND THEIR CONDITIONS OF EMPLOYMENT PROVIDE FOR THEIR RETURN TRANSPORTATION TO THE UNITED STATES.'

IT IS YOUR CONTENTION THAT BECAUSE OF EMPLOYMENT BY UNITED STATES FIRMS DURING YOUR MANY YEARS IN FRANCE YOU SHOULD BE REGARDED AS WITHIN THE PURVIEW OF PARAGRAPH (C) (3) OF THE ABOVE REGULATIONS. ALSO, YOU CONTEND THAT SINCE YOU ARE A VETERAN OF WORLD WAR I YOUR PRESENCE IN FRANCE ON AND AFTER 1919 COULD BE SAID TO BE ATTRIBUTABLE TO MILITARY SERVICE AND THUS COMING UNDER PARAGRAPH (C) (2) OF SUCH REGULATIONS. IN THAT RESPECT YOU STATE THERE SHOULD BE NO DISCRIMINATION BETWEEN VETERANS OF WORLD WAR I AND WORLD WAR II.

IN REFERENCE TO YOUR FIRST CONTENTION IT IS POINTED OUT THAT PARAGRAPH (C) (3) OF THE ABOVE REGULATIONS NOT ONLY REQUIRES EMPLOYMENT BY UNITED STATES FIRMS BUT PROVIDES THAT THE EMPLOYEE MUST HAVE BEEN RECRUITED FROM THE UNITED STATES WITH THE RIGHT TO RETURN TRANSPORTATION. THERE IS NOTHING IN THE RECORD TO SHOW THAT YOU WERE RECRUITED FROM THE UNITED STATES EITHER IN 1919 OR 1945 WHEN YOU RETURNED TO FRANCE AFTER WORLD WAR II. MOREOVER, THERE IS NOTHING TO SHOW THAT YOU WERE ENTITLED TO RETURN TRANSPORTATION TO THE UNITED STATES BY REASON OF YOUR EMPLOYMENT WITH UNITED STATES FIRMS.

AS TO YOUR SECOND CONTENTION IT MAY BE STATED THAT WHILE YOUR PRESENCE IN FRANCE IN 1919 WAS ATTRIBUTABLE TO MILITARY SERVICE THE SAME CANNOT BE SAID FOR YOUR PRESENCE IN FRANCE IN 1948, PARTICULARLY WHEN THE RECORD INDICATES THAT YOUR PRIMARY REASON FOR RETURNING TO FRANCE AFTER WORLD WAR II WAS TO BE WITH YOUR WIFE.

IN ADDITION TO THE FOREGOING IT IS NOTED THAT YOU TAKE EXCEPTION TO THE FACT THAT THE REGULATIONS OF THE DEPARTMENT OF THE ARMY GRANTED QUARTERS ALLOWANCES TO CERTAIN CLASSES OF EMPLOYEES BUT EXCLUDED OTHERS THUS VIOLATING FAIR EMPLOYMENT PRINCIPLES. AN EXAMINATION OF THE AUTHORITY UNDER WHICH SUCH REGULATIONS WERE ISSUED DISCLOSES A DISCRETION VESTED IN THE HEAD OF AN AGENCY TO DETERMINE THE EMPLOYEES ELIGIBLE FOR QUARTERS ALLOWANCES. THE REGULATIONS OF THE DEPARTMENT OF THE ARMY APPEAR TO BE A REASONABLE EXERCISE OF THAT DISCRETION AND GENERALLY CONFORM TO THE PRINCIPLES UNDERLYING THE GRANTING OF QUARTERS ALLOWANCES TO AMERICAN CITIZENS IN FOREIGN AREAS.

FROM THE FOREGOING IT IS APPARENT THAT YOUR EMPLOYMENT DOES NOT FALL WITHIN ANY OF THE CLASSES SPECIFIED IN THE REGULATIONS OF THE DEPARTMENT OF THE ARMY. IN VIEW THEREOF, AND AS THAT DEPARTMENT HAS NOT OTHERWISE DETERMINED THAT YOUR PRESENCE AT YOUR POST OF DUTY IN PARIS, FRANCE, WAS DUE TO YOUR EMPLOYMENT BY THE UNITED STATES, OUR OFFICE MUST CONCLUDE THAT YOU ARE NOT ENTITLED TO AN ALLOWANCE FOR QUARTERS DURING THE PERIOD IN QUESTION. THE SETTLEMENT OF NOVEMBER 1, 1954, IS THEREFORE SUSTAINED.