B-125902, DEC. 22, 1955

B-125902, DEC. 22, 1955

TO MR. L. LEE SMITH:

YOUR LETTER OF SEPTEMBER 28, 1955, REFERS TO YOUR CLAIM FOR A QUARTERS ALLOWANCE DURING THE PERIOD FROM DECEMBER 19, 1953, THROUGH AUGUST 14, 1954, WHILE A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE ASSIGNED TO OVERSEAS DUTY AT THE MOUASSOUR AIR BASE, APO 31, C/O POSTMASTER, NEW YORK, NEW YORK.

YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF NOVEMBER 19, 1954, FOR THE REASON THAT THE APPLICABLE REGULATIONS PRECLUDE PAYMENT OR QUARTERS ALLOWANCE TO AN EMPLOYEE AFTER QUARTERS ARE MADE AVAILABLE TO HIM, SUCH AS IN YOUR CASE. SINCE YOU FAIL TO MENTION THAT SETTLEMENT IN YOUR CURRENT LETTER IT IS PRESUMED THAT IT NEVER REACHED YOU. IN ANY EVENT WE HAVE UNDERTAKEN A REVIEW OF THE ACTION PREVIOUSLY TAKEN IN DENYING YOUR CLAIM.

THE SUM CLAIMED REPRESENTS ALLOWANCES ALLEGED TO BE DUE FOR QUARTERS FROM DECEMBER 16, 1953, THE DATE YOU WERE OFFERED AVAILABLE GOVERNMENT QUARTERS ON THE BASE, UNTIL AUGUST 15, 1954, THE DATE ON WHICH A DETERMINATION WAS MADE THAT GOVERNMENT LIVING QUARTERS WERE NO LONGER AVAILABLE FOR ALL UNITED STATES CITIZEN CIVILIAN EMPLOYEES, AND AS A RESULT OF WHICH YOU WERE GRANTED PERMISSION TO RESIDE OFF THE BASE.

PARAGRAPH 2B OF POLICY LETTER NO. 2, HEADQUARTERS, 7280TH AIR DEPOT WING, DATED OCTOBER 21, 1953, READS AS FOLLOWS:

"B. ALL OFFICERS, WARRANT OFFICERS, AIRMEN AND DAF CIVILIANS STATIONED AT MOUASSOUR AIR DEPOT WHO ARE UNACCOMPANIED BY DEPENDENTS WILL LIVE ON BASE. THOSE NOW RESIDING OFF BASE WILL TERMINATE THEIR RENTAL AGREEMENTS AS SOON AS PRACTICABLE AND MOVE BACK ON BASE.'

OUR FILE CONTAINS A COPY OF A MEMORANDUM ADDRESSED TO YOU FROM LIEUTENANT COLONEL LOUIS H. CHANEY, EXECUTIVE OFFICER, U.S. AIR FORCE, DATED DECEMBER 3, 1953, WHICH READS:

"EXCELLENT QUARTERS ARE AVAILABLE FOR YOU IN TC VILLAGE AS OF 16 DECEMBER 1953. YOU WILL BE GIVEN AN INDIVIDUAL ROOM, AND BATHROOM FACILITIES ARE INSIDE THE BUILDING. I FIRMLY BELIEVE THAT THE ACCOMMODATIONS HERE WILL BE ACTUALLY CHEAPER AND BETTER THAN THE HOTEL ACCOMMODATIONS YOU HAVE BEEN RECEIVING. ALSO YOU WILL BE RELIEVED OF THE STRAIN OF THE LONG DRIVE TO AND FROM WORK EACH DAY. I HOPE THAT YOU WILL BE PLEASED WITH THESE QUARTERS AND OFFER NO FURTHER OBJECTIONS TO MOVING INTO QUARTERS PROVIDED AS OF THE DATE INDICATED. PLEASE CONTACT BILLETING FOR ERVATIONS.'

AUTHORITY FOR THE PAYMENT OF ALLOWANCES FOR LIVING QUARTERS IS GOVERNED BY THE ACT OF JUNE 26, 1930, 46 STAT. 818 (5 U.S.C. 118A), WHICH READS, IN PART, AS FOLLOWS:

"UNDER SUCH REGULATIONS AS THE HEADS OF THE RESPECTIVE DEPARTMENTS CONCERNED MAY PRESCRIBE AND THE PRESIDENT APPROVE, CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT HAVING PERMANENT STATION IN A FOREIGN COUNTRY MAY BE FURNISHED WITHOUT COST TO THEM, LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT, IN GOVERNMENT-OWNED OR RENTED BUILDINGS, AND WHERE SUCH QUARTERS ARE NOT AVAILABLE, MAY BE GRANTED AN ALLOWANCE FOR LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT * * *.'

BY EXECUTIVE ORDER NO. 10011 DATED OCTOBER 22, 1948, THE SECRETARY OF STATE WAS AUTHORIZED AND DIRECTED TO EXERCISE THE STATUTORY AUTHORITY VESTED IN THE PRESIDENT TO APPROVE REGULATIONS PRESCRIBED BY HEADS OF DEPARTMENTS GOVERNING THE GRANTING OF QUARTERS ALLOWANCES TO ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT ON FOREIGN DUTY. PARAGRAPH 233.4 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREA), AS APPROVED BY THE SECRETARY OF STATE AND IN EFFECT DURING THE PERIOD HERE INVOLVED, READS:

"WHEN AN EMPLOYEE TO WHOM A QUARTERS ALLOWANCE HAS BEEN GRANTED IS FURNISHED GOVERNMENT-OWNED OR LEASED QUARTERS AT NO PERSONAL COST, SUCH GRANT SHALL TERMINATE ON THE DATE PRIOR TO THAT ON WHICH THE GOVERNMENT QUARTERS ARE MADE AVAILABLE TO HIM, UNLESS HE OCCUPIES GOVERNMENT-OWNED OR LEASED QUARTERS ONLY DURING THE TEMPORARY ABSENCE OF THE REGULAR OCCUPANT AND AT THE SAME TIME IS OBLIGATED TO MAINTAIN HIS OWN QUARTERS.'

IT WILL BE OBSERVED THAT THE PAYMENT OF ALLOWANCES FOR QUARTERS IS PRECLUDED DURING ANY PERIOD FOR WHICH GOVERNMENT QUARTERS ON THE BASE ARE DETERMINED TO BE AVAILABLE. ADEQUACY OR SUITABILITY OF GOVERNMENT QUARTERS FOR FEDERAL EMPLOYEES, GENERALLY, IS A MATTER PROPERLY TO BE DETERMINED BY THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED. THE AREA OR LOCATION OF THE ASSIGNMENT, THE DURATION THEREOF, AND THE NATURE OF THE DUTIES PRESCRIBED ARE FACTORS TO BE CONSIDERED IN DETERMINING WHETHER GOVERNMENT QUARTERS ARE ADEQUATE AND HABITABLE.

IN VIEW OF THE LAW AND REGULATIONS AND SINCE THE REPORT FROM THE ADMINISTRATIVE OFFICE CLEARLY SHOWS THAT YOU WERE OFFERED QUARTERS ON THE BASE EFFECTIVE DECEMBER 16, 1953, WHICH HAD BEEN DETERMINED TO BE ADEQUATE, NO BASIS EXISTS FOR THE PAYMENT OF THE ALLOWANCES CLAIMED. ACCORDINGLY, THE SETTLEMENT OF NOVEMBER 19, 1954, MUST BE AND IS SUSTAINED.