B-130435, MAR. 1, 1957

B-130435: Mar 1, 1957

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

YOU SAY THAT THE NAVY DEPARTMENT'S REPORT IN THE MATTER WAS BIASED AND SHOULD NOT HAVE BEEN RELIED ON INSTEAD OF THE STATE DEPARTMENT REGULATIONS WHICH YOU CITED. THE ADMINISTRATIVE OFFICE REPORTED THAT THE VACANCY WHICH YOU WERE EMPLOYED TO FILL WAS ADVERTISED LOCALLY IN THE MANILA-CAVITE AREA. THAT YOU WERE SELECTED AS A RESULT OF SUCH INTERVIEWS. YOU REQUESTED AND WERE GRANTED A TEN-DAY DELAY IN REPORTING FOR THE PURPOSE OF "WINDING UP PERSONAL AFFAIRS.'. THIS VISA WAS STAMPED . TEMPORARY VISITOR" AND WAS GOOD FOR SIX MONTHS. IT APPEARS THAT YOU WERE UNEMPLOYED FROM THE TIME OF YOUR ARRIVAL IN THE PHILIPPINES UNTIL YOU WERE APPOINTED TO YOUR PRESENT POSITION. THE CLASSES OF PERSONS ELIGIBLE TO RECEIVE THE FOREIGN POST DIFFERENTIALS FIXED PURSUANT TO SECTION 102 HEREOF SHALL INCLUDE: "/1) PERSONS RECRUITED OR TRANSFERRED FROM THE UNITED STATES. "/2) PERSONS EMPLOYED LOCALLY BUT (A) WHO WERE ORIGINALLY RECRUITED FROM THE UNITED STATES AND HAVE BEEN IN SUBSTANTIALLY CONTINUOUS EMPLOYMENT BY OTHER FEDERAL AGENCIES.

B-130435, MAR. 1, 1957

TO MR. ROBERT M. BISSELL:

ON NOVEMBER 17, 1956, YOU REQUESTED US TO REVIEW OUR OFFICE SETTLEMENT OF MARCH 7, 1956, WHICH DISALLOWED YOUR CLAIM FOR THE PAYMENT OF POST DIFFERENTIAL AND QUARTERS ALLOWANCE AS AN EMPLOYEE OF THE UNITED STATES NAVAL DEPOT, SUBIC BAY, PHILIPPINE ISLANDS. YOU SAY THAT THE NAVY DEPARTMENT'S REPORT IN THE MATTER WAS BIASED AND SHOULD NOT HAVE BEEN RELIED ON INSTEAD OF THE STATE DEPARTMENT REGULATIONS WHICH YOU CITED.

IN REPLY TO OUR REQUEST FOR INFORMATION CONCERNING YOUR CASE, THE ADMINISTRATIVE OFFICE REPORTED THAT THE VACANCY WHICH YOU WERE EMPLOYED TO FILL WAS ADVERTISED LOCALLY IN THE MANILA-CAVITE AREA, THAT A PROMOTION BOARD CONVENED ON JULY 5, 1955, FOR THE PURPOSE OF INTERVIEWING PROSPECTIVE EMPLOYEES, AND THAT YOU WERE SELECTED AS A RESULT OF SUCH INTERVIEWS. UPON NOTIFICATION OF YOUR SELECTION, YOU REQUESTED AND WERE GRANTED A TEN-DAY DELAY IN REPORTING FOR THE PURPOSE OF "WINDING UP PERSONAL AFFAIRS.' DURING THIS INTERVAL PRIOR TO YOUR REPORTING FOR DUTY YOU PROCEEDED TO HONGKONG, AND ON JULY 16, 1955, YOU OBTAINED A VISA FROM THE PHILIPPINE CONSULATE IN THAT CITY FOR A SINGLE ENTRY ONLY TO THE PHILIPPINES. THIS VISA WAS STAMPED ,TEMPORARY VISITOR" AND WAS GOOD FOR SIX MONTHS. YOU RETURNED TO SUBIC BAY AND ENTERED ON DUTY ON JULY 18, 1955.

AN EXAMINATION OF YOUR PASSPORT, HOWEVER, REVEALED THAT YOU HAD ARRIVED IN MANILA ON MARCH 28, 1954, UNDER A NON-QUOTA PHILIPPINE IMMIGRATION VISA ISSUED IN SEATTLE, WASHINGTON, ON FEBRUARY 17, 1954. RECORDS CONTAINED IN YOUR OFFICIAL PERSONNEL FOLDER REVEAL THAT SINCE 1954 YOUR ADDRESS HAS BEEN 775 SAN SEBASTIAN, MANILA, WHERE YOU MAINTAIN A RESIDENCE WITH YOUR WIFE, A NATIONAL OF THE PHILIPPINE REPUBLIC. EXCEPT FOR TEMPORARY EMPLOYMENT WITH THE UNITED STATES GOVERNMENT FROM JULY 1, 1954 TO SEPTEMBER 10, 1954, IT APPEARS THAT YOU WERE UNEMPLOYED FROM THE TIME OF YOUR ARRIVAL IN THE PHILIPPINES UNTIL YOU WERE APPOINTED TO YOUR PRESENT POSITION. BASED ON THIS INFORMATION THE ADMINISTRATIVE OFFICE DETERMINED THAT YOU DID NOT MEET THE CRITERIA SET FORTH IN NAVY CIVILIAN PERSONNEL INSTRUCTION 127, AND DISALLOWED YOUR CLAIM FOR PAYMENT OF POST DIFFERENTIAL AND QUARTERS ALLOWANCE.

REGARDING THE POST DIFFERENTIAL, SECTION 105 OF EXECUTIVE ORDER 10,000, SEPTEMBER 16, 1948, PROVIDES:

"PERSONS ELIGIBLE TO RECEIVE FOREIGN POST DIFFERENTIAL. (A) IN ORDER THAT AN EMPLOYEE BE ELIGIBLE TO RECEIVE A FOREIGN POST DIFFERENTIAL UNDER THIS PART, (1) HE SHALL BE A CITIZEN OR NATIONAL OF THE UNITED STATES, (2) HIS RESIDENCE IN THE PLACE TO WHICH THE FOREIGN POST DIFFERENTIAL APPLIES, AT THE TIME OF RECEIPT THEREOF, SHALL BE FAIRLY ATTRIBUTABLE TO HIS EMPLOYMENT BY THE UNITED STATES, AND (3) HIS RESIDENCE AT SUCH PLACE OVER AN APPROPRIATE PRIOR PERIOD OF TIME MUST NOT BE FAIRLY ATTRIBUTABLE TO REASONS OTHER THAN EMPLOYMENT BY THE UNITED STATES OR BY UNITED STATES FIRMS, INTERESTS, OR ORGANIZATIONS.

"/B) SUBJECT TO THE PROVISIONS OF SECTION 105 (A) HEREOF, THE CLASSES OF PERSONS ELIGIBLE TO RECEIVE THE FOREIGN POST DIFFERENTIALS FIXED PURSUANT TO SECTION 102 HEREOF SHALL INCLUDE:

"/1) PERSONS RECRUITED OR TRANSFERRED FROM THE UNITED STATES.

"/2) PERSONS EMPLOYED LOCALLY BUT (A) WHO WERE ORIGINALLY RECRUITED FROM THE UNITED STATES AND HAVE BEEN IN SUBSTANTIALLY CONTINUOUS EMPLOYMENT BY OTHER FEDERAL AGENCIES, UNITED STATES FIRMS, INTERESTS, OR ORGANIZATIONS, INTERNATIONAL ORGANIZATIONS IN WHICH THE UNITED STATES GOVERNMENT PARTICIPATES, OR FOREIGN GOVERNMENTS, AND WHOSE CONDITIONS OF EMPLOYMENT PROVIDE FOR THEIR RETURN TRANSPORTATION TO THE UNITED STATES, OR (B) WHO WERE AT THE TIME OF EMPLOYMENT TEMPORARILY ABSENT FROM THE UNITED STATES FOR PURPOSES OF TRAVEL OR FORMAL STUDY AND MAINTAINED RESIDENCE IN THE UNITED STATES DURING SUCH TEMPORARY ABSENCE. WHEN USED IN A GEOGRAPHICAL SENSE IN SECTION 105 (B) HEREOF,"UNITED STATES" INCLUDES THE AREAS INCLUDED WITHIN THE DEFINITION OF TERRITORIES AS SET FORTH IN SECTION 201 HEREOF.

"/3) PERSONS WHO ARE NOT NORMALLY RESIDENTS OF THE AREA CONCERNED AND WHO ARE DISCHARGED FROM THE MILITARY SERVICE OF THE UNITED STATES IN SUCH AREA TO ACCEPT EMPLOYMENT THEREIN WITH AN AGENCY OF THE FEDERAL GOVERNMENT.'

SECTION 116 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS FOREIGN AREAS) ISSUED BY THE DEPARTMENT OF STATE PURSUANT TO EXECUTIVE ORDER 10,000, INCORPORATES IN SUBSTANCE THE PROVISIONS OF SECTION 105 OF THE ORDER. (SEE 5 CFR 325.3.) THE SUBSTANCE OF SUCH SECTION IS ALSO REITERATED IN NCPI 127.3-3C., AND THE PROVISIONS OF SECTION 116 OF THE STANDARDIZED REGULATIONS ARE SPECIFICALLY INCORPORATED THEREIN BY REFERENCE. ON THE BASIS OF THE EVIDENCE NOW OF RECORD, IT IS ENTIRELY CLEAR THAT YOUR RESIDENCE IN THE PHILIPPINES CANNOT BE FAIRLY ATTRIBUTED TO YOUR EMPLOYMENT BY THE UNITED STATES, AND THAT SUCH RESIDENCE OVER AN APPROPRIATE PRIOR PERIOD OF TIME MUST BE ATTRIBUTED TO REASONS OTHER THAN EMPLOYMENT BY THE UNITED STATES, OR BY UNITED STATES FIRMS, INTERESTS OR ORGANIZATIONS.

CONCERNING THE QUARTERS ALLOWANCE, NEITHER EXECUTIVE ORDER 10,011, WHICH AUTHORIZES THE SECRETARY OF STATE TO PRESCRIBE REGULATIONS GOVERNING THE PAYMENT OF SUCH ALLOWANCES AND TO APPROVE REGULATIONS PRESCRIBED BY HEADS OF DEPARTMENTS RELATING TO SUCH ALLOWANCES, NOR THE STANDARDIZED REGULATIONS CONTAIN SPECIFIC CRITERIA AS TO ELIGIBLE CLASSES OF EMPLOYEES. HOWEVER, PARAGRAPH 216 OF THE STANDARDIZED REGULATIONS PROVIDES, SO FAR AS PERTINENT HERE, THAT WHEN AUTHORIZED BY LAW, THE HEAD OF AN AGENCY MAY GRANT LIVING-QUARTERS ALLOWANCES TO CIVILIAN EMPLOYEES OF HIS AGENCY WHO ARE CITIZENS OF THE UNITED STATES, AND WITHIN THE SCOPE OF SUCH REGULATIONS, MAY ISSUE SUCH FURTHER IMPLEMENTING REGULATIONS AS HE MAY DEEM NECESSARY. PURSUANT TO THAT AUTHORITY, THE DEPARTMENT OF THE NAVY ISSUED NCPI 127.3B; PROVIDING, SO FAR AS PERTINENT, THAT:

"* * * TO BE ELIGIBLE FOR QUARTERS ALLOWANCE AN EMPLOYEE MUST MEET THESE CONDITIONS:

"/5) HE MUST HAVE BEEN RECRUITED FROM OUTSIDE THE AREA, OR HIS RESIDENCE IN THE AREA PRIOR TO EMPLOYMENT MUST BE FAIRLY ATTRIBUTABLE TO EMPLOYMENT BY UNITED STATES FIRMS, INTERESTS, OR ORGANIZATIONS; TO SERVICE IN THE UNITED STATES ARMED FORCES; OR TO FORMAL STUDY OR TRAVEL. BY ,OUTSIDE THE AREA" IS MEANT OUTSIDE THE COUNTRY IN WHICH THE POST OF ASSIGNMENT IS LOCATED.'

ON THE BASIS OF THE EVIDENCE NOW OF RECORD, IT DOES NOT APPEAR THAT YOUR RESIDENCE IN THE AREA CAN BE ATTRIBUTED TO ANY OF THE LISTED FACTORS. ACCORDINGLY, WE ARE REQUIRED TO CONCLUDE THAT THE DETERMINATION OF THE ADMINISTRATIVE OFFICE WAS CORRECT, AND THAT UNDER THE GOVERNING EXECUTIVE ORDERS AND REGULATIONS YOU ARE NOT ENTITLED TO PAYMENT OF THE POST DIFFERENTIAL AND THE QUARTERS ALLOWANCE.

YOU URGE, HOWEVER, THAT THE AIR FORCE DEPARTMENT GRANTS THE ALLOWANCES IN CASES SUCH AS YOURS, AND THAT THERE IS AN "OBVIOUSLY MATERIAL DISCREPANCY BETWEEN THE NAVY AND AIR FORCE APPLICATIONS OF THE LAW" IN YOUR AREA. THIS CONNECTION, YOUR ATTENTION IS INVITED TO PARAGRAPHS 1 AND 2, CHAPTER AF P16.2, AIR FORCE MANUAL 40-1. PARAGRAPH 1, GOVERNING PAYMENT OF THE POST DIFFERENTIAL, INCORPORATES BY REFERENCE THE BASIC STATE DEPARTMENT REGULATIONS, INCLUDING, OF COURSE, THE RESTRICTIONS CONTAINED THEREIN. PARAGRAPH 2, GOVERNING PAYMENT OF THE QUARTERS ALLOWANCE CONTAINS RESTRICTIONS SUBSTANTIALLY IDENTICAL WITH THOSE OF THE QUOTED PROVISIONS OF NCPI 127.3-4B. IT DOES NOT APPEAR, THEREFORE, THAT THERE IS ANY SUBSTANTIAL DIFFERENCE IN THE CRITERIA USED BY THE TWO SERVICES IN THE PAYMENT OF THE ALLOWANCES HERE INVOLVED.

REGARDING YOUR STATEMENT THAT YOU DESIRE TO RESERVE THE PRIVILEGE OF REBUTTAL PRIOR TO ANY ADVERSE DECISION, YOU ARE ADVISED THAT ACTION IN OUR OFFICE IS USUALLY TAKEN ON THE BASIS OF THE EVIDENCE CONTAINED IN THE WRITTEN RECORD. YOU ARE, OF COURSE, AT LIBERTY TO PRESENT ANY EVIDENCE YOU MAY HAVE TO PROVE THAT THE FACTS HEREIN RECITED ARE NOT CORRECT. TO YOUR REQUEST THAT THE MATTER BE REFERRED TO THE STATE DEPARTMENT FOR ADJUDICATION, WE ARE AWARE OF NO PROVISION OF LAW OR OF THE REGULATIONS UNDER WHICH SUCH A REFERRAL COULD BE MADE.

ACCORDINGLY, THE SETTLEMENT OF MARCH 7, 1956, IS FOUND CORRECT, AND IT HEREBY IS AFFIRMED.