B-137046, MAR. 15, 1960

B-137046: Mar 15, 1960

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WHICH WAS DISALLOWED BY OUR SETTLEMENT OF JUNE 5. OUR DISALLOWANCE WAS BASED UPON SECTION 116.2A. STATIONED OR RESIDENT IN THE AREA SHALL NOT BE ELIGIBLE TO RECEIVE A DIFFERENTIAL WHEN THE AGENCY CONCERNED DETERMINES THAT THE SPOUSE'S PRESENCE THERE IS PRIMARILY IN ORDER TO BE WITH SUCH INDIVIDUAL AND NOT FOR THE CONVENIENCE OF THE GOVERNMENT.'. WAS HIRED BY THE BUREAU ON JUNE 11. ADAMS WAS CORRESPONDING WITH THE BUREAU CONCERNING HIS APPOINTMENT. ADAMS WAS ALSO CORRESPONDING INDEPENDENTLY WITH THE BUREAU CONCERNING A CLERICAL POSITION IN IRAN. ADAMS WAS OFFERED A POSITION AS SECRETARY BY LETTER OF APRIL 17. IN WHICH IT WAS CLEARLY STATED THAT SHE WOULD BE IN THE STATUS OF "ELIGIBLE DEPENDENT" AND ALTHOUGH NO DATE OF APPOINTMENT WAS MENTIONED.

B-137046, MAR. 15, 1960

TO MRS. MARJORIE F. ADAMS:

ON FEBRUARY 24, 1960, YOU REQUESTED THAT WE REOPEN YOUR CLAIM FOR POST DIFFERENTIAL FOR THE PERIOD OF YOUR ASSIGNMENT TO TEHRAN, IRAN, WITH THE DEPARTMENT OF COMMERCE, BUREAU OF PUBLIC ROADS, WHICH WAS DISALLOWED BY OUR SETTLEMENT OF JUNE 5, 1959, Z-1904240.

OUR DISALLOWANCE WAS BASED UPON SECTION 116.2A. OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS), IN EFFECT AT THE TIME OF YOUR ASSIGNMENT, WHICH STATES:

"THE SPOUSE OF A PERSON EMPLOYED, STATIONED OR RESIDENT IN THE AREA SHALL NOT BE ELIGIBLE TO RECEIVE A DIFFERENTIAL WHEN THE AGENCY CONCERNED DETERMINES THAT THE SPOUSE'S PRESENCE THERE IS PRIMARILY IN ORDER TO BE WITH SUCH INDIVIDUAL AND NOT FOR THE CONVENIENCE OF THE GOVERNMENT.'

THE REPORT OF THE BUREAU OF PUBLIC ROADS, IN PART, STATES:

"MRS. ADAMS' HUSBAND, LEON A. ADAMS, A RETIRED ENGINEERING EMPLOYEE OF THE BUREAU OF PUBLIC ROADS, WAS HIRED BY THE BUREAU ON JUNE 11, 1957, TO WORK IN IRAN. DURING THE TIME IN WHICH MR. ADAMS WAS CORRESPONDING WITH THE BUREAU CONCERNING HIS APPOINTMENT, MRS. ADAMS WAS ALSO CORRESPONDING INDEPENDENTLY WITH THE BUREAU CONCERNING A CLERICAL POSITION IN IRAN.

"MRS. ADAMS WAS OFFERED A POSITION AS SECRETARY BY LETTER OF APRIL 17, 1957, IN WHICH IT WAS CLEARLY STATED THAT SHE WOULD BE IN THE STATUS OF "ELIGIBLE DEPENDENT" AND ALTHOUGH NO DATE OF APPOINTMENT WAS MENTIONED, IT WAS IMPLIED IN THE DISCUSSION OF HER PER DIEM AND TRAVEL ALLOWANCES THAT SHE WOULD NOT BECOME AN EMPLOYEE WHILE SHE WAS IN THE UNITED STATES AND WOULD RECEIVE, AS A DEPENDENT, TRAVEL ALLOWANCE FROM HER RESIDENCE TO TEHRAN, WITH NO PROVISION FOR A STOPOVER IN WASHINGTON, D.C.

"MRS. ADAMS ACCEPTED THE APPOINTMENT BY A LETTER OF MAY 6, 1957, "SUBJECT TO" THE STATEMENT THAT IN HER OPINION SHE SHOULD RECEIVE THE BENEFITS OF AN INDIVIDUAL EMPLOYEE AND NOT THOSE OF A DEPENDENT.

"THIS LETTER WAS ANSWERED BY THE BUREAU UNDER DATE OF JUNE 17, 1957. THIS REPLY STATED THAT BECAUSE MRS. ADAMS WAS GOING TO IRAN PRIMARILY TO BE WITH HER HUSBAND SHE WOULD PROCEED AS A DEPENDENT, WOULD NOT BE ELIGIBLE FOR DIFFERENTIAL BENEFITS, * * *.

"BECAUSE THE ADAMSES ARRIVED IN WASHINGTON ON JUNE 19, 1957, MRS. ADAMS APPARENTLY RECEIVED THIS LETTER WHILE IN WASHINGTON. WRITTEN ON A FILE COPY OF THE LETTER IS THE STATEMENT: "HANDED TO MRS. ADAMS 6-21 57 IN WASHINGTON.' * * *

"* * * SHE CONSIDERED THE APPOINTMENT ONLY BECAUSE HER HUSBAND WAS GOING TO BE IN IRAN.'

THE RECORD SHOWS, THEREFORE, THAT THE BUREAU OF PUBLIC ROADS' VIEW IS THAT YOUR ACCEPTANCE OF THE POSITION IN TEHRAN WAS NOT "FOR THE CONVENIENCE OF THE GOVERNMENT" BUT PRIMARILY IN ORDER THAT YOU AND YOUR HUSBAND COULD REMAIN TOGETHER. IT IS ALSO CLEAR FROM THE REPORT OF THE BUREAU THAT YOU WERE INFORMED, PRIOR TO YOUR DEPARTURE FROM THE UNITED STATES, THAT YOU WOULD NOT BE ELIGIBLE FOR POST DIFFERENTIAL WHILE IN TEHRAN. THAT DETERMINATION WAS IN ACCORD WITH SECTION 116.2 OF THE STANDARDIZED REGULATIONS, ABOVE, WHICH PROHIBITS PAYMENT OF THE POST DIFFERENTIAL TO THE SPOUSE OF A PERSON EMPLOYED IN THE AREA "WHEN THE AGENCY CONCERNED DETERMINES THAT THE SPOUSE'S PRESENCE THERE IS PRIMARILY TO BE WITH SUCH INDIVIDUAL.'

CONCERNING YOUR STATEMENT THAT FOR SALARY AND TRAVEL EXPENSE PURPOSES YOU WERE CONTINUED AS AN EMPLOYEE UNTIL ARRIVAL AT YOUR POINT OF HIRE, IT SUFFICES TO SAY THAT ANY ENTITLEMENT YOU MAY HAVE TO THOSE ITEMS CANNOT MODIFY THE CLEAR MEANING OF THE STANDARDIZED REGULATIONS WITH RESPECT TO THE PAYMENT OF POST DIFFERENTIAL TO SPOUSES WHO ARE EMPLOYED IN THE SAME AREA.

THEREFORE, OUR SETTLEMENT DISALLOWING YOUR CLAIM FOR POST DIFFERENTIAL WHILE EMPLOYED BY THE BUREAU OF PUBLIC ROADS IN IRAN MUST BE AND IS SUSTAINED.