B-144267, NOV. 2, 1960

B-144267: Nov 2, 1960

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THE EXCEPTION WAS TAKEN BECAUSE THE FORM EXECUTED BY YOU IN APPLYING FOR THE EDUCATION ALLOWANCE INDICATED THAT YOUR DAUGHTER WOULD RESIDE WITH HER MOTHER IN THE UNITED STATES DURING THE SCHOOL YEAR. WE MUST POINT OUT THAT THERE ARE NO EXCEPTIONS PROVIDED IN THE REGULATIONS WHICH WOULD PERMIT PAYMENT OF AN EDUCATION ALLOWANCE TO AN EMPLOYEE WHILE HIS DAUGHTER IS RESIDING WITH HER MOTHER IN THE UNITED STATES. WE FIND NOTHING IN THE STATUTE OR REGULATIONS UNDER WHICH PART OF THE GRANT IN THIS CASE CAN BE VALIDATED BECAUSE YOUR DAUGHTER INTERMITTENTLY MAY HAVE RESIDED AS A PAYING GUEST DURING PART OF THE SCHOOL YEAR WITH ONE OTHER THAN HER MOTHER. WE DO NOT UNDERSTAND FROM THE RECORD BEFORE US THAT THE OCCASIONAL RESIDENCE OF YOUR DAUGHTER WITH SOMEONE OTHER THAN HER MOTHER WAS THE CAUSE OF ANY ADDITIONAL EXPENSE TO YOU AND THAT SUCH CHANGES IN RESIDENCE WERE REQUIRED BECAUSE OF HER ATTENDANCE AT SCHOOL.

B-144267, NOV. 2, 1960

TO MR. V. E. BLACQUE:

YOUR LETTER OF SEPTEMBER 8, 1960, REQUESTS A RULING FROM US AS TO THE PROPRIETY OF AN AUDIT EXCEPTION TAKEN BY OUR OFFICE TO A PAYMENT TO YOU IN OCTOBER 1958 OF AN EDUCATION ALLOWANCE FOR YOUR DAUGHTER.

THE EXCEPTION WAS TAKEN BECAUSE THE FORM EXECUTED BY YOU IN APPLYING FOR THE EDUCATION ALLOWANCE INDICATED THAT YOUR DAUGHTER WOULD RESIDE WITH HER MOTHER IN THE UNITED STATES DURING THE SCHOOL YEAR, WHEREAS THE REGULATIONS OF THE DEPARTMENT OF STATE (STANDARDIZED REGULATIONS) SPECIFICALLY PROHIBIT PAYMENT OF AN EDUCATION ALLOWANCE ON BEHALF OF A CHILD RESIDING IN THE UNITED STATES WITH ITS MOTHER.

THE REGULATION IN QUESTION, NAMELY, SECTION 275.1 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) PROMULGATED BY THE DEPARTMENT OF STATE, PROVIDES AS FOLLOWS:

"NO EDUCATION ALLOWANCE SHALL BE PAID TO AN EMPLOYEE FOR ANY PERIOD DURING WHICH HIS CHILD RESIDES IN THE UNITED STATES WITH ITS MOTHER, FATHER, OR A LEGAL GUARDIAN.'

IN YOUR CORRESPONDENCE CONCERNING THE EXCEPTION YOU SAY THAT YOU CONTRIBUTED $2,500 A YEAR FOR YOUR DAUGHTER'S ROOM AND BOARD AND THAT, YOU PAID FOR HER SCHOOLING, DOCTORS' BILLS, AND OTHER EXPENSES. ALSO, YOU INDICATE THAT YOUR DAUGHTER LIVED DURING VARIOUS PERIODS AS A PAYING GUEST IN A PRIVATE HOME OTHER THAN HER MOTHER'S AND THAT, ACTUALLY, WHEN THE DAUGHTER LIVED WITH THE MOTHER SHE DID SO AS A "PAYING GUEST.'

WE MUST POINT OUT THAT THERE ARE NO EXCEPTIONS PROVIDED IN THE REGULATIONS WHICH WOULD PERMIT PAYMENT OF AN EDUCATION ALLOWANCE TO AN EMPLOYEE WHILE HIS DAUGHTER IS RESIDING WITH HER MOTHER IN THE UNITED STATES. FURTHER, WE FIND NOTHING IN THE STATUTE OR REGULATIONS UNDER WHICH PART OF THE GRANT IN THIS CASE CAN BE VALIDATED BECAUSE YOUR DAUGHTER INTERMITTENTLY MAY HAVE RESIDED AS A PAYING GUEST DURING PART OF THE SCHOOL YEAR WITH ONE OTHER THAN HER MOTHER. WE DO NOT UNDERSTAND FROM THE RECORD BEFORE US THAT THE OCCASIONAL RESIDENCE OF YOUR DAUGHTER WITH SOMEONE OTHER THAN HER MOTHER WAS THE CAUSE OF ANY ADDITIONAL EXPENSE TO YOU AND THAT SUCH CHANGES IN RESIDENCE WERE REQUIRED BECAUSE OF HER ATTENDANCE AT SCHOOL. THEREFORE, THE FACT THAT YOU CONTRIBUTED TO THE DAUGHTER'S SUPPORT DURING SUCH PERIOD IS NOT OF ITSELF CONTROLLING. MOREOVER, IT MAY BE THAT YOU WOULD HAVE BEEN REQUIRED TO MAKE SUCH A CONTRIBUTION EVEN THOUGH YOU WERE RESIDING IN THE UNITED STATES.

YOU SUGGEST IN YOUR LETTER OF SEPTEMBER 8, 1960, THAT YOU ARE ENTITLED TO EITHER AN EDUCATION ALLOWANCE OR TO A SEPARATION ALLOWANCE. IN THAT REGARD WE DIRECT YOUR ATTENTION TO SECTION 261.1 OF THE STANDARDIZED REGULATIONS WHICH PROVIDES:

" "SEPARATION ALLOWANCE" MEANS AN ALLOWANCE GRANTED PURSUANT TO SECTION 901 (2) (III) OF THE FOREIGN SERVICE ACT OF 1946 (22 U.S.C. 1131 (2) ( TO ASSIST AN EMPLOYEE WHO IS COMPELLED BY REASON OF DANGEROUS, NOTABLY UNHEALTHFUL, OR EXCESSIVELY ADVERSE LIVING CONDITIONS AT HIS POST ABROAD OR FOR THE CONVENIENCE OF THE GOVERNMENT TO MEET THE ADDITIONAL EXPENSE OF MAINTAINING HIS WIFE AND/OR MINOR CHILDREN ELSEWHERE THAN IN THE COUNTRY OF HIS ASSIGNMENT. THE TERM "FAMILY" WHEN USED IN CONNECTION WITH SEPARATION ALLOWANCES MEANS ONLY THE WIFE OF AN EMPLOYEE AND/OR HIS CHILDREN WHO ARE UNMARRIED AND UNDER 21 YEARS OF AGE. THE TERM "CHILDREN" INCLUDES STEP-CHILDREN OR ADOPTED CHILDREN.'

THERE IS NOTHING IN OUR FILES TO INDICATE THAT DURING THE PERIOD IN QUESTION YOU MET THE QUALIFICATIONS FOR A SEPARATION ALLOWANCE UNDER THE ABOVE REGULATION. HOWEVER, THE FACT THAT YOU MAY NOT BE ENTITLED TO AN EDUCATION ALLOWANCE DOES NOT NECESSARILY ENTITLE YOU TO A SEPARATION ALLOWANCE IF YOU OTHERWISE FAIL TO MEET THE QUALIFICATIONS THEREFOR.

UPON THE FOREGOING FACTS AND CIRCUMSTANCES, AND IN THE ABSENCE OF EVIDENCE TO REFLECT WHAT PERIODS OF THE SCHOOL YEAR YOUR DAUGHTER RESIDED WITH PERSONS OTHER THAN HER MOTHER AT ADDITIONAL EXPENSE TO YOU, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE FULL AMOUNT OF THE EXCEPTION.