B-148742, DEC. 23, 1963

B-148742, DEC. 23, 1963

TO MR. SAMUEL A. PISANO:

THIS REFERS TO YOUR LETTER OF SEPTEMBER 11, 1963, REQUESTING THAT WE RECONSIDER OUR HOLDING IN B-148742 DATED JUNE 12, 1962, WHEREIN IT WAS DETERMINED THAT YOU HAD BEEN OVERPAID LIVING QUARTERS ALLOWANCE WHILE ASSIGNED TO THE STAFF OF OUR PARIS OFFICE.

IN OUR DECISION OF JUNE 12, 1962, WE HELD THAT UNDER SECTION 132.3B (2) OF THE STANDARDIZED REGULATIONS WHICH PROVIDES THAT LIVING QUARTERS ALLOWANCE SHALL BE REVISED, IF REQUIRED, WHEN THERE IS A CHANGE IN THE FAMILY STATUS, AN EMPLOYEE WHOSE LIVING QUARTERS ALLOWANCE WAS FROZEN AT THE TIME OF HIS MARRIAGE AND HE CONTINUES TO OCCUPY THE SAME QUARTERS WITH NO INCREASE IN HIS ESTIMATED EXPENSES IS NOT ENTITLED TO AN INCREASE IN HIS LIVING QUARTERS ALLOWANCE.

BY LETTER OF DECEMBER 4, 1963, THE DEPARTMENT OF STATE WHICH PROMULGATED THE REGULATIONS IN QUESTION, WROTE US AS FOLLOWS:

"IN REPLY TO YOUR LETTER OF NOVEMBER 19, 1963 (B-148742), WE ARE PLEASED TO GIVE YOU OUR VIEWS ON THE QUARTERS ALLOWANCE CASE YOU PRESENTED.

"IN OUR OPINION, YOU WERE CORRECT IN INFORMING YOUR PARIS OFFICE THAT THE LIVING QUARTERS ALLOWANCE SHOULD NOT HAVE BEEN INCREASED FOR AN EMPLOYEE WHO MARRIED BUT WHO STAYED IN THE SAME QUARTERS AND INCURRED THE SAME EXPENSES.

"SECTION 132.3B (2) OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS), WHICH YOU CITED IN YOUR LETTER, PROVIDED FOR REVISING A LIVING QUARTERS ALLOWANCE RATE "FROZEN" BELOW THE FLAT RATE WHEN THE EMPLOYEE'S FAMILY STATUS CHANGED IF THE REVISION WERE REQUIRED. WE AGREE WITH THE STATEMENT MADE TO YOUR PARIS OFFICE THAT THE MARRIAGE OF THE EMPLOYEE SUBSEQUENT TO THE DATE OF THE "FREEZE" ON HIS LIVING QUARTERS ALLOWANCE WAS NOT IN ITSELF A JUSTIFICATION UNDER THE REGULATIONS TO RAISE HIS LIVING QUARTERS ALLOWANCE.

"UNDER PROVISIONS OF SECTION 133.22 OF THE STANDARDIZED REGULATIONS IN EFFECT PRIOR TO APRIL 14, 1963, EMPLOYEES WHO WERE NOT "FROZEN" COULD HAVE BEEN PAID THE FLAT RATE LIVING QUARTERS ALLOWANCE. IT MAY HAVE BEEN BELIEVED BY YOUR PARIS OFFICE OR OUR PERSONNEL OFFICER THAT THE MARRIAGE OF THE EMPLOYEE IN QUESTION PLACED HIM IN A DIFFERENT QUARTERS GROUP AND THAT HE WAS NO LONGER CONSIDERED "FROZEN.' THE EMPLOYEE'S QUARTERS GROUP DID NOT CHANGE, HOWEVER, BUT ONLY HIS FAMILY STATUS AND, THEREFORE, HE WAS STILL "FROZEN.' THERE ARE FOUR GENERAL QUARTERS GROUPS NUMBERED 2 THROUGH 5. EACH OF THESE FOUR GROUPS CONTAINS A "WITHOUT FAMILY" AND A "WITH FAMILY" CATEGORY TO DENOTE THE RATES OF LIVING QUARTERS ALLOWANCE APPLICABLE TO EACH.'

HOWEVER, ON FURTHER CONSIDERATION OF THE PROBLEM WE REALIZE THAT THE DEPARTMENT'S VIEWS AND THE VIEWS HERETOFORE EXPRESSED BY US MAY HAVE BEEN COLORED IN THE LIGHT OF SUBSEQUENTLY ISSUED CLARIFYING REGULATIONS AND INTERPRETATIONS. THEREFORE, WE HAVE REEXAMINED YOUR CASE SOLELY ON THE BASIS OF THE REGULATIONS PROMULGATED ON APRIL 2, 1961. WE HAVE FOUND THOSE REGULATIONS TO BE AMBIGUOUS, WITH REGARD TO THE EFFECT OF CHANGES IN FAMILY STATUS ON THE RATE PAYABLE TO EMPLOYEES UNDER THE "FROZEN RATE.' THE LANGUAGE OF THE REGULATIONS IS SUSCEPTIBLE OF THE INTERPRETATION THAT RESULTED IN THE REVISION OF YOUR GRANT UPON YOUR MARRIAGE. THE REVISION PROPERLY WAS TERMINATED PURSUANT TO OUR DECISION OF JUNE 12, HOWEVER, BECAUSE EXPRESSIONS OF INTENT CLARIFYING FORMERLY OBSCURE TERMINOLOGY, DEMONSTRATED THAT FROZEN GRANTS WERE NOT TO BE REVISED SOLELY ON GROUNDS OF A CHANGE IN FAMILY STATUS. HOWEVER, THAT NEED NOT BE CONSIDERED A GROUND FOR RECOVERY OF PAYMENTS MADE TO YOU AT THE HIGHER RATE PRIOR TO THE ADJUSTMENT MADE PURSUANT TO THE JUNE 12 RULING.