B-153664, MAR. 26, 1964

B-153664, MAR. 26, 1964

TO MR. LUDWIG RUDEL:

ON FEBRUARY 20, 1964, YOU REQUESTED THAT WE REVIEW THE SETTLEMENT OF OUR CLAIMS DIVISION, DATED JANUARY 28, 1964, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM IN LIEU OF SUBSISTENCE WHILE YOU WERE ON CONSULTATION IN WASHINGTON, D.C., FROM JANUARY 5 TO FEBRUARY 17, 1963, UPON YOUR RETURN TO THE UNITED STATES FROM ANKARA, TURKEY, FOR SEPARATION FROM THE FOREIGN SERVICE OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT (AID).

AFTER YOUR ARRIVAL IN WASHINGTON ON JANUARY 5, 1963, YOU WERE PLACED ON CONSULTATION AWAITING MEDICAL CLEARANCE WHICH WAS REQUIRED BEFORE YOUR SEPARATION FROM THE FOREIGN SERVICE. DURING THAT PERIOD YOU WERE WORKING WITH AID IN WASHINGTON IN THE POSITION TO WHICH YOU WERE APPOINTED ON FEBRUARY 18, 1963, AFTER SEPARATION FROM YOUR FOREIGN AREA POSITION HAD BEEN ACCOMPLISHED. SINCE WASHINGTON WAS YOUR PLACE OF RESIDENCE FOR THE PURPOSE OF APPOINTMENT AND SEPARATION IN REGARD TO YOUR POSITION IN ANKARA YOU WERE DENIED PER DIEM IN LIEU OF SUBSISTENCE DURING THAT PERIOD OF CONSULTATION.

YOU SAY THAT ALTHOUGH YOU RESIDED IN WASHINGTON AT THE TIME YOU WERE APPOINTED TO SERVICE IN ANKARA IN SEPTEMBER 1960, YOU DID NOT CONSIDER THAT PLACE TO BE YOUR RESIDENCE AFTER THAT APPOINTMENT. IN THAT CONNECTION YOU SAY THAT YOU RETAINED NO PROPERTY IN THE WASHINGTON AREA AND THAT YOU TERMINATED ALL INDICIA OF PERMANENT RESIDENCE THERE. IT ALSO APPEARS THAT IN AUGUST 1962 AID APPROVED YOUR DESIGNATION OF DENMARK, WISCONSIN, THE HOME OF YOUR WIFE'S PARENTS, AS YOUR RESIDENCE FOR HOME LEAVE PURPOSES. YOU POINT OUT THAT SINCE YOU DID NOT CONSIDER WASHINGTON YOUR PERMANENT RESIDENCE IN THE UNITED STATES YOU REMAINED IN TEMPORARY LODGINGS WHILE YOU WERE ON CONSULTATION THERE BEFORE YOU WERE APPOINTED TO THE NEW POSITION WITH AID, WASHINGTON. YOU BELIEVE THAT YOU ARE ENTITLED TO PER DIEM OR SOME OTHER ALLOWANCE DURING THE PERIOD OF YOUR CONSULTATION BECAUSE OF THE FACT THAT YOU MAINTAINED LIVING QUARTERS ON A TEMPORARY BASIS AT ADDED EXPENSE DURING THAT PERIOD.

AID MANUAL ORDER NO. 560.2 CONTAINS TWO DEFINITIONS OF THE TERM "RESIDENCE," WHICH READ IN PERTINENT PART, AS FOLLOWS:

"1. FOR PURPOSE OF HOME LEAVE

"THE EMPLOYEE'S DESIGNATED PLACE OF RESIDENCE OR HOME FOR THE PURPOSE OF HOME LEAVE IS ONE OF THE FOLLOWING:

"A. THE PLACE IN THE UNITED STATES AT WHICH HE RESIDED AT THE TIME OF APPOINTMENT OR, IF APPOINTED WHILE IN AN OVERSEAS AREA, THE PLACE AT WHICH HE LAST RESIDED IN THE UNITED STATES;

"B. THE HOME OF THE EMPLOYEE'S OR SPOUSE'S PARENTS;

"2. FOR APPOINTMENT AND SEPARATION

"THE EMPLOYEE'S DESIGNATED PLACE OF RESIDENCE OR HOME FOR THE PURPOSE OF APPOINTMENT AND SEPARATION OR SHIPMENT OF REMAINS IS THE PLACE IN THE UNITED STATES AT WHICH THE EMPLOYEE RESIDED AT THE TIME OF APPOINTMENT OR, IF APPOINTED WHILE TEMPORARILY EMPLOYED AWAY FROM HIS PERMANENT RESIDENCE ELSEWHERE IN THE UNITED STATES OR IN AN OVERSEAS AREA, THE PLACE AT WHICH HE LAST RESIDED IN THE UNITED STATES OR HIS PERMANENT RESIDENCE. IF THE EMPLOYEE HAS MORE THAN ONE PLACE OF RESIDENCE HE MUST SPECIFY THE POINT AT WHICH HE, HIS FAMILY AND EFFECTS ARE TO BEGIN MOVEMENT FOR THE POST AND THE POINT TO WHICH HE WISHES TO BE RETURNED UPON SEPARATION. ONCE THE EMPLOYEE HAS MADE A DETERMINATION AS TO HIS PLACE OF RESIDENCE FOR APPOINTMENT AND SEPARATION NO CHANGE OF ADDRESS WILL BE APPROVED.'

ALTHOUGH YOUR DESIGNATION OF THE HOME OF YOUR WIFE'S PARENTS WAS ACCEPTED BY AID AS YOUR RESIDENCE FOR THE PURPOSE OF HOME LEAVE YOU DID NOT SPECIFY ANY PLACE OTHER THAN WASHINGTON AS YOUR PERMANENT RESIDENCE FOR THE PURPOSE OF APPOINTMENT AND SEPARATION. WE NOTE THAT UNDER THOSE REGULATIONS AN EMPLOYEE'S RESIDENCE FOR APPOINTMENT AND SEPARATION PURPOSES MAY NOT BE AN ARBITRARILY DESIGNATED LOCATION BUT MUST BE A PLACE AT WHICH HE HAS MAINTAINED AN ACTUAL RESIDENCE IN THE UNITED STATES. COMPARE 30 COMP. GEN. 231; 35 ID. 244, 246. SINCE WASHINGTON, D.C., WAS IN FACT YOUR RESIDENCE AT THE TIME OF YOUR APPOINTMENT TO ANKARA, THAT CITY MUST BE CONSIDERED YOUR RESIDENCE FOR SEPARATION PURPOSES.

UNDER OUR DECISION OF MARCH 21, 1958, B-134923, AN EMPLOYEE WHO IS RETURNED TO THE UNITED STATES FOR SEPARATION IS NOT ENTITLED TO PER DIEM WHILE ON CONSULTATION IN WASHINGTON PRIOR TO SEPARATION IF HIS RESIDENCE IN THE UNITED STATES IS IN THE WASHINGTON METROPOLITAN AREA. SEE ALSO 29 COMP. GEN. 453. YOUR INTENTION WITH REGARD TO ESTABLISHING A PERMANENT RESIDENCE UPON RETURN TO THE UNITED STATES CANNOT ALTER YOUR ENTITLEMENT TO PER DIEM UNDER THE CITED DECISIONS.

WE KNOW OF NO LAW OR REGULATION RELATING TO EITHER TRAVEL OF GOVERNMENT EMPLOYEES OR TO THE ADDITIONAL ALLOWANCES GRANTED OVERSEAS EMPLOYEES WHICH AUTHORIZES PAYMENT OF YOUR CLAIM FOR AN ALLOWANCE INCIDENT TO YOUR CONSULTATION PRIOR TO SEPARATION. ALTHOUGH SECTION 250 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) DOES PROVIDE FOR PAYMENT OF A "HOME SERVICE TRANSFER ALLOWANCE" THAT ALLOWANCE IS PAYABLE ONLY TO EMPLOYEES WHO ARE TRANSFERRED TO THE UNITED STATES FOR FURTHER DUTY, IT IS NOT PAYABLE TO EMPLOYEES UPON THEIR RETURN FOR SEPARATION.

THEREFORE, THE SETTLEMENT OF OUR CLAIMS DIVISION OF JANUARY 28, 1964, DISALLOWING YOUR CLAIM MUST BE SUSTAINED.

YOU ARE ADVISED THAT OUR DECISIONS ARE FINAL AND ARE BINDING UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. YOU MAY, OF COURSE, INSTITUTE AN ACTION IN THE COURT OF CLAIMS FOR PAYMENT OF THE AMOUNT YOU BELIEVE IS DUE YOU. SEE 28 U.S.C. 1346, 1491.