B-156132, MAR. 17, 1965

B-156132: Mar 17, 1965

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IT APPEARS THAT DURING THE PERIOD OF THE CLAIM AND FOR SOME YEARS PRIOR THERETO YOU WERE EMPLOYED AT THE AIR FORCE BASE AT NOUASSEUR. THAT SOMETIME PRIOR TO AUGUST 1 THE EMPLOYEES THERE WERE ADVISED OF THE DECISION TO CLOSE THE BASES IN MOROCCO ON DECEMBER 31. YOU WERE ONE OF THE EMPLOYEES WHO WERE RETAINED AT THE NOUASSEUR BASE DURING THE . SINCE GOVERNMENT HOUSING FACILITIES WERE AVAILABLE ON THE BASE FOR THOSE EMPLOYEES RETAINED. THE INSTALLATION WAS DIRECTED TO TERMINATE THEIR HOUSING ALLOWANCES AND REQUIRE THEM TO USE SUCH GOVERNMENT FACILITIES. DESPITE YOUR OCCUPANCY OF SUCH QUARTERS AND THE FACT THAT YOUR FAMILY WAS NO LONGER WITH YOU. YOU SAY YOU MOVED YOUR FAMILY TO AVOID DISRUPTING THE EDUCATION OF YOUR CHILDREN AND THAT YOU CHOSE FRANCE BECAUSE YOUR WIFE IS A CITIZEN OF THAT NATION.

B-156132, MAR. 17, 1965

TO MR. CHARLES L. WARD:

BY LETTER RECEIVED FEBRUARY 3, 1965, YOU REQUESTED REVIEW OF OUR SETTLEMENT DATED DECEMBER 22, 1964, WHICH DISALLOWED YOUR CLAIM FOR SEPARATE MAINTENANCE ALLOWANCE OR, IN THE ALTERNATIVE, FAMILY HOUSING ALLOWANCE FOR THE PERIOD AUGUST 1 THROUGH DECEMBER 31, 1963, INCIDENT TO YOUR SERVICE AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE.

IT APPEARS THAT DURING THE PERIOD OF THE CLAIM AND FOR SOME YEARS PRIOR THERETO YOU WERE EMPLOYED AT THE AIR FORCE BASE AT NOUASSEUR, MOROCCO, AND THAT SOMETIME PRIOR TO AUGUST 1 THE EMPLOYEES THERE WERE ADVISED OF THE DECISION TO CLOSE THE BASES IN MOROCCO ON DECEMBER 31. HOWEVER, YOU WERE ONE OF THE EMPLOYEES WHO WERE RETAINED AT THE NOUASSEUR BASE DURING THE ,PHASEDOWN" PERIOD FROM AUGUST 1 THROUGH DECEMBER 31. SINCE GOVERNMENT HOUSING FACILITIES WERE AVAILABLE ON THE BASE FOR THOSE EMPLOYEES RETAINED, THE INSTALLATION WAS DIRECTED TO TERMINATE THEIR HOUSING ALLOWANCES AND REQUIRE THEM TO USE SUCH GOVERNMENT FACILITIES.

ON AUGUST 1 YOU SENT YOUR WIFE AND CHILDREN TO FRANCE AT YOUR OWN EXPENSE AND MOVED INTO SINGLE GOVERNMENT QUARTERS AT YOUR DUTY STATION -- WHICH QUARTERS YOU OCCUPIED UNTIL THE END OF YOUR ACTIVE SERVICE. HOWEVER, DESPITE YOUR OCCUPANCY OF SUCH QUARTERS AND THE FACT THAT YOUR FAMILY WAS NO LONGER WITH YOU, THE AGENCY INADVERTENTLY CONTINUED YOUR "WITH FAMILY" HOUSING ALLOWANCE AND YOU CONTINUED TO ACCEPT IT. UPON DISCOVERY OF THE ERROR THE AGENCY DEDUCTED THE AMOUNT OF SUCH ERRONEOUS PAYMENTS FROM YOUR FINAL PAY AND LUMP-SUM LEAVE PAYMENT OTHERWISE DUE YOU.

YOU SAY YOU MOVED YOUR FAMILY TO AVOID DISRUPTING THE EDUCATION OF YOUR CHILDREN AND THAT YOU CHOSE FRANCE BECAUSE YOUR WIFE IS A CITIZEN OF THAT NATION. ON THAT BASIS YOU CONTEND THAT YOU WERE ENTITLED TO EITHER A SEPARATE MAINTENANCE FOR YOUR FAMILY OR A CONTINUATION OF THE FAMILY HOUSING ALLOWANCE WHICH YOU PROPERLY WERE RECEIVING WHILE THEY RESIDED WITH YOU IN MOROCCO.

SUPPLEMENT NO. 2 TO CHAPTER AF P16, AFM 40-1, ISSUED MAY 10, 1962, AND IN EFFECT ON AUGUST 1, 1963, PROVIDES:

"SECTION 2:

"5. PURSUANT TO MEMORANDUM FROM THE ASSISTANT SECRETARY OF DEFENSE TO THE UNDER SECRETARY OF THE AIR FORCE, DATED 9 JUNE 1961, PAYMENT OF THE SEPARATE MAINTENANCE ALLOWANCE IS AUTHORIZED ELIGIBLE UNITED STATES CIVILIAN EMPLOYEES AT POSTS IN MOROCCO SERVICED BY THE CENTRAL CIVILIAN PERSONNEL OFFICE (CPO), 3922D COMBAT SUPPORT GROUP. PAY THIS ALLOWANCE IN ACCORDANCE WITH THE SPECIFIED ELIGIBILITY CRITERIA NOT EARLIER THAN 8 JULY 1962 WHEN:

"A. DEPENDENTS ARE NOT AUTHORIZED TO ACCOMPANY THE EMPLOYEE TO MOROCCO, AND/OR

"B. DEPENDENTS ALREADY IN MOROCCO ARE EVACUATED WHEN DIRECTED BY THE RESPECTIVE BASE COMMANDER BECAUSE FACILITIES NO LONGER EXIST TO SUPPORT THEM. THE SERVICING CPO WILL DETERMINE, AND DOCUMENT, ELIGIBILITY FOR THIS ALLOWANCE AND THE AMOUNTS PAYABLE. THE SERVICING CPO WILL ADVISE HQ 16AF (DPC) AND (DCR), AND THE BASE CIVILIAN PAYROLL OFFICE WHEN THE ALLOWANCE IS STARTED/NO LONGER NECESSARY AT EACH BASE.'

WHILE IT IS ADMINISTRATIVELY REPORTED THAT YOU MADE NO WRITTEN APPLICATION FOR SEPARATE MAINTENANCE ALLOWANCE IT IS APPARENT THAT THE FACTS OF RECORD WOULD NOT HAVE BROUGHT YOUR CASE WITHIN THE ABOVE QUOTED PROVISIONS SO AS TO ENTITLE YOU TO SUCH ALLOWANCE EVEN IF YOU HAD APPLIED THEREFOR.

AS TO YOUR STATEMENT THAT YOU SENT YOUR FAMILY TO FRANCE IN ORDER NOT TO DISRUPT THE EDUCATION OF YOUR CHILDREN, THE AGENCY ADVISES THAT AN APPROVED CORRESPONDENCE COURSE WAS OBTAINED UNDER GOVERNMENT CONTRACT FOR THE EDUCATION OF SCHOOL AGE DEPENDENTS OF EMPLOYEES WHICH WOULD HAVE BEEN AVAILABLE TO YOUR CHILDREN DURING THE REMAINING FEW MONTHS OF YOUR DUTY THERE. IN VIEW THEREOF AND SINCE FAMILY HOUSING WAS AVAILABLE AT THE POST IT IS OUR VIEW THAT YOUR DECISION TO SEND YOUR FAMILY TO FRANCE WAS BASED UPON PERSONAL REASONS AND UNDER SUCH CIRCUMSTANCES IT SEEMS APPARENT THAT YOU WERE NOT ELIGIBLE TO RECEIVE EITHER A SEPARATE MAINTENANCE ALLOWANCE OR A "WITH FAMILY" HOUSING ALLOWANCE SUBSEQUENT TO THE DEPARTURE OF YOUR WIFE AND CHILDREN FROM THE POST.

ANY HARDSHIP WHICH YOU MAY HAVE SUFFERED BY REASON OF THE ADJUSTMENT OF THE ERRONEOUS PAYMENTS IS REGRETTED. HOWEVER, THE AGENCY WAS REQUIRED TO TAKE SUCH ACTION AND IN SO DOING IT WAS ONLY MAKING RECOVERY OF THAT WHICH YOU WERE NOT ENTITLED TO RECEIVE IN THE FIRST PLACE. SEE WISCONSIN CENTRAL RAILROAD V. UNITED STATES, 164 U.S. 190, AND UNITED STATES V. BENTLEY, 107 F.2D 382-384.

WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE DISALLOWANCE OF YOUR CLAIM.