B-163531, APR. 19, 1968

B-163531: Apr 19, 1968

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483.55 REPRESENTING AN AMOUNT WHICH WAS COLLECTED FROM YOU BY THE U.S. IN AN AMOUNT IN EXCESS OF THAT TO WHICH YOU WERE ENTITLED. THAT THE INTENT OF THE REGULATION COVERING ENTITLEMENT TO LIVING QUARTERS ALLOWANCE IS THAT SUCH ALLOWANCE IS PAYABLE AT THE "WITH FAMILY RATE" ONLY IF THE EMPLOYEE IS RESIDING WITH HIS FAMILY AT THE POST IN FAMILY TYPE QUARTERS. YOU INDICATE THAT THERE IS NO PROOF THAT YOU DID NOT RESIDE WITH YOUR LAWFUL WIFE DURING THE PERIOD IN QUESTION AND THAT THE ADMINISTRATIVE DETERMINATION THAT YOU DID NOT RESIDE WITH YOUR WIFE WAS BASED LARGELY UPON STATEMENTS MADE BY YOUR WIFE. YOU WERE AT HOME WITH HER TWO OR THREE NIGHTS A WEEK AND ON WEEKENDS CASTS CERTAIN DOUBT UPON THE CORRECTNESS OF THE ADMINISTRATIVE DETERMINATION.

B-163531, APR. 19, 1968

TO MR. BURL D. ARMSTRONG:

WE REFER TO YOUR LETTER OF MARCH 22, 1968, WITH ENCLOSURE, AND TO PRIOR CORRESPONDENCE RELATING TO YOUR REQUEST FOR REVIEW OF OFFICE SETTLEMENT OF DECEMBER 19, 1967, WHICH DISALLOWED YOUR CLAIM FOR $4,483.55 REPRESENTING AN AMOUNT WHICH WAS COLLECTED FROM YOU BY THE U.S. ARMY DEPOT COMMAND BECAUSE OF YOUR HAVING RECEIVED A LIVING QUARTERS ALLOWANCE DURING THE PERIOD AUGUST 17, 1960, TO DECEMBER 27, 1963, IN AN AMOUNT IN EXCESS OF THAT TO WHICH YOU WERE ENTITLED.

AS WE ADVISED YOU ON MARCH 13, 1968, SINCE THE QUESTION OF YOUR ENTITLEMENT INVOLVES A CONSTRUCTION OF A STATUTORY REGULATION PROMULGATED BY THE DEPARTMENT OF STATE, WE REQUESTED THE VIEWS OF THAT DEPARTMENT CONCERNING THE INTENT OF THAT REGULATION TO CASES SUCH AS YOURS. THE DEPARTMENT ADVISES, IN EFFECT, THAT THE INTENT OF THE REGULATION COVERING ENTITLEMENT TO LIVING QUARTERS ALLOWANCE IS THAT SUCH ALLOWANCE IS PAYABLE AT THE "WITH FAMILY RATE" ONLY IF THE EMPLOYEE IS RESIDING WITH HIS FAMILY AT THE POST IN FAMILY TYPE QUARTERS; OTHERWISE THE EMPLOYEE WOULD BE ENTITLED TO THE "WITHOUT FAMILY RATE" ONLY. WE CONCUR IN THE CONSTRUCTION OF THE REGULATION SUBMITTED BY THE STATE DEPARTMENT.

YOU INDICATE THAT THERE IS NO PROOF THAT YOU DID NOT RESIDE WITH YOUR LAWFUL WIFE DURING THE PERIOD IN QUESTION AND THAT THE ADMINISTRATIVE DETERMINATION THAT YOU DID NOT RESIDE WITH YOUR WIFE WAS BASED LARGELY UPON STATEMENTS MADE BY YOUR WIFE. WHILE THE COPY OF THE LETTER FROM A MR. PAUL HILL WHICH YOU PRESENTED IN SUPPORT OF YOUR CONTENTION TO THE EFFECT THAT ACCORDING TO CONVERSATIONS WITH YOUR WIFE AT THAT TIME, YOU WERE AT HOME WITH HER TWO OR THREE NIGHTS A WEEK AND ON WEEKENDS CASTS CERTAIN DOUBT UPON THE CORRECTNESS OF THE ADMINISTRATIVE DETERMINATION, SUCH LETTER IS NOT SUFFICIENT TO CLEARLY ESTABLISH THE INCORRECTNESS OF THE ADMINISTRATIVE DETERMINATION. WE NOTE THAT MR. HILL'S LETTER DOES NOT STATE THE EXACT PERIOD INVOLVED; ALSO, THAT APPARENTLY THE CONTENTS THEREOF WERE CONSIDERED BY THE DEPARTMENT OF THE ARMY IN ARRIVING AT THE CONCLUSION THAT YOU WERE NOT ENTITLED TO A QUARTERS ALLOWANCE AT THE FAMILY RATE. MOREOVER, THE FACT THAT YOU ENTERED INTO AN INVALID MARRIAGE IN SEPTEMBER 1961 LENDS FURTHER SUPPORT TO THE VIEW THAT AT LEAST AFTER THAT DATE YOU DID NOT RESIDE WITH YOUR LAWFUL WIFE.

IN ANY EVENT, THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE IS SUCH THAT CLAIMS SUBMITTED HERE MUST BE SETTLED UPON THE BASIS OF THE WRITTEN RECORD BEFORE THIS OFFICE. OUR OFFICE DOES NOT MAKE INDEPENDENT INVESTIGATIONS TO ESTABLISH THE VALIDITY OF THE FACTS PRESENTED HERE AND NEITHER DO WE HOLD FORMAL HEARINGS AFFORDING THE PARTIES THE OPPORTUNITY OF EXAMINATION AND CROSS-EXAMINATION OF WITNESSES. HENCE, WHEN THERE ARE MATERIAL CONFLICTS BETWEEN THE FACTS PRESENTED ADMINISTRATIVELY AND THOSE ALLEGED BY THE CLAIMANT SO THAT WE ARE NOT IN A POSITION TO DETERMINE THE TRUE FACTUAL SITUATION WITH REASONABLE CERTAINTY, OUR ESTABLISHED PRACTICE IS TO DISALLOW THE CLAIM LEAVING THE CLAIMANT TO SEEK HIS REMEDY IN THE COURTS. SEE LONGWILL V UNITED STATES, 17 CT. CL. 288, 291; CHARLES V UNITED STATES, 19 CT. CL. 316, 319.

ACCORDINGLY, IN LINE WITH SUCH ESTABLISHED PRACTICE WE HEREBY SUSTAIN OUR SETTLEMENT OF DECEMBER 19, 1967, DISALLOWING YOUR CLAIM.