B-166885, AUG. 1, 1969

B-166885: Aug 1, 1969

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SPECIFICALLY WE ARE ASKED TO RECONSIDER OUR OFFICE SETTLEMENT DATED DECEMBER 14. ARE. - "/1) WHO IS A CITIZEN OF THE UNITED STATES. "/2) WHOSE RATE OF BASIC PAY IS FIXED BY STATUTE OR. IS FIXED BY ADMINISTRATIVE ACTION PURSUANT TO LAW OR IS FIXED ADMINISTRATIVELY IN CONFORMITY WITH RATES PAID BY THE GOVERNMENT FOR WORK OF A COMPARABLE LEVEL OF DIFFICULTY AND RESPONSIBILITY IN THE CONTINENTAL UNITED STATES. THE ALLOWANCES AND DIFFERENTIALS PROVIDED BY THIS SUBCHAPTER MAY BE PAID TO AN EMPLOYEE OFFICIALLY STATIONED IN A FOREIGN AREA WHO IS NOT A CITIZEN OF THE UNITED STATES. "/C)THE ALLOWANCES AND DIFFERENTIALS AUTHORIZED BY THIS SUBCHAPTER SHALL BE PAID UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT GOVERNING.

B-166885, AUG. 1, 1969

CIVIL PAY - OVERSEAS MAINTENANCE ALLOWANCE DECISION TO CLAIMANT SUSTAINING SETTLEMENT DISALLOWING CLAIM FOR PAYMENT OF SEPARATE MAINTENANCE ALLOWANCE INCIDENT TO SERVICE AT CLARK AIR BASE IN PHILIPPINES.

TO MR. JOHN Q. KRZEWINSKI:

WE REFER TO THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES' LETTER OF MARCH 3, 1969, AND ENCLOSURES, REFERENCE 4G/L-1617, CONCERNING YOUR CLAIM FOR SEPARATE MAINTENANCE ALLOWANCE FOR THE PERIOD FROM DECEMBER 15, 1965, TO AUGUST 3, 1966, INCIDENT TO YOUR SERVICE AT CLARK AIR BASE IN THE PHILIPPINES. SPECIFICALLY WE ARE ASKED TO RECONSIDER OUR OFFICE SETTLEMENT DATED DECEMBER 14, 1967, WHICH ALLOWED YOU $101.40 COVERING ONLY 10 DAYS, JULY 25 TO AUGUST 3, 1966.

YOUR CLAIM AND THE LETTER OF MARCH 3 SEEM TO ASSERT THE VIEW THAT THE ENCLOSURES EVIDENCE THAT AUTOMATIC, MANDATORY AUTHORITY FOR PAYMENT OF THE ALLOWANCE IN THE PHILIPPINES HAS EXISTED SINCE APRIL 17, 1961, THE DATE THAT THE DEPARTMENT OF DEFENSE ISSUED INSTRUCTION NO. 1418.1 UNDER AUTHORITY OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT OF SEPTEMBER 6, 1960. WE DO NOT CONCUR IN THAT VIEW FOR THE REASONS SET OUT BELOW.

THE PROVISIONS OF THE ACT NOW CONTAINED IN TITLE 5, U.S.C. ARE, IN PERTINENT PART, AS FOLLOWS:

"SEC. 5922. GENERAL PROVISIONS

"/A) NOTWITHSTANDING SECTION 5536 OF THIS TITLE AND EXCEPT AS OTHERWISE PROVIDED BY THIS SUBCHAPTER, THE ALLOWANCES AND DIFFERENTIALS AUTHORIZED BY THIS SUBCHAPTER MAY BE GRANTED TO AN EMPLOYEE OFFICIALLY STATIONED IN A FOREIGN AREA---

"/1) WHO IS A CITIZEN OF THE UNITED STATES; AND

"/2) WHOSE RATE OF BASIC PAY IS FIXED BY STATUTE OR, WITHOUT TAKING INTO CONSIDERATION THE ALLOWANCES AND DIFFERENTIALS PROVIDED BY THIS SUBCHAPTER, IS FIXED BY ADMINISTRATIVE ACTION PURSUANT TO LAW OR IS FIXED ADMINISTRATIVELY IN CONFORMITY WITH RATES PAID BY THE GOVERNMENT FOR WORK OF A COMPARABLE LEVEL OF DIFFICULTY AND RESPONSIBILITY IN THE CONTINENTAL UNITED STATES. TO THE EXTENT AUTHORIZED BY A PROVISION OF STATUTE OTHER THAN THIS SUBCHAPTER, THE ALLOWANCES AND DIFFERENTIALS PROVIDED BY THIS SUBCHAPTER MAY BE PAID TO AN EMPLOYEE OFFICIALLY STATIONED IN A FOREIGN AREA WHO IS NOT A CITIZEN OF THE UNITED STATES.

"/C)THE ALLOWANCES AND DIFFERENTIALS AUTHORIZED BY THIS SUBCHAPTER SHALL BE PAID UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT GOVERNING--

"/1) PAYMENTS OF THE ALLOWANCES AND DIFFERENTIALS AND THE RESPECTIVE RATES AT WHICH THE PAYMENTS ARE MADE;

"/2) THE FOREIGN AREAS, THE GROUPS OF POSITIONS, AND THE CATEGORIES OF EMPLOYEES TO WHICH THE RATES APPLY; AND

"/3) OTHER RELATED MATTERS.

* * * * * * * "SEC. 5924. COST-OF-LIVING ALLOWANCES

"THE FOLLOWING COST-OF-LIVING ALLOWANCES MAY BE GRANTED WHEN APPLICABLE, TO AN EMPLOYEE IN A FOREIGN AREA:

"/3) A SEPARATE MAINTENANCE ALLOWANCE TO ASSIST AN EMPLOYEE WHO IS COMPELLED, BECAUSE OF DANGEROUS, NOTABLY UNHEALTHFUL, OR EXCESSIVELY ADVERSE LIVING CONDITIONS AT HIS POST OF ASSIGNMENT IN A FOREIGN AREA, OR FOR THE CONVENIENCE OF THE GOVERNMENT, TO MEET THE ADDITIONAL EXPENSE OF MAINTAINING, ELSEWHERE THAN AT THE POST, HIS WIFE OR HIS DEPENDENTS, OR BOTH.

PURSUANT TO THAT AUTHORITY AND EXECUTIVE ORDER NO. 10903 DATED JANUARY 9, 1961, THE DEPARTMENT OF STATE PROMULGATED THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) (SECTIONS 261 ET SEQ.) AND THE DEPARTMENT OF DEFENSE INSTRUCTION NO. 1418.1 OF APRIL 17, 1961, PROVIDED, AS FOLLOWS:

"D. SEPARATE MAINTENANCE ALLOWANCE: "ORDINARILY THIS ALLOWANCE WILL NOT BE PAID. IN EXCEPTIONAL CIRCUMSTANCES WHERE PAYMENT IS BELIEVED TO BE NECESSARY, A REQUEST FULLY JUSTIFYING THE PAYMENT SHALL BE SUBMITTED TO THE ASSISTANT SECRETARY OF DEFENSE (MANPOWER) FOR PRIOR APPROVAL. UNLESS AN EXCEPTION IS SPECIFICALLY PROVIDED IN SUCH APPROVAL, THE ALLOWANCE WILL BE PAID ONLY WHEN DEPENDENTS ARE MAINTAINED OUTSIDE THE COUNTRY OF THE EMPLOYEE'S ASSIGNMENT.'

IN CONFORMANCE THEREWITH, ON NOVEMBER 1, 1963, THE DEPARTMENT OF THE AIR FORCE MANUAL 40-1, SECTION AF 5612, PROVIDED UNDER PARAGRAPH 5, IN PART, AS FOLLOWS: "5. SEPARATE MAINTENANCE ALLOWANCE. THE SEPARATE MAINTENANCE ALLOWANCE PROVIDED FOR IN SUBCHAPTER 260 OF THE STANDARDIZED REGULATIONS ORDINARILY IS NOT PAID. PAYMENT CAN BE MADE ONLY IF SPECIFICALLY AUTHORIZED BY HEADQUARTERS USAF.

"A. NORMALLY THE ONLY CIRCUMSTANCE IN WHICH PAYMENT OF THIS ALLOWANCE WILL BE AUTHORIZED IS WHEN THE FOLLOWING CONDITIONS EXIST:

"/1) WHEN FULL-TIME EMPLOYEES (INCLUDING TEACHERS AND SUMMER SCHOOL TEACHERS) ARE PROHIBITED FROM BRINGING THEIR FAMILIES TO THE POST OF ASSIGNMENT AND THIS ALLOWANCE IS NECESSARY AS AN INCENTIVE TO RECRUITMENT

"B. IN EXCEPTIONAL CIRCUMSTANCES WHERE PAYMENT IS BELIEVED TO BE NECESSARY, A REQUEST MUST BE SUBMITTED TO HEADQUARTERS USAF (AFPCPA), WASHINGTON 25, D.C., FOR PRIOR APPROVAL. THE LETTER OF REQUEST MUST CONTAIN A FULL STATEMENT OF THE CONDITIONS JUSTIFYING THE NEED TO PAY THE SEPARATE MAINTENANCE ALLOWANCE INCLUDING SUCH DATA AS THE NUMBER OF FULL- TIME POSITIONS FOR U.S. CITIZENS AUTHORIZED, FILLED AND VACANT; THE NUMBER OF SUCH EMPLOYEES BELIEVED ELIGIBLE TO RECEIVE THE ALLOWANCE, AND THE TOTAL ANNUAL ESTIMATED COST OF THE SEPARATE MAINTENANCE ALLOWANCE, IF AUTHORIZED. * * * IN ORDER TO BE CONSIDERED ELIGIBLE FOR A SEPARATE MAINTENANCE ALLOWANCE, EMPLOYEES MUST MEET THE QUARTERS ALLOWANCE ELIGIBILITY CRITERIA CONTAINED IN SECTION 031.1 OF THE STANDARDIZED REGULATIONS. AN ANALYSIS OF THE RECRUITMENT PROBLEMS, TURNOVER FIGURES, AND THE EXPERIENCE IN ATTEMPTING TO RECRUIT FOR THE AREA IS ALSO REQUIRED. THE LETTER REQUEST MUST INDICATE WHETHER OR NOT THE DEPARTMENTS OF THE ARMY AND OF THE NAVY HAVE U.S. CITIZEN CIVILIAN EMPLOYEES IN THE AREA CONCERNED.

"C. THE CONDITIONS AND LIMITATIONS CONTAINED IN THE LETTER OF AUTHORIZATION WILL GOVERN PAYMENT.

"D. EXISTING AUTHORIZATIONS TO PAY THE SEPARATION ALLOWANCE ARE CONSIDERED AS AUTHORIZATIONS TO PAY THE SEPARATE MAINTENANCE ALLOWANCE, SUBJECT TO THE CONDITIONS AND LIMITATIONS CONTAINED IN THE SPECIFIC AUTHORIZATION. UNDER SUCH CURRENT AUTHORIZATIONS THE SEPARATE MAINTENANCE ALLOWANCE MAY BE PAID TO OTHERWISE ELIGIBLE EMPLOYEES ONLY IF THE DEPENDENTS ARE MAINTAINED OUTSIDE THE COUNTRY OF THE EMPLOYEE'S ASSIGNMENT.'

EACH OF THE FOREGOING AUTHORITIES IS PREDICATED UPON THE CONCEPT THAT CERTAIN CRITERIA AND CONDITIONS EXIST, AS ADMINISTRATIVELY DETERMINED, AND WILL CONTINUE TO SUCH AN EXTENT THAT PAYMENT OF A SEPARATE MAINTENANCE ALLOWANCE IS JUSTIFIED AT THE TIME THAT IT IS AUTHORIZED OFFICIALLY. NONE OF THOSE AUTHORITIES REQUIRE THAT THE ALLOWANCE BE PAID RETROACTIVELY AND NO EMPLOYEE IS AUTOMATICALLY ENTITLED TO PAYMENT MERELY BECAUSE HE AND OTHER EMPLOYEES CONCLUDE THAT EXCEPTIONAL CIRCUMSTANCES, INCLUDING LACK OF ADEQUATE HOUSING, PREVAIL IN THE AREA OF THEIR ASSIGNMENT. IN THAT RESPECT, THE STANDARDIZED REGULATIONS PROVIDE, UNDER SECTION 262 CONDITIONS GOVERNING DETERMINATION OF ELIGIBILITY, AS FOLLOWS:

"262.1 CONDITIONS WARRANTING A SEPARATE MAINTENANCE ALLOWANCE "A SEPARATE MAINTENANCE ALLOWANCE MAY BE GRANTED TO AN EMPLOYEE WHENEVER THE HEAD OF AGENCY DETERMINES THAT THE EMPLOYEE IS COMPELLED TO MAINTAIN ANY OR ALL DEPENDENTS (SEC. 261.1) ELSEWHERE THAN AT HIS POST OF ASSIGNMENT BECAUSE OF THE EXISTENCE AT HIS POST OF ONE OF THE FOLLOWING CONDITIONS:

"C. EXCESSIVELY ADVERSE CONDITIONS

* * * * * * * "/3) CHRONIC LACK OF HOUSING AT THE POST WHICH HAS FORCED THE AGENCY TO ADOPT A POLICY OF WITHHOLDING TRANSPORTATION OF DEPENDENTS TO THE POST UNTIL HOUSING FOR THEM CAN BE OBTAINED; OR

"D. FOR CONVENIENCE OF THE GOVERNMENT "/1) WHERE HOUSING FACILITIES AT THE POST ARE SUBJECT TO CONTROL BY UNITED STATES MILITARY AUTHORITIES, A FOREIGN GOVERNMENT, OR SOME OTHER AUTHORITY, AND ARE NOT AVAILABLE FOR USE BY THE DEPENDENT; "/2) WHERE, IN THE INTEREST OF THE GOVERNMENT, THE AGENCY HAS "A. WITHHELD OR TERMINATED AUTHORITY FOR THE DEPENDENT'S TRANSPORTATION TO THE POST, OR "B. RECOMMENDED THAT THE DEPENDENT LEAVE THE POST OF ASSIGNMENT.'

WHILE SECTION 262.32 OF THE STANDARDIZED REGULATIONS CONTAINS A PROVISION THAT SEPARATE MAINTENANCE ALLOWANCE SHALL NOT BE GRANTED WHERE THE PERIOD OF SEPARATE MAINTENANCE IS LESS THAN 90 DAYS BUT MAY BE GRANTED IF THE CONDITION (SECTION 262.1) CONTINUED FOR A LONGER PERIOD, WE POINT OUT THAT SECTION 263.3 PROVIDES, AS FOLLOWS:

"263.3 AT DISCRETION OF HEAD OF AGENCY "NOTWITHSTANDING THE PROVISIONS OF SECTIONS 263.1 AND 263.2 (RELATING TO COMMENCEMENT OF ASSIGNMENT), THE HEAD OF AN AGENCY MAY AT HIS DESCRETION SPECIFY THAT THE GRANT OF A SEPARATE MAINTENANCE ALLOWANCE SHALL COMMENCE AS OF A LATER DATE TO BE DESIGNATED BY HIM IN THE AUTHORIZATION FOR SUCH ALLOWANCE.'

IN THAT REGARD THE RECORD WARRANTS THE CONCLUSION THAT ON JULY 25, 1966, THE DEPUTY ASSISTANT SECRETARY OF DEFENSE WAS AWARE OF THE ABOVE PROVISIONS AND THAT A LACK OF FAMILY HOUSING HAD EXISTED MORE THAN 90 DAYS IN THE PHILIPPINE ISLANDS AREA OF YOUR ASSIGNMENT BUT, NOTWITHSTANDING THAT CIRCUMSTANCE, A RETROACTIVE PAYMENT DATE WAS NOT INDICATED IN OR IMPLIED BY HIS MEMORANDUM OF JULY 25, 1966, TO THE IMPLEMENTING OFFICES. THE RECORD CONTAINS NOTHING WHICH WOULD SUGGEST TO US THAT ISSUANCE OF THAT AUTHORIZATION WAS UNJUSTIFIABLY DELAYED UNTIL JULY 25, 1966, OR WAS WITHHELD FOR ARBITRARY OR CAPRICIOUS REASONS UNTIL THAT DATE.

THEREFORE, SINCE THE EVIDENCE PRESENTED DOES NOT SHOW THAT YOU LAWFULLY WERE ENTITLED TO PAYMENT OF A SEPARATE MAINTENANCE ALLOWANCE PRIOR TO JULY 25, 1966, UNDER THE PROVISIONS QUOTED ABOVE, THE SETTLEMENT OF DECEMBER 14, 1967, IS SUSTAINED.

YOUR CLAIM FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES TRANSMITTED TO OUR CLAIMS DIVISION ON JUNE 10, 1969, IS UNDER CONSIDERATION AND YOU WILL BE FURTHER ADVISED AS PROMPTLY AS POSSIBLE.