B-173325, OCT 8, 1971

B-173325, OCT 8, 1971

CIVILIAN EMPLOYEE - OVERSEAS QUARTERS ALLOWANCE - DEPENDENT'S SCHOOLING DECISION DENYING REQUEST OF MRS. SUSANNE DONNELLY FOR RECONSIDERATION OF A PRIOR SETTLEMENT WHICH DENIED HER CLAIM FOR LIVING QUARTERS ALLOWANCES AND TUITION-FREE, SPACE-REQUIRED EDUCATION FOR HER SON IN THE DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS. THE REQUEST FOR EDUCATION IS MOOT SINCE DOD REPORTS THAT THE SON HAS BEEN RECEIVING SUCH EDUCATION SINCE THE BEGINNING OF THE 1969-70 SCHOOL YEAR UNDER THE REVISED REGULATIONS. CLAIMANT HAS NOT FURNISHED EVIDENCE THAT HER HUSBAND IS PHYSICALLY OR MENTALLY INCAPABLE OF SELF-SUPPORT AS REQUIRED BY THE CONTROLLING DOD INSTRUCTION. THE FACT THAT THE HUSBAND WAS RETIRED FOR DISABILITY FROM THE ARMY MAY NOT BE ACCEPTED AS EVIDENCE THAT HE IS INCAPABLE OF SELF SUPPORT IN A CIVILIAN CAPACITY. THEREFORE, THERE IS NO BASIS FOR GRANTING THE REQUESTED ALLOWANCES.

TO MRS. SUSANNE DONNELLY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 2, 1971, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF JULY 23, 1970, DENYING YOUR CLAIM FOR LIVING QUARTERS ALLOWANCES AND TUITION-FREE, SPACE-REQUIRED EDUCATION FOR YOUR SON IN THE DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS.

THE RECORD INDICATES THAT YOU ACCOMPANIED YOUR HUSBAND, A MEMBER OF THE ARMED FORCES, TO EUROPE IN 1964. SUBSEQUENTLY YOU OBTAINED A POSITION WITH THE DEPARTMENT OF THE ARMY IN 1966 AND APPLIED FOR A LIVING QUARTERS ALLOWANCE. YOUR APPLICATION WAS DENIED BECAUSE YOU WERE THE DEPENDENT OF A MILITARY MEMBER IN THE AREA. YOUR HUSBAND WAS RETIRED FOR DISABILITY EFFECTIVE MARCH 1, 1968, AND YOU MADE APPLICATION FOR TUITION-FREE, SPACE- REQUIRED EDUCATION WHICH APPLICATION WAS DENIED BECAUSE YOU ACCOMPANIED YOUR HUSBAND OVERSEAS AND WERE NOT STATIONED OVERSEAS AS A RESULT OF YOUR EMPLOYMENT. ON FEBRUARY 10, 1969, YOU AGAIN APPLIED FOR LIVING QUARTERS ALLOWANCE. THAT APPLICATION WAS DENIED BECAUSE YOU WERE A LOCALLY HIRED EMPLOYEE WHO WAS INELIGIBLE UNDER THE PROVISIONS OF SECTION 031.12, STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS), PROMULGATED BY THE DEPARTMENT OF STATE, AND DOD INSTRUCTION 1418.1, PAYMENT OF DIFFERENTIALS AND ALLOWANCES IN FOREIGN AREAS, DATED JANUARY 14, 1969.

QUARTERS ALLOWANCES MAY BE GRANTED TO EMPLOYEES RECRUITED OUTSIDE THE UNITED STATES UNDER THE PROVISIONS OF THE DEPARTMENT OF STATE REGULATION, PROVIDED THAT THE EMPLOYEE'S ACTUAL PLACE OF RESIDENCE IN THE PLACE TO WHICH THE QUARTERS ALLOWANCE APPLIES AT THE TIME OF RECEIPT THEREOF SHALL BE FAIRLY ATTRIBUTABLE IN HIS EMPLOYMENT BY THE UNITED STATES GOVERNMENT AND, IF PRIOR TO APPOINTMENT, THE EMPLOYEE WAS RECRUITED IN THE UNITED STATES, THE COMMONWEALTH OF PUERTO RICO, THE CANAL ZONE, OR A POSSESSION OF THE UNITED STATES; OR THAT THE EMPLOYEE WAS TEMPORARILY IN THE FOREIGN AREA FOR TRAVEL OR FORMAL STUDY AND IMMEDIATELY PRIOR TO SUCH TRAVEL OR STUDY HAD RESIDED IN THE UNITED STATES, THE COMMONWEALTH OF PUERTO RICO, THE CANAL ZONE, OR A POSSESSION OF THE UNITED STATES; OR AS A CONDITION OF EMPLOYMENT BY A GOVERNMENT AGENCY, THE EMPLOYEE WAS REQUIRED BY THAT AGENCY TO MOVE TO ANOTHER AREA. IN THE CASE OF MARRIED PERSONS THE RULES ESTABLISHED BY SECTION 031.13 OF THE STANDARDIZED REGULATIONS MUST BE MET. ALSO, THE PROVISION REGARDING THE RECRUITMENT IN THE UNITED STATES, ETC., MAY BE WAIVED BY THE HEAD OF AN AGENCY UPON DETERMINATION THAT UNUSUAL CIRCUMSTANCES IN AN INDIVIDUAL CASE JUSTIFY SUCH ACTION.

THE DEPARTMENT OF DEFENSE DELEGATED AUTHORITY TO THE MILITARY DEPARTMENTS TO GRANT THE WAIVER CITED ABOVE TO A MARRIED EMPLOYEE WHO ACCOMPANIED OR FOLLOWED HIS OR HER SPOUSE TO THE FOREIGN AREA ONLY IF CERTAIN SPECIFIED CONDITIONS ARE MET. UNDER THE CURRENT REGULATION (DOD INSTRUCTION 1418.1, JANUARY 14, 1969) A MARRIED EMPLOYEE WHO ACCOMPANIED HIS OR HER SPOUSE TO A FOREIGN AREA MAY BE GRANTED A QUARTERS ALLOWANCE IF THE SPOUSE DIES, THERE IS A DIVORCE OR LEGAL SEPARATION, THE SPOUSE DEPARTS FROM THE POST OR AREA PERMANENTLY, OR EITHER SPOUSE'S WORK LOCATIONS BECOME SO SEPARATED THAT DAILY COMMUTING TO A COMMON DOMICILE WOULD NOT BE REASONABLE.

YOU BELIEVE THAT THE REGULATION CITED ABOVE IS INAPPLICABLE TO YOUR CASE AND THAT YOUR CLAIM IS ALLOWABLE UNDER THE PROVISIONS OF A LETTER ISSUED ON NOVEMBER 25, 1964, BY HEADQUARTERS, UNITED STATES ARMY, EUROPE, REGARDING PAYMENT OF QUARTERS ALLOWANCE WHEN LOCALLY HIRED EMPLOYEES LOSE THEIR DEPENDENCY STATUS TO THEIR SPONSOR. THE ARMY LETTER PROVIDES GENERALLY THAT WHEN A WIFE LOSES HER DEPENDENCY STATUS SHE MAY BE GRANTED A QUARTERS ALLOWANCE IF SHE ESTABLISHES THAT HER HUSBAND AND MINOR DEPENDENTS ARE IN FACT DEPENDENT ON HER FOR 51 PERCENT OR MORE OF THEIR SUPPORT. THAT LETTER WAS APPARENTLY ISSUED TO IMPLEMENT A PROVISION IN DOD INSTRUCTION 1418.1, APRIL 17, 1961, WHICH IN ADDITION TO PROVIDING FOR PAYMENTS OF QUARTERS ALLOWANCES TO FORMER DEPENDENT SPOUSES UNDER THE AMENDED INSTRUCTION OF JANUARY 14, 1969, ALSO PROVIDED FOR PAYMENT OF THE ALLOWANCE WHEN THE HUSBAND BECOMES PHYSICALLY OR MENTALLY INCAPABLE OF SELF-SUPPORT. IN THIS CONNECTION WE NOTE THAT THE AMENDED INSTRUCTION STATES THAT A LOCALLY HIRED EMPLOYEE WHO ENTERED THE AREA AS A MEMBER OF FAMILY OR DEPENDENT AND WHO IS RECEIVING ALLOWANCES BASED ON DETERMINATIONS MADE UNDER PREVIOUS POLICY WILL CONTINUE TO RECEIVE THOSE PAYMENTS AS LONG AS HE IS CONTINUOUSLY EMPLOYED BY DOD COMPONENTS WITHOUT A BREAK OF SERVICE AND OTHERWISE IS ELIGIBLE EXCEPT THAT PAYMENT MUST BE TERMINATED ON THE FIRST ANNIVERSARY OF THE REVISED INSTRUCTION (JANUARY 14, 1970) OR AT THE COMPLETION OF THE EMPLOYEE'S AGREED PERIOD OF SERVICE IN HIS OR HER CURRENT TRANSPORTATION AGREEMENT, WHICHEVER IS THE LATER DATE.

THE RECORD INDICATES THAT YOUR HUSBAND WAS RETIRED FOR DISABILITY IN MARCH 1968. YOU REQUESTED TUITION-FREE, SPACE-REQUIRED EDUCATION FOR YOUR SON IN THE DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS. YOUR REQUEST WAS DENIED SINCE YOU HAD ENTERED THE FOREIGN AREA UPON YOUR OWN VOLITION AND NOT AS A RESULT OF YOUR EMPLOYMENT, AS REQUIRED BY PARAGRAPH 5A(2) OF CHANGE 1, MAY 24, 1965, TO AR-350-290. IN A GRIEVANCE PROCEEDING THIS DETERMINATION WAS SUSTAINED. SINCE THE RECORD CLEARLY INDICATES THAT YOU ACCOMPANIED YOUR HUSBAND TO HIS FOREIGN AREA STATION AS A DEPENDENT AND DID NOT OBTAIN GOVERNMENT EMPLOYMENT UNTIL APPROXIMATELY 2 YEARS LATER, THERE WAS NO BASIS FOR GRANTING YOUR REQUEST. IN THIS CONNECTION THE ADMINISTRATIVE OFFICE HAS ADVISED US THAT THE REGULATIONS WERE SUBSEQUENTLY AMENDED AND THAT UNDER PRESENT REGULATIONS YOU HAVE BEEN RECEIVING TUITION-FREE SCHOOLING FOR YOUR SON SINCE THE BEGINNING OF THE 1969-70 SCHOOL YEAR.

YOU DID NOT REAPPLY FOR A QUARTERS ALLOWANCE UNTIL FEBRUARY 10, 1969, WHEN YOU WERE INELIGIBLE FOR SUCH ALLOWANCE UNDER THE CURRENT REGULATIONS. HOWEVER, HAD YOU APPLIED FOR THE ALLOWANCE WHEN YOUR HUSBAND RETIRED FOR DISABILITY IN MARCH 1968, IT WOULD HAVE BEEN NECESSARY FOR YOU, UNDER THE PROVISIONS OF DOD INSTRUCTION 1418.1, APRIL 17, 1961, TO ESTABLISH THAT YOUR HUSBAND WAS PHYSICALLY OR MENTALLY INCAPABLE OF SUPPORT. IN SUPPORT OF YOUR CLAIM YOU FORWARDED TO OUR OFFICE A STATEMENT WHICH SHOWS THAT YOUR INCOME HAS BEEN GREATER THAN THAT OF YOUR HUSBAND SINCE HIS RETIREMENT. HOWEVER, YOU HAVE AT NO TIME FURNISHED EVIDENCE THAT YOUR HUSBAND HAS BEEN PHYSICALLY OR MENTALLY INCAPABLE OF SELF- SUPPORT, AS REQUIRED BY THE CONTROLLING DOD INSTRUCTION. THE FACT THAT YOUR HUSBAND WAS RETIRED FOR DISABILITY FROM THE ARMED FORCES MAY NOT BE ACCEPTED AS EVIDENCE THAT HE IS INCAPABLE OF SELF-SUPPORT IN A CIVILIAN CAPACITY.

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