B-173424, SEP 2, 1971

B-173424, SEP 2, 1971

CIVILIAN EMPLOYEE - RECRUITED OUTSIDE U.S. - LIVING QUARTERS ALLOWANCE DENYING CLAIM OF FRANCIS E. CIOLA FOR LIVING QUARTERS ALLOWANCE RETROACTIVE TO SEPTEMBER 12, 1966 ON WHICH DATE HE WAS REINSTATED AS AN EMPLOYEE OF THE ARMY AT NAHA, OKINAWA. ALTHOUGH CLAIMANT WHEN ORIGINALLY EMPLOYED BY THE ARMY RECEIVED A LIVING QUARTERS ALLOWANCE, THIS FACT DOES NOT ENTITLE HIM TO SUCH AN ALLOWANCE UPON REEMPLOYMENT AFTER A PERIOD OF ILLNESS DURING WHICH HE REMAINED IN OKINAWA. NOW HE NO LONGER MEETS THE CRITERIA OF SECTION 031.12 OF THE DEPARTMENT OF STATE STANDARDIZED REGULATIONS WHICH SPECIFY THAT TO RECEIVE A LIVING QUARTERS ALLOWANCE AN EMPLOYEE'S ACTUAL PLACE OF RESIDENCE TO WHICH THE ALLOWANCE APPLIES MUST BE FAIRLY ATTRIBUTABLE TO HIS EMPLOYMENT BY THE U.S. GOVERNMENT AND PRIOR TO APPOINTMENT HE MUST HAVE BEEN IN CONTINUOUS EMPLOYMENT OF THE U.S. OR A QUALIFIED EMPLOYER.

TO MR. FREDERICK L. NEYLOR:

THIS REFERS TO YOUR LETTER OF MAY 21, 1971, ON BEHALF OF MR. FRANCIS E. CIOLA, REQUESTING REVIEW OF THE SETTLEMENT OF OUR CLAIMS DIVISION OF SEPTEMBER 5, 1969, DENYING MR. CIOLA'S CLAIM FOR LIVING QUARTERS ALLOWANCE.

MR. CIOLA'S CLAIM IS RETROACTIVE TO SEPTEMBER 12, 1966, ON WHICH DATE HE WAS REINSTATED AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY AT AN INSTALLATION LOCATED AT NAHA, OKINAWA. MR. CIOLA HAD PREVIOUSLY BEEN EMPLOYED BY THE ARMY AT OKINAWA DURING THE PERIOD FEBRUARY 1964 TO JULY 1965, ON WHICH LATTER DATE HE RESIGNED FOR REASONS OF HEALTH.

DURING THE INTERVAL BETWEEN HIS RESIGNATION AND SUBSEQUENT REINSTATEMENT, HE CONTINUED TO RESIDE ON OKINAWA WHERE HE RECEIVED MEDICAL TREATMENT, AFTER WHICH HE TRAVELED BRIEFLY TO JAPAN AND HAWAII. THROUGHOUT THIS PERIOD HE APPEARS TO HAVE BEEN UNEMPLOYED.

YOUR CLAIM ON BEHALF OF MR. CIOLA FOR LIVING QUARTERS ALLOWANCE PROVIDED BY SECTION 5923 OF TITLE 5, U.S.C. IS STATED AS FOLLOWS:

"IT IS THE UNION'S CONTENTION THAT WHEN MR. CIOLA WAS REINSTATED BACK TO FEDERAL EMPLOYMENT HE SHOULD HAVE BEEN AUTHORIZED LIVING QUARTERS ALLOWANCE IN ADDITION TO THE TRANSPORTATION AGREEMENT. NOTE THAT THE TERM USED IN HIS STANDARD FORM 50 WAS 'REINSTATED'. THE REINSTATEMENT ACTION SHOULD HAVE INCLUDED NOT ONLY THE TRANSPORTATION AGREEMENT BUT ALSO THE LIVING QUARTERS ALLOWANCE, WHICH ARE BOTH PART OF THE ORIGINAL CONDITIONS OF EMPLOYMENT. IT IS FURTHER THE UNION'S CONTENTION, THAT UNDER THE PROVISIONS OF THE STANDARDIZED REGULATIONS, PARAGRAPH 031.12 MR. CIOLA MEETS THE REQUIREMENTS PROVIDED THEREON AS FOLLOWS:

"A. HE WAS BROUGHT TO OKINAWA BY THE ARMED FORCES ON MILITARY ORDERS.

"B. HIS RESIDENCE ON OKINAWA IS ATTRIBUTABLE TO EMPLOYMENT OR ANTICIPATED EMPLOYMENT WITH THE U.S. GOVERNMENT. HE IS NOT A MEMBER OF THE HOUSEHOLD OF ANOTHER EMPLOYEE OR THE U.S. ARMED FORCES.

"C. HE WAS RECRUITED FROM THE UNITED STATES AS VERIFIED BY THE TRANSPORTATION AGREEMENT WHICH RECOGNIZED HIS PERMANENT DOMICILE IN THE UNITED STATES.

"D. HIS TEMPORARY RESIDENCE ON OKINAWA WAS DUE TO HOSPITALIZATION, RECUPERATION AND IN ANTICIPATION OF RETURN TO GOVERNMENT SERVICE."

THE GOVERNING STATUTORY REGULATION TO BE APPLIED IS, AS NOTED IN YOUR LETTER, SECTION 031.12 OF THE DEPARTMENT OF STATE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"031.12 EMPLOYEES RECRUITED OUTSIDE THE UNITED STATES

"QUARTERS ALLOWANCES PRESCRIBED IN CHAPTER 100 MAY BE GRANTED TO EMPLOYEES RECRUITED OUTSIDE THE UNITED STATES, PROVIDED THAT

"A. 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 TO HIS EMPLOYMENT BY THE UNITED STATES GOVERNMENT; AND

"C. 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, BY

"(1) THE UNITED STATES GOVERNMENT, INCLUDING ITS ARMED FORCES;

"(2) A UNITED STATES FIRM, ORGANIZATION, OR INTEREST;

"(3) AN INTERNATIONAL ORGANIZATION IN WHICH THE UNITED STATES GOVERNMENT PARTICIPATES; OR

"(4) A FOREIGN GOVERNMENT;

AND HAD BEEN IN SUBSTANTIALLY CONTINUOUS EMPLOYMENT BY SUCH EMPLOYER UNDER CONDITIONS WHICH PROVIDED FOR HIS RETURN TRANSPORTATION TO THE UNITED STATES, THE COMMONWEALTH OF PUERTO RICO, THE CANAL ZONE, OR A POSSESSION OF THE UNITED STATES *** "

IN VIEW OF THE FACT THAT THE PERIOD FOR WHICH MR. CIOLA CLAIMS LIVING QUARTERS ALLOWANCE FOLLOWED IMMEDIATELY A PERIOD OF MORE THAN 1 YEAR DURING WHICH HE WAS UNEMPLOYED, WE DO NOT FIND THAT SUCH STATUS CAN BE CONSTRUED TO MEAN THAT HIS RESIDENCE IN OKINAWA WAS ATTRIBUTABLE TO EMPLOYMENT BY THE UNITED STATES GOVERNMENT. THUS, NO ENTITLEMENT WOULD RESULT FROM APPLICATION OF SUBSECTION "A" OF SECTION 031.12. ALSO, MR. CIOLA CANNOT BE FOUND TO HAVE BEEN IN "SUBSTANTIALLY CONTINUOUS EMPLOYMENT" BY ONE OF THE ENTITIES NAMED IN SUBSECTION "C" OF SECTION 031.12 AS ADDITIONALLY REQUIRED FOR ELIGIBILITY FOR LIVING QUARTERS ALLOWANCE UNDER THAT PROVISION. SEE B-158440, NOVEMBER 23, 1966, COPY ENCLOSED.

AS FOR MR. CIOLA'S CLAIM ON THE GROUND THAT HE WAS REINSTATED TO GOVERNMENT EMPLOYMENT AND THEREBY ENTITLED TO THE LIVING QUARTERS ALLOWANCE BECAUSE THAT HAD BEEN A CONDITION OF HIS PRIOR EMPLOYMENT, NO BASIS FOR THIS EXISTS. REINSTATEMENT TO CAREER STATUS ENTITLES AN EMPLOYEE TO CERTAIN PROTECTIONS OF TENURE AND RIGHTS ACCORDED UNDER CIVIL SERVICE LAW. HOWEVER, THIS IS UNRELATED TO ELIGIBILITY FOR A LIVING QUARTERS ALLOWANCE. SEE B-167629, AUGUST 26, 1969, COPY ENCLOSED.

WITH RESPECT TO YOUR REFERENCE TO MR. CIOLA'S TRANSPORTATION AGREEMENT AS ESTABLISHING HIS DOMICILE IN THE UNITED STATES, WE WOULD POINT OUT THAT ENTITLEMENT TO TRAVEL AND TRANSPORTATION BENEFITS PROVIDED UNDER A TRANSPORTATION AGREEMENT EXECUTED IN ACCORDANCE WITH PROVISIONS OF SECTION 5722 OF TITLE 5, U.S.C. AND THE STATUTORY REGULATIONS OF SUBSECTION 1.3C(2) OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56 DOES NOT CONFER ANY ELIGIBILITY TO LIVING QUARTERS ALLOWANCE. SEE B-167629 SUPRA.

SINCE NOTHING HAS BEEN SHOWN TO ESTABLISH MR. CIOLA'S ENTITLEMENT TO LIVING QUARTERS ALLOWANCE AS CLAIMED, THE SETTLEMENT OF THE CLAIMS DIVISION MUST BE AFFIRMED.