B-177948, MAR 27, 1973

B-177948, MAR 27, 1973

CIVILIAN PAY - DEPENDENT EDUCATIONAL ALLOWANCES - ADMINISTRATIVE INTERPRETATION OF REGULATION DECISION DENYING THE CLAIM OF ANDREW L. WILEY, AN EMPLOYEE OF THE AGENCY OF INTERNATIONAL DEVELOPMENT (AID), FOR DEPENDENT EDUCATIONAL ALLOWANCES AT THE LAST PREVIOUS POST RATE IN CONNECTION WITH HIS TRANSFER FROM LAGOS, NIGERIA TO SAIGON, VIET NAM. SINCE THE CONSTRUCTION OF A STATUTE OR REGULATION BY THOSE CHARGED WITH ITS ADMINISTRATION IS NOT TO BE OVERRULED EXCEPT FOR WEIGHTY REASONS, DOE V. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, 412 F.2D 674 (1969), GAO HAS NO BASIS FOR HOLDING AID'S INTERPRETATION OF SECTION 276.44 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS THAT ELECTION OF THE DEPENDENT EDUCATIONAL ALLOWANCE BY AN EMPLOYEE AT THE OLD POST RATES CAN ONLY BE MADE UNTIL THE CHILD FINISHES THE GRADE BEING ATTENDED AT THE TIME NOTICE OF TRANSFER IS RECEIVED, WAS BEYOND THE BOUNDS OF REASON OR AUTHORITY. UDALL V. OELSCHLAEGER, 389 F.2D 974, CERTIORARI DENIED 392 U.S. 909 (1968).

TO DR. JOHN A. HANNAH:

REFERENCE IS MADE TO A LETTER FROM MR. JOHN W. JOHNSTON, DIRECTOR, OFFICE OF PERSONNEL AND MANPOWER, AGENCY FOR INTERNATIONAL DEVELOPMENT (AID), DATED JANUARY 31, 1973, FORWARDING A REQUEST OF MR. ANDREW L. WILEY FOR A DECISION CONCERNING HIS ENTITLEMENT TO DEPENDENT EDUCATIONAL ALLOWANCES AT THE LAST PREVIOUS POST RATE IN CONNECTION WITH HIS RECENT TRANSFER TO VIETNAM.

PRIOR TO HIS TRANSFER, MR. WILEY, AN AID FOREIGN SERVICE EMPLOYEE, WAS STATIONED IN LAGOS, NIGERIA, AND RECEIVED A DEPENDENT EDUCATIONAL ALLOWANCE AT THE "AWAY FROM POST" RATE FOR LAGOS ON BEHALF OF HIS TWO DEPENDENT SONS, WHO WERE ENROLLED IN A PRIVATE SCHOOL IN THE UNITED STATES DURING THE 1971-72 SCHOOL YEAR. ON MARCH 10, 1972, MR. WILEY WAS NOTIFIED HE WAS BEING TRANSFERRED TO VIETNAM AND ON APRIL 11, 1972, HIS FAMILY WAS APPROVED FOR RESIDENCE AT THE SAFE HAVEN POST OF BANGKOK, THAILAND. HOWEVER, A FEW DAYS LATER ON APRIL 17, 1972, MR. WILEY REGISTERED HIS SONS AT THEIR PRIVATE SCHOOL IN THE UNITED STATES FOR THE NEXT SCHOOL YEAR OF 1972-73 AND THE SONS COMMENCED THAT SCHOOL YEAR ON AUGUST 28, 1972.

MR. WILEY DEPARTED LAGOS, NIGERIA, UNDER APPROPRIATE TRAVEL ORDERS ON JUNE 10, 1972, FOR HOME LEAVE IN THE UNITED STATES. HE WAS OFFICIALLY TRANSFERRED FROM LAGOS TO SAIGON EFFECTIVE SEPTEMBER 3, 1972, PURSUANT TO A DEPARTMENT OF STATE TELEGRAM DISPATCHED ON AUGUST 25, 1972, AND HE ARRIVED AT HIS NEW POST ON SEPTEMBER 14, 1972. SUBSEQUENTLY THE MISSION IN SAIGON DETERMINED MR. WILEY WAS ENTITLED TO A DEPENDENT EDUCATIONAL ALLOWANCE NOT TO EXCEED THE LOWER RATE ESTABLISHED FOR BANGKOK, AND THAT HE WAS NOT ELIGIBLE FOR THE SCHOOL "AWAY FROM POST" RATE FOR LAGOS. THE INSTANT CASE INVOLVES MR. WILEY'S APPEAL OF THIS ADMINISTRATIVE DETERMINATION.

SECTION 276.44 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) GOVERNS ENTITLEMENT TO DEPENDENT EDUCATIONAL ALLOWANCES AT THE RATE OF THE LAST PREVIOUS POST AND PROVIDES AS FOLLOWS:

276.44 TRANSFERS TO A NEW FOREIGN POST

AN EMPLOYEE, ASSIGNED TO A POST IN A FOREIGN AREA, WHO RECEIVES OFFICIAL NOTICE OF TRANSFER TO A NEW FOREIGN POST WHILE HIS CHILD IS ATTENDING SCHOOL HAS A CHOICE OF ALLOWANCES UPON TRANSFERRING IF HIS CHILD REMAINS IN THE SAME SCHOOL. FOLLOWING TRANSFER TO THE NEW FOREIGN POST, THE EMPLOYEE MAY ELECT TO RECEIVE AND BE GRANTED THE RATE OF EDUCATION ALLOWANCE OF HIS LAST PREVIOUS POST INSTEAD OF AT THE RATE OF HIS NEW POST. IF THE ELECTION IS MADE, THE RATE OF THE LAST PREVIOUS POST MAY CONTINUE ONLY UNTIL THE CHILD FINISHES THE GRADE BEING ATTENDED. AFTER THE CHILD FINISHES THIS GRADE, WHETHER SUCCESSFULLY PASSED OR NOT, THE RATE OF EDUCATION ALLOWANCE AT THE NEW POST IS PAYABLE FOR COSTS OF ANY FURTHER EDUCATION RECEIVED SUBJECT TO THE PROVISIONS OF SECTION 276.1 (SEE ALSO SEC. 274.24.). AN EMPLOYEE SHALL FURNISH A COPY OF HIS LAST PREVIOUS GRANT TO FACILITATE COMPUTATION.

MR. WILEY CONTENDS HE SATISFIES THE CRITERIA ESTABLISHED BY THE ABOVE REGULATION FOR ENTITLEMENT TO A DEPENDENT EDUCATIONAL ALLOWANCE AT THE RATE AUTHORIZED FOR LAGOS. HE MAINTAINS HIS CHILDREN WERE ATTENDING A PRIVATE SCHOOL IN THE UNITED STATES WHEN HE RECEIVED NOTICE OF HIS FUTURE REASSIGNMENT TO VIETNAM. SUBSEQUENTLY HE ENROLLED HIS CHILDREN IN THE SCHOOL FOR THE NEXT SCHOOL YEAR AND THEY BEGAN ATTENDING ON AUGUST 28, 1972, WHICH WAS PRIOR TO THE EFFECTIVE DATE OF HIS VIETNAM TRANSFER ON SEPTEMBER 3, 1972. MR. WILEY ASSERTS THE PLAIN MEANING OF THE TERMS OF THE REGULATION ONLY PERMITTED HIM TO MAKE AN ELECTION AS TO ALLOWANCE RATE AFTER HIS TRANSFER HAD BECOME EFFECTIVE, AND INASMUCH AS HIS ELECTION OF THE LAGOS RATE WAS MADE AFTER HIS CHILDREN WERE ATTENDING SCHOOL, HE IS ENTITLED TO THIS HIGHER RATE UNTIL THE CHILDREN FINISH THEIR CURRENT GRADES, WHETHER SUCCESSFULLY PASSED OR NOT.

THE OBVIOUS PURPOSE OF THE QUOTED REGULATION IS TO PROVIDE FINANCIAL RELIEF FOR EMPLOYEES TRANSFERRED TO ANOTHER FOREIGN POST DURING A SCHOOL YEAR WHO HAVE ENROLLED THEIR DEPENDENTS IN A SCHOOL AWAY FROM POST IN RELIANCE ON AN EDUCATIONAL ALLOWANCE OF A SPECIFIC AMOUNT. THE REGULATION PERMITS THE TRANSFEREE TO CONTINUE TO RECEIVE AN EDUCATIONAL ALLOWANCE OF AT LEAST THE AMOUNT RECEIVED AT HIS PREVIOUS POST FOR THE REMAINDER OF THE SCHOOL YEAR SO AS TO PRECLUDE A FINANCIAL HARDSHIP. YOUR AGENCY HAS CONSTRUED THE REGULATION AS EXCLUDING AN ELECTION OF ALLOWANCE BY MR. WILEY AND CONTENDS A CHOICE OF ALLOWANCE RATES IS AVAILABLE ONLY WHEN TWO CONDITIONS ARE SATISFIED. FIRST, THE CHILD MUST BE ATTENDING THE SCHOOL AT THE TIME NOTICE OF TRANSFER IS RECEIVED, WHICH OCCURRED IN THE INSTANT CASE. SECOND, THE ELECTION CAN ONLY BE MADE UNTIL THE CHILD FINISHES THE GRADE BEING ATTENDED AT THE TIME NOTICE OF TRANSFER IS RECEIVED AND IN THE INSTANT CASE THE CHILDREN FINISHED THOSE GRADES PRIOR TO THE EFFECTIVE DATE OF THE TRANSFER WHEN AN ELECTION COULD BE MADE.

IT HAS BEEN HELD THAT CONSTRUCTION OF A STATUTE OR REGULATION BY THOSE CHARGED WITH ADMINISTRATION IS NOT TO BE OVERRULED EXCEPT FOR WEIGHTY REASONS. DOE V. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, 412 F.2D 674 (1969); GULF OIL CORP. V. HICKEL, 435 F.2D 440 (1970); CHRYSLER CORP. V. TOFANY, 419 F.2D 499 (1969).

UNDER THE CIRCUMSTANCES, WE FIND NO BASIS FOR HOLDING THAT YOUR INTERPRETATION OF THE REGULATION IS BEYOND THE BOUNDS OF REASON OR AUTHORITY. UDALL V. OELSCHLAEGER, 389 F.2D 974, CERTIORARI DENIED 392 U.S. 909 (1968).

ACCORDINGLY, WE AGREE WITH YOUR DETERMINATION THAT MR. WILEY IS NOT ENTITLED TO AN EDUCATION ALLOWANCE AT THE RATE APPLICABLE TO LAGOS, NIGERIA.