B-178654, APR 8, 1974

B-178654, APR 8, 1974

ALTHOUGH EMPLOYEE RECRUITED IN JAPAN FOR SERVICE THERE SIGNED TRANSPORTATION AGREEMENT SHOWING HIS RESIDENCE TO BE IN MONTROSE, IOWA, HE IS NOT ENTITLED TO A LIVING QUARTERS ALLOWANCE SINCE AGENCY DETERMINATION OF RESIDENCE WAS ERRONEOUS, EMPLOYEE DID NOT QUALIFY FOR TRANSPORTATION AGREEMENT UNDER JOINT TRAVEL REGULATIONS, AND EMPLOYEE WAS NOT ENTITLED TO THE ALLOWANCE UNDER THE STANDARDIZED REGULATIONS.

TO MR. GERALD W. STOCKTON:

THIS ACTION IS A RECONSIDERATION OF DECISION B-178654, JULY 6, 1973, SUSTAINING THE SETTLEMENT ISSUED BY OUR TRANSPORTATION AND CLAIMS DIVISION DISALLOWING THE CLAIM OF MR. GERALD W. STOCKTON, A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE NAVY STATIONED IN YOKOSUKA, JAPAN, FOR A LIVING QUARTERS ALLOWANCE OR GOVERNMENT QUARTERS IN LIEU THEREOF.

MR. STOCKTON'S CLAIM IS BASED ON HIS ASSERTION THAT AT THE TIME OF HIS RECRUITMENT AND CIVIL SERVICE APPOINTMENT AT YOKOSUKA, JAPAN, ON APRIL 22, 1968, THE CONSOLIDATED CIVILIAN PERSONNEL OFFICE, U.S. FLEET ACTIVITIES, CAUSED HIM TO SIGN A TRANSPORTATION AGREEMENT PROVIDING FOR HIS RETURN TRANSPORTATION AND THAT OF HIS FAMILY AND HOUSEHOLD GOODS TO MONTROSE, IOWA, THE PLACE CLAIMED AS HIS RESIDENCE IN THE UNITED STATES. TRAVEL ORDERS ISSUED IN CONNECTION WITH HIS APPOINTMENT ALSO LISTED MONTROSE, IOWA, AS THE EMPLOYEE'S ACTUAL RESIDENCE. MR. STOCKTON CONTENDS THAT THIS EVIDENCE IS SUFFICIENT TO ESTABLISH THAT THE APPOINTING AUTHORITY HAD DETERMINED THAT HIS ACTUAL RESIDENCE WAS IN THE UNITED STATES RATHER THAN IN JAPAN, THE POINT OF HIRE, FOR PURPOSES OF QUALIFYING HIM UNDER APPLICABLE REGULATIONS, IN EFFECT AT THE TIME, FOR A QUARTERS ALLOWANCE WHILE STATIONED IN JAPAN.

WE SUSTAINED THE DISALLOWANCE OF MR. STOCKTON'S CLAIM ON THE BASIS THAT THE DEPARTMENT OF THE NAVY APPARENTLY DISCOVERED A FEW MONTHS AFTER MR. STOCKTON'S ORIGINAL APPOINTMENT THAT HE WAS NOT ENTITLED TO A TRANSPORTATION AGREEMENT INASMUCH AS JAPAN WAS ESTABLISHED AS HIS PLACE OF ACTUAL RESIDENCE AT THE TIME HE WAS HIRED. THE ADMINISTRATIVE AGENCY ALSO DETERMINED THAT MR. STOCKTON WAS NOT ENTITLED TO A LIVING QUARTERS ALLOWANCE IN JAPAN AS HE DID NOT MEET THE ELIGIBILITY CRITERIA OF SECTION 031.12, STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS). THE RECORD ALSO INDICATED THAT MR. STOCKTON WAS NOTIFIED OF THE ERROR BY STANDARD FORM 50, NOTIFICATION OF PERSONNEL ACTION, DATED NOVEMBER 18, 1968, WITH THE EFFECTIVE DATE OF APRIL 22, 1968, THE DATE OF HIS APPOINTMENT, WHICH CONTAINED THE FOLLOWING REMARK: "CORRECTS STATEMENT OF SF-50 DATED 04-23-68 WHICH READ '36 MONTH EMPLOYMENT AGREEMENT' TO READ 'NO EMPLOYMENT AGREEMENT'."

MR. STOCKTON NOW REQUESTS THAT WE RECONSIDER THE DISALLOWANCE OF HIS CLAIM ON VARIOUS GROUNDS WHICH WE, IN THE INTEREST OF BREVITY, HAVE SUMMARIZED. HE CONTENDS WE ERRED IN ACCEPTING STATEMENTS AND INFORMATION SUBMITTED BY GOVERNMENT AGENCIES WHILE DISREGARDING INFORMATION SUBMITTED BY HIM. IN THIS CONNECTION, WE POINT OUT THAT WE HAVE NO DIRECT KNOWLEDGE OF THE FACTS AND CIRCUMSTANCES GIVING RISE TO THE MANY CLAIMS RECEIVED IN THIS OFFICE. WE MUST, THEREFORE, BASE OUR DECISIONS ON THE FACTUAL INFORMATION FURNISHED BY THE CLAIMANTS AND REPORTS OBTAINED FROM THE VARIOUS ADMINISTRATIVE AGENCIES. THE SUBMISSION OF A CLAIM TO THIS OFFICE FOR SETTLEMENT DOES NOT, IN AND OF ITSELF, CREATE A PRESUMPTION OF THE CLAIMANT'S ENTITLEMENT TO THE AMOUNT SO CLAIMED. ON THE CONTRARY, ONE WHO ASSERTS A CLAIM HAS THE BURDEN OF FURNISHING SUBSTANTIAL EVIDENCE TO CLEARLY ESTABLISH LIABILITY ON THE PART OF THE GOVERNMENT AND THE CLAIMANT'S RIGHT TO RECEIVE PAYMENT. MOREOVER, WHEN DISPUTED QUESTIONS OF FACT ARISE BETWEEN A CLAIMANT AND ADMINISTRATIVE AGENCIES OF THE GOVERNMENT, IT IS THE LONG ESTABLISHED RULE OF THIS OFFICE TO ACCEPT THE STATEMENTS OF FACTS FURNISHED BY ADMINISTRATIVE AGENCIES IN THE ABSENCE OF A PREPONDERANCE OF EVIDENCE TO THE CONTRARY. 41 COMP. GEN. 47, 54 (1961), 46 ID. 740, 744 (1967), 51 ID. 541, 543 (1972).

MR. STOCKTON ALSO CONTENDS THAT THE PROVISIONS OF PARAGRAPH C4002, VOLUME 2, JOINT TRAVEL REGULATIONS (JTR), IN EFFECT AT THE TIME OF HIS RECRUITMENT, REQUIRED THE APPOINTING AUTHORITY TO MAKE A DETERMINATION OF HIS ELIGIBILITY FOR RETURN TRANSPORTATION AT THE TIME OF APPOINTMENT AND TO RECORD THIS FINDING ON THE AGREEMENT TO PRECLUDE ANY FUTURE MISUNDERSTANDING. HE MAINTAINS THAT, AT THAT TIME, RETURN TRANSPORTATION ELIGIBILITY WAS DETERMINED IN HIS FAVOR AND THAT MONTROSE, IOWA, WAS RECORDED ON THE AGREEMENT AS HIS ACTUAL RESIDENCE. APPARENTLY, IT IS HIS POSITION THAT THIS ACTUAL RESIDENCE DETERMINATION FIXED HIS RIGHTS FOR ALL FUTURE BENEFITS AND MAY NOT BE REVOKED EVEN IF, UPON SUBSEQUENT REVIEW, THE DETERMINATION WERE FOUND TO HAVE BEEN MADE IN ERROR.

IT SHOULD BE POINTED OUT THAT THE CLAIM BY THE EMPLOYEE IS FOR A QUARTERS ALLOWANCE OR GOVERNMENT FURNISHED QUARTERS IN LIEU THEREOF.

THIS BENEFIT IS NOT AUTHORIZED BY THE JTR, BUT RATHER BY THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS), SECTION 031 OF WHICH PROVIDES IN PERTINENT POINT:

"031 UNITED STATES CITIZEN EMPLOYEES

"031.1 QUARTERS ALLOWANCE

"031.11 EMPLOYEES RECRUITED IN THE UNITED STATES

"QUARTERS ALLOWANCES PRESCRIBED IN CHAPTER 100 MAY BE GRANTED TO EMPLOYEES WHO WERE RECRUITED BY THE EMPLOYING GOVERNMENT AGENCY IN THE UNITED STATES, THE COMMONWEALTH OF PUERTO RICO, THE CANAL ZONE, AND THE POSSESSIONS OF THE UNITED STATES. ***

"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; OR

"E. AS A CONDITION OF EMPLOYMENT BY A GOVERNMENT AGENCY, THE EMPLOYEE WAS REQUIRED BY THAT AGENCY TO MOVE TO ANOTHER AREA, IN CASES SPECIFICALLY AUTHORIZED BY THE HEAD OF AGENCY."

A DETERMINATION AS TO EMPLOYEE ELIGIBILITY FOR RETURN TRANSPORTATION UNDER THE PROVISIONS OF PARAGRAPH C4002, VOLUME 2, JTR, DOES NOT PRECLUDE A LATER SEPARATE DETERMINATION AS TO EMPLOYEE ELIGIBILITY FOR A QUARTERS ALLOWANCE UNDER PROVISIONS OF THE ABOVE-QUOTED SECTION 031, STANDARDIZED REGULATIONS. HOWEVER, SEPARATE REGULATIONS ARE INVOLVED AND, WHILE THE DETERMINATION MADE UNDER ONE REGULATION MAY BE CONSIDERED IN DETERMINING ELIGIBILITY UNDER THE OTHER, THE PRIOR DETERMINATION IS NOT CONCLUSIVE. FURTHER, A DETERMINATION UNDER ONE REGULATION LATER FOUND TO BE IN ERROR WOULD, OF COURSE, BE INCONCLUSIVE IN MAKING THE DETERMINATION UNDER THE OTHER REGULATION.

WE HAVE LONG HELD THAT THE LAW AND REGULATIONS DO NOT PRECLUDE CORRECTION OF ERRORS IN THE OVERSEAS ASSIGNMENT OR TRANSFER RECORDS OF AN EMPLOYEE WHEN IT IS LATER SHOWN CLEARLY THAT, IN FACT, THE PLACE OF ACTUAL RESIDENCE WAS OTHER THAN THE PLACE NAMED IN THE AGREEMENT AND RELATED PAPERS. 39 COMP. GEN. 337, 339 (1959). HENCE, IT WAS PROPER FOR THE DIRECTOR, BRANCH REGIONAL OFFICE OF CIVILIAN MANPOWER MANAGEMENT, JAPAN, TO FIND THAT MR. STOCKTON'S ORIGINAL RETURN TRAVEL AGREEMENT WAS IN ERROR WITH RESPECT TO HIS ACTUAL PLACE OF RESIDENCE AND TO MAKE A NEW DETERMINATION. SUCH DETERMINATION IS STATED IN AN APRIL 12, 1971, LETTER TO THE OFFICER IN CHARGE, U.S. NAVAL SHORE ELECTRONICS ENGINEERING ACTIVITY, JAPAN, AND READS IN PERTINENT PART AS FOLLOWS:

"A REVIEW OF MR. STOCKTON'S RECORD INDICATES THAT HE ARRIVED IN JAPAN IN FEBRUARY 1955 AND WAS EMPLOYED AS A TECHNICAL REPRESENTATIVE OF PHILCO CORPORATION UNTIL JULY 1966 WHEN HE LEFT TO START HIS OWN BUSINESS IN JAPAN. ON 22 APRIL 1968 HE ACCEPTED EMPLOYMENT WITH THE FEDERAL GOVERNMENT AT THE SHORE ELECTRONICS DIVISION, SHIP REPAIR FACILITY, YOKOSUKA. SINCE MR. STOCKTON WAS EMPLOYED IN JAPAN IN OTHER THAN A GOVERNMENT SPONSORED ACTIVITY PRIOR TO HIS EMPLOYMENT WITH YOUR ORGANIZATION, HE WAS NOT ENTITLED TO RETURN TRANSPORTATION TO THE STATES UNDER THE PROVISIONS OF REFERENCE (B). (PARAGRAPH C4002, VOLUME 2, JTR)"

THE RECORD CLEARLY INDICATES THAT MR. STOCKTON WAS RECRUITED IN JAPAN FOR SERVICE IN JAPAN. IN ORDER TO BE ELIGIBLE FOR RETURN TRANSPORTATION TO THE UNITED STATES, MR. STOCKTON WAS REQUIRED TO SUBMIT EVIDENCE THAT HIS PRESENCE OVERSEAS WAS DUE TO ONE OF THE CONDITIONS SET FORTH IN PARAGRAPH C4002, VOLUME 2, JTR. THAT REGULATION PERMITS A TRANSPORTATION AGREEMENT WHEN THE EMPLOYEE'S PRESENCE IN THE FOREIGN AREA WAS DUE TO STUDY AT A RECOGNIZED INSTITUTION OF LEARNING, TRAVEL FOR LESS THAN 6 MONTHS, OR EMPLOYMENT WITH THE GOVERNMENT OR CERTAIN PRIVATE COMPANIES UNDER AN AGREEMENT WHICH PROVIDES FOR RETURN TRANSPORTATION TO THE UNITED STATES, ETC. MR. STOCKTON HAS NOT SUBMITTED ANY EVIDENCE THAT HIS PRESENCE IN JAPAN AT THE TIME OF HIS APPOINTMENT MET ANY OF THE CONDITIONS IN THE JTR. AN ERRONEOUS DETERMINATION OF HIS RESIDENCE BY THE AGENCY, OF COURSE, DOES NOT ENTITLE HIM TO A TRANSPORTATION AGREEMENT. IN VIEW OF THIS SINCE MR. STOCKTON DOES NOT OTHERWISE QUALIFY UNDER THE STANDARDIZED REGULATIONS FOR A LIVING QUARTERS ALLOWANCE, THE DISALLOWANCE OF HIS CLAIM MUST AGAIN BE AFFIRMED.

THE DECISIONS OF OUR OFFICE ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. THEREFORE, IF MR. STOCKTON DESIRES TO PURSUE THE MATTER FURTHER, HE SHOULD CONSULT SECTIONS 1346 AND 1491 OF TITLE 28, U.S.C. PERTAINING TO MATTERS COGNIZABLE IN THE DISTRICT COURTS OF THE UNITED STATES AND THE UNITED STATES COURT OF CLAIMS.