B-182517, MAY 9, 1975

B-182517: May 9, 1975

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NOTWITHSTANDING THEIR FAMILIES LIVED OUTSIDE OF COMMUTING DISTANCE OF BASE SINCE COMMANDING OFFICER GRANTED EXCEPTION BECAUSE FAMILY QUARTERS WERE NOT AVAILABLE NEAR THE BASE. THEY ARE NOT ENTITLED TO LQA AFTER QUARTERS BECAME AVAILABLE AND EXCEPTION WAS WITHDRAWN SINCE GRANT WAS A DISCRETIONARY MATTER. COMMANDING OFFICER'S WITHDRAWAL OF EXCEPTION WAS NOT ARBITRARY. AN LQA AT THE "WITH FAMILY" RATE AT AN OVERSEAS STATION MAY NOT BE PAID "IF THE EMPLOYEE'S FAMILY CHOOSES NOT TO OCCUPY ADEQUATE FAMILY QUARTERS WHICH ARE AVAILABLE WITHIN DAILY COMMUTING DISTANCE OF THE EMPLOYEE'S PERMANENT POST OF DUTY.". AN EXCEPTION MAY BE GRANTED WHEN "IT IS IMPOSSIBLE FOR A PERMANENT OR TEMPORARY PERIOD FOR THE FAMILY TO RESIDE WITH THE EMPLOYEE IN FAMILY QUARTERS AT OR WITHIN DAILY COMMUTING DISTANCE OF THE EMPLOYEE'S PERMANENT DUTY POST.".

B-182517, MAY 9, 1975

EMPLOYEES STATIONED AT CLARK AIR BASE, PHILIPPINES, RECEIVED LIVING QUARTERS ALLOWANCE (LQA) AT "WITH FAMILY" RATE BETWEEN 1962 AND 1972, NOTWITHSTANDING THEIR FAMILIES LIVED OUTSIDE OF COMMUTING DISTANCE OF BASE SINCE COMMANDING OFFICER GRANTED EXCEPTION BECAUSE FAMILY QUARTERS WERE NOT AVAILABLE NEAR THE BASE. THEY ARE NOT ENTITLED TO LQA AFTER QUARTERS BECAME AVAILABLE AND EXCEPTION WAS WITHDRAWN SINCE GRANT WAS A DISCRETIONARY MATTER, COMMANDING OFFICER'S WITHDRAWAL OF EXCEPTION WAS NOT ARBITRARY, AND EMPLOYEES HAD NO VESTED RIGHT TO PERMANENT EXCEPTION.

MARIANO F. BORJA, ET AL. - REINSTATEMENT OF LIVING QUARTERS ALLOWANCE:

THIS MATTER CONCERNS AN APPEAL FROM A SETTLEMENT ACTION BY OUR TRANSPORTATION AND CLAIMS DIVISION WHICH DENIED THE CLAIMS OF DR. MARIANO F. BORJA, MR. RIZAL ABRINA, AND MR. CHARLIE LABRADOR, EMPLOYEES OF THE DEPARTMENT OF THE AIR FORCE AT CLARK AIR BASE, PHILIPPINES, FOR RETROACTIVE REINSTATEMENT OF THEIR LIVING QUARTERS ALLOWANCES (LQA) AT THE "WITH FAMILY" RATE.

UNDER ADMINISTRATIVE REGULATIONS (AIR FORCE CIVILIAN PERSONNEL MANUAL, AFM 40-1, SECTION P16.2, TS 170, APRIL 30, 1961) APPLICABLE IN 1962 AND (WITH RESPECT TO THIS PROVISION) CONTINUED IN FORCE FOR THE ENTIRE PERIOD OF THE CLAIM, AN LQA AT THE "WITH FAMILY" RATE AT AN OVERSEAS STATION MAY NOT BE PAID "IF THE EMPLOYEE'S FAMILY CHOOSES NOT TO OCCUPY ADEQUATE FAMILY QUARTERS WHICH ARE AVAILABLE WITHIN DAILY COMMUTING DISTANCE OF THE EMPLOYEE'S PERMANENT POST OF DUTY." AN EXCEPTION MAY BE GRANTED WHEN "IT IS IMPOSSIBLE FOR A PERMANENT OR TEMPORARY PERIOD FOR THE FAMILY TO RESIDE WITH THE EMPLOYEE IN FAMILY QUARTERS AT OR WITHIN DAILY COMMUTING DISTANCE OF THE EMPLOYEE'S PERMANENT DUTY POST." THE MOST COMMON REASON FOR GRANTING THE EXCEPTION, THE REGULATIONS SAY, IS A SITUATION IN WHICH THE:

"*** EMPLOYEE AND FAMILY HAVE BEEN AT ONE DUTY POST AND THE EMPLOYEE'S PERMANENT POST OF ASSIGNMENT IS CHANGED TO A LOCATION WHERE FAMILY QUARTERS ARE NOT IMMEDIATELY AVAILABLE. THE COMMANDER OF THE ACTIVITY CONCERNED IS RESPONSIBLE FOR DETERMINING WHEN CIRCUMSTANCES MAKE IT IMPOSSIBLE FOR THE FAMILY TO RESIDE WITH THE EMPLOYEE AT THE EMPLOYEE'S PERMANENT DUTY POST, AND FOR DETERMINING THE PERIOD OF TIME WHEN THAT IMPOSSIBILITY EXISTS." AFM 40-1, AF 5612 (TS NO. 71, MARCH 3, 1970).

THE RECORD SHOWS THAT IN 1962 THE BASE COMMANDER GAVE THE CLAIMANTS PERMISSION TO RESIDE OUTSIDE THE COMMUTING AREA OF THE BASE BECAUSE FAMILY QUARTERS WERE NOT AVAILABLE NEAR THE BASE. THIS PERMISSION ALLOWED THE CLAIMANTS TO RECEIVE LQA AT THE "WITH FAMILY" RATE NOTWITHSTANDING THE GENERAL RULE STATED ABOVE. IN 1972 THE BASE COMMANDER DETERMINED THAT ADEQUATE FAMILY HOUSING HAD BECOME AVAILABLE NEAR THE BASE AND ADVISED THE CLAIMANTS, THROUGH THE CIVILIAN PERSONNEL OFFICE, THAT THEIR CONTINUED ELIGIBILITY FOR LQA AT THE "WITH FAMILY" RATE WOULD REQUIRE THEM TO RELOCATE THEIR FAMILIES WITHIN COMMUTING DISTANCE OF THE BASE. CLAIMANTS WERE GIVEN 60 DAY "GRACE" PERIODS TO ACCOMPLISH THE RELOCATION. IN THE CASE OF CLAIMANT LABRADOR, THE PERIOD WAS EXTENDED TO ALLOW HIS CHILDREN TO COMPLETE THE CURRENT SCHOOL TERM. UPON EXPIRATION OF THE RESPECTIVE "GRACE" PERIODS, LQA AT THE "WITH FAMILY" RATE WAS TERMINATED SINCE THE CLAIMANTS DECLINED TO RELOCATE THEIR FAMILIES.

CLAIMANTS CONTEND THAT THE 1962 EXCEPTIONS WERE OF UNLIMITED DURATION AND THAT THEY RELIED ON SAME IN PURCHASING OR CONSTRUCTING RESIDENCES IN THE DISTANT AREA WHERE THEIR FAMILIES HAVE ESTABLISHED STRONG COMMUNITY TIES. THEY ALSO CHALLENGE THE COMMANDER'S 1972 DETERMINATION OF "ADEQUACY" CITING A MEMORANDUM ISSUED LESS THAN 30 DAYS LATER BY THE BASE CIVIL ENGINEER WHICH STATES THAT OFF-BASE PRIVATE RENTAL HOUSING AVAILABLE TO PERSONNEL ASSIGNED TO CLARK AIR BASE IS UNSUITABLE AND INADEQUATE. THIS MEMORANDUM, A COPY OF WHICH IS INCLUDED IN THE ADMINISTRATIVE RECORD, ITEMIZES THE HOUSING INADEQUACIES AS INCLUDING LACK OF POTABLE WATER AND COMMUNITY SUPPORT FACILITIES SUCH AS POLICE AND FIRE PROTECTION, CRIME PROBLEMS, UNSANITARY CONDITIONS RESULTING FROM SEPTIC TANK BACKUPS IN RAINY SEASON, AND FLUCTUATING ELECTRICAL VOLTAGE CAUSING APPLIANCE BURN- OUTS. CLAIMANTS ALSO ASSERT THAT THEIR WORK PERFORMANCE HAS NOT BEEN ADVERSELY AFFECTED BY THEIR LIVING ARRANGEMENTS AND THAT THE TERMINATION OF LQA UNDER THESE CIRCUMSTANCES WAS INEQUITABLE.

IN RESPONSE TO OUR REQUESTS FOR MORE INFORMATION, THE ADMINISTRATIVE OFFICE ADVISED US THAT THE 1962 EXCEPTIONS WERE GIVEN SOLELY ON THE BASIS THAT FAMILY QUARTERS WERE NOT AVAILABLE NEAR THE BASE, THAT WITH THE ONSET OF AN UNPRECEDENTED MILITARY BUILD-UP RELATED TO THE VIETNAM WAR, PRIVATE OFF-BASE HOUSING WAS RAPIDLY CONSTRUCTED, AND THAT CONSEQUENTLY WHEN MILITARY OPERATIONS WOUND-DOWN, THIS HOUSING BECAME AVAILABLE TO CIVILIAN EMPLOYEES. THE ADMINISTRATIVE OFFICE EXPLAINS THE BASE ENGINEER'S MEMORANDUM AS AN EVALUATION OF OFF-BASE HOUSING BASED ON U.S. MILITARY CONSTRUCTION AND SANITATION STANDARDS, RATHER THAN A FINDING THAT THE HOUSING IS UNSUITABLE FOR OCCUPANCY AND THAT THE "EXPRESS PURPOSE" OF THE BASE ENGINEER'S REPORT WAS TO "SUPPORTING) A PROPOSAL FOR THE CONSTRUCTION OF ON-BASE FAMILY UNITS COMPARABLE TO THE PERCENTAGE OF PERSONNEL LIVING IN SUBSTANDARD CONDITIONS. (AND THAT) *** IN THE INTEREST OF OBTAINING MAXIMUM ON-BASE HOUSING TO MINIMIZE OFF-BASE INCONVENIENCES*** (HE) WAS CONSTRAINED TO STRESS THE FACT THAT OFF-BASE FACILITIES WERE SUBSTANDARD." THE LETTER ALSO STATES THAT THE INADEQUACIES CITED BY THE BASE CIVIL ENGINEER "APPLIED EQUALLY TO SIMILAR HOUSING IN THE MANILA AREA, IN WHICH THE CLAIMANTS LIVE." IT FURTHER POINTS OUT THAT SOME 3900 AMERICAN FAMILIES AND SINGLE PERSONNEL HAVE BEEN LIVING IN PRIVATE HOUSING NEAR THE BASE "IN RELATIVE COMFORT." REQUIRING EMPLOYEES TO LOCATE THEIR FAMILIES NEAR THE BASE IS ALSO VIEWED AS "A GREAT MORALE FACTOR, AN IMPORTANT ITEM TO ANY COMMANDER; KEEPING FAMILIES TOGETHER."

WE HAVE REVIEWED THE VARIOUS ADMINISTRATIVE REGULATIONS OF THE DEPARTMENT OF THE AIR FORCE PERTAINING TO LQA ELIGIBILITY AND THE FACT THAT IT IS ENTIRELY WITHIN A COMMANDER'S DISCRETIONARY AUTHORITY TO ALLOW AN EMPLOYEE TO MAINTAIN A FAMILY RESIDENCE AWAY FROM THE COMMUTING AREA OF THE PERMANENT DUTY STATION WITHOUT LOSING LQA ELIGIBILITY AT THE "WITH FAMILY" RATE. IN OUR OPINION THESE REGULATIONS DO NOT GRANT THESE CLAIMANTS A VESTED RIGHT TO PERMANENTLY MAINTAIN FAMILY QUARTERS AWAY FROM THEIR DUTY STATIONS WITHOUT LOSING LQA ELIGIBILITY. BY ITS NATURE, A COMMANDER'S DISCRETION TO GRANT EXCEPTIONS TO THE GENERAL RULE REQUIRING FAMILY QUARTERS NEAR THE BASE IS CONTINGENT ON THE CONTINUATION OF CIRCUMSTANCES ALLOWING THE EXERCISE OF THAT DISCRETION. WHEN THOSE CIRCUMSTANCES CEASE TO EXIST, THE JUSTIFICATION FOR THE EXCEPTION FAILS AND SO TOO DOES THE EXCEPTION. IN THIS CASE, WE CONCLUDE THAT THE COMMANDER'S DETERMINATION THAT IT WAS NO LONGER "IMPOSSIBLE" TO OBTAIN HOUSING WITHIN THE COMMUTING AREA OF THE BASE WAS NOT ARBITRARY AND CAPRICIOUS, AND, WE HAVE NO REASON TO DISTURB THE ADMINISTRATIVE DETERMINATION TO WITHDRAW THE EXCEPTIONS FORMERLY GRANTED. WE ARE NOT UNMINDFUL OF THE FACT THAT A CONTRARY DETERMINATION WOULD ACCORD A PRIVILEGE TO A SMALL GROUP OF EMPLOYEES NOT AVAILABLE TO 3900 OTHER EMPLOYEES SOLELY BECAUSE THE CLAIMANTS STARTED THEIR EMPLOYMENT SOME YEARS BEFORE HOUSING NEAR THE BASE BECAME AVAILABLE. WE ALSO BELIEVE THAT THE CLAIMANTS MUST BE REGARDED AS ON CONTINUING NOTICE THAT THE 1962 EXCEPTIONS WERE CONTINGENT AND SUBJECT TO REVOCATION WHENEVER CIRCUMSTANCES CHANGED AS THEY DID IN 1972.

IN VIEW OF THE FOREGOING THE CLAIMANTS ARE NOT ENTITLED TO RETROACTIVE REINSTATEMENT OF THEIR LQA AT THE "WITH FAMILY" RATE, AND THE DENIAL OF THEIR CLAIMS IS HEREBY SUSTAINED.