B-187098, JANUARY 3, 1979

B-187098: Jan 3, 1979

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DIGEST: EMPLOYEE OF UNITED STATES GOVERNMENT APPOINTED OVERSEAS IS NOT ENTITLED TO QUARTERS ALLOWANCE AND DIFFERENTIALS AND RETURN TRAVEL ALLOWANCE TO THE UNITED STATES IN THE ABSENCE OF EVIDENCE CLEARLY ESTABLISHING THAT HE WAS RECRUITED IN THE UNITED STATES BY A FIRM FOR EMPLOYMENT OVERSEAS. ARSENAULT: THIS ACTION IS THE RESULT OF AN APPEAL BY MR. HE ALSO CLAIMS TRAVEL AND TRANSPORTATION EXPENSES FROM SAIGON TO HIS HOME OF RECORD IN THE UNITED STATES AND COMPENSATION FROM THE TIME HIS EMPLOYMENT WAS TERMINATED UNTIL HIS RETURN TO THE UNITED STATES. ARSENAULT STATES THAT HE WAS RECRUITED IN THE UNITED STATES FOR EMPLOYMENT IN VIETNAM BY A REPRESENTATIVE OF THE AMERICAN MOTORS CORPORATION (AMC).

B-187098, JANUARY 3, 1979

DIGEST: EMPLOYEE OF UNITED STATES GOVERNMENT APPOINTED OVERSEAS IS NOT ENTITLED TO QUARTERS ALLOWANCE AND DIFFERENTIALS AND RETURN TRAVEL ALLOWANCE TO THE UNITED STATES IN THE ABSENCE OF EVIDENCE CLEARLY ESTABLISHING THAT HE WAS RECRUITED IN THE UNITED STATES BY A FIRM FOR EMPLOYMENT OVERSEAS, AND IN THE CASE OF RETURN TRAVEL, UNDER CIRCUMSTANCES WHICH PROVIDE FOR RETURN TRANSPORTATION TO THE UNITED STATES AT THE FIRM'S EXPENSE.

PHILIP G. ARSENAULT:

THIS ACTION IS THE RESULT OF AN APPEAL BY MR. PHILIP G. ARSENAULT OF A SETTLEMENT BY OUR CLAIMS DIVISION WHICH DENIED HIS CLAIM FOR OVERSEAS ALLOWANCES AND DIFFERENTIALS INCIDENT TO HIS EMPLOYMENT WITH THE DEFENSE ATTACHE OFFICE (DAO) IN SAIGON. HE ALSO CLAIMS TRAVEL AND TRANSPORTATION EXPENSES FROM SAIGON TO HIS HOME OF RECORD IN THE UNITED STATES AND COMPENSATION FROM THE TIME HIS EMPLOYMENT WAS TERMINATED UNTIL HIS RETURN TO THE UNITED STATES.

MR. ARSENAULT STATES THAT HE WAS RECRUITED IN THE UNITED STATES FOR EMPLOYMENT IN VIETNAM BY A REPRESENTATIVE OF THE AMERICAN MOTORS CORPORATION (AMC). WHILE HE TRAVELED TO SAIGON ON JULY 2, 1972, AT HIS OWN EXPENSE, HE CLAIMS HE WAS REIMBURSED BY THE REPRESENTATIVE OF AMC FOR HIS TRAVEL. SHORTLY AFTER ARRIVAL IN VIETNAM MR. ARSENAULT TERMINATED HIS INITIAL EMPLOYMENT AND ON SEPTEMBER 18, 1972, COMMENCED EMPLOYMENT WITH A NONAPPROPRIATED FUND ACTIVITY. DURING THIS EMPLOYMENT HE RECEIVED OVERSEAS ALLOWANCES AND DIFFERENTIALS FROM THAT ACTIVITY. FOLLOWING SEPARATION BY A REDUCTION IN FORCE AT THAT ACTIVITY MR. ARSENAULT WAS EMPLOYED BY DAO ON MARCH 3, 1973. HE RECEIVED OVERSEAS ALLOWANCES AND DIFFERENTIALS DURING HIS EMPLOYMENT THROUGH MARCH 1974, BUT WAS INFORMED ON APRIL 17, 1974, BY DAO OFFICIALS THAT THESE ALLOWANCES WERE BEING SUSPENDED PENDING AN INVESTIGATION INTO THE CIRCUMSTANCES OF HIS INITIAL EMPLOYMENT IN VIETNAM. LATER HE WAS INFORMED THAT HE WAS INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $4,958.71, SINCE IT HAD BEEN DETERMINED THAT HIS INITIAL EMPLOYMENT IN VIETNAM COULD NOT BE RECOGNIZED UNDER THE APPLICABLE REGULATIONS AS PROVIDING A BASIS FOR ENTITLEMENT TO THE ALLOWANCES. ON JULY 11, 1974, HIS EMPLOYMENT WITH DAO WAS TERMINATED. HOWEVER, MR. ARSENAULT REMAINED IN SAIGON UNTIL APRIL 1975 WHEN INCIDENT TO THE EVACUATION OF UNITED STATES FORCES, HE TRAVELED TO BANGKOK, THAILAND, AND THENCE TO THE UNITED STATES.

HIS CLAIM FOR THE COST OF RETURN TRANSPORTATION TO THE UNITED STATES WAS DENIED SINCE HIS INITIAL EMPLOYMENT IN VIETNAM DID NOT MEET THE CRITERIA FOR THE EXECUTION OF A TRAVEL AGREEMENT WHICH WOULD PROVIDE ENTITLEMENT UNDER THE JOINT TRAVEL REGULATIONS (JTR). HIS CLAIM FOR COMPENSATION FOR THE PERIOD FOLLOWING THE TERMINATION OF HIS EMPLOYMENT WITH DAO SPONSORSHIP UNTIL THE EVACUATION IN 1975, AND HAD HIS CLAIM FOR THE QUARTERS ALLOWANCE AND DIFFERENTIAL BEEN SETTLED, HE WOULD HAVE RETURNED TO THE UNITED STATES AT AN EARLIER DATE.

ENTITLEMENT TO OVERSEAS ALLOWANCES AND DIFFERENTIALS FOR INDIVIDUALS RECRUITED OUTSIDE THE UNITED STATES FOR EMPLOYMENT BY THE UNITED STATES, IS GOVERNED BY PARAGRAPH 031.12 STANDARDIZED REGULATIONS (GOVERNMENT CIVILIAN, FOREIGN AREAS). GENERALLY, AN EMPLOYEE APPOINTED OUTSIDE THE UNITED STATES IN ORDER TO BE ELIGIBLE FOR A QUARTERS ALLOWANCE AND POST DIFFERENTIAL MUST HAVE BEEN RECRUITED IN THE UNITED STATES BY THE UNITED STATES GOVERNMENT, A UNITED STATES FIRM, ORGANIZATION, OR INTEREST, AN INTERNATIONAL ORGANIZATION IN WHICH THE UNITED STATES PARTICIPATES OR A FOREIGN GOVERNMENT, AND HAVE BEEN IN SUBSTANTIALLY CONTINUOUS EMPLOYMENT BY SUCH AN EMPLOYER UNDER CONDITIONS WHICH PROVIDED FOR HIS RETURN TRANSPORTATION TO THE UNITED STATES.

SIMILAR CONDITIONS ARE CONTAINED IN 2 JOINT TRAVEL REGULATIONS (2 JTR) C4002-3B REGARDING ENTITLEMENT TO RETURN TRANSPORTATION FROM OVERSEAS TO THE UNITED STATES. THAT REGULATION ALSO REQUIRES THAT UPON INITIAL RECRUITMENT FROM THE UNITED STATES THE EMPLOYER AGREED TO PAY RETURN TRANSPORTATION.

AS CAN BE SEEN FROM THE FOREGOING, THE ENTITLEMENT TO THE ALLOWANCES AND RETURN TRAVEL COSTS WHICH MR. ARSENAULT IS CLAIMING, IS CONTINGENT ON THE CIRCUMSTANCES OF HIS PRESENCE IN VIETNAM PRIOR TO HIS EMPLOYMENT WITH THE UNITED STATES GOVERNMENT.

IN THIS REGARD, MR. ARSENAULT CLAIMS THAT HE WAS RECRUITED IN THE UNITED STATES BY A REPRESENTATIVE OF AMC FOR EMPLOYMENT IN VIETNAM. HOWEVER, BY LETTER DATED MARCH 22, 1974, AMC STATED THAT MR. ARSENAULT WAS NOT RECRUITED OR EMPLOYED BY THAT CORPORATION. IT IS ALSO STATED IN THAT LETTER THAT MR. ARSENAULT WAS AN INDIVIDUAL BUSINESSMAN WHO WAS AUTHORIZED TO SELL THE CORPORATION'S PRODUCTS TO MILITARY SERVICEMEN IN VIETNAM.

IT APPEARS, THEREFORE, THAT MR. ARSENAULT WAS NOT EMPLOYED BY AMC, BUT THAT HE WAS EMPLOYED BY OR ASSOCIATED WITH AN AMC CONCESSIONAIRE, MR. ROBERT E. PATTON, DURING THE FIRST 2 OR 3 MONTHS HE WAS IN VIETNAM. THE QUESTION IS WHETHER, IN HIS ASSOCIATION WITH MR. PATTON, WAS HE RECRUITED IN THE UNITED STATES FOR EMPLOYMENT IN VIETNAM AND, AS RELATES TO RETURN TRAVEL, WHETHER HE WAS EMPLOYED UNDER CONDITIONS WHICH PROVIDED FOR RETURN TRANSPORTATION TO THE UNITED STATES. AFTER A FULL INVESTIGATION BY THE RESPONSIBLE GOVERNMENT OFFICIALS IN VIETNAM IT WAS DETERMINED THAT HE HAD NOT BEEN RECRUITED FOR SERVICES IN VIETNAM AS REQUIRED BY THE APPLICABLE REGULATIONS. PRIOR ACTIONS GIVING HIM SUCH STATUS WERE REVOKED AND HE WAS BILLED FOR THE BENEFITS HE HAD RECEIVED UNDER THE PRIOR ACTIONS.

ALTHOUGH MR. ARSENAULT ASSERTS THAT AFTER HAVING RETURNED FROM VIETNAM IN JUNE 1972 INCIDENT TO HIS SEPARATION FROM THE ARMY, HE RECEIVED A LETTER AT HIS HOME IN MASSACHUSETTS OFFERING HIM A POSITION WITH AMC IN VIETNAM, AND THAT SUCH LETTER INCLUDED AN AGREEMENT FOR PAYMENT OF TRAVEL COSTS TO AND FROM VIETNAM, HE HAS NOT FURNISHED THAT LETTER OR A COPY THEREOF, ASSERTING THAT HIS COPY WAS LOST IN AUGUST 1972. NO DOCUMENTARY EVIDENCE WHICH WOULD TEND TO CONFIRM HIS ASSERTIONS ANTIDATING HIS ARRIVAL IN VIETNAM IN JULY 1972 HAS BEEN PRESENTED.

IN VIEW OF THE DETERMINATION MADE BY RESPONSIBLE OFFICIALS OF THE DEPARTMENT OF DEFENSE AND SINCE NO DOCUMENT OR EVIDENCE HAS BEEN PRESENTED WHICH SHOWS THAT DETERMINATION TO HAVE BEEN ERRONEOUS, WE ARE NOT IN A POSITION TO MAKE A FINDING THAT MR. ARSENAULT WAS RECRUITED IN THE UNITED STATES FOR SERVICE IN VIETNAM AS REQUIRED BY THE APPLICABLE REGULATIONS.

IN CASES SUCH AS THESE WHERE THE EVIDENCE PRESENTED IS NOT CONCLUSIVE, IT HAS BEEN THE POSITION OF THIS OFFICE THAT THE BURDEN IS UPON THE CLAIMANT TO FURNISH EVIDENCE CLEARLY AND SATISFACTORILY ESTABLISHING HIS CLAIM AND IN THE ABSENCE OF SUCH EVIDENCE THIS OFFICE HAS NO AUTHORITY TO CERTIFY CLAIMS FOR PAYMENT. CHARLES V. UNITED STATES, 19 CT.CL. 316 (1884); LONGWILL V. UNITED STATES. 17 CT.CL. 288 (1881); AND 31 COMP.GEN. 340 (1952).

ACCORDINGLY, THE SETTLEMENT OF OUR CLAIMS DIVISION DENYING MR. ARSENAULT'S CLAIM FOR QUARTERS ALLOWANCE AND DIFFERENTIALS AND RETURN TRAVEL AND TRANSPORTATION ALLOWANCES TO THE UNITED STATES MUST BE SUSTAINED, IN THE ABSENCE OF EVIDENCE SHOWING RECRUITMENT IN THE UNITED STATES FOR EMPLOYMENT OVERSEAS UNDER THE CONDITIONS SPECIFIED IN THE BEFORE-MENTIONED REGULATIONS.

WE FIND NO MERIT TO HIS CLAIM FOR COMPENSATION FOR THE PERIOD COMMENCING JULY 12, 1974, BASED ON THE FACT THAT HE REMAINED IN SAIGON. IT IS CLEAR THAT HIS EMPLOYMENT WITH DAO WAS TERMINATED ON JULY 11, 1974, AND HE HAS MADE NO ALLEGATIONS SUGGESTING AN IMPROPRIETY IN HIS SEPARATION.

ACCORDINGLY, THE SETTLEMENT OF OUR CLAIMS DIVISION DENYING HIS CLAIM FOR COMPENSATION FOR THE PERIOD COMMENCING ON JULY 12, 1974, IS SUSTAINED. DENIAL OF HIS CLAIM FOR THE OVERSEAS ALLOWANCE AND DIFFERENTIAL AND COST OF RETURN TRANSPORTATION TO THE UNITED STATES MUST ALSO BE SUSTAINED IN THE ABSENCE OF PROOF OF HIS RECRUITMENT IN THE UNITED STATES AND EMPLOYMENT IN VIETNAM.