B-168161, FEB 10, 1972

B-168161, FEB 10, 1972

CIVILIAN EMPLOYEE - LIVING QUARTERS ALLOWANCE - TRANSPORTATION AGREEMENT - ENTITLEMENT DECISION AFFIRMING PRIOR DENIAL OF A CLAIM OF LEOLA M. BROADNAX FOR LIVING QUARTERS OR QUARTERS ALLOWANCE AND A NEGOTIATED AGREEMENT FOR RETURN TO THE UNITED STATES AS A CIVILIAN EMPLOYEE OF THE ARMY OVERSEAS DEPENDENTS SCHOOLS. IN ADDITION TO THE REQUIREMENTS OF SECTION 031.12(A) AND (B) AND SECTION 031.13 OF THE STANDARDIZED REGULATIONS, THAT THE EMPLOYEE'S RESIDENCE BE FAIRLY ATTRIBUTABLE TO HIS EMPLOYMENT, THE REQUIREMENTS OF SUBSECTIONS 031.12C, D, OR E AS TO CIRCUMSTANCES OF RECRUITMENT, PRIOR PRESENCE IN AREA AND GOVERNMENT-REQUIRED MOVEMENT, MUST BE MET. THE AGENCY HEAD MAY WAIVE THE PROVISIONS OF 031.12C WHEN AN UNUSUAL SITUATION JUSTIFIES SUCH ACTION. HOWEVER, NO SUCH WAIVER IS EVIDENCED IN THE INSTANT CASE, AND SINCE THE CIRCUMSTANCES OF CLAIMANT'S APPOINTMENT DO NOT COMPLY WITH ANY OF THE OTHER AFOREMENTIONED SUBSECTIONS, THE CLAIM FOR LIVING QUARTERS OR ALLOWANCE MUST BE DENIED. CLAIMANT'S REQUEST FOR A NEGOTIATED TRANSPORTATION AGREEMENT MUST ALSO BE DENIED SINCE SUBPARAGRAPH 5 OF JTR C 4002-3(B)(2) APPLIES ONLY TO ACTIVE, AND NOT RETIRED, MEMBERS OF THE MILITARY SERVICES.

TO MRS. LEOLA M. BROADNAX:

THIS IS IN REFERENCE TO YOUR LETTER OF NOVEMBER 22, 1971, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR LIVING QUARTERS, OR A LIVING QUARTERS ALLOWANCE, FOR THE SCHOOL YEARS 1970-71 AND 1971-72 AS A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY OVERSEAS DEPENDENTS SCHOOLS WHICH WAS DISALLOWED BY OUR CLAIMS DIVISION SETTLEMENT CERTIFICATE DATED JUNE 21, 1971. ALSO, YOU AGAIN REQUEST THAT YOU BE PERMITTED TO NEGOTIATE A TRANSPORTATION AGREEMENT SO AS TO BE ENTITLED TO RETURN TRANSPORTATION TO THE UNITED STATES FOR HOME LEAVE AND SEPARATION PURPOSES.

THE CIRCUMSTANCES OF YOUR EMPLOYMENT AS A TEACHER WITH THE OVERSEAS DEPENDENTS SCHOOLS, AS STATED IN THE ABOVE SETTLEMENT CERTIFICATE, IS AS FOLLOWS:

" *** YOU WERE A DEPENDENT OF A MILITARY MEMBER OF THE U.S. FORCES IN GERMANY WHEN FIRST LOCALLY EMPLOYED AS A SUBSTITUTE TEACHER ON OCTOBER 31, 1967, AT THE ERLANGEN ELEMENTARY SCHOOL. THIS APPOINTMENT WAS CONVERTED TO AN EXCEPTED APPOINTMENT NTE JUNE 14, 1968. YOU WERE REAPPOINTED ON AN EXCEPTED APPOINTMENT NTE JUNE 11, 1969, FOR THE SCHOOL YEAR 1968-69. DECEMBER 1968, AND AGAIN IN FEBRUARY 1969, YOU ADVISED THE PRINCIPAL OF THE ERLANGEN ELEMENTARY SCHOOL THAT YOU WOULD NOT BE AVAILABLE FOR A TEACHING ASSIGNMENT FOR THE 1969-70 SCHOOL YEAR SINCE YOU PLANNED TO RETURN TO THE UNITED STATES UPON YOUR HUSBAND'S RETIREMENT. HE RETIRED ON JULY 1, 1969, HOWEVER, YOU REMAINED IN GERMANY, AND RECEIVED AN APPOINTMENT AS A SUBSTITUTE TEACHER FOR THE SCHOOL YEAR 1969-70. AUGUST 28, 1970, YOU WERE GIVEN AN EXCEPTED APPOINTMENT NTE JUNE 11, 1971. THIS WAS CONVERTED TO AN EXCEPTED APPOINTMENT, CONDITIONAL ON MAY 9, 1971."

YOU STRESS IN REGARD TO THE ABOVE FACTS THAT AFTER YOUR HUSBAND'S RETIREMENT ON JULY 1, 1969, YOU WERE "RECRUITED" BY USDESEA AND ASSIGNED TO THE NURNBERG AMERICAN ELEMENTARY SCHOOL COMMENCING AUGUST 28, 1970. YOU INDICATE THAT AS OF THE DATE OF YOUR HUSBAND'S RETIREMENT YOUR REASON FOR BEING IN GERMANY CHANGED, AS TO COME WITHIN THE REQUIREMENT OF THE DEPARTMENT OF STATE'S STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS), FOR ENTITLEMENT TO QUARTERS OR A QUARTERS ALLOWANCE AND TO PERMIT YOU TO NEGOTIATE A TRANSPORTATION AGREEMENT.

WE NOTE YOUR ASSERTION THAT IN YOUR PARTICULAR SITUATION, UPON YOUR HUSBAND'S RETIREMENT FROM THE MILITARY SERVICE, YOUR ASSIGNMENT BECAME DETERMINATIVE OF THE LOCATION OF THE FAMILY RESIDENCE. THIS FACT ALONE, HOWEVER, IS NOT SUFFICIENT UNDER APPLICABLE REGULATIONS TO ESTABLISH ENTITLEMENT TO QUARTERS OR A QUARTERS ALLOWANCE OR TO PERMIT THE NEGOTIATION OF A TRANSPORTATION AGREEMENT.

UNFORTUNATELY, OUR CLAIMS DIVISION IN THEIR SETTLEMENT CERTIFICATE INACCURATELY PARAPHRASED THE REQUIREMENTS OF SECTION 031.12 OF THE STANDARDIZED REGULATIONS IN THE ALTERNATIVE, INDICATING THAT IT IS SUFFICIENT THAT THE EMPLOYEE MEET THE REQUIREMENT THAT HIS RESIDENCE BE FAIRLY ATTRIBUTABLE TO HIS EMPLOYMENT WITH THE UNITED STATES GOVERNMENT OR THAT HE MEET ONE OF THE ADDITIONAL REQUIREMENTS THEREIN STATED. IN FACT, THE REQUIREMENT THAT AN EMPLOYEE'S RESIDENCE BE FAIRLY ATTRIBUTABLE TO HIS EMPLOYMENT BY THE U.S. GOVERNMENT IS EXPRESSED IN THE CONJUNCTIVE 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

"B. THE EMPLOYEE IS NOT A MEMBER OF THE HOUSEHOLD OF ANOTHER EMPLOYEE OR OF A MEMBER OF THE U.S. ARMED FORCES; 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

"D. THE EMPLOYEE WAS TEMPORARILY IN THE FOREIGN AREA FOR TRAVEL OR FORMAL STUDY AND IMMEDIATELY PRIOR TO SUCH TRAVEL OR STUDY HAD RESIDED IN 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.

"IN THE CASE OF A MARRIED EMPLOYEE THE RULES ESTABLISHED BY SECTION 031.13 MUST ALSO BE MET. SUBSECTION 031.12C MAY BE WAIVED BY THE HEAD OF AGENCY UPON DETERMINATION THAT UNUSUAL CIRCUMSTANCES IN AN INDIVIDUAL CASE JUSTIFY SUCH ACTION.

"031.13 MARRIED EMPLOYEES

"A QUARTERS ALLOWANCE MAY BE GRANTED TO A MARRIED EMPLOYEE RESIDING WITH HIS OR HER SPOUSE (OR, IF NOT LEGALLY SEPARATED, IS WORKING IN SUCH PROXIMITY THAT A COMMON DWELLING COULD BE MAINTAINED) ONLY IF

"(1) HE OR SHE IS THE MEMBER OF THE HOUSEHOLD WHOSE JOB DETERMINES THE LOCATION OF THE FAMILY AT THE POST OR IN THE AREA, AND

"(2) HE OR SHE IS THE ONLY MEMBER OF THE HOUSEHOLD RECEIVING A QUARTERS ALLOWANCE FROM THE UNITED STATES GOVERNMENT."

THUS, NOTWITHSTANDING THAT AN EMPLOYEE MAY COMPLY WITH THE REQUIREMENTS OF SECTIONS 031.12A AND B AND 031.13, IT IS REQUIRED IN ADDITION THAT THE CONDITIONS OF SUBSECTIONS C, D, OR E BE MET. IT DOES NOT APPEAR THAT THE CIRCUMSTANCES OF YOUR RECRUITMENT, INITIALLY IN 1967 OR MORE RECENTLY IN 1971, MEET ANY OF THESE REQUIREMENTS. MOREOVER, THERE IS NO INDICATION THAT THE PROVISIONS OF 031.12C HAVE BEEN WAIVED. IT IS FOR THESE REASONS, AND NOT THE FACT THAT YOU HAD BEEN THE MEMBER OF A HOUSEHOLD RECEIVING A QUARTERS ALLOWANCE FROM THE UNITED STATES GOVERNMENT, THAT YOU ARE NOT ENTITLED TO QUARTERS OR AN ALLOWANCE.

WITH REGARD TO THE NEGOTIATION OF A TRANSPORTATION AGREEMENT WITH EMPLOYEES HIRED LOCALLY, THE JOINT TRAVEL REGULATIONS, VOLUME 2, IN EFFECT AT THE TIME OF YOUR MORE RECENT APPOINTMENTS PROVIDED AT C 4002 3 AS FOLLOWS:

"3. OVERSEAS LOCAL HIRES

"A. GENERAL. OVERSEAS LOCAL COMMANDERS IN FOREIGN AREAS WILL NEGOTIATE AN INITIAL AGREEMENT WITH A LOCALLY HIRED EMPLOYEE IF THE CONDITIONS IN SUBPAR. B, ARE MET. LOCAL COMMANDERS IN NONFOREIGN AREAS WILL NEGOTIATE AN INITIAL AGREEMENT WITH A LOCALLY HIRED EMPLOYEE IF THE CONDITIONS IN SUBPAR. B ARE MET AND PROVIDED THE POSITION IS ONE FOR WHICH QUALIFIED LOCAL APPLICANTS ARE NOT READILY AVAILABLE. TO AVOID MISUNDERSTANDING AT A LATER DATE, ELIGIBILITY FOR RETURN TRANSPORTATION WILL BE DETERMINED AT THE TIME OF APPOINTMENT AND RECORDED THROUGH THE EXECUTION OF AN AGREEMENT.

"B. CONDITIONS

"(1) BONA FIDE RESIDENCE IN THE UNITED STATES. TO BE ELIGIBLE TO NEGOTIATE AN AGREEMENT, THE EMPLOYEE MUST BE ABLE, AT THE TIME OF APPOINTMENT OR ASSIGNMENT, TO ESTABLISH TO THE SATISFACTION OF THE APPOINTING OFFICIAL, BONA FIDE PLACE OF ACTUAL RESIDENCE (SEE PAR. C 4004) IN THE UNITED STATES BUT OUTSIDE THE GEOGRAPHICAL LOCALITY OF THE POST OF DUTY.

"(2) QUALIFYING PRESENCE IN THE AREA. FOR THE PURPOSE OF ESTABLISHING QUALIFYING PRESENCE IN THE AREA, AN EMPLOYEE SHALL BE CONSIDERED TO HAVE RESIDENCE IN THE UNITED STATES IF HIS STATUS IN THE AREA PRIOR TO EMPLOYMENT WAS THAT OF:

"1. A STUDENT ENGAGED IN FORMAL STUDY IN A RECOGNIZED INSTITUTION OF LEARNING;

"2. A TRAVELER FOR BUSINESS OR VACATION PURPOSES, WHO HAS BEEN ABSENT FROM THE UNITED STATES FOR NOT MORE THAN 6 MONTHS:

"3. A MEMBER OF THE ARMED FORCES OF THE UNITED STATES SEPARATED LOCALLY FOR THE EXPRESS PURPOSE OF ACCEPTING FEDERAL EMPLOYMENT;

"4. AN EMPLOYEE OF ANOTHER FEDERAL DEPARTMENT, AGENCY, OR INSTRUMENTALITY, GOVERNMENT CONTRACTOR, RED CROSS, NONAPPROPRIATED FUND ACTIVITY, INTERNATIONAL ORGANIZATION IN WHICH THE UNITED STATES PARTICIPATES, AND ANY OTHER ACTIVITY OR AGENCY WHICH THE OVERSEAS COMMAND DETERMINES TO BE OPERATING IN SUPPORT OF THE UNITED STATES OR ITS PERSONNEL IN THE AREA, PROVIDING THE INDIVIDUAL WAS RECRUITED IN THE UNITED STATES UNDER CONDITIONS OF EMPLOYMENT WHICH PROVIDED FOR RETURN TRANSPORTATION;

"5. A LOCALLY HIRED DEPENDENT OF A MEMBER OF THE MILITARY SERVICE OR OF CIVILIAN PERSONNEL EMPLOYED UNDER AN AGREEMENT PROVIDING FOR RETURN TRANSPORTATION IF HE LOSES HIS DEPENDENCY RELATIONSHIP TO THE SPONSOR, OR FOR WHOM TRANSPORTATION AS A MILITARY DEPENDENT IS NOT ALLOWED;

"6. A FORMER EMPLOYEE OF THE SAME OR ANOTHER FEDERAL DEPARTMENT OR AGENCY SEPARATED BY REDUCTION IN FORCE DURING THE PREVIOUS 6 MONTHS WHO IS ON A RE-EMPLOYMENT PRIORITY LIST, AND HAS BEEN AUTHORIZED DELAY IN RETURN TRANSPORTATION FOR THE PRIMARY PURPOSE OF EXERCISING RE EMPLOYMENT PRIORITY RIGHTS.

"IN ANY OTHER CASE WHERE THE EMPLOYEE CLAIMS ENTITLEMENT TO RETURN TRANSPORTATION BASED ON UNITED STATES RESIDENCE, THE OVERSEAS COMMAND WILL CONSIDER ALL THE EVIDENCE PRESENTED AS PROVIDED IN PAR. C 4004-2 AND MAKE A DETERMINATION AS TO WHETHER SUCH RESIDENCE HAS BEEN MAINTAINED IN FACT.

"4. SCHOOL TEACHERS SUBJECT TO 20 U.S.C. 901-907. AGREEMENTS ARE NEGOTIATED WITH SCHOOL TEACHERS WHO ARE RECRUITED FOR OR TRANSFERRED TO ASSIGNMENTS IN THE DEPARTMENT OF DEFENSE DEPENDENTS SCHOOL SYSTEM IN FOREIGN AREAS."

IN OCTOBER OF 1970 SUBPARAGRAPH 4, ABOVE, WAS REVISED TO STRESS THAT TEACHERS WITH OVERSEAS DEPENDENTS SCHOOLS WERE SUBJECT TO THE CONDITIONS OF SUBPARAGRAPH 3B QUOTED ABOVE.

YOUR PRESENCE IN THE FOREIGN AREA AT THE TIME OF YOUR REAPPOINTMENT CLEARLY DID NOT MEET THE CONDITIONS SET FORTH IN SUBPARAGRAPHS 1, 2, 3, 4, OR 6 OF C 4002-3(B)(2), QUOTED ABOVE. WE UNDERSTAND THE TERM "MEMBER OF THE MILITARY SERVICE" AS USED IN SUBPARAGRAPH 5 APPLIES TO ACTIVE MEMBERS OF THE MILITARY. AS YOUR HUSBAND HAD RETIRED FROM THE MILITARY IN JUNE OF 1969, YOU WERE NOT, PRIOR TO YOUR REAPPOINTMENT FOR THE 1969-70 AND 1970- 71 SCHOOL YEARS, A DEPENDENT OF A MILITARY MEMBER FOR THE PURPOSE OF ESTABLISHING YOUR QUALIFYING PRESENCE IN THE FOREIGN AREA.