B-160107, OCT. 7, 1966

B-160107, OCT. 7, 1966

TO MRS. BARBARA E. MEYER-WENDT:

YOUR LETTER OF AUGUST 25, 1966, REQUESTS, IN EFFECT, FURTHER CONSIDERATION OF GENERAL ACCOUNTING OFFICE SETTLEMENT OF JULY 28, 1966, WHICH DISALLOWED YOUR CLAIM FOR QUARTERS ALLOWANCE INCIDENT TO YOUR EMPLOYMENT WITH THE DEPARTMENT OF THE ARMY, WIESBADEN, GERMANY.

YOUR CLAIM WAS DISALLOWED BY OUR OFFICE SETTLEMENT AND BY THE DEPARTMENT OF THE ARMY PRIMARILY UPON THE GROUND THAT YOU WERE UNABLE TO ESTABLISH TO THE SATISFACTION OF THOSE AGENCIES THAT YOU WERE ELIGIBLE FOR A QUARTERS ALLOWANCE UNDER SECTION 031.12D OF THE STANDARDIZED REGULATIONS, PROMULGATED BY THE DEPARTMENT OF STATE, AS IMPLEMENTED BY THE DEPARTMENT OF THE ARMY.

SECTION 031.12D OF THE STANDARDIZED REGULATIONS PROVIDES IN PART AS FOLLOWS:

"QUARTERS ALLOWANCES PRESCRIBED IN CHAPTER 100 MAY BE GRANTED TO EMPLOYEES RECRUITED OUTSIDE THE UNITED STATES, PROVIDED THAT * * * 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 * * *.'

IF YOUR ELIGIBILITY IS ESTABLISHED UNDER THE ABOVE-QUOTED SECTION YOUR CASE THEN COULD BE FURTHER CONSIDERED UNDER SECTION 031.13A. COMPLIANCE WITH SECTION 031.13A ALONE WOULD NOT ESTABLISH YOUR ELIGIBILITY.

AS YOU MAY HAVE NOTICED THE LANGUAGE OF THE REGULATION IS PERMISSIVE RATHER THAN MANDATORY. THE LANGUAGE OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT, 74 STAT. 792, 5 U.S.C. 3036, UPON WHICH THE REGULATIONS ARE PREDICATED, SIMILARLY IS PERMISSIVE. UNDER STATUTES THAT VEST A DEGREE OF DISCRETION IN THE ADMINISTRATIVE AGENCIES OUR REVIEW GENERALLY IS CONFINED TO DECIDING WHETHER AN AGENCY'S ACTION MUST BE VIEWED AS ARBITRARY OR CAPRICIOUS OR SO AT VARIANCE WITH THE ESTABLISHED FACTS AS TO RENDER ITS CONCLUSION UNREASONABLE. WHEN AN ADMINISTRATIVE CONCLUSION IN SUCH A CASE REASONABLY IS SUPPORTED BY THE FACTS, WE DO NOT ATTEMPT TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE AGENCY.

AN EXAMINATION OF THE RECORD REVEALS THAT THERE IS NO SUBSTANTIAL DISAGREEMENT BETWEEN YOU AND THE DEPARTMENT OF THE ARMY CONCERNING THE FACTS ESTABLISHED BY YOUR OVERT ACTS DURING THE INTERVAL BEGINNING WITH YOUR FIRST VISIT TO GERMANY IN 1961 AND ENDING WITH YOUR EMPLOYMENT BY THE DEPARTMENT IN 1965. WE UNDERSTAND THAT SEVERAL YEARS WERE SPENT BY YOU IN FORMAL STUDY AT THE UNIVERSITY OF MUNICH AND IN TRAVEL TO SEVERAL COUNTRIES IN EUROPE. THEREAFTER, IN APRIL 1962, YOU ENROLLED AT THE GOETHE INSTITUTE, WIESBADEN, FOR FURTHER GERMAN LANGUAGE STUDY. FINANCIAL REASONS DICTATED THAT YOU SEEK EMPLOYMENT IN WIESBADEN WHERE YOU STILL PURSUED YOUR STUDIES IN EVENING COURSES AT THE VOLKSHOCHSCHULE.

IN THE SPRING OF 1964 YOU AND YOUR PRESENT HUSBAND CONTEMPLATED MARRIAGE AND COMPLIED WITH THE PRELIMINARY REQUIREMENTS OF GERMAN LAW TO THAT END. HOWEVER, YOU SAY THAT THEREAFTER YOU DECIDED TO POSTPONE YOUR WEDDING FOR ONE YEAR TO ATTEND THE UNIVERSITY OF COLORADO TO COMPLETE YOUR STUDIES. UPON YOUR RETURN TO THE UNITED STATES AFTER JULY 1964 YOU STATE THAT YOU DISCOVERED THAT YOU WERE NO LONGER ELIGIBLE TO MATRICULATE AS A RESIDENT STUDENT AT THE UNIVERSITY OF COLORADO APPARENTLY BECAUSE YOUR PARENTS HAD MOVED FROM THAT STATE. THEREUPON YOU ESTABLISHED A RESIDENCE IN OKLAHOMA BUT FOUND THAT THE LANGUAGE COURSES THERE WERE NOT OF THE QUALITY OF THOSE OFFERED BY THE UNIVERSITY OF COLORADO. CONSEQUENTLY AND FOR ECONOMIC REASONS YOU SAY THAT YOU DECIDED TO RETURN TO WIESBADEN, SEEK EMPLOYMENT AND PURSUE SUCH PART-TIME STUDIES AS MIGHT BE AVAILABLE TO YOU.

SHORTLY AFTER YOUR RETURN TO GERMANY IN SEPTEMBER 1964 YOU MARRIED, SOUGHT CIVIL SERVICE EMPLOYMENT AND ULTIMATELY WERE APPOINTED TO YOUR POSITION WITH THE DEPARTMENT OF THE ARMY ON JANUARY 4, 1965. IN THE INTERIM BETWEEN YOUR RETURN TO GERMANY AND YOUR EMPLOYMENT YOU AND YOUR HUSBAND PERFORMED SOME TRAVEL. THEREAFTER HE ENROLLED AT THE UNIVERSITY OF GOETHE, FRANKFURT, FOR ABOUT 2 YEARS OF STUDY LEADING TO HIS DOCTORATE, WHILE YOU ENROLLED IN A SEMINAR AT VOLKSHOCHSCHULE, WIESBADEN, FOR THE WINTER SEMESTER, WHICH ACTIVITY APPARENTLY WAS COMPATIBLE WITH YOUR FULL- TIME EMPLOYMENT.

SUBSTANTIALLY ALL OF THE FOREGOING FACTS ARE EVIDENCED BY YOUR OVERT ACTS AND TO THAT EXTENT APPEAR TO BE IRREFUTABLE. YOUR MOTIVES IN RETURNING TO GERMANY ARE OF COURSE SUBJECTIVE AND ARE EVIDENCED LARGELY BY YOUR STATEMENTS WHICH, UNDER THE RULES OF EVIDENCE,NECESSARILY MUST BE VIEWED AS SELF-SERVING. THUS SUCH STATEMENTS HAVE NOT THE SAME PROBATIVE VALUE IN ESTABLISHING YOUR ELIGIBILITY FOR QUARTERS ALLOWANCE AS YOUR ACTIONS.

IT SEEMS CLEAR THAT THE DEPARTMENT OF THE ARMY AFTER CONSIDERING ALL OF THE EVIDENCE IN YOUR CASE GAVE GREATER WEIGHT TO THAT WHICH WAS SUPPORTED BY YOUR ACTIONS. IN THAT LIGHT THE DEPARTMENT'S CONCLUSION THAT YOU RETURNED TO GERMANY PRIMARILY TO MARRY, SEEK EMPLOYMENT, ASSIST YOUR HUSBAND WITH HIS EDUCATION, AND ONLY INCIDENTALLY TO TRAVEL AND STUDY, WAS NOT AN UNREASONABLE INFERENCE TO BE DRAWN FROM YOUR OVERT ACTIONS.

ON THE RECORD BEFORE US WE CANNOT SAY THAT THE DEPARTMENT OF THE ARMY'S DETERMINATION CONCERNING YOUR ELIGIBILITY WAS UNREASONABLE, ARBITRARY OR CAPRICIOUS. THEREFORE, WE MAY NOT UNDERTAKE TO OVERRULE THE DEPARTMENT'S DECISION OR THE CONCLUSION REACHED IN THE GENERAL ACCOUNTING OFFICE SETTLEMENT WITH YOU OF JULY 28, 1966.