B-168161, JUN 22, 1971

B-168161, JUN 22, 1971

CIVILIAN EMPLOYEE - RECRUITED ABROAD - QUARTERS ALLOWANCE DENYING CLAIM OF MRS. ESTHER S. BURSTEIN FOR A QUARTERS ALLOWANCE AS A TEACHER WITH THE OVERSEAS DEPENDENTS SCHOOL SYSTEM IN ENGLAND. SECTION 031.12 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS), SUBSECTION D, REQUIRES THAT FOR AN EMPLOYEE TO BE ELIGIBLE TO RECEIVE A QUARTERS ALLOWANCE, IF RECRUITED WHILE TEMPORARILY IN A FOREIGN AREA, MUST BE THERE FOR TRAVEL OR FORMAL STUDY. SINCE CLAIMANT WAS THERE TO WIND UP HER HUSBAND'S AFFAIRS SHE DOES NOT SO QUALIFY.

TO MRS. ESTHER S. BURSTEIN:

THIS IS IN REFERENCE TO YOUR LETTER OF JANUARY 21, 1971, REGARDING YOUR ENTITLEMENT AS A TEACHER WITH THE OVERSEAS DEPENDENTS SCHOOL SYSTEM TO QUARTERS OR A QUARTERS ALLOWANCE. WE HAVE NOW RECEIVED A REPORT IN THE MATTER FROM THE DEPARTMENT OF THE ARMY.

YOUR LETTER INDICATES THAT IN JUNE OF 1954 YOU WERE MARRIED TO A BRITISH CITIZEN WHO WAS IN THE UNITED STATES ON A VISITOR'S PERMIT. WE UNDERSTAND THAT YOU DEPARTED FOR ENGLAND IN AUGUST OF 1954. IN THIS REGARD YOU STATE THAT YOU RETURNED TO ENGLAND TO WIND UP YOUR HUSBAND'S AFFAIRS IN ORDER FOR HIM TO EMIGRATE, BUT THAT WHEN YOU OBTAINED A POSITION WITH THE THIRD AIR FORCE AS A CLERK-STENOGRAPHER ON APRIL 18, 1955, AND SUBSEQUENTLY ACCEPTED A POSITION IN THE OVERSEAS DEPENDENTS SCHOOL SYSTEM YOU DECIDED TO REMAIN IN ENGLAND. WE HAVE BEEN ADVISED BY THE DEPARTMENT OF THE ARMY THAT AT THE TIME OF YOUR INITIAL APPOINTMENT IN APRIL 1955 YOU HAD BEEN LIVING IN THE LONDON AREA FOR NEARLY EIGHT MONTHS WHERE YOUR HUSBAND WAS PERMANENTLY EMPLOYED AND THAT YOU INDICATED YOU WOULD BE UNWILLING TO ACCEPT EMPLOYMENT ELSEWHERE.

YOU FURTHER STATE THAT YOU WERE DENIED A QUARTERS ALLOWANCE ON THE BASIS THAT YOU WERE MARRIED TO A BRITISH NATIONAL, WHEREAS OTHER TEACHERS WHO ARE RECRUITED IN THE UNITED STATES AND SUBSEQUENTLY MARRY FOREIGN NATIONALS ARE AUTHORIZED AND DO RECEIVE A QUARTERS ALLOWANCE. IN THIS CONNECTION YOU QUOTE FROM PUBLIC LAW 86-91 (DEFENSE DEPARTMENT OVERSEAS TEACHERS PAY AND PERSONNEL PRACTICES ACT) AND PROVISIONS OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) AND ASSERT THAT THE DENIAL OF A QUARTERS ALLOWANCE IN YOUR CASE WAS ARBITRARY IN THAT YOUR RESIDENCE IN ENGLAND IS FAIRLY ATTRIBUTABLE TO YOUR POSITION WITH THE OVERSEAS DEPENDENTS SCHOOLS. ADDITIONALLY, YOU REQUEST OUR INTERPRETATION OF SECTION 7 OF PUBLIC LAW 86-91.

WE ARE ENCLOSING A COPY OF OUR LETTER OF FEBRUARY 23, 1971, TO MR. CECIL DRIVER, DIRECTOR OF THE OVERSEAS EDUCATION ASSOCIATION, WHICH IS IN RESPONSE TO THE ASSOCIATION'S LETTER OF OCTOBER 24, 1970, TO WHICH YOU REFER. THIS LETTER WILL ADVISE YOU AS TO OUR INTERPRETATION OF SECTION 7 AS YOU HAVE REQUESTED.

IN ADDITION, WE ARE ENCLOSING A COPY OF SECTION 031.1 ET SEQ., OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS). YOU WILL NOTE THAT SUBSECTION 031.12 WHICH PRESCRIBES THE CONDITIONS UNDER WHICH EMPLOYEES RECRUITED OUTSIDE THE UNITED STATES ARE ENTITLED TO A QUARTERS ALLOWANCE REQUIRES MORE THAN THAT THE EMPLOYEE'S PLACE OF RESIDENCE BE FAIRLY ATTRIBUTABLE TO HIS EMPLOYMENT. IT IS REQUIRED, IN ADDITION, THAT THE EMPLOYEE NOT BE A MEMBER OF THE HOUSEHOLD OF ANOTHER EMPLOYEE OR OF A MEMBER OF THE UNITED STATES ARMED FORCES, AND THAT THE CONDITIONS OF EITHER SUBSECTIONS C, D, OR E THEREOF BE MET. INASMUCH AS YOU WERE RECRUITED OUTSIDE THE UNITED STATES THE CONDITION IN SECTION 031.12 PERTINENT TO YOUR SITUATION IS THAT CONTAINED IN SUBSECTION WHICH IN EFFECT PROVIDES THAT A QUARTERS ALLOWANCE IS PAYABLE IF THE EMPLOYEE IS RECRUITED WHILE TEMPORARILY IN A FOREIGN AREA FOR TRAVEL OR FORMAL STUDY.

IN VIEW OF THE FACTS PREVIOUSLY SET FORTH, THE DEPARTMENT OF THE ARMY CONCLUDED THAT YOUR PRESENCE IN THE AREA AT THE TIME OF YOUR EMPLOYMENT WAS NOT DUE TO TRAVEL OR FORMAL STUDY. THUS, IT WAS NOT NECESSARY TO DETERMINE WHETHER YOU MET THE ADDITIONAL CONDITION OF SECTION 031.13(1) AS BEING THE ONE WHOSE JOB DETERMINED THE LOCATION OF THE FAMILY AT THE POST OR IN THE AREA. UNDER THE FACTS AS PREVIOUSLY RELATED WE SEE NO REASON TO DISAGREE WITH THE DETERMINATION OF THE ..END :