B-144042, DEC. 29, 1960

B-144042, DEC. 29, 1960

TO THE SECRETARY OF STATE:

IN A LETTER DATED DECEMBER 9, 1960, SIGNED ON YOUR BEHALF BY MR. SAXTON BRADFORD, DEPUTY DIRECTOR, BUREAU OF EDUCATIONAL AND CULTURAL AFFAIRS, DEPARTMENT OF STATE, REFERENCE IS MADE TO OUR LETTER OF NOVEMBER 4, 1960, B-044042, INFORMING YOU THAT WE HAD INSTRUCTED OUR CLAIMS DIVISION TO ALLOW DR. AURELIUS MORGNER'S CLAIM FOR REFUND OF $2,315.21, (COVERING COMPENSATION AND LIVING ALLOWANCE) WHICH YOUR DEPARTMENT WITHHELD FROM HIM WHILE PARTICIPATING UNDER THE INTERNATIONAL EDUCATIONAL EXCHANGE PROGRAM.

INASMUCH AS THE CLAIM WAS THE SUBJECT MATTER OF YOUR DEPARTMENT'S REPORT TRANSMITTED HERE BY LETTER DATED OCTOBER 19, 1960 (REFERENCE: OEE/PF), WE WILL NOT REPEAT THE FACTS HEREIN.

MR. BRADFORD, WHILE NOT IN AGREEMENT WITH THE ALLOWANCE OF COMPENSATION TO DR. MORGNER FOR THE PERIOD INVOLVED, STATES THAT "SINCE THERE APPEARS TO BE AMBIGUITY IN THE AUTHORIZATION OF COMPENSATION IN THE AMENDMENT OF JUNE 24, 1958, TO DR. MORGNER'S GRANT, THAT "IN BRAZIL" WAS OMITTED, NO OBJECTION IS RAISED AGAINST THE PORTION OF HIS CLAIM COVERING THIS BENEFIT.' HOWEVER, MR. BRADFORD RAISED THE QUESTION CONCERNING OUR ALLOWANCE OF THAT PORTION OF DR. MORGNER'S CLAIM COVERING HIS "LIVING ALLOWANCE.'

YOUR DEPARTMENT'S LETTER ON THAT POINT IS AS FOLLOWS:

"* * * DR. MORGNER'S ORIGINAL GRANT STIPULATED "LIVING ALLOWANCE AT THE RATE OF $255 PER MONTH IF ACCOMPANIED BY DEPENDENTS OR $165 IF NOT SO ACCOMPANIED WHILE ON DUTY IN BRAZIL.' SUBSEQUENT AMENDMENTS TO THE GRANT STIPULATED NO CHANGE IN LIVING ALLOWANCE. WE FAIL TO SEE ANY VALID BASIS FOR ALLOWING THE CLAIM FOR THIS PART OF THE GRANT DURING THE PERIOD THAT DR. MORGNER WAS NOT ON DUTY IN BRAZIL. THEREFORE, IT IS CONSIDERED HIS CLAIM FOR LIVING ALLOWANCE IS NOT VALID.'

NO OTHER REASON IS ADVANCED IN THE LETTER FOR DENYING THE LIVING ALLOWANCE (AUTHORIZED BY THE GRANT) TO DR. MORGNER FOR THE PERIOD IN QUESTION.

WE WERE AWARE, OF COURSE, THAT UNDER THE GRANT AUTHORIZATION INVOLVED DR. MORGNER WAS ENTITLED TO A "LIVING ALLOWANCE" ONLY "WHILE ON DUTY IN BRAZIL.' HOWEVER, WE ASSUMED THAT A LIVING ALLOWANCE WAS A COMBINATION QUARTERS ALLOWANCE AND POST ALLOWANCE AND THE RECORD BEFORE US INDICATED THAT DR. MORGNER CONSIDERED THE LIVING ALLOWANCE TO BE A HOUSING ALLOWANCE. THE RECORD ALSO INDICATED THAT THE DOCTOR (ACCORDING TO HIS STATEMENT) RETAINED HIS QUARTERS IN BRAZIL DURING HIS VISIT TO THE UNITED STATES AND THERE WAS NOTHING IN YOUR DEPARTMENT'S REPORT TO INDICATE OTHERWISE. FURTHER, WE NOTED THAT STANDARDIZED REGULATIONS (ISSUED BY YOUR DEPARTMENT), WHILE NOT CONTROLLING HERE, PROVIDE THAT THE GRANT OF A QUARTERS ALLOWANCE SHALL CONTINUE FOR NOT TO EXCEED 90 DAYS, PLUS TRANSIT TIME, WHEN AN EMPLOYEE IS ON AUTHORIZED LEAVE WITH PAY IN THE UNITED STATES, PROVIDED THE EMPLOYEE MAINTAINS AND PAYS FOR HIS QUARTERS AT THE POST. FURTHER, WE NOTED THAT THE DOCTOR'S VISIT TO THE UNITED STATES WAS SPECIFICALLY AUTHORIZED BY THE SCHOOL AND, EVEN IF IT HAD NOT BEEN, WE FELT THAT UNDER THE TERMS OF THE GRANT AUTHORIZATION IT WOULD BE ANALOGOUS TO AUTHORIZED LEAVE SINCE IT WAS DURING THE SCHOOL'S VACATION AND HIS COMPENSATION PAYABLE FROM THE FUNDS OF THE SCHOOL WAS CONTINUED. MOREOVER, THERE WAS NOTHING IN THE GRANT AUTHORIZATION INVOLVED TO INDICATE THAT THE PHRASE "WHILE ON DUTY IN BRAZIL" WAS INTENDED TO PRECLUDE PAYMENT OF A LIVING ALLOWANCE FOR A PERIOD THE GRANTEE WAS TEMPORARILY ABSENT FROM BRAZIL VISITING THE UNITED STATES ON BEHALF OF THE SCHOOL TO WHICH HE WAS ASSIGNED WHERE THE GRANTEE MAINTAINED AND PAID FOR LIVING QUARTERS IN BRAZIL DURING SUCH PERIOD. THUS, UNDER ALL THE FACTS AND CIRCUMSTANCES IN THIS PARTICULAR CASE AND SINCE WE HAD ALLOWED THE GRANTEE'S CLAIM FOR COMPENSATION FOR THE SAME PERIOD WE ALLOWED THAT PORTION OF HIS CLAIM WHICH PERTAINED TO LIVING ALLOWANCE, SINCE, AS INDICATED ABOVE, WE FELT IT WAS ANALOGOUS TO A "QUARTERS ALLOWANCE," AS PROVIDED IN THE STANDARDIZED REGULATIONS.

UPON RECEIVING THE REQUEST SIGNED ON YOUR BEHALF ASKING FOR RECONSIDERATION OF OUR ALLOWANCE OF DR. MORGNER'S CLAIM, WE INFORMALLY DISCUSSED THE MATTER WITH YOUR DEPARTMENT. BASED UPON THAT DISCUSSION WE UNDERSTAND THAT OUR PRESUMPTION CONCERNING THE LIVING ALLOWANCE BEING A COMBINATION QUARTERS ALLOWANCE AND POST ALLOWANCE IS CORRECT. ALSO, AS A RESULT OF THE DISCUSSION WE UNDERSTAND THAT INASMUCH AS A POST ALLOWANCE IS NOT AUTHORIZED AT SAO PAULO, BRAZIL, THE LIVING ALLOWANCE AUTHORIZED A GRANTEE AT THAT POST IS CONSIDERED TO BE, IN EFFECT, A QUARTERS ALLOWANCE. WHILE LITERALLY CONSTRUED THE PHRASE IN THE GRANT AUTHORIZATION "WHILE ON DUTY IN BRAZIL" WOULD PRECLUDE PAYMENT OF A "LIVING ALLOWANCE" IF THE GRANTEE WAS OUT OF BRAZIL, EVEN TEMPORARILY, WE UNDERSTAND THAT A GRANTEE, FOR EXAMPLE, WHO LEFT BRAZIL AND RETURNED TO THE UNITED STATES, FOR, LET US SAY, THE CHRISTMAS OR EASTER HOLIDAY PERIOD, WOULD BE PAID A LIVING ALLOWANCE FOR THIS PERIOD PROVIDED HE MAINTAINED AND PAID FOR QUARTERS IN BRAZIL DURING SUCH PERIOD. IN OTHER WORDS, UNDER YOUR DEPARTMENT'S GRANTS A GRANTEE WHO IS TEMPORARILY ABSENT FROM A COUNTRY IS NOT ALWAYS REQUIRED TO FORFEIT HIS LIVING ALLOWANCE FOR THE PERIOD OF HIS ABSENCE, EVEN THOUGH HIS GRANT AUTHORIZES SUCH AN ALLOWANCE ONLY "WHILE ON DUTY" IN THAT COUNTRY, PROVIDED, OF COURSE, HE MAINTAINS AND PAYS FOR QUARTERS WHEN HE IS AWAY. ALSO, WE HAVE BEEN INFORMALLY ADVISED THAT YOUR DEPARTMENT HAS NOW VERIFIED THE FACT THAT DR. MORGNER DID MAINTAIN AND PAY FOR QUARTERS IN BRAZIL WHILE HE WAS IN THE UNITED STATES.

AS INDICATED IN OUR LETTER OF NOVEMBER 4, 1960, TO YOU, WHILE THE MATTER IS NOT FREE FROM DOUBT, TAKING INTO CONSIDERATION WHAT IS STATED ABOVE TOGETHER WITH ALL THE FACTS AND CIRCUMSTANCES PRESENT IN THIS PARTICULAR CASE, AND INASMUCH AS WE ALLOWED THAT PORTION OF DR. MORGNER'S CLAIM COVERING COMPENSATION FOR THE PERIOD IN QUESTION, WE ARE SUSTAINING OUR PREVIOUS ACTION ALLOWING DR. MORGNER'S CLAIM.