B-167910, OCT. 28, 1969

B-167910, OCT. 28, 1969

QUARTERS ALLOWANCE--CIVILIAN OVERSEAS EMPLOYEES--LOCALLY HIRED EMPLOYEES -ELIGIBILITY IN REPLY TO QUESTION OF AFFORDING LIVING QUARTERS ALLOWANCE TO EMPLOYEE TOURIST HIRED LOCALLY OVERSEAS BY GUN CLUB, NONAPPROPRIATED FUNDS AIR FORCE ACTIVITY, IN 1966 UNTIL 1967 EMPLOYMENT IN APPROPRIATED FUNDS COMMISSARY POSITION, GAO VIEWS TOURIST BECAME UNITED STATES EMPLOYEE IN 1966 FOR PURPOSES OF OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT, THEREFORE HE SHOULD BE TREATED AS EMPLOYEE TRANSFERRED FROM ONE APPROPRIATED FUNDS ACTIVITY TO ANOTHER, ABSENT ANY CONTRARY REGULATION, AND QUARTERS ALLOWANCE SHOULD HAVE BEEN CONTINUED UPON TRANSFER SINCE IT IS ASSUMED INITIAL DETERMINATION OF ELIGIBILITY FOR QUARTERS ALLOWANCE IN 1966 WAS PROPER.

TO FIRST LIEUTENANT WAYNE M. MCGREGOR, USAF:

YOUR MEMORANDUM OF SEPTEMBER 10, 1969, REFERENCE FCAFPC/MR. KNORR, FORWARDED HERE BY THE CHIEF, OPERATIONS AND ADVISORY DIVISION, DIRECTORATE OF MILITARY PAY, REFERENCE AFAACF/AFAFC-MP), REQUESTS DECISION ON THE PROPRIETY OF A PROPOSED PAYMENT OF $841.50 TO MR. NATHAN L. JOHNSON, REPRESENTING LIVING QUARTERS ALLOWANCE FOR THE PERIOD JUNE 16, 1968, THROUGH JANUARY 26, 1969. ADDITIONALLY, YOU ASK FOR A DECISION ON THE PROPRIETY OF PAST PAYMENTS IN THE AMOUNT OF $1,730.36 FOR LIVING QUARTERS ALLOWANCE FOR THE PERIOD FROM MARCH 20, 1967, THROUGH JUNE 15, 1968.

YOU QUESTION THE LEGALITY OF THE PAYMENTS BECAUSE OF DOUBT AS TO WHETHER MR. JOHNSON, FOR THE PERIOD INVOLVED, MET THE PERTINENT REGULATORY REQUIREMENTS FOR ELIGIBILITY FOR QUARTERS ALLOWANCE UNDER SECTION 031.12 OF THE STANDARDIZED REGULATIONS, PROMULGATED BY THE DEPARTMENT OF STATE.

MR. JOHNSON, WHILE A TOURIST IN GERMANY IN FEBRUARY 1966, WAS HIRED LOCALLY AT RAMSTEIN BY THE RAMSTEIN ROD AND GUN CLUB, AN AIR FORCE NONAPPROPRIATED FUNDS ACTIVITY. HE WAS CONTINUOUSLY EMPLOYED BY THE RAMSTEIN ROD AND GUN CLUB UNTIL MARCH 20, 1967, WHEN HE WAS EMPLOYED IN AN APPROPRIATED FUNDS POSITION BY THE COMMISSARY AT THE RAMSTEIN AIR BASE. THE FILE INDICATES THAT MR. JOHNSON WAS GRANTED A QUARTERS ALLOWANCE WHEN EMPLOYED BY THE GUN CLUB PURSUANT TO THE PROVISIONS OF AIR FORCE REGULATION 176-1, ISSUED UNDER EXECUTIVE ORDER 11137, APPLICABLE TO EMPLOYEES OF NONAPPROPRIATED FUNDS ACTIVITIES. AFTER HIS EMPLOYMENT WITH THE COMMISSARY -- APPROPRIATED FUNDS POSITION -- THE EMPLOYEE WAS ALSO GRANTED LIVING QUARTERS ALLOWANCE ON THE BASIS OF SECTION 031.12, PARAGRAPHS A, B, AND D, OF THE STANDARDIZED REGULATIONS.

THE LIVING QUARTERS ALLOWANCE IN THE APPROPRIATED FUNDS POSITION WAS TERMINATED EFFECTIVE JUNE 15, 1968, ON THE BASIS OF THE FINAL DECISION BY DPCP, HEADQUARTERS, USAFE, THAT MR. JOHNSON DID NOT MEET THE ELIGIBILITY CRITERIA UNDER SECTION 031.12 OF THE STANDARDIZED REGULATIONS WHEN HE WAS PLACED ON THE APPROPRIATED FUNDS ROLLS ON MARCH 20, 1967. EFFECTIVE JANUARY 27, 1969, LIVING QUARTERS ALLOWANCE WAS AGAIN GRANTED TO MR. JOHNSON ON THE BASIS OF A WAIVER FOR HIM BY HEADQUARTERS, UNITED STATES AIR FORCE OF SECTION 031.12C OF THE STANDARDIZED REGULATIONS. THE DETAILS INVOLVING THE WAIVER ARE NOT PART OF THE RECORD BEFORE US, HOWEVER, THE SUBSTANCE OF THE WAIVER, AS WE UNDERSTAND IT, IS PREDICATED ON THE FACT THAT MR. JOHNSON AT THE TIME OF HIS INITIAL HIRE IN THE NONAPPROPRIATED FUNDS POSITION MET THE ELIGIBILITY REQUIREMENT CRITERIA IN SECTION 031.12 OF THE STANDARDIZED REGULATIONS.

SECTION 031.12 OF THE STANDARDIZED REGULATIONS ISSUED BY THE DEPARTMENT OF STATE IN RESPECT OF QUARTERS ALLOWANCE TO CITIZENS OF THE UNITED STATES PROVIDES IN PERTINENT PART 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.'

EXECUTIVE ORDER 11137 DATED JANUARY 10, 1964, PROVIDES IN PART AS FOLLOWS:

"SECTION 101. THE TERM -EMPLOYEE-, AS DEFINED IN SECTION 111 (3) OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT (5 U.S.C. 3032 (3) (, IS HEREBY FURTHER DEFINED AS INCLUDING CIVILIAN EMPLOYEES, COMPENSATED FROM NONAPPROPRIATED FUNDS, OF THE INSTRUMENTALITIES OF THE UNITED STATES UNDER THE JURISDICTION OF THE ARMED FORCES COVERED BY SECTION 1 OF THE ACT OF JUNE 19, 1952, CH. 444 (5 U.S.C. 150K).

"SEC. 102. THE SECRETARY OF EACH MILITARY DEPARTMENT WITH RESPECT TO HIS DEPARTMENT, AND THE SECRETARY OF THE TREASURY WITH RESPECT TO THE COAST GUARD WHEN IT IS NOT OPERATING AS A SERVICE IN THE NAVY, ARE HEREBY DESIGNATED AND EMPOWERED TO EXERCISE, WITHOUT THE APPROVAL, RATIFICATION, OR OTHER ACTION OF THE PRESIDENT, THE AUTHORITY VESTED IN THE PRESIDENT BY SECTION 203 OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT (5 U.S.C. 3035) TO PRESCRIBE REGULATIONS GOVERNING PAYMENTS OF ALLOWANCES AND DIFFERENTIALS IN FOREIGN AREAS TO THE EXTENT THAT THE SAID AUTHORITY IS IN RESPECT OF EMPLOYEES REFERRED TO IN SECTION 101 OF THIS ORDER WHOSE RATES OF BASIC COMPENSATION FROM NONAPPROPRIATED FUNDS ARE FIXED IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED.

SEC. 103. REGULATIONS PRESCRIBED UNDER AUTHORITY DELEGATED BY THE PROVISIONS OF SECTION 102 HEREOF:

"/A) SHALL, SO FAR AS PRACTICABLE, BE UNIFORM.

"/B) IN THE CASE OF REGULATIONS PRESCRIBED BY THE SECRETARIES OF THE MILITARY DEPARTMENTS, SHALL REQUIRE THE APPROVAL OF THE SECRETARY OF DEFENSE.

"/C) SHALL NOT, WITH RESPECT TO ANY LOCALITY AUTHORIZE ALLOWANCES OR DIFFERENTIALS WHICH EXCEED THOSE PRESCRIBED UNDER EXECUTIVE ORDER NO. 10903 OF JANUARY 9, 1961, FOR OTHER EMPLOYEES OF THE UNITED STATES IN THE SAME LOCALITY.' CERTAIN TECHNICAL AMENDMENTS TO THE ABOVE ORDER WERE MADE BY EXECUTIVE ORDER 11382 DATED NOVEMBER 29, 1967.

UNDER THE ABOVE EXECUTIVE ORDERS EMPLOYEES OF NONAPPROPRIATED FUNDS ACTIVITIES WERE DECLARED TO BE EMPLOYEES OF THE UNITED STATES FOR PURPOSES OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT, NOW 5 U.S.C. 5923 ET SEQ. HOWEVER, THE ALLOWANCES UNDER SUCH ACT ARE TO BE GRANTED UNDER REGULATIONS ISSUED BY THE HEAD OF EACH MILITARY DEPARTMENT SUBJECT TO APPROVAL BY THE SECRETARY OF DEFENSE.

THE REGULATIONS OF THE DEPARTMENT OF THE AIR FORCE PREVIOUSLY REFERRED TO AS HAVING BEEN ISSUED IN ACCORDANCE WITH THE ABOVE AUTHORITY (AFR 176-1) MERELY STATE THAT THE ALLOWANCES AND DIFFERENTIALS WHICH ARE PAID TO EMPLOYEES OF NONAPPROPRIATED FUNDS ACTIVITIES SHALL NOT EXCEED THOSE ESTABLISHED BY THE STANDARDIZED REGULATIONS OF THE STATE DEPARTMENT FOR AMOUNTS PAID TO APPROPRIATED FUNDS EMPLOYEES OF THE DEPARTMENT OF DEFENSE IN THE SAME LOCALITY. WHILE NOTHING IS SAID THEREIN CONCERNING ELIGIBILITY REQUIREMENTS, WE UNDERSTAND THE LOCAL NONAPPROPRIATED FUNDS ACTIVITY FOLLOWED THE SAME CRITERIA IN DETERMINING ELIGIBILITY FOR QUARTERS ALLOWANCE AS SPECIFIED IN THE STANDARDIZED REGULATIONS.

OUR VIEW IS THAT MR. JOHNSON, PURSUANT TO EXECUTIVE ORDER 11137, BECAME AN EMPLOYEE OF THE UNITED STATES FOR PURPOSES OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT AT THE TIME OF HIS APPOINTMENT TO THE NONAPPROPRIATED FUNDS ACTIVITY IN FEBRUARY 1966. THEREFORE, HE SHOULD HAVE BEEN TREATED IN THE SAME MANNER AS AN EMPLOYEE TRANSFERRING FROM ONE APPROPRIATED FUNDS ACTIVITY TO ANOTHER SO FAR AS DIFFERENTIALS AND ALLOWANCES WERE CONCERNED IN THE ABSENCE OF ANY REGULATIONS OF THE DEPARTMENT TO THE CONTRARY AND NONE HAS BEEN CALLED TO OUR ATTENTION. SINCE A DETERMINATION HAD BEEN MADE AT THE TIME OF MR. JOHNSON'S APPOINTMENT IN THE NONAPPROPRIATED FUNDS ACTIVITY THAT HE WAS ELIGIBLE FOR A QUARTERS ALLOWANCE UNDER THE SAME CRITERIA SPECIFIED IN THE STANDARDIZED REGULATIONS WE SEE NO REASON WHY QUARTERS ALLOWANCE SHOULD NOT HAVE BEEN CONTINUED WHEN HE TRANSFERRED TO THE APPROPRIATED FUNDS POSITION IN MARCH 1967. OF COURSE WE ASSUME THAT THE INITIAL DETERMINATION OF ELIGIBILITY FOR THE QUARTERS ALLOWANCE IN FEBRUARY 1966 WAS PROPER.

IN VIEW OF THE FOREGOING THE EMPLOYEE IS ENTITLED TO RETAIN THE SUM OF $1,730.36 WHICH HE RECEIVED AS A QUARTERS ALLOWANCE DURING THE PERIOD MARCH 20, 1967, THROUGH JUNE 15, 1968. ALSO, THE VOUCHER FOR $841.50 REPRESENTING QUARTERS ALLOWANCE FOR THE PERIOD JUNE 16, 1968, THROUGH JANUARY 26, 1969, RETURNED HEREWITH, MAY BE PAID IF OTHERWISE CORRECT.