B-171694, FEB 9, 1971

B-171694, FEB 9, 1971

CIVILIAN EMPLOYEE - LIVING QUARTERS ALLOWANCE ADVISING THAT SINCE CORDELL W. MCLEOD MOVED TO GERMANY TO FIND EMPLOYMENT, AND THEREAFTER, WAS EMPLOYED BY THE ARMY, BUT DID NOT APPLY FOR REEMPLOYMENT UNTIL AFTER HIS ARRIVAL THERE AND WAS NOT EMPLOYED BY THE GOVERNMENT AT THE TIME OF HIS MOVE, HE IS NOT ENTITLED TO A LIVING QUARTERS ALLOWANCE UNDER REGULATIONS PROMULGATED BY SECRETARY OF STATE PURSUANT TO 5 U.S.C. 5923.

TO MR. BENNY L. KASS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 13, 1971, WHEREIN AMONG OTHER THINGS YOU REQUEST A REVIEW OF THE ACTION OF OUR CLAIMS DIVISION IN DENYING THE CLAIM OF MR. CORDELL W. MCLEOD FOR LIVING QUARTERS ALLOWANCE DURING THE PERIOD MARCH 28, 1963, TO OCTOBER 1968 AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY.

IN HIS ORIGINAL CLAIM DATED JANUARY 15, 1969, MR. MCLEOD DESCRIBED THE CIRCUMSTANCES UNDER WHICH HE BECAME AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY IN GERMANY AS FOLLOWS:

"MY FAMILY AND I WENT TO GERMANY ON OCTOBER 29, 1962 AND I TOOK MY CIVIL SERVICE RATINGS WITH ME. I APPLIED FOR FILE CLERK WORK WITH THE CIVILIAN PERSONNEL OFFICE (CPO), U.S. ARMY, IN STUTTGART, GERMANY *** IN NOV. 1962."

MR. MCLEOD FURTHER EXPLAINED THAT HE DID NOT IMMEDIATELY OBTAIN THE TYPE OF EMPLOYMENT HE SOUGHT AND TOOK A POSITION WITH THE EUROPEAN EXCHANGE SYSTEM, A NONAPPROPRIATED FUND AGENCY. ON MARCH 29, 1963, HE WAS APPOINTED TO A TEMPORARY POSITION AT THE QUARTERMASTER LAUNDRY, AND IN SEPTEMBER 1963 HE APPARENTLY WAS TRANSFERRED TO A POSITION WITH PERMANENT STATUS WHICH HE HELD UNTIL HIS RESIGNATION IN OCTOBER 1968.

ALTHOUGH MR. MCLEOD STATES THAT HE WAS ADVISED AT THE TIME OF THE MARCH 1963 APPOINTMENT AND REPEATEDLY THEREAFTER THAT HE WAS NOT ENTITLED TO LIVING QUARTERS ALLOWANCE, HE NOW CLAIMS THAT ALLOWANCE FOR THE PERIOD MARCH 29, 1963, TO OCTOBER 1968.

SECTION 5923 OF TITLE 5, U.S.C. WHICH PROVIDES THE AUTHORITY UNDER WHICH LIVING QUARTERS ALLOWANCE MAY BE PAID EMPLOYEES OF THE GOVERNMENT IN FOREIGN AREAS, WAS ENACTED AS SECTION 211 OF PUBLIC LAW 86-707, OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT. SECTION 203 OF THAT ACT PROVIDED THAT THE ALLOWANCES AUTHORIZED THEREIN " *** SHALL BE PAID IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT *** ." SUBSEQUENTLY, BY EXECUTIVE ORDER NO. 10903, JANUARY 11, 1961, 26 F.R. 217 AS AMENDED, THE REGULATORY AUTHORITY OF THE PRESIDENT WAS DELEGATED TO THE SECRETARY OF STATE.

UNDER THAT DELEGATION OF AUTHORITY, THE SECRETARY OF STATE HAS PROMULGATED STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) WHICH, BEING STATUTORY IN NATURE, GOVERN THE PAYMENT OF SUCH ALLOWANCES AS THE LIVING QUARTERS ALLOWANCE MR. MCLEOD CLAIMS. THE PERTINENT PORTION OF THE STANDARDIZED REGULATIONS IN EFFECT THROUGHOUT THE PERIOD HERE IN QUESTION PROVIDES AS FOLLOWS:

"031 UNITED STATES CITIZEN EMPLOYEES

"031.1 QUARTERS ALLOWANCES

"031.11 EMPLOYEES RECRUITED IN THE UNITED STATES

"QUARTERS ALLOWANCES PRESCRIBED IN CHAPTER 100 MAY BE GRANTED TO EMPLOYEES WHO WERE RECRUITED BY THE EMPLOYING GOVERNMENT AGENCY IN THE UNITED STATES, THE COMMONWEALTH OF PUERTO RICO, THE CANAL ZONE, AND THE POSSESSIONS OF THE UNITED STATES. ***

"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

"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 *** "

SINCE MR. MCLEOD WAS NOT EMPLOYED BY THE GOVERNMENT AT THE TIME HE TRAVELED TO GERMANY WITH HIS FAMILY IN OCTOBER 1962 AND DID NOT APPLY FOR SUCH EMPLOYMENT UNTIL AFTER HIS ARRIVAL IN THAT COUNTRY, HE CANNOT BE SAID TO HAVE BEEN RECRUITED IN THE UNITED STATES, AS REQUIRED FOR ELIGIBILITY UNDER SUBSECTION 031.11. AS FOR ENTITLEMENT UNDER SUBSECTION 031.12, WE DO NOT FIND THAT MR. MCLEOD'S RESIDENCE IN GERMANY WAS THE RESULT OF OR ATTRIBUTABLE TO HIS EMPLOYMENT BY THE GOVERNMENT. IN FACT, IT APPEARS THAT THE REASON FOR HIS TRAVEL TO GERMANY WAS TO SEEK EMPLOYMENT AND NOT BECAUSE HIS EMPLOYMENT STATUS REQUIRED IT. FURTHER, WE AGREE WITH THE FINDING OF OUR CLAIMS DIVISION THAT NOTHING IN THE RECORD SUGGESTS THAT PRIOR TO HIS APPOINTMENT MR. MCLEOD HAD BEEN RECRUITED BY THE UNITED STATES GOVERNMENT, A UNITED STATES FIRM, ORGANIZATION OR A FOREIGN GOVERNMENT FOR EMPLOYMENT ABROAD UNDER CONDITIONS PROVIDING FOR HIS RETURN TO THE UNITED STATES. NEITHER DOES IT APPEAR THAT MR. MCLEOD WAS IN GERMANY FOR PURPOSES OF TRAVEL OR FORMAL STUDY.

SINCE MR. MCLEOD FAILED TO MEET THE REQUIREMENTS OF THE STANDARDIZED REGULATIONS FOR ELIGIBILITY FOR A LIVING QUARTERS ALLOWANCE, NO AUTHORITY EXISTED UNDER WHICH HE MIGHT HAVE BEEN PAID SUCH AN ALLOWANCE. ACCORDINGLY, THE SETTLEMENT OF OUR CLAIMS DIVISION OF MARCH 19, 1970, DENYING MR. MCLEOD'S CLAIM MUST BE AFFIRMED.

IN FURTHER RESPONSE TO YOUR INQUIRY CONCERNING PROCEDURES FOR APPEALING DECISIONS OF THIS OFFICE, WE WOULD ADVISE THAT OUR DECISION ON A CLAIM IS BINDING ON THE EXECUTIVE BRANCH OF THE GOVERNMENT AND THERE IS, AS SUCH, NO APPEAL. HOWEVER, YOUR ATTENTION IS CALLED TO JUDICIAL REMEDIES PROVIDED AT 28 U.S.C. 1346 AND 28 U.S.C. 1491 IN THE EVENT YOU SHOULD DECIDE TO PURSUE THE MATTER FURTHER.