B-177705, MAR 12, 1973

B-177705, MAR 12, 1973

CIVILIAN EMPLOYEE - SEPARATION FROM MILITARY - QUARTERS ALLOWANCE - ANTICIPATION OF CIVILIAN EMPLOYMENT DECISION SUSTAINING THE PRIOR DISALLOWANCE OF A CLAIM BY ELMER C. CHEDERQUIST FOR LIVING QUARTERS ALLOWANCE INCIDENT TO CIVILIAN EMPLOYMENT WITH THE DEPARTMENT OF THE ARMY IN GERMANY. UNDER THE REGULATIONS IN EFFECT AT THE TIME OF CLAIMANT'S APPOINTMENT, THE DEPARTMENT OF THE ARMY DETERMINED THAT HE WAS NOT ELIGIBLE FOR A LIVING QUARTERS ALLOWANCE SINCE HE WAS NOT SELECTED FOR A CIVILIAN POSITION IMMEDIATELY FOLLOWING MILITARY SERVICE AND COMPLETION OF EMPLOYMENT ARRANGEMENTS WAS NOT THE TOTAL CAUSE OF THE DELAY. THERE IS NO BASIS HEREIN TO CONCLUDE THAT THE AGENCY DETERMINATION WAS ARBITRARY OR UNREASONABLE. ACCORDINGLY, THE CLAIM IS AGAIN DENIED.

TO MR. ELMER C. CHEDERQUIST:

YOUR LETTER OF NOVEMBER 6, 1972, REQUESTS, IN EFFECT, THAT WE RECONSIDER THE DECISION REACHED IN OUR SETTLEMENT CERTIFICATE OF MAY 22, 1969, WHICH DISALLOWED YOUR CLAIM FOR LIVING QUARTERS ALLOWANCE DURING THE PERIOD FROM MARCH 25, 1963, TO THE PRESENT THAT YOU HAVE BEEN EMPLOYED IN GERMANY AS A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY.

ALTHOUGH YOU HAVE NOT SUBMITTED ANY EVIDENCE NOT PREVIOUSLY AVAILABLE UPON WHICH YOUR ENTITLEMENT TO THE LIVING QUARTERS ALLOWANCE MIGHT DEPEND, YOU DO MAKE SPECIFIC REFERENCE TO CERTAIN PROVISIONS OF THE ARMY'S CIVILIAN PERSONNEL REGULATIONS (CPR) CONCERNING MILITARY PERSONNEL WHO CHOOSE TO SEPARATE LOCALLY IN ORDER TO REMAIN IN A FOREIGN AREA AND WHO ARE THEN HIRED AS CIVILIAN EMPLOYEES BY THE UNITED STATES GOVERNMENT IN THE FOREIGN AREA. IN ACCORDANCE WITH YOUR REQUEST WE HAVE REVIEWED THE ENTIRE FILE RELATIVE TO YOUR CLAIM.

THE RECORD INDICATES THAT YOU WERE SEPARATED FROM THE MILITARY SERVICE ON OCTOBER 31, 1962. AT THAT TIME YOU WERE STATIONED IN ZWEIBRUECKEN, GERMANY, AND ELECTED, FOR PERSONAL REASONS, TO REMAIN IN GERMANY FOR A FEW MONTHS. SUBSEQUENTLY, ON JANUARY 2, 1963, YOU FILED AN APPLICATION FOR EMPLOYMENT WITH THE DEPARTMENT OF THE ARMY AT THE STUTTGART, GERMANY, CIVILIAN PERSONNEL OFFICE, AND YOU WERE APPOINTED TO A CIVILIAN POSITION ON MARCH 23, 1963. AT THE TIME OF YOUR APPOINTMENT IT WAS ADMINISTRATIVELY DETERMINED THAT YOU WERE INELIGIBLE TO RECEIVE A LIVING QUARTERS ALLOWANCE SINCE YOU DID NOT MEET THE "SUBSTANTIALLY CONTINUOUS EMPLOYMENT" ELIGIBILITY REQUIREMENT OF SECTION 031.12 OF THE DEPARTMENT OF STATE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS). THAT PARTICULAR SECTION 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. 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 ***

YOU POINT OUT THAT DURING THE APPROXIMATELY 5-MONTH PERIOD BETWEEN YOUR SEPARATION FROM THE MILITARY SERVICE AND YOUR APPOINTMENT, YOU HAD TAKEN A BRIEF VACATION AND RECEIVED SOME MEDICAL CARE, AND HAD OTHERWISE BEEN AVAILABLE FOR EMPLOYMENT SINCE JANUARY 2, 1963, THE DATE YOU APPLIED FOR THE POSITION. YOU ALSO NOTE THAT UNDER PARAGRAPH 2-2 OF SUBCHAPTER 2 OF CHAPTER 592, CPR, A MILITARY MEMBER WHO CHOOSES TO SEPARATE LOCALLY IN ORDER TO REMAIN IN A FOREIGN AREA MAY BE CONSIDERED TO HAVE "SUBSTANTIALLY CONTINUOUS EMPLOYMENT" UNTIL HIS RIGHTS TO TRANSPORTATION AT GOVERNMENT EXPENSE BACK TO A UNITED STATES AREA EXPIRES UNLESS THERE IS EVIDENCE TO SHOW THAT THE EMPLOYEE DOES NOT INTEND TO RETURN TO THE UNITED STATES. SINCE AT THE TIME YOU FILED YOUR APPLICATION FOR EMPLOYMENT YOU STILL HAD 10 MONTHS LEFT TO ELECT TO RETURN TO THE UNITED STATES AT GOVERNMENT EXPENSE, YOU BELIEVE THAT YOU SHOULD HAVE BEEN FOUND ELIGIBLE FOR LIVING QUARTERS ALLOWANCE.

CPR 592, TO WHICH YOU REFER, IS DATED MAY 31, 1972, AND SUPERSEDES THE PREVIOUS REGULATIONS ON THE SUBJECT, CPR T7, ALLOWANCES AND DIFFERENTIAL- FOREIGN AREAS, DATED APRIL 21, 1961. THE PARTICULAR PROVISION IN CPR 592 EQUATING SUBSTANTIALLY CONTINUOUS EMPLOYMENT WITH RIGHT OF RETURN TO THE UNITED STATES AT GOVERNMENT EXPENSE WAS NOT PRESENT IN CPR T7.

AT THE TIME YOU WERE APPOINTED THE DEPARTMENT OF THE ARMY DETERMINED THAT YOU WERE NOT ELIGIBLE FOR LIVING QUARTERS ALLOWANCE UNDER THE REGULATIONS APPLICABLE AT THE TIME SINCE YOU WERE NOT SELECTED FOR YOUR CIVILIAN POSITION IMMEDIATELY FOLLOWING MILITARY SERVICE AND COMPLETION OF EMPLOYMENT ARRANGEMENTS WAS NOT THE TOTAL CAUSE OF THE DELAY. WE NOTE THAT DEPARTMENT OF THE ARMY POLICY IN EFFECT AT THE TIME WAS THAT MERE PRESENCE IN THE FOREIGN AREA IN ANTICIPATION OF EMPLOYMENT DID NOT ESTABLISH ELIGIBILITY FOR LIVING QUARTERS ALLOWANCE AND THAT, GENERALLY, TO BE CONSIDERED ELIGIBLE FOR THE ALLOWANCE AN EMPLOYEE MUST HAVE SHOWN THAT UPON SEPARATION FROM THE MILITARY SERVICE HE HAD A FIRM COMMITMENT TO CIVILIAN EMPLOYMENT.

ALTHOUGH IT IS POSSIBLE THAT HAD CPR 592 BEEN IN EFFECT AT THE TIME YOU WERE ORIGINALLY APPOINTED THE DEPARTMENT OF THE ARMY MAY HAVE DETERMINED YOU WERE ELIGIBLE FOR LIVING QUARTERS ALLOWANCE, NEVERTHELESS, WE CAN FIND NO BASIS FOR CONCLUDING THAT THE ADMINISTRATIVE DETERMINATION MADE BY THE DEPARTMENT OF THE ARMY UNDER THE REGULATIONS THEN APPLICABLE WAS EITHER ARBITRARY OR UNREASONABLE. ACCORDINGLY, WE MUST SUSTAIN THE PREVIOUS DISALLOWANCE OF YOUR CLAIM.