B-162292, SEP. 19, 1967

B-162292, SEP. 19, 1967

QUARTER ALLOWANCE - CIVILIAN PERSONNEL DECISION TO ARMY DEPT. EMPLOYEE CONCERNING REVIEW OF CLAIM FOR QUARTERS ALLOWANCE WHILE IN GERMANY DURING PERIOD 1956 - 1964. ARMY EMPLOYEE WHO, AFTER TRAVEL AT PERSONAL EXPENSE TO GERMANY TO VISIT HUSBAND IN ARMY STATIONED IN GERMANY, ACCEPTED EMPLOYMENT IN GERMANY AND RESIGNED POSITION IN U.S. AND WHO HAS BEEN DENIED QUARTERS ON BASIS THAT PRIMARY REASON FOR BEING IN EUROPE WAS DUE TO HUSBAND BEING STATIONED THERE MUST HAVE DETERMINATION REGARDED AS PROPER AND SUPPORTED BY LAW AND REGULATIONS, THEREFORE, DENIAL OF CLAIM IS SUSTAINED.

TO MRS. ROBERTA B. OLSON:

YOUR LETTER OF JULY 27, 1967, REQUESTS OUR REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT OF JULY 11, 1967, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT OF A QUARTERS ALLOWANCE INCIDENT TO EMPLOYMENT BY THE DEPARTMENT OF THE ARMY IN GERMANY DURING THE PERIOD BEGINNING JANUARY 19, 1956, AND ENDING IN SEPTEMBER 1964.

YOUR CLAIM WAS DISALLOWED BY THE GENERAL ACCOUNTING OFFICE AND BY THE DEPARTMENT OF THE ARMY BASICALLY UPON THE GROUND THAT YOU WERE UNABLE TO ESTABLISH TO THE SATISFACTION OF THOSE AGENCIES THAT YOU WERE ELIGIBLE FOR A QUARTERS ALLOWANCE UNDER SECTION T7.3-2, CIVILIAN PERSONNEL REGULATIONS, DEPARTMENT OF THE ARMY, WHICH WAS IN EFFECT AT THE TIME OF YOUR EMPLOYMENT IN EUROPE AND SUBSTANTIALLY THEREAFTER UNTIL SUPERSEDED BY THE STANDARDIZED REGULATIONS PROMULGATED FOR THE IMPLEMENTATION OF SECTION 211 OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT, NOW 5 U.S.C. 5923. SECTION CPR T7.3-2 PROVIDED IN PART AS FOLLOWS:

"3-2A. UNDER THE ACT 26 JUNE 1930 (46 STAT. 818; 5 U.S.C. 118A); SECTION 204, ACT 20 APRIL 1948 (P.L. 491, 80TH CONG.; 62 STAT. 194); AND REGULATIONS OF THE STATE DEPARTMENT (SEC. 3, APPENDIX B), FREE LIVING QUARTERS MAY BE FURNISHED, OR AN ALLOWANCE PAID IN LIEU THEREOF, TO CITIZENS, NOT NATIONALS, OF THE UNITED STATES WHO MEET ONE OF THE FOLLOWING CONDITIONS:

"/1) HE OR SHE WAS RECRUITED OR TRANSFERRED FROM OUTSIDE OF THE AREA.

"/2) RESIDENCE IN THE AREA PRIOR TO EMPLOYMENT BY THE ARMY ESTABLISHMENT IS FAIRLY ATTRIBUTABLE TO EMPLOYMENT BY UNITED STATES FIRMS, INTERESTS, OR ORGANIZATIONS, OR TO SERVICE IN THE ARMED FORCES OF THE UNITED STATES, TO FORMAL STUDY, OR TO TRAVEL.'

IF YOUR ELIGIBILITY COULD BE ESTABLISHED UNDER THE ABOVE-QUOTED REGULATIONS YOUR CASE THEN COULD BE FURTHER CONSIDERED UNDER THE SUBSEQUENTLY PROMULGATED SECTION 031.13 OF THE STANDARDIZED REGULATIONS RELATING TO MARRIED WOMEN EMPLOYEES TO WHICH YOU REFER IN YOUR LETTER. COMPLIANCE WITH SECTION 031.13, ALONE, WOULD NOT MAKE YOU ELIGIBLE FOR A QUARTERS ALLOWANCE.

AS YOU MAY BE AWARE, THE LANGUAGE OF THE QUOTED REGULATIONS IS PERMISSIVE RATHER THAN MANDATORY. THE LANGUAGE OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT AND OF THE STANDARDIZED REGULATIONS IMPLEMENTING THAT ACT SIMILARLY ARE PERMISSIVE. IN REVIEWING CASES ARISING UNDER STATUTES AND REGULATIONS WHICH VEST DISCRETION IN THE ADMINISTRATIVE AGENCIES OUR REVIEW GENERALLY MUST BE CONFINED TO DECIDING WHETHER AN AGENCY'S DETERMINATION WAS ARBITRARY OR CAPRICIOUS OR SO AT VARIANCE WITH THE LAW AND FACTS AS TO RENDER ITS CONCLUSION UNREASONABLE. WHEN AN ADMINISTRATIVE CONCLUSION IN SUCH A CASE IS REASONABLY SUPPORTED BY THE LAW AND FACTS, WE MAY NOT SUBSTITUTE OUR JUDGEMENT FOR THAT OF THE AGENCY.

THE RECORD REVEALS THAT THERE IS NO SUBSTANTIAL DISAGREEMENT BETWEEN YOU AND THE DEPARTMENT OF THE ARMY AS TO THE FACTS OF YOUR CASE DURING THE PERIOD THAT YOU WERE OVERSEAS. ON NOVEMBER 10, 1955, WHEN YOU WERE STILL EMPLOYED BY HEADQUARTERS THIRD ARMY, FORT MCPHERSON, GEORGIA, YOU WROTE THAT INSTALLATION AS FOLLOWS:

"PURSUANT TO OUR CONVERSATION ON 8 NOVEMBER 1955, IT IS REQUESTED THAT I BE GRANTED SIXTY (60) DAYS' LEAVE, EFFECTIVE 21 NOVEMBER 1955, FOR THE PURPOSE OF VISITING MY HUSBAND IN EUROPE.

"IN THE EVENT THAT I AM ABLE TO SECURE A TRANSFER WITH THE DEPARTMENT OF THE ARMY IN EUROPE WHILE ON LEAVE, I WOULD APPRECIATE CONSIDERATION BEING GIVEN TO PROVIDING ME WITH REEMPLOYMENT RIGHTS TO MY PRESENT POSITION HERE.'

ON OR SHORTLY AFTER NOVEMBER 21, 1955, YOU APPARENTLY TRAVELED TO GERMANY TO VISIT YOUR HUSBAND WHO WAS A MEMBER OF THE ARMY STATIONED IN GERMANY. AT THAT TIME YOU SAY YOU HAD A REASONABLE EXPECTANCY OF OBTAINING EMPLOYMENT WITH THE DEPARTMENT OF THE ARMY IN GERMANY AFTER JANUARY 1, 1956, AND ON JANUARY 19, 1956, APPARENTLY WHILE YOU WERE STILL ON LEAVE FROM YOUR THIRD ARMY POSITION, YOU WERE GIVEN AN EXCEPTED APPOINTMENT TO A GRADE GS-11 POSITION WITH HEADQUARTERS, U.S. ARMY, EUROPE, HEIDELBERG, GERMANY. SO FAR AS HERE MATERIAL YOUR APPOINTMENT DOCUMENT RECITED THAT YOU WERE:

"1. ELIGIBLE FOR FREE QUARTERS. US CITIZEN. LOCAL HIRE, DEPENDENT, SPONSOR (YOUR HUSBAND) RESIDING AT ANOTHER POST.

"2. POINT OF HIRE: HEIDELBERG, GERMANY. * * *"

THE TERMINATION OF YOUR EMPLOYMENT WITH THE THIRD ARMY, FORT MCPHERSON, WAS EVIDENCED BY A DOCUMENT EXECUTED FEBRUARY 3, 1956, EFFECTIVE JANUARY 18, WHICH STATED THAT YOU RESIGNED TO ACCEPT AN APPOINTMENT WITH U.S. ARMY, EUROPE. WE NOTE THAT YOU RAISE A QUESTION AS TO THE CORRECTNESS OF THE TERMINOLOGY USED ON THE STANDARD FORM 50 TERMINATING YOUR EMPLOYMENT WITH THE THIRD ARMY. OUR VIEW IS THAT THE TERMINOLOGY USED IN THAT PERSONNEL ACTION IS NOT MATERIAL TO THE ISSUE IN YOUR CASE.

WE UNDERSTAND THAT THE FREE QUARTERS TENDERED YOU AS A DEPENDENT DID NOT MEET YOUR REQUIREMENTS SINCE YOU WERE VISITED BY YOUR HUSBAND. FURTHER, WE UNDERSTAND THAT NO QUESTION CONCERNING YOUR ENTITLEMENT TO A QUARTERS ALLOWANCE WAS RAISED BY YOU AT THAT TIME.

ON MAY 31, 1958, YOUR HUSBAND RETIRED FROM THE MILITARY SERVICE AND IN AUGUST 1958 RETURNED TO THE UNITED STATES. YOU AS HIS DEPENDENT ACCOMPANIED HIM TO THE UNITED STATES WHILE ON ANNUAL LEAVE FROM YOUR EMPLOYMENT. IN LATE AUGUST 1958 YOU RETURNED TO HEIDELBERG ALONE AND AT YOUR OWN EXPENSE. YOUR HUSBAND REJOINED YOU IN DECEMBER 1958 AND CONTINUED TO RESIDE WITH YOU UNTIL SEPTEMBER 1964, WHEN YOU TRANSFERRED TO YOUR POSITION WITH THE BLACK HILLS ARMY DEPOT IN THE UNITED STATES AT WHICH TIME HE ACCOMPANIED YOU AS YOUR DEPENDENT.

UPON YOUR RETURN TO EUROPE IN AUGUST 1958 YOU APPARENTLY FIRST APPLIED FOR A QUARTERS ALLOWANCE. YOUR INITIAL REQUESTS ARE SAID TO HAVE BEEN VERBALLY DENIED. THE RECORD SHOWS THAT ON AUGUST 14, 1959, YOU FORMALLY RAISED THE QUESTIONS OF YOUR ENTITLEMENT TO TRANSPORTATION AND SHIPMENT OF HOUSEHOLD GOODS, REEMPLOYMENT LEAVE, ACCUMULATION OF ANNUAL LEAVE AND QUARTERS ALLOWANCE. FOLLOWING A FURTHER EXCHANGE OF LETTERS BETWEEN YOU AND THE CIVILIAN PERSONNEL OFFICER, HEIDELBERG, YOU WERE INFORMED ON DECEMBER 28, 1959, THAT IF YOU WOULD EXECUTE A TRANSPORTATION AGREEMENT YOU WOULD ACQUIRE ELIGIBILITY FOR TRAVEL AND TRANSPORTATION OF YOUR HOUSEHOLD GOODS, EFFECTIVE AUGUST 4, 1959. YOUR ELIGIBILITY FOR QUARTERS ALLOWANCE WAS NOT FAVORABLY CONSIDERED AT THAT TIME.

IT APPEARS FROM CIVILIAN PERSONNEL DIVISION LETTER OF OCTOBER 24, 1960, RESPONSIVE TO YOURS OF JUNE 27, 1960, THAT YOUR ELIGIBILITY FOR QUARTERS ALLOWANCE AGAIN WAS REVIEWED LOCALLY AND AGAIN WAS DENIED.

INCIDENT TO YOUR CLAIM OF NOVEMBER 29, 1965, WHICH WAS REFERRED TO THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT UNDER DATE OF JANUARY 31, 1967, YOUR CLAIM WAS REVIEWED BY HEADQUARTERS, UNITED STATES ARMY, EUROPE, AND WAS DENIED ON THE GROUND THAT YOUR PRIMARY REASON FOR BEING IN EUROPE PRIOR TO YOUR EMPLOYMENT THERE IN 1956 WAS TO BE WITH YOUR HUSBAND AND THAT THEREAFTER DURING YOUR EMPLOYMENT NO PERTINENT CHANGES OCCURRED TO MAKE YOU ELIGIBLE.

ALSO, YOUR CLAIM WAS REVIEWED AT LENGTH BY THE DEPUTY CHIEF OF STAFF FOR PERSONNEL IN AN OPINION IN WHICH HE CONCURRED WITH THE CONCLUSION OF HEADQUARTERS, U.S. ARMY, EUROPE.

ESSENTIALLY THE LATTER CONCLUSION WAS REACHED UNDER CPR T7.3-2 (2), QUOTED ABOVE, AND UNDER THE PROVISIONS OF CPR T7.3, RELATING TO HUSBANDS AND WIVES WHICH APPARENTLY CONTEMPLATES A REVIEW OF A WIFE'S ELIGIBILITY UPON THE DEATH OR PERMANENT DEPARTURE OF HER HUSBAND FROM THE AREA.

WE BELIEVE THAT THE DEPARTMENT'S DETERMINATION UNDER CPR T7.3 MAY BE SUMMARIZED AS FOLLOWS:

1. YOU WERE NOT IN GERMANY AT THE TIME OF YOUR APPOINTMENT IN 1956 BECAUSE YOU WERE RECRUITED OR TRANSFERRED FROM OUTSIDE OF THE AREA.

2. YOUR PRESENCE IN GERMANY PRIOR TO YOUR APPOINTMENT WAS NOT FAIRLY ATTRIBUTABLE TO EMPLOYMENT BY UNITED STATES FIRMS OR TO FORMAL STUDY AND TRAVEL.

THE REQUIREMENTS OF SECTION 031.11 OR 031.12 OF THE STANDARDIZED REGULATIONS SUBSTANTIALLY ARE THE SAME AS THE REQUIREMENTS OF EARLIER CIVILIAN PERSONNEL REGULATIONS. THE PROVISIONS OF SECTION 031.13 RELATING TO MARRIED WOMEN EMPLOYEES ARE IN ADDITION TO, NOT IN LIEU OF, THE REQUIREMENTS OF SECTION 031.11 OR 031.12.

IN REVIEWING THE CONCLUSIONS REACHED BY THE ARMY WE BELIEVE IT MAY FAIRLY BE SAID THAT YOU TRAVELED TO EUROPE TO VISIT YOUR HUSBAND, HAVING AT THE TIME A HOPE OR EXPECTANCY THAT YOU MIGHT OBTAIN EMPLOYMENT THERE SO AS TO REMAIN WITH HIM. A REASONABLE INFERENCE MAY BE DRAWN FROM THE SITUATION THAT HAD YOU NOT OBTAINED EMPLOYMENT YOU WOULD HAVE RETURNED UPON THE EXPIRATION OF YOUR ANNUAL LEAVE TO YOUR POSITION WITH THE THIRD ARMY IN GEORGIA.

IT CANNOT REASONABLY BE SAID THAT YOUR PRESENCE IN GERMANY WAS A DIRECT CONSEQUENCE OF YOUR BEING RECRUITED OR TRANSFERRED FROM OUTSIDE THAT AREA SINCE YOU WERE IN GERMANY FOR PERSONAL REASONS WHEN YOU WERE TENDERED AN APPOINTMENT. NEITHER MAY IT BE SAID THAT YOU WERE IN EUROPE FOR FORMAL STUDY OR TRAVEL, THE LATTER TERM CONNOTING GENERALLY THAT CLASS OF TRAVEL WHICH IS AN END IN ITSELF.

AFTER YOUR APPOINTMENT IN JANUARY 1956 YOUR EMPLOYMENT IN EUROPE WAS CONTINUOUS UNTIL YOUR RETURN TO THE UNITED STATES IN 1964 AND THERE APPEARS TO HAVE BEEN NO CHANGE IN YOUR PERSONAL CIRCUMSTANCES OR IN THOSE RELATING TO YOUR EMPLOYMENT UPON WHICH THE DEPARTMENT COULD HAVE MODIFIED ITS INITIAL DETERMINATION THAT YOU WERE A LOCAL HIRE INELIGIBLE FOR QUARTERS ALLOWANCE.

IN THE LIGHT OF ALL THE FACTS AND LAW APPLICABLE TO YOUR CASE WE ARE UNABLE TO SAY THAT THE DEPARTMENT'S DETERMINATION WAS NOT REASONABLY SUPPORTED BY EVIDENCE AND THE LAW, OR THAT ITS CONCLUSION WAS ARBITRARY OR CAPRICIOUS. OUR CONCLUSION IN THAT REGARD IS IN LINE WITH THE PRECEDENTS OF OUR OFFICE AS EVIDENCED BY OUR DECISIONS IN B 160107, OCTOBER 7, 1966, AND B-159995, OCTOBER 3, 1966, COPIES OF WHICH ARE ENCLOSED.

THEREFORE, THE CONCLUSION REACHED IN GENERAL ACCOUNTING OFFICE SETTLEMENT OF JULY 11, 1967, DISALLOWING YOUR CLAIM, MUST BE SUSTAINED.