B-182226, JAN 27, 1975

B-182226, JAN 27, 1975

WHERE AGENCY LOCATED OVERSEAS PERMITTED A LOCALLY HIRED EMPLOYEE TO ENTER INTO A 36-MONTH TRANSPORTATION AGREEMENT AND THE EMPLOYEE WAS TRANSFERRED TO A SECOND OVERSEAS STATION, THE ACTION OF THE PERSONNEL OFFICE AT THE SECOND STATION VOIDING THE AGREEMENT AND DENYING A LIVING QUARTERS ALLOWANCE WAS PROPER SINCE THERE WAS SUBSTANTIAL EVIDENCE THAT THE OLD STATION ERRED IN FINDING THAT EMPLOYEE'S ACTUAL PLACE OF RESIDENCE WAS WITHIN THE CONTINENTAL UNITED STATES AT THE TIME OF HIRE.

JAMES E. BROWN - ENTITLEMENT TO TRANSPORTATION AND LIVING QUARTERS ALLOWANCE:

THIS ACTION IS A RECONSIDERATION OF THAT PORTION OF A SETTLEMENT OF JULY 31, 1974, BY OUR TRANSPORTATION AND CLAIMS DIVISION, DISALLOWING THE CLAIM OF MR. JAMES E. BROWN, A DEPARTMENT OF THE ARMY CIVILIAN EMPLOYEE STATIONED IN GERMANY, FOR LIVING QUARTERS AND RELOCATION ALLOWANCES.

THE FACTS OF THE CASE ARE SET FORTH IN DETAIL IN THE AFOREMENTIONED SETTLEMENT CERTIFICATE AND, THEREFORE, ONLY THE FACTS REQUIRED FOR THIS REVIEW WILL BE REPEATED. MR. BROWN WAS HIRED BY THE UNITED STATES ARMY ENGINEER COMMAND, FRANKFURT, GERMANY, AS AN ACCOUNTING TECHNICIAN, GS 5, ON MAY 7, 1971. SHORTLY THEREAFTER THE EMPLOYEE WAS TRANSFERRED TO WORMS, GERMANY. ON AUGUST 5, 1971, IN FRANKFURT, GERMANY, DURING THE PERSONNEL PROCESSING INCIDENT TO THE CHANGE OF STATION, MR. BROWN EXECUTED A 36- MONTH TRANSPORTATION AGREEMENT (DD FORM 1617), WITH THE DEPARTMENT OF THE ARMY WHICH LISTED ROUTE 5, BOX 152A, LEWISBURG, TENNESSEE, AS HIS PLACE OF ACTUAL RESIDENCE AT THE TIME OF HIS INITIAL EMPLOYMENT WITH THE DEPARTMENT OF THE ARMY. THE SIGNIFICANCE OF THIS AGREEMENT WAS TO AUTHORIZE TRAVEL AND TRANSPORTATION EXPENSES AND MOVEMENT OF HOUSEHOLD EFFECTS FOR THE EMPLOYEE AND HIS IMMEDIATE FAMILY AS PROVIDED IN 5 U.S.C. SEC. 5722 (1970), INCLUDING RENEWAL AGREEMENT AND SEPARATION TRAVEL TO HIS PLACE OF ACTUAL RESIDENCE AT THE TIME HE COMMENCED HIS EMPLOYMENT, AFTER COMPLETION OF 36 MONTHS OF SERVICE OVERSEAS. IN ADDITION, AN EMPLOYEE WHOSE ACTUAL PLACE OF RESIDENCE HAS BEEN DETERMINED TO BE OUTSIDE THE OVERSEAS GEOGRAPHICAL AREA IS NORMALLY ENTITLED TO A LIVING QUARTERS ALLOWANCE (LQA) UNDER DEPARTMENT OF STATE STANDARDIZED REGULATIONS (DSSR).

MR. BROWN WAS TRANSFERRED TO WORMS, GERMANY, AND PROMOTED TO THE POSITION OF ADMINISTRATIVE ASSISTANT, GS-7, EFFECTIVE AUGUST 8, 1971. WHEN HE REPORTED FOR DUTY AT WORMS ON AUGUST 9, 1971, THE WORMS AREA CIVILIAN PERSONNEL OFFICE (WACPO) NOTIFIED HIM THAT HE WAS INELIGIBLE TO NEGOTIATE THE 36-MONTH TRANSPORTATION AGREEMENT PROVIDING SEPARATION TRAVEL TO THE UNITED STATES WHICH HAD BEEN EXECUTED AT FRANKFURT, INASMUCH AS HIS RECORDS REFLECTED THAT HIS ACTUAL PLACE OF RESIDENCE AT THE TIME OF HIS INITIAL EMPLOYMENT WITH THE DEPARTMENT OF THE ARMY WAS OFFENBACH, GERMANY (A SUBURB OF FRANKFURT), INSTEAD OF LEWISBURG, TENNESSEE, AS INDICATED ON THE TRANSPORTATION AGREEMENT. SIMILARLY WACPO DETERMINED THAT HE WAS NOT ENTITLED TO AN LQA. NOTWITHSTANDING THESE DETERMINATIONS, THE WACPO WITHDREW THE OLD TRANSPORTATION AGREEMENT FROM THE FILE AND NEGOTIATED A 12-MONTH TRANSPORTATION AGREEMENT (DD FORM 1617) WITH MR. BROWN, WHICH ALSO LISTED HIS ACTUAL PLACE OF RESIDENCE AT THE TIME OF HIS APPOINTMENT AS ROUTE 5, BOX 152A, LEWISBURG, TENNESSEE 37091, AND THIS AGREEMENT WAS SIGNED BY THE EMPLOYEE ON AUGUST 9, 1971. MR. BROWN SUBMITTED A GRIEVANCE CONCERNING THESE WACPO DETERMINATIONS AND AFTER EXHAUSTING ALL HIS RIGHTS UNDER THE GRIEVANCE PROCEDURE, HE HAS BEEN UNSUCCESSFUL IN OBTAINING A REVERSAL OF THESE WACPO DETERMINATIONS. IN THIS CONNECTION, THE FINDINGS AND RECOMMENDATIONS OF THE GRIEVANCE EXAMINER FIRST WITH REGARD TO THE LQA AND THEN CONCERNING THE TRANSPORTATION AGREEMENT WERE AS FOLLOWS:

"F. HOWEVER, IN CONSIDERATION OF PARAGRAPH C, IT SHOULD BE NOTED THAT THE REGULATION STATES THAT THE PROVISIONS OF C OR D MUST BE MET FOR ELIGIBILITY. 031.12D STATES THAT 'AS A CONDITION OF EMPLOYMENT BY A GOVERNMENT AGENCY, THE EMPLOYEE WAS REQUIRED BY THE AGENCY TO MOVE TO ANOTHER AREA, IN CASES SPECIFICALLY AUTHORIZED BY THE HEAD OF AGENCY.' IS THE EXAMINER'S FINDING THAT TO MEET THE CRITERIA OF SECTION 031.12D, AN EMPLOYEE ALREADY ON THE ROLLS AND REQUIRED BY MANAGEMENT TO MOVE TO ANOTHER AREA, IS NOT ENTITLED TO RECEIVE A LQA UNLESS SPECIFICALLY AUTHORIZED BY 'THE HEAD OF AGENCY.' IF THE MOVE IS WITHIN THE SAME GEOGRAPHICAL LOCALITY (SUCH AS WITHIN GERMANY), DEPARTMENT OF ARMY IS 'HEAD OF AGENCY.' IF THE MOVE IS FROM ONE GEOGRAPHIC LOCALITY TO ANOTHER (GERMANY TO ITALY) HQ, USAREUR IS 'HEAD OF AGENCY.'

"G. AT THE TIME THE RECRUITMENT ACTION IS TAKEN TO FILL A POSITION, MANAGEMENT DETERMINES WHETHER OR NOT, AS A RECRUITMENT OR RETENTIVE INCENTIVE, A WAIVER WILL OR SHOULD BE REQUESTED ON THE BASIC ELIGIBILITY CRITERIA FOR THE ALLOWANCE IN QUESTION. IN THIS CASE, HEAD OF AGENCY (DA) AUTHORIZATION WAS NOT SOUGHT, AND IN THE ABSENCE OF THIS AUTHORIZATION, MR. BROWN DID NOT MEET THE REQUIREMENT OF SUBSECTION 031.12D.

"4. ON MATTERS OF FACT AND THE ISSUE OF TRANSPORTATION AGREEMENT ELIGIBILITY, THE EXAMINER CONCLUDES AS FOLLOWS:

"A. FOR TRAVEL PURPOSES, FRANKFURT AND WORMS ARE IN THE SAME 'GEOGRAPHICAL LOCALITY.'

"B. THERE IS SUFFICIENT EVIDENCE TO WARRANT THE CONCLUSION THAT MR. BROWN RESIDED ON A SUBSTANTIALLY CONTINUOUS BASIS AT #102 FRIEDEN STRASSE, OFFENBACH, GERMANY, A SUBURB OF FRANKFURT FROM JUNE 1964 UNTIL HIS ASSIGNMENT TO WORMS, GERMANY ON 8 AUGUST 1971.

"C. THE FACT THAT MR. BROWN'S WIFE WAS BORN IN OFFENBACH, GERMANY (INCL #8, EX 2) AND THE DURATION OF HIS RESIDENCE THERE IS PRIMA FACIE EVIDENCE THAT OFFENBACH, GERMANY, NOT LEWISBURG, TENNESSEE IS MR. BROWN'S 'PLACE OF ACTUAL RESIDENCE' FOR TRAVEL PURPOSES.

"D. MR. BROWN WAS NOT ELIGIBLE TO CONCLUDE A TRANSPORTATION AGREEMENT CONFERRING ENTITLEMENT TO RENEWAL AGREEMENT AND SEPARATION TRAVEL TO LEWISBURG, TENNESSEE.

"E. THE CIRCUMSTANCES OF MR. BROWN'S SELECTION FOR, MOVEMENT, AND ASSIGNMENT TO WORMS WERE SUCH AS TO WARRANT THE CONCLUSION HIS TRAVEL AND TRANSPORTATION THERE WERE 'IN THE INTEREST OF THE GOVERNMENT' AND TO MAKE PROPER A 12 MONTH TRANSPORTATION AGREEMENT CONFERRING ONLY ELIGIBILITY FOR PERMANENT CHANGE OF STATION ALLOWANCES. THAT TRANSPORTATION AGREEMENT SHOULD REFLECT MR. BROWN'S PLACE OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT AS FRANKFURT, GERMANY.

"IV. CONCLUSIONS

"A. AS OF 8 AUGUST 1971 MR. BROWN DID NOT MEET THE ELIGIBILITY CRITERIA FOR LIVING QUARTERS ALLOWANCE.

"B. AS OF 8 AUGUST 1971, MR. BROWN DID NOT MEET THE JTR ELIGIBILITY CRITERION FOR A TRANSPORTATION AGREEMENT CONFERRING ENTITLEMENT TO RENEWAL AGREEMENT AND SEPARATION TRAVEL TO THE US, BUT HE DID MEET THE REQUIREMENTS FOR A TRANSPORTATION AGREEMENT CONFERRING ENTITLEMENT TO PERMANENT CHANGE OF STATION ALLOWANCES.

"V. RECOMMENDATIONS

"A. THAT MR. BROWN'S CLAIM TO LIVING QUARTERS ALLOWANCE BE DENIED.

"B. THAT MR. BROWN'S CLAIM TO TRANSPORTATION AGREEMENT, CONFERRING ENTITLEMENT TO RENEWAL AGREEMENT AND SEPARATION TRAVEL TO CONUS, BE DENIED.

"C. DOCUMENT MR. BROWN'S TRAVEL ENTITLEMENT AS PRESCRIBED BY JTR VOLUME II, PARAGRAPH C4010 AND 4011-5 TO PROVIDE HIM WITH A 12-MONTH TRANSPORTATION AGREEMENT FOR ENTITLEMENT TO PERMANENT CHANGE OF STATION ALLOWANCES. HIS TRANSPORTATION AGREEMENT SHOULD REFLECT FRANKFURT, GERMANY, NOT LEWISBURG, TENNESSEE AS HIS PLACE OF RESIDENCE AT THE TIME OF APPOINTMENT."

OUR TRANSPORTATION AND CLAIMS DIVISION IN DISALLOWING MR. BROWN'S CLAIM FOR PAY AND ALLOWANCES INVOLVING THESE ISSUES, SUSTAINED THE ABOVE-QUOTED FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.

MR. BROWN CONTENDS THAT OUR TRANSPORTATION AND CLAIMS DIVISION ERRED IN DISALLOWING HIS CLAIM. HE ARGUES THAT ONCE THE FRANKFURT AREA CIVILIAN PERSONNEL OFFICE HAD DETERMINED THAT HIS ACTUAL PLACE OF RESIDENCE AT THE TIME OF INITIAL HIRE WAS LEWISBURG, TENNESSEE, NO OTHER OFFICIAL IN THE GOVERNMENT HAD AUTHORITY TO CHANGE THAT DETERMINATION EXCEPT UPON A SHOWING THAT THE FRANKFURT AREA OFFICER HAD ABUSED HIS AUTHORITY OR HAD ACTED IN BAD FAITH.

MR. BROWN'S THESIS IS INCONSISTNET WITH OUR PREVIOUS HOLDING CONCERNING RESIDENCE DETERMINATIONS. IN 39 COMP. GEN. 337 (1959), WE STATED THAT LAW AND REGULATIONS DO NOT PRECLUDE THE CORRECTION OF ERRORS IN THE OVERSEAS ASSIGNMENT OR TRANSFER RECORDS, WHEN IT IS LATER SHOWN CLEARLY THAT, IN FACT, THE PLACE OF ACTUAL RESIDENCE WAS OTHER THAN THE PLACE NAMED IN THE AGREEMENT AND RELATED PAPERS. THUS, WE ARE OF THE OPINION THAT THE GRIEVANCE EXAMINER'S FINDING AND RECOMMENDATIONS PROVIDED A PROPER BASIS FOR CORRECTING MR. BROWN'S RECORDS TO REFLECT THAT HIS ACTUAL RESIDENCE AT THE TIME OF APPOINTMENT WAS FRANKFURT, GERMANY, AND THAT HIS ENTITLEMENT TO ALLOWANCES SHOULD BE GOVERNED THEREBY.

MR. BROWN ALSO CONTESTS THE DISALLOWANCE OF AN LQA. HE ARGUES THAT THE PROVISIONS GOVERNING QUARTERS ALLOWANCES IN SUBCHAPTER 2 OF CPR 592, DATED MAY 31, 1972, OF THE DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATIONS (CPR), IMPLEMENTING THE DSSR, REQUIRE THAT THE DETERMINATION OF LQA ELIGIBILITY OF A LOCAL-HIRE EMPLOYEE REQUIRED TO MOVE TO A POSITION IN ANOTHER AREA IN THE SAME COUNTRY BE MADE BY HEADQUARTERS, DEPARTMENT OF THE ARMY (DA). THUS HE ARGUES THAT THE WACPO WAS WITHOUT AUTHORITY TO DENY HIM AN LQA WITHOUT HAVING OBTAINED A RULING ON THE MATTER FROM HEADQUARTERS, DA.

WE NOTE THAT THE CPR CITED BY MR. BROWN WAS NOT IN EFFECT IN AUGUST 1971 WHEN HIS RIGHTS WERE FIXED REGARDING ELIGIBILITY TO AN LQA. THE REGULATION IN EFFECT IN AUGUST 1971, APPLICABLE IN THIS CASE, WAS SECTION 2, CPR T7.2 C 4, DATED NOVEMBER 18, 1963. THAT REGULATION PROVIDED ONLY THAT ELIGIBILITY OF LOCAL-HIRE EMPLOYEES FOR AN LQA WAS GOVERNED BY SECTION 031.12 OF THE DSSR. IN THIS REGARD, THE GRIEVANCE EXAMINER IN SECTION II C 2 OF HIS REPORT OF FINDINGS AND RECOMMENDATIONS IN THE GRIEVANCE OF MR. JAMES E. BROWN, WORMS, GERMANY, DATED OCTOBER 19, 1972, SETS FORTH IN DETAIL THE REASONS WHY MR. BROWN FAILED TO QUALIFY FOR AN LQA UNDER THIS SECTION OF THE REGULATION, MUCH OF WHICH HAS BEEN QUOTED, SUPRA.

UPON RECONSIDERATION IT IS DETERMINED THAT THE SETTLEMENT OF JULY 31, 1974, DISALLOWING MR. BROWN'S CLAIM MUST BE SUSTAINED.