Board of Contract Appeals General Services Administration Washington, D.C. 20405 _________________________ March 2, 2000 _________________________ GSBCA 15201-RELO In the Matter of JAMES E. PIERCE, JR. James E. Pierce, Jr., APO Area Pacific, Claimant. Lt. Col. Peter D. Fromm, Acting Deputy Chief of Staff for Personnel, Headquarters, U.S. Army Japan/9th Theater Army Area Command, Department of the Army, APO Area Pacific, appearing for Department of the Army. DeGRAFF, Board Judge. The Department of State Standardized Regulations provide that agencies may pay quarters allowances to Government employees in foreign areas, provided certain eligibility requirements are met. Because this claimant was not recruited in the United States and does not fulfill the eligibility requirements imposed upon employees who are recruited outside the United States, we must deny his claim. Background James E. Pierce, Jr. was released from active duty military service with the United States Marine Corps on October 31, 1994, while he was stationed in Japan. Mr. Pierce then accepted a job with a United States contractor and lived in Okinawa City, Okinawa Prefecture, Ryu-Kyu Islands, Japan. The contractor did not provide for Mr. Pierce's return transportation to the United States because, Mr. Pierce says, the Department of Defense (DoD) had provided for his return transportation within five years following his release from active duty. Sometime in 1996, DoD posted a vacancy announcement for a civilian logistics management specialist at Camp Zama, Zama City, Kanagawa Prefecture, Japan. The announcement stated that "selectees initially recruited from the United States receive . . . government quarters or a living quarters allowance." In late 1996, DoD appointed Mr. Pierce to this position effective February 1, 1997. On December 20, 1996, Mr. Pierce's "sponsor," someone who worked in the office where Mr. Pierce would be working at Camp Zama, wrote to introduce herself and to welcome Mr. Pierce to the post. In her letter, the sponsor said that temporary guest house quarters would be reserved for Mr. Pierce at Camp Zama. She explained that Bachelor Officers' Quarters (BOQ) were available for civilians, and that he would stay in the guest house quarters until space became available in the BOQ. She stated, "You do not have the option to live on the economy at this time." On January 10, 1997, a personnel staffing specialist at Camp Zama wrote to Mr. Pierce. Her letter stated, "As an overseas local hire you are not entitled to living quarters allowance or post housing." She sent Mr. Pierce information concerning housing and advised him to bring a substantial amount of money with him "to defray incidental relocation costs, i.e., temporary lodging, rent, utilities, etc." In a telephone conversation with Mr. Pierce before he left Okinawa, the personnel staffing specialist emphasized that Mr. Pierce was ineligible for a living quarters allowance. Mr. Pierce arrived at Camp Zama in February 1997, and DoD arranged for him to live in the BOQ there, beginning two weeks after he arrived. Mr. Pierce remained in the BOQ until October 1998, when DoD informed him that he had to vacate those quarters. DoD explained to Mr. Pierce that he had been housed in the BOQ because his housing application stated that he was not a "local hire." In DoD's view at the time, that information was in error and because Mr. Pierce was a local hire, he was not eligible to live in the BOQ. More recently, DoD determined that Mr. Pierce was not a local hire.[foot #] 1 Mr. Pierce believes that DoD should have given him a living quarters allowance (LQA) when he transferred to Camp Zama, should reimburse him for the two weeks that he spent in the temporary guest house quarters, and should reimburse him for the house deposit, realtor fees, and other expenses that he incurred when he relocated from the BOQ to off-post quarters. The Office of Personnel Management (OPM) denied Mr. Pierce's claim for LQA and transferred the remaining claims for allowances to us. Discussion It is unfortunate that Mr. Pierce was confused by his sponsor's statements concerning on-base housing, but the Camp Zama personnel office provided Mr. Pierce with the correct advice concerning quarters allowances, which was consistent with the statement made in the vacancy announcement. When the Government ----------- FOOTNOTE BEGINS --------- [foot #] 1 The confusion created by DoD's determination of whether Mr. Pierce was a local hire is irrelevant to his eligibility to receive the allowances that he claims, as explained in our Discussion, below. ----------- FOOTNOTE ENDS ----------- does not provide free quarters for an employee in a foreign area, the employee may be eligible for certain quarters allowances including LQA and a temporary quarters subsistence allowance (TQSA). 5 U.S.C. 5923 (1994). According to the Department of State Standardized Regulations (DSSR), which implement this statute, quarters allowances may be paid to employees "recruited . . . in the United States." DSSR 031.11. Provided certain conditions are met, quarters allowances may also be paid to employees recruited outside the United States. DSSR 031.12. DSSR 031.11 does not permit DoD to pay any quarters allowances to Mr. Pierce because he was not recruited in the United States for his position at Camp Zama. Mr. Pierce points out that he is a United States citizen, that his home of record is Oregon, and that Oregon is his permanent residence within the United States. However, the applicability of DSSR 031.11 does not depend upon Mr. Pierce's citizenship, the location of his home of record, or the location of his permanent residence. Instead, the applicability of the regulation depends upon whether he was recruited in the United States for the position at Camp Zama. Because Mr. Pierce was in Japan, and not in the United States, when he was recruited for his position at Camp Zama, he is not eligible to receive quarters allowances as an employee who was recruited in the United States. DSSR 031.12 does not permit DoD to pay any quarters allowances to Mr. Pierce because he does not meet all of the conditions for payment set out in this regulation, as implemented by DoD Directive 1400.25-M. DSSR 031.12 provides that if an employee is recruited outside the United States, as was Mr. Pierce, he may be eligible for quarters allowances if: 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/her 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 Commonwealth of the Northern Mariana Islands, the former 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/her return transportation to the United States, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the former Canal Zone, or a possession of the United States[.] DSSR 031.12. DoD Directive 1400.25-M explains the meaning of "substantially continuous employment" as that term is used in the DSSR: [F]ormer military and civilian members shall be considered to have "substantially continuous employment" for up to 1 year from the date of separation or when transportation entitlement is lost, or until the retired and/or separated member or employee uses any portion of the entitlement for Government transportation back to the United States, whichever occurs first. DoD Directive 1400.25-M, subch. 1250, E.1.a(2). Mr. Pierce does not meet the requirements of DSSR 031.12b. Prior to his appointment to the Camp Zama position, Mr. Pierce was recruited by a United States contractor, but he was recruited in Japan, not in the United States, and that firm did not provide him with return transportation to the United States. Prior to working for the contractor, Mr. Pierce was an active duty military member, but he separated from service in October 1994, and so his period of "substantially continuous employment" with the Marine Corps ended in October 1995, before he was appointed to his civilian position at Camp Zama. Because Mr. Pierce does not meet the requirements of DSSR 031.12b, he is not eligible to receive quarters allowances as an employee who was recruited outside the United States. Decision The Department of State Standardized Regulations set out the eligibility requirements for receiving quarters allowances in a foreign area. Because Mr. Pierce does not meet those requirements, we must deny his claim. __________________________________ MARTHA H. DeGRAFF Board Judge