B-134392, MAR. 18, 1966, 45 COMP. GEN. 583

B-134392, MAR. 18, 1966, 45 COMP. GEN. 583

FOREIGN DIFFERENTIALS AND OVERSEAS ALLOWANCES - POST DIFFERENTIALS - DETAILED EMPLOYEES - RETROACTIVE APPROVAL A PROPOSED REGULATION TO GRANT EMPLOYEES ON DETAIL IN VIETNAM FOR A PERIOD OF 42 OR MORE CONSECUTIVE CALENDAR DAYS A POST DIFFERENTIAL RETROACTIVE TO THE DAY OF ARRIVAL FOR DUTY IN THE FOREIGN AREA IS NOT INCONSISTENT WITH THE RESTRICTION IN THE REGULATIONS PRECLUDING PAYMENT OF THE POST DIFFERENTIAL FOR DETAILS, UNLESS THE EMPLOYEES HAD SERVED 42 DAYS AT ONE OR MORE FOREIGN AREAS, AND, THEREFORE, THE ISSUANCE OF THE REGULATION UNDER SECTION 231 OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT, 5 U.S.C. 3038, IS PROPER.

TO THE SECRETARY OF STATE, MARCH 18, 1966:

ON MARCH 7, 1966, THE DEPUTY UNDER SECRETARY OF STATE FOR ADMINISTRATION REQUESTED OUR CONSIDERATION OF AND CONCURRENCE IN THE ISSUANCE OF A REVISION TO THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS).

THE FOLLOWING PARAGRAPH IS PROPOSED FOR INSERTION IN SECTION 920 OF THE REGULATIONS FOLLOWING THE ALLOWANCES AND DIFFERENTIAL CLASSIFICATION FOR POSTS IN VIETNAM:

IN LIEU OF ANY OTHER DIFFERENTIAL AUTHORIZED BY THESE REGULATIONS, AN EMPLOYEE WHO SERVES FOR A PERIOD OF 42 CONSECUTIVE CALENDAR DAYS (SEC. 511 D.) OR MORE ON DETAIL AT ONE OR MORE PLACES IN VIETNAM MAY BE GRANTED THE POST DIFFERENTIAL AT THE PRESCRIBED RATE FOR THE NUMBER OF DAYS SERVED AT EACH SUCH PLACE, BEGINNING WITH THE FIRST DAY OF DETAIL IN VIETNAM.

UNDER THE PROPOSED REVISION AN EMPLOYEE WHO HAS BEEN ON A DETAIL IN VIETNAM FOR A PERIOD OF 42 OR MORE CONSECUTIVE CALENDAR DAYS WOULD BE ENTITLED TO RECEIVE RETROACTIVELY THE POST DIFFERENTIAL FROM THE DATE HE ARRIVED AT HIS POST.

THE DEPUTY UNDER SECRETARY SAYS THAT IT IS STATED BY THE AGENCIES THAT THE REQUIREMENT IN SECTIONS 541 AND 542 OF THE REGULATIONS FOR AN EMPLOYEE TO SPEND A PERIOD OF 42 DAYS ON DETAIL IN VIETNAM BEFORE BECOMING ELIGIBLE TO RECEIVE THE 25 PERCENT VIETNAM POST DIFFERENTIAL ON THE 43RD AND ON SUBSEQUENT DAYS ADVERSELY AFFECTS THE OBTAINING OF VOLUNTEER CIVILIAN EMPLOYEES FOR THE PERFORMANCE OF WORK THAT IS NECESSARY TO THE ACCOMPLISHMENT OF THE MISSION IN VIETNAM.

SECTION 231 OF THE "OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT," APPROVED SEPTEMBER 6, 1960, PUBLIC LAW 86-707, 74 STAT. 795, 5 U.S.C. 3038, CONCERNING THE PAYMENT OF POST DIFFERENTIAL PROVIDES AS FOLLOWS:

A POST DIFFERENTIAL MAY BE GRANTED ON THE BASIS OF CONDITIONS OF ENVIRONMENT WHICH DIFFER SUBSTANTIALLY FROM CONDITIONS OF ENVIRONMENT IN THE CONTINENTAL UNITED STATES AND WARRANT ADDITIONAL COMPENSATION AS A RECRUITMENT AND RETENTION INCENTIVE. SUCH DIFFERENTIAL ALSO MAY BE GRANTED TO ANY EMPLOYEE WHO IS OFFICIALLY STATIONED IN THE UNITED STATES AND WHO IS ON EXTENDED DETAIL IN A FOREIGN AREA. ADDITIONAL COMPENSATION PAID AS A POST DIFFERENTIAL SHALL NOT IN ANY INSTANCE EXCEED 25 PERCENTUM OF THE RATE OF BASIC COMPENSATION.

H.REPT. NO. 902, PAGE 18, 86TH CONG., 1ST SESS., TO ACCOMPANY H.R. 7758, WHICH WAS ENACTED AS PUBLIC LAW 86-707, RECOGNIZED IN CONNECTION WITH THE "EXTENDED DETAIL" PROVISION THAT THE THEN EXISTING LIMITATION IN THE REGULATION WAS THAT NO PAYMENT FOR "DETAILS" OVERSEAS WOULD BE ALLOWED UNLESS THE EMPLOYEE HAD SERVED 42 DAYS ON DETAIL AT ONE OR MORE DIFFERENT POSTS. THE STATED PURPOSE OF THE RESTRICTION WAS TO PREVENT PAYMENT OF THE DIFFERENTIAL TO EMPLOYEES WHO MAKE ONLY SHORT TRIPS TO FOREIGN AREAS IN WHICH THE DIFFERENTIAL APPLIES. WE DO NOT BELIEVE THE LANGUAGE OF THE STATUTE OR ITS LEGISLATIVE HISTORY REQUIRES THE CONCLUSION THAT IN THE CASE OF SERVICE IN THE DIFFERENTIAL AREA FOR 42 DAYS OR LONGER IT WOULD BE ILLEGAL TO PERMIT BY REGULATION THAT THE DIFFERENTIAL IN SUCH CASES BE ALLOWED RETROACTIVELY FROM THE DAY OF ARRIVAL FOR DUTY IN THE FOREIGN AREA.

THEREFORE, WE SEE NO OBJECTION TO THE ISSUANCE OF THE PROPOSED REVISION TO THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS).