B-145180, AUG. 17, 1965

B-145180, AUG. 17, 1965

TO THE HONORABLE JOHN W. MACY, JR., CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION:

YOUR LETTER OF AUGUST 3, 1965, ASKS OUR DECISION WHETHER AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE WHO SERVED ON DETAIL UNDER 22 U.S.C. 2385 (D) TO THE AGENCY FOR INTERNATIONAL DEVELOPMENT IN QUITO, ECUADOR, FROM NOVEMBER 1, 1964, TO JANUARY 29, 1965 (LATER EXTENDED TO MARCH 29 OR APRIL 11, 1965), BECAME SUBJECT TO SECTION 203 (D) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, AS AMENDED, 5 U.S.C. 2062 (D), FOR THE PURPOSE OF ACCUMULATING NOT TO EXCEED 45 DAYS LEAVE.

ONE OF THE CONDITIONS PRESCRIBED BY THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, FOR ENTITLEMENT TO THE 45 DAYS LEAVE ACCUMULATION IS THAT THE EMPLOYEE BE "STATIONED OUTSIDE THE UNITED STATES.' THEREFORE, THE BASIC ISSUE IN THE CASE IS WHETHER THE EMPLOYEE HERE INVOLVED WAS IN FACT STATIONED IN QUITO, ECUADOR.

THE RECORD CONCERNING THE EMPLOYEE'S STATUS IN QUITO IS NOT CLEAR. WERE INFORMALLY ADVISED BY THE INTERNAL REVENUE SERVICE THAT HE MIGHT RECEIVE PER DIEM IN LIEU OF SUBSISTENCE UNTIL THE 43RD DAY OF HIS TOUR AND THEREAFTER RECEIVE THE POST DIFFERENTIAL WHICH AT QUITO IS 15 PERCENT. HOWEVER, WE WERE INFORMED, ALSO, THAT NO ACTIONS WERE TAKEN REFLECTING A CHANGE IN HIS OFFICIAL STATION OR POST DURING THE TOUR.

SO FAR AS THERE MAY BE AN ANALOGY THE STANDARDIZED REGULATIONS (STATE DEPARTMENT) APPLICABLE TO POST DIFFERENTIAL IN FOREIGN AREAS PROVIDE IN SECTION 531.1 AS FOLLOWS:

"THE POST DIFFERENTIAL PRESCRIBED FOR AN EMPLOYEE'S POST SHALL COMMENCE AS OF THE LATEST OF THE FOLLOWING DATES:

"/C) EFFECTIVE DATE OF ASSIGNMENT, IF EMPLOYEE IS ALREADY AT THE NEW POST ON DETAIL OR LEAVE.'

WHILE THE TERM "DETAIL" AS USED IN THE STANDARDIZED REGULATIONS (SEE SECTIONS 040P AND 511C) APPEARS TO REFER TO DUTY AWAY FROM ONE'S POST,THE TERMINOLOGY USED IN SECTION 040P APPEARS TO EQUATE TEMPORARY ASSIGNMENT WITH TEMPORARY DUTY.

THE RELATIVE BREVITY OF THE EMPLOYEE'S STAY IN QUITO, ECUADOR, THE AFFIRMATIVE EVIDENCE THAT HE RECEIVED PER DIEM IN LIEU OF SUBSISTENCE, AND THE ABSENCE OF FACTS THAT QUITO WAS DESIGNATED EITHER AS THE EMPLOYEE'S POST OR OFFICIAL STATION, INCLINE US TO THE VIEW THAT HE WAS ON TEMPORARY DUTY IN QUITO, RATHER THAN STATIONED THERE WITHIN THE MEANING OF SECTION 203 (D) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED.

THEREFORE, ON THE RECORD BEFORE US, WE MUST CONCLUDE THAT THE EMPLOYEE DID NOT BECOME ENTITLED TO THE MAXIMUM ACCUMULATION OF NOT TO EXCEED 45 DAYS ANNUAL LEAVE.