B-168031, JUN. 26, 1970

B-168031, JUN. 26, 1970

TO MR. JOHN W. HERMAN:

WE REFER TO YOUR LETTER OF JANUARY 22, 1970, WITH ENCLOSURES, REQUESTING REVIEW OF OUR OFFICE SETTLEMENT OF NOVEMBER 24, 1969 (VOUCHER NO. 455527), WHICH DISALLOWED YOUR CLAIM IN THE AMOUNT OF $718.35 FOR REIMBURSEMENT FOR MEALS CONSUMED BY YOU AND YOUR DEPENDENTS DURING THE PERIOD AUGUST 27 TO NOVEMBER 24, 1966, WHILE OCCUPYING TEMPORARY QUARTERS ON OKINAWA. ALSO, YOU WERE ADVISED THAT YOU ARE INDEBTED TO THE UNITED STATES FOR PREVIOUS IMPROPER PAYMENTS COVERING LODGING AND MEALS FOR THE PERIOD AUGUST 8 TO 18, 1966. TRAVEL PER DIEM, ALLOWED IN THE AMOUNT OF $120 FOR THE PERIOD AUGUST 15 THROUGH 17, 1966, DURING WHICH YOUR DEPARTURE FOR OKINAWA WAS DELAYED, WAS OFFSET AGAINST YOUR INDEBTEDNESS.

BY TRAVEL ORDER DATED JULY 8, 1966, YOU AND YOUR DEPENDENTS WERE AUTHORIZED TO TRAVEL FROM FORT LEE, VIRGINIA, TO OKINAWA INCIDENT TO A PERMANENT CHANGE OF STATION. YOU VACATED YOUR PERMANENT RESIDENCE AT FORT LEE ON AUGUST 8 BUT WERE UNABLE TO BEGIN TRAVEL UNTIL AUGUST 18 BECAUSE OF AN AIRLINE STRIKE. FOR THE PERIOD AUGUST 8 TO 18, 1966, WHILE YOU WERE OCCUPYING TEMPORARY QUARTERS AWAITING TRANSPORTATION, YOU WERE PAID TEMPORARY LODGING ALLOWANCE OF $128.52 BY YOUR ADMINISTRATIVE OFFICE AND AN ADDITIONAL $111.30 FOR SUBSISTENCE EXPENSES BY THE CLAIMS DIVISION OF OUR OFFICE (VOUCHER NO. 451250, JULY 29, 1969).

UPON YOUR ARRIVAL ON OKINAWA YOU AND YOUR FAMILY MOVED INTO TEMPORARY QUARTERS WHICH YOU OCCUPIED FROM AUGUST 27 TO NOVEMBER 24, 1966, AND FOR WHICH YOU RECEIVED A TEMPORARY LODGING ALLOWANCE OF $540. FOR THIS SAME PERIOD YOU HAVE CLAIMED REIMBURSEMENT OF $718.35 FOR MEALS.

IN THE SETTLEMENT OF NOVEMBER 24, 1969, REFERRED TO ABOVE, YOU WERE ADVISED THAT ON THE BASIS OF THE RECORD THERE WAS NO AUTHORITY TO REIMBURSE YOU FOR THE COST OF MEALS CONSUMED BY YOU AND YOUR FAMILY DURING THE PERIOD AUGUST 27 TO NOVEMBER 24, 1966. CONTRARY TO YOUR BELIEF OUR OFFICE MAY NOT, BY DECISION, ENLARGE THE SCOPE OF APPLICABLE REGULATIONS BY ALLOWING PAYMENT OF EXPENSES NOT AUTHORIZED THEREIN. AS YOU WERE ADVISED IN THE SETTLEMENT OF NOVEMBER 24, THE ONLY AUTHORITY UNDER WHICH YOU MAY BE REIMBURSED FOR ANY PORTION OF THE EXPENSES IN QUESTION IS CONTAINED IN SECTION 230 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) PROVIDING, IN PART, AS FOLLOWS:

"230 SUPPLEMENTARY POST ALLOWANCE

"231 DEFINITION

"'SUPPLEMENTARY POST ALLOWANCE' MEANS A FORM OF POST ALLOWANCE GRANTED TO AN EMPLOYEE AT HIS POST FOR WHOM THE HEAD OF AGENCY HAS DETERMINED THAT ASSISTANCE IS NECESSARY TO DEFRAY EXTRAORDINARY SUBSISTENCE COSTS UNDER CONDITIONS DESCRIBED IN SECTION 232.

"232 SCOPE

"THE SUPPLEMENTARY POST ALLOWANCE IS INTENDED ONLY FOR THOSE EMPLOYEES WHO ARE FACED WITH UNUSUALLY HEAVY EXPENSES BECAUSE OF THE NECESSITY FOR PROVIDING HIGH-COST HOTEL OR RESTAURANT MEALS FOR A FAMILY WHILE COMPELLED, BECAUSE OF CURRENT UNAVAILABILITY AT THE POST OF SUITABLE QUARTERS HAVING KITCHEN FACILITIES, TO OCCUPY TEMPORARY NONHOUSEKEEPING QUARTERS DURING PERIODS UP TO THE FIRST THREE MONTHS AFTER FIRST ARRIVAL AT A NEW POST. ***

"233 CONDITIONS GOVERNING ELIGIBILITY

"A SUPPLEMENTARY POST ALLOWANCE MAY BE GRANTED ONLY

"A. AFTER AN INDIVIDUAL DETERMINATION DESCRIBED IN SECTIONS 231 AND 232 HAS BEEN MADE BY THE HEAD OF AGENCY (SEC. 237.2);"

IN THE ABSENCE OF A DETERMINATION BY THE HEAD OF YOUR AGENCY AS REQUIRED BY SUBSECTION 233A, ABOVE, WE MAY NOT FAVORABLY CONSIDER YOUR CLAIM UNDER SECTION 230 OF THE REGULATIONS.

CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES ARISING OUT OF ERRONEOUS PAYMENTS OF TEMPORARY LODGING ALLOWANCE AND SUBSISTENCE EXPENSES FOR THE PERIOD AUGUST 8 TO 18, 1966, YOU REQUEST THAT SUCH INDEBTEDNESS BE CONSIDERED FOR WAIVER UNDER THE PROVISIONS OF PUBLIC LAW 90-616, 5 U.S.C. 5584. THE PROVISIONS OF PUBLIC LAW 90-616 AUTHORIZE, UNDER CERTAIN CONDITIONS, THE WAIVER OF CLAIMS OF THE UNITED STATES AGAINST PERSONS WHO HAVE RECEIVED ERRONEOUS PAYMENTS OF PAY. UNDER SUBSECTION 91.2(B) OF THE STANDARDS FOR WAIVER PRESCRIBED IN CHAPTER 1 OF TITLE 4, CODE OF FEDERAL REGULATIONS, REVISED, JANUARY 1, 1970, THE TERM "PAY" IS DEFINED AS FOLLOWS:

"(B) 'PAY' MEANS SALARY, WAGES, PAY, COMPENSATION, EMOLUMENTS, AND REMUNERATION FOR SERVICES. IT INCLUDES OVERTIME PAY; NIGHT, SUNDAY STANDBY, IRREGULAR AND HAZARDOUS DUTY DIFFERENTIAL; PAY FOR SUNDAY AND HOLIDAY WORK; PAYMENT FOR ACCUMULATED AND ACCRUED LEAVE; AND SEVERANCE PAY. IT DOES NOT INCLUDE EXPENSES OF TRAVEL AND TRANSPORTATION OR EXPENSES OF TRANSPORTATION OF HOUSEHOLD GOODS."

SINCE ALLOWANCES FOR TEMPORARY QUARTERS AND SUBSISTENCE DO NOT FALL WITHIN THE TERM "PAY" AS DEFINED ABOVE, ERRONEOUS PAYMENTS OF SUCH ALLOWANCES MAY NOT BE WAIVED UNDER PUBLIC LAW 90-616.

IN YOUR LETTER OF JANUARY 22 YOU QUESTION WHETHER YOUR REFUND OF THE ERRONEOUS PAYMENTS SHOULD INCLUDE THE AMOUNTS WITHHELD FOR FEDERAL INCOME TAX. THE AMOUNTS WITHHELD WERE, WE ASSUME, TRANSMITTED FOR CREDIT TO YOUR ACCOUNT WITH THE INTERNAL REVENUE SERVICE. ANY ADJUSTMENT OF YOUR FEDERAL INCOME TAX IS A MATTER SOLELY WITHIN THE JURISDICTION OF THE INTERNAL REVENUE SERVICE AND SHOULD BE TAKEN CARE OF IN YOUR INCOME TAX RETURN. ACCORDINGLY, YOUR REFUND TO US SHOULD INCLUDE THE AMOUNTS WITHHELD FOR TAXES. CONCERNING YOUR REQUEST FOR INFORMATION REGARDING A FURTHER APPEAL FROM OUR DECISION, YOU ARE ADVISED THAT UNDER THE LAW (31 U.S.C. 44 AND 74) THE DECISIONS OF OUR OFFICE ARE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT. WHILE THERE IS NO PROCEDURE FOR ADMINISTRATIVE APPEAL FROM OUR DECISIONS, WE DIRECT YOUR ATTENTION TO THE PROVISIONS OF SECTIONS 1346 AND 1491 OF TITLE 28, U.S.C. CONCERNING MATTERS COGNIZABLE IN THE DISTRICT COURTS OF THE UNITED STATES AND THE UNITED STATES COURT OF CLAIMS.