B-167038, MAR. 26, 1970

B-167038, MAR. 26, 1970

STATION ALLOWANCES--TEMPORARY LODGINGS--PAYMENT OF SIMILAR COSTS UNDER OTHER LAWS AND REGULATIONS ON RECONSIDERATION, DECISION DENYING CLAIM FOR SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS TO EMPLOYEE WHO WAS PAID TERRITORIAL COST OF- LIVING ALLOWANCE IN 1968 IS AFFIRMED NOTWITHSTANDING JTR, VOL. 2, NOW PROVIDES COST-OF-LIVING ALLOWANCE PAYABLE UNDER 5 U.S.C. 5941 IS NOT DUPLICATION OF SUBSISTENCE EXPENSES, SINCE NEITHER REVISION OF JTR NOR THAT OF STATUTORY REGULATION (SEC. 2.5B (8) 1969) HAS RETROACTIVE APPLICATION, AND DURING PERIOD INVOLVED, CONTROLLING REGULATION PROHIBITED PAYMENT OF SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS TO EXTENT IT WOULD DUPLICATE AMOUNTS RECEIVED UNDER OTHER LAWS OR REGULATIONS COVERING SIMILAR COSTS. SEE COMP. GEN. DECS. CITED.

TO MR. SHERMAN R. KILLIAN:

YOUR LETTER OF JANUARY 22, 1970, REQUESTS RECONSIDERATION OF OUR DECISION OF JUNE 16, 1969, SUSTAINING OFFICE SETTLEMENT OF MAY 1, 1969. IN THAT SETTLEMENT IT WAS CONCLUDED THAT THE AMOUNT ($730.51) DUE YOU AS SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS DURING THE PERIOD MARCH 5 TO MAY 1, 1968, WAS REQUIRED TO BE REDUCED BY THE AMOUNT ($278.88) PAID TO YOU DURING THE SAME PERIOD AS A TERRITORIAL COST-OF-LIVING ALLOWANCE.

AS POINTED OUT IN THE JUNE 16, 1969 DECISION, THIS CONCLUSION WAS REQUIRED BY THE FOLLOWING PROVISION CONTAINED IN THE STATUTORY REGULATIONS PROMULGATED BY THE BUREAU OF THE BUDGET (SECTION 2.5B (8) OF BUREAU OF THE BUDGET CIRCULAR NO. A-56):

"IN NO CASE SHALL SUBSISTENCE EXPENSES UNDER THESE PROVISIONS BE ALLOWED WHICH DUPLICATE IN WHOLE OR IN PART PAYMENTS RECEIVED UNDER OTHER LAWS OR REGULATIONS COVERING SIMILAR COSTS."

YOU POINT OUT THAT A CHANGE IN THE JOINT TRAVEL REGULATIONS (JTR), VOLUME 2, WHICH BECAME EFFECTIVE JUNE 26, 1969, NOW PROVIDES THAT "A COST-OF- LIVING ALLOWANCE PAYABLE UNDER TITLE 5, U. S. CODE 5941 IS NOT A DUPLICATION OF SUBSISTENCE EXPENSES." IN VIEW OF SUCH CHANGE YOU STATE:

"SINCE THE DEPARTMENT OF DEFENSE HAS DETERMINED THAT A DUPLICATION BETWEEN COLA AND TQSE DOES NOT NOW EXIST, IT WOULD BE EQUALLY TRUE THAT A DUPLICATION DID NOT EXIST THE TIME I OCCUPIED TEMPORARY QUARTERS. THEREFORE, CONTEND--IN LIGHT OF THE DOD DETERMINATION- THAT YOUR DECISION WAS IN ERROR AND SHOULD BE REVERSED."

DURING THE PERIOD INVOLVED IN YOUR CLAIM THE CONTROLLING REGULATIONS EXPRESSLY PRECLUDED THE PAYMENT OF SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS TO THE EXTENT THAT SUCH PAYMENT WOULD DUPLICATE AMOUNTS RECEIVED UNDER OTHER LAWS OR REGULATIONS COVERING SIMILAR COSTS. IN THE ABSENCE OF ANY LANGUAGE IN THE REGULATION EXCLUDING COST-OF-LIVING ALLOWANCE PAYMENTS, OUR OFFICE CONCLUDED THAT A DUPLICATION WOULD OCCUR WITHIN THE MEANING OF THE PROVISIONS IF SUBSISTENCE FOR TEMPORARY QUARTERS AND THE COST-OF-LIVING ALLOWANCE WERE PAID FOR THE SAME PERIOD. THE LANGUAGE OF JTR, VOLUME 2, QUOTED IN YOUR LETTER, IS NOT A DEPARTMENT OF DEFENSE DETERMINATION BUT, RATHER, IS MERELY REPETITIVE OF A SIMILAR CHANGE MADE IN THE APPLICABLE STATUTORY REGULATION (SECTION 2.5B (8) OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, AS REVISED JUNE 26, 1969). THE CHANGE IN THE CIRCULAR WAS A SUBSTANTIVE ONE. BY THE SPECIFIC TERMS OF THE REVISED REGULATION A COST-OF-LIVING ALLOWANCE NO LONGER MAY BE CONSIDERED TO BE A DUPLICATION OF EXPENSES WITHIN THE MEANING OF THAT REGULATION. HOWEVER, NEITHER THE AMENDMENT MADE IN THE STATUTORY REGULATION NOR THAT MADE IN JTR, VOLUME 2, QUOTED IN YOUR LETTER, IS CONSIDERED TO HAVE ANY RETROACTIVE APPLICATION.

THE ACTION TAKEN IN YOUR CASE AND THE CONCLUSIONS REACHED IN DECISIONS OF DECEMBER 26, 1967, AND APRIL 29, 1968, B-162977, COPIES OF WHICH WERE FORWARDED TO YOU AS ENCLOSURES TO OUR DECISION OF JUNE 16, 1969, WERE CONSISTENT WITH THE THEN CURRENT PROVISIONS OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, QUOTED ABOVE. WHILE THAT REGULATION AND THE APPLICABLE PROVISIONS OF JTR, VOLUME 2, WERE CHANGED EFFECTIVE JUNE 26, 1969, AS POINTED OUT ABOVE, SUCH CHANGES OPERATE PROSPECTIVELY ONLY AND IN NO WAY AFFECT THE PREVIOUS ACTION TAKEN IN YOUR CASE, WHICH ACTION HEREBY IS AFFIRMED.