A-41809, APRIL 26, 1932, 11 COMP. GEN. 404

A-41809: Apr 26, 1932

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IT IS ONLY IN CASES WHERE AN ALLOWANCE HAS BEEN GRANTED AT THE OFFICER'S PERMANENT STATION THAT THE SAME ALLOWANCE MAY CONTINUE. AS FOLLOWS: REFERENCE IS MADE TO A LETTER DATED FEBRUARY 15. IN WHICH IT IS NOTED THAT CREDIT HAS BEEN WITHHELD FOR ALLOWANCE FOR RENT FOR SUCH TIME AS MR. MANEY WAS IN GUAYMAS FROM NOVEMBER 11. PENDING THE RECEIPT OF INFORMATION AS TO WHEN THE ASSIGNMENT TO GUAYMAS WAS MADE PERMANENT. BEEN CONSTRUED BY THIS DEPARTMENT AS INTENDED TO SPECIFY THAT CIVILIAN OFFICERS AND EMPLOYEES NOT PERMANENTLY STATIONED ABROAD ARE DEFINITELY PRECLUDED FROM SUCH ALLOWANCE. THE DISTINCTION BEING THAT THERE FREQUENTLY IS OCCASION FOR CIVILIAN EMPLOYEES WHOSE PERMANENT DUTY STATION IS IN THE UNITED STATES.

A-41809, APRIL 26, 1932, 11 COMP. GEN. 404

QUARTERS ALLOWANCE - TEMPORARY DUTY STATION - FOREIGN SERVICE OFFICERS THE ACT OF JUNE 26, 1930, 46 STAT. 818, AND REGULATIONS ISSUED PURSUANT THERETO, CONTEMPLATE THAT THE ALLOWANCE FOR QUARTERS, HEAT, AND LIGHT SHALL BE PAID FOR EXPENSES INCURRED BY FOREIGN SERVICE OFFICERS AT THEIR PERMANENT OFFICIAL STATION OR DESIGNATED POST OF DUTY, AS DISTINGUISHED FROM EXPENSES WHICH MAY BE INCURRED AT A PLACE WHERE THEY MAY BE ASSIGNED FOR TEMPORARY DUTY. IT IS ONLY IN CASES WHERE AN ALLOWANCE HAS BEEN GRANTED AT THE OFFICER'S PERMANENT STATION THAT THE SAME ALLOWANCE MAY CONTINUE, UNDER THE CONDITIONS SPECIFIED IN THE REGULATIONS, WHILE ON TEMPORARY ASSIGNMENT AT ANOTHER PLACE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, APRIL 26, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 3, 1932, AS FOLLOWS:

REFERENCE IS MADE TO A LETTER DATED FEBRUARY 15, 1932, FROM THE GENERAL ACCOUNTING OFFICE, AUDIT DIVISION (A-JDB-112), RELATING TO THE ACCOUNTS OF EDWARD S. MANEY, AMERICAN VICE CONSUL AT GUAYMAS, MEXICO, IN WHICH IT IS NOTED THAT CREDIT HAS BEEN WITHHELD FOR ALLOWANCE FOR RENT FOR SUCH TIME AS MR. MANEY WAS IN GUAYMAS FROM NOVEMBER 11, 1930, TO DECEMBER 28, 1930, PENDING THE RECEIPT OF INFORMATION AS TO WHEN THE ASSIGNMENT TO GUAYMAS WAS MADE PERMANENT.

PERMANENT STATION IN A FOREIGN COUNTRY HAS FROM THE BEGINNING OF THE APPLICATION OF THE ACT OF JUNE 26, 1930, BEEN CONSTRUED BY THIS DEPARTMENT AS INTENDED TO SPECIFY THAT CIVILIAN OFFICERS AND EMPLOYEES NOT PERMANENTLY STATIONED ABROAD ARE DEFINITELY PRECLUDED FROM SUCH ALLOWANCE, THE DISTINCTION BEING THAT THERE FREQUENTLY IS OCCASION FOR CIVILIAN EMPLOYEES WHOSE PERMANENT DUTY STATION IS IN THE UNITED STATES, TO TRAVEL ABROAD TEMPORARILY ON OFFICIAL BUSINESS, SUCH EMPLOYEES NOT FALLING WITHIN THE CLASS ENTITLED TO ALLOWANCES FOR LIVING QUARTERS.

MR. MANEY'S STATUS HAS NEVER BEEN ALTERED FROM THAT OF PERMANENT STATION ABROAD TO PERMANENT STATION IN THE UNITED STATES, AND THE DEPARTMENT CONSIDERS THAT IT IS IMMATERIAL WHETHER HIS RENT ALLOWANCE IS DRAWN FOR EXPENDITURES AT GUAYMAS OR AT NOGALES, THOUGH, OF COURSE, HE WOULD NOT BE ENTITLED TO DRAW ALLOWANCES AT BOTH PLACES EVEN THOUGH HE WERE TO HAVE INCURRED EXPENDITURES AT BOTH PLACES.

ALTHOUGH PERMANENTLY ASSIGNED FOR DUTY OUTSIDE THE UNITED STATES, MR. MANEY WAS TEMPORARILY DETAILED TO ANOTHER POST ABROAD AWAY FROM THAT OF HIS REGULAR POST OF ASSIGNMENT. AN OFFICER SO DETAILED USUALLY FINDS IT NECESSARY TO MAINTAIN HIS RESIDENCE AND FAMILY AT HIS PERMANENT POST OF DUTY, THEREBY NECESSARILY INCURRING ADDITIONAL EXPENSES, AND IT WAS TO HELP HIM ADJUST HIS LIVING COSTS WHILE ON THIS DETAIL THAT HE WAS GRANTED A PER DIEM OF $3.00 IN ACCORDANCE WITH THE APPROPRIATION ACT, WHICH AUTHORIZES SUBSISTENCE EXPENSES OF CONSULAR AND FOREIGN SERVICE OFFICERS WHILE ON TEMPORARY DETAIL UNDER COMMISSION.

IT IS THEREFORE BELIEVED THAT THE AUTHORIZATIONS SHOULD STAND AND THAT THE SUSPENSION SHOULD BE REMOVED AFTER MAKING ADJUSTMENT FOR A REDUCTION OF ONE-FIFTH OF THE PER DIEM IN ACCORDANCE WITH PARAGRAPH 47 (A) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AS AMENDED, EFFECTIVE MARCH 1, 1929.

IT APPEARS FROM THE RECORDS THAT MR. MANEY WAS ON DUTY AT NOGALES, MEXICO, WHERE HE RECEIVED NO QUARTERS ALLOWANCE, WHEN HE WAS ADVISED OF HIS DETAIL TO GUAYMAS BY TELEGRAM DATED NOVEMBER 5, 1930, READING AS FOLLOWS:

NOVEMBER 5, 5:00 P.M. MANEY TEMPORARILY DETAILED GUAYMAS TO TAKE CHARGE DURING THE ABSENCE SMALE ON LEAVE; SHOULD PROCEED IMMEDIATELY PERIOD TRANSPORTATION EXPENSES PER DIEM IN LIEU OF SUBSISTENCE IF DESIRED AUTHORIZED SUBJECT TRAVEL REGULATIONS PERIOD SHOULD SUBMIT ESTIMATE STOP THREE DOLLARS PER DIEM GRANTED WHILE ON DUTY ATGUAYMAS PERIOD EMBASSY INSTRUCTED REQUEST PROVISIONAL RECOGNITION

IN PURSUANCE THEREOF HE DEPARTED FROM NOGALES AT 3 P.M. NOVEMBER 10, AND ARRIVED AT GUAYMAS AT 3 A.M. NOVEMBER 11. FROM NOVEMBER 11 TO DECEMBER 27, INCLUSIVE, HE RECEIVED AN ALLOWANCE OF $3 PER DIEM IN LIEU OF SUBSISTENCE EXPENSES IN ACCORDANCE WITH THE AUTHORITY CONTAINED IN THE TRAVEL ORDER. IN ADDITION HE HAS PAID TO HIMSELF FOR THIS PERIOD AN ALLOWANCE FOR LIVING QUARTERS, HEAT, FUEL, AND LIGHT AT THE RATE OF $540 PER ANNUM, CITING AS HIS AUTHORITY INSTRUCTION DATED DECEMBER 12, 1930, AS FOLLOWS:

RECEIPT IS ACKNOWLEDGED OF YOUR UNNUMBERED DESPATCH OF DECEMBER 1, 1930, IN WHICH YOU REQUEST THAT AN ALLOTMENT BE GRANTED YOU TO COVER YOUR EXPENDITURE FOR A ROOM WHILE TEMPORARILY AT GUAYMAS. IN REPLY THE DEPARTMENT AUTHORIZES YOU TO CHARGE YOUR ACTUAL EXPENSES FOR RENT, HEAT, LIGHT, AND FUEL AT A PER ANNUM RATE NOT TO EXCEED $540 WHILE AT GUAYMAS.

THE ACT OF JUNE 26, 1930, 46 STAT. 818, PROVIDES, IN PART:

THAT UNDER SUCH REGULATIONS AS THE HEADS OF THE RESPECTIVE DEPARTMENTS CONCERNED MAY PRESCRIBE AND THE PRESIDENT APPROVE, CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT HAVING PERMANENT STATION IN A FOREIGN COUNTRY MAY BE FURNISHED, WITHOUT COST TO THEM, LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT, IN GOVERNMENT-OWNED OR RENTED BUILDINGS AND, WHERE SUCH QUARTERS ARE NOT AVAILABLE, MAY BE GRANTED AN ALLOWANCE FOR LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT, NOTWITHSTANDING THE PROVISIONS OF SECTION 1765 OF THE REVISED STATUTES (U.S.C., TITLE 5, SEC. 70). * *

IN PURSUANCE OF THE AUTHORITY THEREIN CONTAINED, REGULATIONS IN RELATION TO LIVING QUARTERS, HEAT, FUEL, AND LIGHT FOR OFFICERS OF THE FOREIGN SERVICE, APPROVED BY THE PRESIDENT AUGUST 12, 1930, WERE PROMULGATED BY THE SECRETARY OF STATE PROVIDING, IN PARAGRAPH 7, THAT THE AMOUNTS ALLOWABLE SUBJECT TO AVAILABLE APPROPRIATIONS SHALL BE THE ACTUAL ANNUAL EXPENDITURES MADE BY AN OFFICER FOR RENT, HEAT, FUEL, AND LIGHT FOR LIVING QUARTERS WITHIN CERTAIN PRESCRIBED MAXIMA, AND, IN PARAGRAPH 9 (F), THAT SUCH ALLOWANCE WILL BE CONTINUED DURING LEAVE OF ABSENCE WITH PAY OR ABSENCE FROM POST OF ASSIGNMENT UNDER ORDERS. SEE ALSO CORRESPONDING PROVISIONS IN PARAGRAPHS 7 AND 9 (G) OF STANDARDIZED REGULATIONS, APPROVED BY THE PRESIDENT AND PROMULGATED BY THE BUREAU OF THE BUDGET, JUNE 19, 1931, EFFECTIVE JULY 1, 1931, SUBSEQUENT TO THE PERIOD HERE INVOLVED.

FOREIGN SERVICE OFFICERS NECESSARILY, FROM THE NATURE OF THE SERVICE PERFORMED, FALL WITHIN THAT CLASS OF EMPLOYEES REFERRED TO BY YOU AS HAVING PERMANENT STATION ABROAD AS DISTINGUISHED FROM THOSE WHOSE PERMANENT STATION IS IN THE UNITED STATES AND WHO MIGHT BE TEMPORARILY ASSIGNED FOR DUTY IN A FOREIGN COUNTRY. THE ACT OF MAY 24, 1924, 43 STAT. 140, PROVIDING FOR THE REORGANIZATION AND IMPROVEMENT OF THE FOREIGN SERVICE OF THE UNITED STATES, DESIGNATES THOSE OFFICERS WHO SHALL THEREAFTER BE KNOWN AS THE FOREIGN SERVICE OF THE UNITED STATES, AND PROVIDES THAT ALL APPOINTMENTS TO SUCH SERVICE SHALL BE BY COMMISSION TO A CLASS AND NOT BY COMMISSION TO ANY PARTICULAR POST; AND THAT SUCH OFFICERS SHALL BE ASSIGNED TO POSTS AND MAY BE TRANSFERRED FROM ONE POST TO ANOTHER BY ORDER OF THE PRESIDENT AS THE INTERESTS OF THE SERVICE MAY REQUIRE. PROVISION IS MADE ALSO THAT SUCH OFFICERS MAY BE TEMPORARILY ASSIGNED FOR DUTY IN THE DEPARTMENT OF STATE WITHOUT LOSS OF CLASS OR SALARY WITHIN CERTAIN PRESCRIBED LIMITATIONS. THEREFORE, IN ORDER THAT AN OFFICER MAY HAVE "PERMANENT STATION IN A FOREIGN COUNTRY" IT IS ESSENTIAL THAT THERE BE DESIGNATED A SPECIFIC PLACE IN A FOREIGN COUNTRY AS HIS HEADQUARTERS OR REGULAR POST OF DUTY. IT IS APPARENT THAT THE ACT OF JUNE 26, 1930, SUPRA, AND THE REGULATIONS PURSUANT THERETO, CONTEMPLATE THAT THE ALLOWANCE SHALL BE MADE TO THE OFFICER FOR EXPENSES INCURRED AT SUCH DESIGNATED PLACE AS DISTINGUISHED FROM EXPENSES WHICH MAY BE INCURRED AT A PLACE WHERE HE MAY BE ASSIGNED FOR TEMPORARY DUTY. IT IS ONLY IN CASES WHERE AN ALLOWANCE HAS BEEN GRANTED AT THE OFFICER'S PERMANENT STATION THAT THE SAME ALLOWANCE MAY CONTINUE, UNDER SPECIFIED CONDITIONS, WHILE ON TEMPORARY ASSIGNMENTS AT ANOTHER PLACE. IN ORDER TO RELIEVE AN OFFICER OF THE ADDITIONAL EXPENSE RESULTING FROM THE PERFORMANCE OF OFFICIAL DUTY AT A PLACE OTHER THAN HIS PERMANENT STATION, THERE WAS INCLUDED IN THE ACT OF APRIL 18, 1930, 46 STAT. 177, PROVISION FOR REIMBURSEMENT TO FOREIGN SERVICE OFFICERS OF EXPENSES OF SUBSISTENCE INCURRED IN PERFORMANCE OF DUTY WHILE ON SUCH TEMPORARY DETAIL. IT IS WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE TO FIX THE RATE OF THAT ALLOWANCE WITHIN THE LIMITATIONS PRESCRIBED BY THE SUBSISTENCE ACT OF 1926, 44 STAT. 688, AND PARAGRAPH 45 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. THE RATE AUTHORIZED MUST BE INCLUSIVE OF ALL ITEMS OF SUBSISTENCE AS PRESCRIBED IN PARAGRAPH 44 OF SAID REGULATIONS AND IT IS A WELL-SETTLED RULE THAT ORDERS AUTHORIZING PER DIEM ALLOWANCE OR INCREASING THE RATE OF PER DIEM THERETOFORE AUTHORIZED CAN NOT BE GIVEN A RETROACTIVE EFFECT. SEE 7 COMP. GEN. 276 AND DECISIONS THEREIN CITED.

IN LETTER DATED DECEMBER 18, 1930, MR. MANEY WAS ADVISED THAT HE WAS PERMANENTLY ASSIGNED TO DUTY AT GUAYMAS AND THAT THE PER DIEM ALLOWANCE WOULD ACCORDINGLY TERMINATE UPON RECEIPT OF THE INSTRUCTION. INFORMATION HAS BEEN FURNISHED WITH THE ACCOUNTS AS TO THE DATE OF THE RECEIPT OF THE INSTRUCTION, BUT THE RECORDS SHOW THAT HE CONTINUED TO PAY HIMSELF THE PER DIEM ALLOWANCE THROUGH DECEMBER 27, 1930, AND CREDIT HAS BEEN ALLOWED IN HIS ACCOUNTS FOR THE ENTIRE AMOUNT SO PAID. THEREFORE, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, GUAYMAS MUST BE CONSIDERED AS HIS PERMANENT STATION EFFECTIVE DECEMBER 28, 1930, AND CREDIT FOR THE AMOUNT OF $73.25 CHARGED AT GUAYMAS AS ALLOWANCE FOR RENT, HEAT, FUEL, AND LIGHT PRIOR TO THAT DATE IS ACCORDINGLY DISALLOWED.