B-110867, AUG. 10, 1956

B-110867, AUG. 10, 1956

TO MR. ROBERT R. L. COUNTS:

WE REFER TO YOUR LETTER OF JUNE 4, 1956, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF OCTOBER 14, 1953, WHICH DISALLOWED YOUR CLAIM FOR 25 PERCENT FOREIGN SERVICE DIFFERENTIAL PAY AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, GRECIAN DISTRICT, ATHENS, GREECE. YOUR CLAIM WAS DISALLOWED BECAUSE YOU WERE PAID A SPECIAL POST ALLOWANCE WHICH EXCEEDED THE FOREIGN SERVICE DIFFERENTIAL DUE YOU UNDER THE TERMS OF YOUR EMPLOYMENT CONTRACT.

THE RECORDS SHOW THAT THE 25 PERCENT FOREIGN SERVICE DIFFERENTIAL WAS PAID TO YOU UNDER THE TERMS OF YOUR CONTRACT FROM OCTOBER 8, 1947; THE DATE OF YOUR DEPARTURE FROM THE UNITED STATES UNTIL DECEMBER 25, 1948. AFTER THAT DATE THE DEPARTMENT DISCONTINUED THE 25 PERCENT FOREIGN SERVICE DIFFERENTIAL BECAUSE OF THE BELIEF THAT PAYMENT THEREOF WAS PROHIBITED BY THE PROVISIONS OF EXECUTIVE ORDER NO. 10,000 DATED SEPTEMBER 16, 1948, AND REGULATIONS ISSUED THEREUNDER. IN LIEU OF THE FOREIGN SERVICE DIFFERENTIAL YOU WERE PAID A SPECIAL POST ALLOWANCE FROM DECEMBER 26, 1948, TO APRIL 16, 1949. THE SPECIAL POST ALLOWANCE WAS PAID IN UNITED STATES DOLLARS FROM DECEMBER 26, 1948, TO FEBRUARY 5, 1949, IN THE AMOUNT OF $564, AND IN GREEK DRACHMAS FROM FEBRUARY 6, 1949, TO APRIL 16, 1949, IN AN AMOUNT EQUIVALENT TO $840, OR A TOTAL OF $1,404 IN UNITED STATES CURRENCY. THE FOREIGN SERVICE DIFFERENTIAL ON YOUR BASIC SALARY FROM DECEMBER 26, 1948, TO APRIL 16, 1949, WHEN YOU WERE SEPARATED FROM THE CORPS OF ENGINEERS IN THE GRECIAN DISTRICT WOULD HAVE BEEN ONLY $578.61. ACCORDINGLY, YOU HAVE BEEN PAID MORE BY VIRTUE OF HAVING BEEN GRANTED A SPECIAL POST ALLOWANCE THAN YOU WOULD HAVE RECEIVED HAD YOU CONTINUED TO BE PAID ON A 25 PERCENT DIFFERENTIAL BASIS.

IT IS WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE TO GRANT OR DENY THE SPECIAL POST ALLOWANCE AND, ALSO, TO FIX THE AMOUNT THEREOF WITHIN THE LIMITS PRESCRIBED BY THE GOVERNING REGULATIONS. THE REPORT FURNISHED BY THE DEPARTMENT OF THE ARMY INDICATES THAT IT WAS NOT INTENDED IN THE EXERCISE OF THAT DISCRETION THAT ANY EMPLOYEE IN YOUR CATEGORY RECEIVE CONCURRENTLY BOTH THE 25 PERCENT FOREIGN SERVICE DIFFERENTIAL AND THE SPECIAL POST ALLOWANCE. SINCE THE SPECIAL POST ALLOWANCE PAYMENTS RECEIVED BY YOU EXCEED THAT TO WHICH YOU ARE ENTITLED AS DIFFERENTIAL PAY, THERE IS NO BASIS UPON WHICH WE COULD PROPERLY AUTHORIZE THE PAYMENT TO YOU OF ANY ADDITIONAL AMOUNT. THEREFORE, THE CONCLUSION STATED IN THE SETTLEMENT OF OCTOBER 14, 1953, IS CORRECT AND HEREBY IS SUSTAINED.

AS INDICATED IN YOUR LETTER OF JUNE 4, 1956, IN A FEW CASES WE HAVE AUTHORIZED PAYMENT OF THE 25 PERCENT DIFFERENTIAL TO DEPARTMENT OF THE ARMY EMPLOYEES STATIONED IN THE GRECIAN DISTRICT AFTER DECEMBER 26, 1948, WITHOUT DEDUCTION OF THE SPECIAL POST ALLOWANCE ERRONEOUSLY RECEIVED BY THEM. EXAMINATION OF THOSE CASES DISCLOSES THAT SUCH DUAL ALLOWANCES WERE PAID PRIOR TO THE TIME THAT WE WERE FULLY ADVISED OF ALL THE PERTINENT FACTS AND CIRCUMSTANCES BEARING UPON THEIR CLAIMS. IN ANY EVENT, SUCH ERRONEOUS PAYMENTS AFFORD NO GROUNDS FOR ALLOWANCE IN YOUR CASE.