B-117740, JANUARY 7, 1954, 33 COMP. GEN. 287

B-117740: Jan 7, 1954

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THE CIRCUMSTANCES INVOLVED AND THE QUESTIONS ARISING IN CONNECTION WITH THE CONTEMPLATED PAYMENT ARE SET FORTH IN YOUR LETTER AS FOLLOWS: MR. DODGE REQUESTED AND WAS GRANTED PERMISSION TO TAKE THE 64 HOURS OF EXCESS ANNUAL LEAVE PRIOR TO TERMINATION. WAS OCTOBER 15. HE WAS CARRIED IN A LEAVE STATUS ON THE PAYROLL UNTIL HIS ANNUAL LEAVE EXPIRED AS OF CLOSE OF BUSINESS OCTOBER 27. THE PRESENT CASE THE EMPLOYEE WAS GRANTED LEAVE INCIDENT TO SEPARATION. HIS RETURN TO AN ACTIVE DUTY STATUS AT THE CONCLUSION OF THE LEAVE WAS NOT CONTEMPLATED. IT IS APPARENT THAT HIS DEPARTURE FROM THE POST OF DUTY ON OCTOBER 16. WAS NOT OF A TEMPORARY BUT A PERMANENT NATURE. IT MUST BE RECOGNIZED THAT THE PENDING SEPARATION WAS THE PROXIMATE CAUSE OF THE DEPARTURE FROM THE POST OF DUTY.

B-117740, JANUARY 7, 1954, 33 COMP. GEN. 287

TERRITORIAL COST-OF-LIVING ALLOWANCE - DEPARTURE FROM POST IN LEAVE STATUS FOR PURPOSE OF SEPARATION WHILE CIVIL SERVICE COMMISSION REGULATIONS (5 C.F.R. 350.6) PROVIDE FOR PAYMENT OF TERRITORIAL COST-OF-LIVING ALLOWANCE FOR PERIODS OF SICK AND ANNUAL LEAVE, THEY RESTRICT SUCH PAYMENT TO LEAVE TAKEN FROM THE TIME OF ARRIVAL AT POST OF DUTY TO TIME OF DEPARTURE FOR SEPARATION FROM THE SERVICE, AND THEREFORE AN EMPLOYEE WHO, INCIDENT TO SEPARATION, DEPARTS FROM ALASKAN POST IN A LEAVE STATUS IN ORDER TO USE ACCRUED ANNUAL LEAVE IN EXCESS OF THAT FOR WHICH LUMP-SUM PAYMENT MAY BE MADE, LOSES ENTITLEMENT TO TERRITORIAL COST-OF-LIVING ALLOWANCE ON DATE OF DEPARTURE FROM SUCH POST SO THAT SUCH ALLOWANCE MAY NOT BE INCLUDED IN PAYMENT FOR EXCESS LEAVE OR IN LUMP-SUM PAYMENT.

COMPTROLLER GENERAL WARREN TO EUGENE J. CLARK, DEPARTMENT OF COMMERCE, JANUARY 7, 1954:

BY LETTER DATED NOVEMBER 16, 1953, THE CHIEF, ACCOUNTING DIVISION, CIVIL AERONAUTICS ADMINISTRATION, FORWARDED HERE YOUR LETTER OF OCTOBER 28, 1953, WHEREIN YOU REQUEST A DECISION UPON SEVERAL QUESTIONS ARISING IN CONNECTION WITH THE CERTIFICATION OF A SUBMITTED PAYROLL VOUCHER IN THE AMOUNT OF $188.50, COVERING THE PAYMENT OF A 25 PERCENT TERRITORIAL COST- OF-LIVING ALLOWANCE FOR 306 HOURS OF ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE TO MR. BUD DODGE, AIRWAYS COMMUNICATION SPECIALIST, GS-8, ANNUAL SALARY $4,870 PLUS 25 PERCENT TERRITORIAL COST OF-LIVING ALLOWANCE.

THE CIRCUMSTANCES INVOLVED AND THE QUESTIONS ARISING IN CONNECTION WITH THE CONTEMPLATED PAYMENT ARE SET FORTH IN YOUR LETTER AS FOLLOWS:

MR. DODGE CARRIED FORWARD 242 HOURS OF ACCUMULATED ANNUAL LEAVE FROM THE 1952 LEAVE YEAR. UPON THE DATE HIS NOTIFICATION OF TERMINATION BECAME EFFECTIVE, CLOSE OF BUSINESS OCTOBER 15, 1953, HE HAD 306 HOURS OF ACCUMULATED ANNUAL LEAVE TO HIS CREDIT. IN VIEW OF THE FACT THAT AN EMPLOYEE CAN ONLY RECEIVE A LUMP-SUM PAYMENT FOR 30 DAYS OF ACCUMULATED ANNUAL LEAVE, OR THE AMOUNT OF LEAVE HE HAD TO HIS CREDIT AT THE BEGINNING OF THE LEAVE YEAR, MR. DODGE REQUESTED AND WAS GRANTED PERMISSION TO TAKE THE 64 HOURS OF EXCESS ANNUAL LEAVE PRIOR TO TERMINATION. HIS LAST DAY OF DUTY AT HIS OFFICIAL POST OF DUTY, MIDDLETON ISLAND, ALASKA, WAS OCTOBER 15, 1953. HE DEPARTED MIDDLETON ISLAND BY PLANE IN AN ANNUAL LEAVE STATUS ON OCTOBER 16, 1953, AND ARRIVED IN ANCHORAGE, ALASKA, THE SAME DAY. REMAINED IN ANCHORAGE IN A LEAVE STATUS UNTIL OCTOBER 21, 1953, AND DEPARTED BY PLANE FOR HIS PLACE OF RESIDENCE IN THE STATES ON OCTOBER 22, 1953. HE WAS CARRIED IN A LEAVE STATUS ON THE PAYROLL UNTIL HIS ANNUAL LEAVE EXPIRED AS OF CLOSE OF BUSINESS OCTOBER 27, 1953. IN OUR ATTEMPT TO PAY MR. DODGE, WE ENCOUNTERED THE FOLLOWING QUESTIONS:

1. SHOULD MR. DODGE RECEIVE THE COST-OF-LIVING ALLOWANCE DURING THE 64 HOURS OF EXCESS LEAVE AND IN HIS LUMP-SUM PAYMENT FOR THE 242 HOURS OF ACCUMULATED ANNUAL LEAVE?

2. SHOULD THE COST-OF-LIVING ALLOWANCE CEASE CLOSE OF BUSINESS OCTOBER 16, THE DATE MR. DODGE DEPARTED HIS POST OF DUTY AT MIDDLETON ISLAND, AND THEREFORE NOT BE INCLUDED IN THE PAYMENT FOR EXCESS LEAVE OR IN THE LUMP- SUM PAYMENT?

3. SHOULD THE COST-OF-LIVING ALLOWANCE CEASE CLOSE OF BUSINESS OCTOBER 22, THE DATE MR. DODGE DEPARTED FROM ANCHORAGE FOR THE STATES, AND THEREFORE NOT BE INCLUDED IN THE REMAINING PERIOD OF EXCESS LEAVE FROM OCTOBER 23 TO OCTOBER 27, OR IN HIS LUMP-SUM PAYMENT?

THE APPLICABLE CIVIL SERVICE COMMISSION REGULATIONS PROVIDE, IN PERTINENT PART, 5 C.F.R. 350.6, AS FOLLOWS:

(B) PAYMENTS OF * * * TERRITORIAL COST-OF-LIVING ALLOWANCES SHALL BEGIN AS OF THE DATE OF ARRIVAL AT THE POST OF DUTY ON ASSIGNMENT, TRANSFER, OR DETAIL AND SHALL STOP AS OF THE CLOSE OF BUSINESS ON THE DATE OF DEPARTURE FROM THE POST FOR SEPARATION, TRANSFER, OR DETAIL * * * .

(D)PAYMENT SHALL BE MADE FOR ALL PERIODS OF SICK LEAVE AND ANNUAL LEAVE TAKEN DURING THE PERIOD COVERED BY PARAGRAPH (B) OF THIS SECTION AND FOR TRANSIT TIME AUTHORIZED FOR PURPOSES OF LEAVE SO TAKEN.

WHILE ITEM (D) ABOVE, PROVIDES FOR THE PAYMENT OF THE TERRITORIAL COST-OF -LIVING ALLOWANCE FOR PERIODS OF SICK AND ANNUAL LEAVE, IT RESTRICTS SUCH PAYMENTS TO LEAVE TAKEN DURING THE PERIOD COVERED BY ITEM (B/--- FROM THE TIME OF ARRIVAL AT THE POST TO THE TIME OF DEPARTURE FOR SEPARATION. THE PRESENT CASE THE EMPLOYEE WAS GRANTED LEAVE INCIDENT TO SEPARATION. HIS RETURN TO AN ACTIVE DUTY STATUS AT THE CONCLUSION OF THE LEAVE WAS NOT CONTEMPLATED. IT IS APPARENT THAT HIS DEPARTURE FROM THE POST OF DUTY ON OCTOBER 16, 1953, WAS NOT OF A TEMPORARY BUT A PERMANENT NATURE. UPON THE FACTS HEREIN, AND NOTWITHSTANDING THE EMPLOYEE'S DEPARTURE IN A LEAVE STATUS, IT MUST BE RECOGNIZED THAT THE PENDING SEPARATION WAS THE PROXIMATE CAUSE OF THE DEPARTURE FROM THE POST OF DUTY, SO AS TO BRING INTO OPERATION THE ALLOWANCE TERMINATION PROVISION OF ITEM (B).

ACCORDINGLY, YOUR SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE, AND THE OTHER TWO QUESTIONS ARE ANSWERED IN THE NEGATIVE. SEE 28 COMP. GEN. 465; 29 ID. 10. CF. 29 ID. 289; 30 ID. 215.

THE SUBMITTED PAYROLL VOUCHER IS RETURNED FOR DISPOSITION IN ACCORDANCE WITH THE ABOVE.