B-130148, FEBRUARY 1, 1957, 36 COMP. GEN. 560

B-130148, FEBRUARY 1, 1957, 36 COMP. GEN. 560

OVERSEAS EMPLOYEES - RESTORATION FOLLOWING SEPARATION AS RESULT OF REDUCTION IN FORCE - BACK PAY - FOREIGN POST DIFFERENTIAL AN OVERSEAS EMPLOYEE WHO, AFTER REASSIGNMENT TO A POSITION IN THE UNITED STATES AND SUBSEQUENT SEPARATION IN REDUCTION IN FORCE, WAS ORDERED RESTORED TO THE OVERSEAS POSITION AS RESULT OF AN APPEAL AS A PREFERENCE ELIGIBLE IS NOT ENTITLED TO HAVE THE FOREIGN POST DIFFERENTIAL INCLUDED IN THE BACK PAY FOR THE SEPARATION PERIOD DURING WHICH THE EMPLOYEE WAS ABSENT FROM THE FOREIGN POST.

TO LIEUTENANT COLONEL JOHN J. CARROLL, DEPARTMENT OF THE ARMY, FEBRUARY 1, 1957:

BY SECOND ENDORSEMENT DATED DECEMBER 18, 1956, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED HERE YOUR REQUEST OF NOVEMBER 8, 1956, FOR A DECISION UPON THE ENTITLEMENT OF CHARLES J. SMITH, A CIVILIAN EMPLOYEE STATIONED ON OKINAWA, TO RECEIVE THE FOREIGN POST DIFFERENTIAL FOR A PERIOD OF IMPROPER SEPARATION FROM SERVICE, DURING WHICH HE WAS AWAY FROM THE OVERSEAS STATION.

MR. SMITH, A PREFERENCE ELIGIBLE, OCCUPIED THE POSITION OF CHIEF, LAND DIVISION, GOVERNMENT AND LEGAL DEPARTMENT, UNITED STATES CIVIL ADMINISTRATION OF THE RYUKYUS ISLANDS. ON SEPTEMBER 25, 1955, HE WAS REASSIGNED, WITHOUT INTENDED REDUCTION IN GRADE OR COMPENSATION, TO THE POSITION OF LEGAL ADVISOR TO THE CHIEF, LAND DIVISION. THE POSITION OF LEGAL ADVISOR WAS SUBSEQUENTLY ABOLISHED, AND MR. SMITH, ON DECEMBER 21, 1955, WAS SEPARATED IN A REDUCTION IN FORCE.

AS A CONSEQUENCE OF AN APPEAL TO THE CIVIL SERVICE COMMISSION CONCERNING THE REDUCTION IN RANK AND SUBSEQUENT ACTION BY THE DEPARTMENT ON THE REDUCTION IN FORCE, MR. SMITH WAS RESTORED TO DUTY ON MAY 2, 1956, AND PAID BASIC COMPENSATION FOR THE PERIOD OF SEPARATION. HE NOW CLAIMS, FOR THE PERIOD OF SEPARATION, THE FOREIGN POST DIFFERENTIAL WHICH HE WAS RECEIVING PRIOR TO HIS SEPARATION.

THE FOREIGN POST DIFFERENTIAL IS PAYABLE UNDER EXECUTIVE ORDER NO. 10000, DATED SEPTEMBER 16, 1948, FOR RESIDENCE, INCIDENT TO EMPLOYMENT, AT A PLACE INVOLVING EXTRAORDINARILY DIFFICULT LIVING CONDITIONS, EXCESSIVE PHYSICAL HARDSHIP, OR NOTABLY UNHEALTHY CONDITIONS. PAYMENT OF THE DIFFERENTIAL BEGINS AS OF THE DATE OF ARRIVAL ON THE POST OF ASSIGNMENT AND ENDS AS OF THE EMPLOYEES DEPARTURE FROM THE POST FOR SEPARATION OR TRANSFER. WHETHER SUCH ADDITIONAL COMPENSATION IS FOR INCLUSION IN AN AWARD OF BACK PAY COVERING A PERIOD OF REMOVAL FROM SERVICE AND ABSENCE FROM THE FOREIGN POST FOR WHICH A DIFFERENTIAL IS PRESCRIBED WAS CONSIDERED BY THE COURT OF CLAIMS IN PAUL D. KALV V. UNITED STATES, 128 C.1CLS. 207, DECIDED MAY 4, 1954.

IN THAT CASE THE COURT, AFTER NOTING THE PURPOSE OF THE DIFFERENTIAL, STATED:

PLAINTIFF WAS ABROAD NOT A SINGLE DAY DURING THE PERIOD FOR WHICH HE IS CLAIMING THE ADDITIONAL COMPENSATION. ALL THE REASONS, THEREFORE, FOR ALLOWING THE ADDITIONAL COMPENSATION ARE REMOVED FROM THE CASE, AND THIS PORTION OF THE CLAIM IS LEFT HANGING ON A BARE TECHNICALITY.

IT THEREUPON CONCLUDED THAT THE EMPLOYEE WAS ENTITLED TO RECOVER AT THE BASIC SALARY RATE, WITHOUT ANY ADDITIONAL PERCENTAGE FOR THE OVERSEAS STATION DIFFERENTIAL.

THE SITUATION OF MR. SMITH ESSENTIALLY IS THE SAME AS THAT DECIDED IN THE KALV CASE AND A CONCLUSION BY US CONTRARY TO THAT REACHED BY THE COURT OF CLAIMS IN THE KALV CASE IS NOT DEEMED WARRANTED. ACCORDINGLY, YOU ARE ADVISED THAT THE FOREIGN POST DIFFERENTIAL CLAIM OF MR. SMITH IS NOT FOR PAYMENT, AND THE VOUCHER SUBMITTED WILL BE RETAINED HERE.