B-134865, MARCH 10, 1959, 38 COMP. GEN. 594

B-134865, MARCH 10, 1959, 38 COMP. GEN. 594

CIVILIAN PERSONNEL - FOREIGN DIFFERENTIALS AND OVERSEAS ALLOWANCES - DEPARTURE FROM POST IN TERMINAL LEAVE STATUS EMPLOYEES WHO, INCIDENT TO SEPARATION, DEPART FROM AN OVERSEAS POST WHERE A FOREIGN OR TERRITORIAL COST-OF-LIVING DIFFERENTIAL ALLOWANCE IS PAYABLE AND WHO, UPON EXPIRATION OF TERMINAL LEAVE EN ROUTE OR IN THE UNITED STATES, ARE SEPARATED FROM THE SERVICE MAY NOT BE REGARDED AS BEING SEPARATED LOCALLY AT THE OVERSEAS POST SO AS TO BE ENTITLED TO THE INCLUSION OF THE FOREIGN OR TERRITORIAL DIFFERENTIAL IN THE COMPUTATION OF FINAL SALARY OR LUMP-SUM LEAVE PAYMENT.

TO THE SECRETARY OF THE AIR FORCE, MARCH 10, 1959:

OUR DEFENSE ACCOUNTING AND AUDITING DIVISION HAS RAISED A QUESTION CONCERNING THE INCLUSION OF TERRITORIAL COST-OF-LIVING ALLOWANCES IN PAYMENTS FOR FINAL SALARY, TERMINAL ANNUAL LEAVE TO THOSE EMPLOYEES HIRED LOCALLY BUT WHO PERMANENTLY LEAVE THEIR POSTS OF DUTY WHILE ON TERMINAL ANNUAL LEAVE BEFORE THE DATE THEY ACTUALLY ARE SEPARATED.

IT IS ADMINISTRATIVELY URGED BY HEADQUARTERS, ALASKAN AIR COMMAND, APO 942, SEATTLE, WASHINGTON, IN ITS LETTER DATED SEPTEMBER 19, 1958, REFERENCE CA-4, COPY HEREWITH, THAT SUCH EMPLOYEES HAVE NOT LEFT THEIR POSTS OF DUTY AS EMPLOYEES, THAT ORDERS HAVE NOT BEEN ISSUED AUTHORIZING THEIR RETURN TRAVEL TO THE UNITED STATES FOR SEPARATION AND, THEREFORE, THAT SUCH EMPLOYEES HAVE BEEN LOCALLY SEPARATED IN ALASKA. AS A CONSEQUENCE THE TERRITORIAL COST-OF-LIVING ALLOWANCE IS INCLUDED IN THEIR COMPENSATION FOR TERMINAL LEAVE, THEIR FINAL PAY, AND IN THE LUMP-SUM PAYMENT FOR ANNUAL LEAVE.

WE ARE UNABLE TO RECONCILE THE VIEW THAT THESE EMPLOYEES ARE SEPARATED LOCALLY WITH THE LONG-ESTABLISHED RULE THAT EMPLOYEES IN A TERMINAL LEAVE STATUS ARE CARRIED ON THE ROLLS AS EMPLOYEES AND MUST LEGALLY BE REGARDED AS SUCH FOR ALL INTENTS AND PURPOSES UNTIL THEY ARE ACTUALLY SEPARATED. THE INDIVIDUALS HERE INVOLVED REMAINED EMPLOYEES UNTIL THE DATES THEY WERE ACTUALLY TAKEN OFF THE ROLLS UPON COMPLETION OF THEIR TERMINAL LEAVE. THAT TIME THEY WERE EITHER EN ROUTE TO OR IN THE UNITED STATES.

DURING THE INTERVAL BETWEEN DEPARTURE FROM THEIR POSTS IN ALASKA AND THE EXPIRATION OF THEIR TERMINAL LEAVE EN ROUTE TO OR IN THE UNITED STATES, THESE EMPLOYEES WERE ENTITLED TO ALL BENEFITS PROVIDED BY LAW FOR EMPLOYEES OF THE GOVERNMENT, I.E., THE SERVICE DURING THE INTERVAL IS CREDITABLE TOWARDS RETIREMENT, IF THEY BECAME LOST IN AN AIRFLIGHT THEY WOULD ACQUIRE A MISSING PERSON STATUS, THEY WOULD BE COVERED BY GOVERNMENT LIFE INSURANCE, IF THEY DIED, ETC.

WE CANNOT, THEREFORE, REGARD THESE INDIVIDUALS AS BEING IN A STATUS OTHER THAN THAT OF EMPLOYEES WHO HAVE DEPARTED FROM ALASKA FOR SEPARATION FROM THE SERVICE AT A LATER DATE. IN VIEW OF THAT CONCLUSION THERE IS FOR APPLICATION THE RULE STATED IN OUR DECISION 33 COMP. GEN. 287, WHEREIN WE DECIDED, QUOTING FROM THE SYLLABUS, AS FOLLOWS:

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 PAYMENTS 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 LEAVE PAYMENT.

THEREFORE, THE INDIVIDUALS REFERRED TO MAY NOT HAVE THE TERRITORIAL COST- OF-LIVING ALLOWANCE INCLUDED IN FINAL PAYMENTS FOR ANY TIME AFTER DEPARTURE FROM ALASKA OR IN THEIR LUMP-SUM PAYMENTS FOR ANNUAL LEAVE.