B-135734, MAY 8, 1958, 37 COMP. GEN. 739

B-135734: May 8, 1958

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ALLOWANCES - BASIC COMPENSATION THE POST SALARY DIFFERENTIAL WHICH IS PAYABLE TO EMPLOYEES OUTSIDE OF THE CONTINENTAL UNITED STATES UNDER 5 U.S.C. 118H AND EXECUTIVE ORDER NO. 10000 IS NOT REGARDED AS A PART OF THE BASIC COMPENSATION OF THE POSITION WITHIN THE MEANING OF THE DUAL COMPENSATION LIMITATION IN 5 U.S.C. 59A. 000 DUAL COMPENSATION LIMITATION ONLY WHEN THE POST DIFFERENTIAL IS INCLUDED MAY BE PAID RETIRED PAY AND RECEIVE THE CIVILIAN COMPENSATION AND POST DIFFERENTIAL WITHOUT VIOLATING THE DUAL COMPENSATION PROHIBITION. THE SUBMISSION OF YOUR REQUEST FOR DECISION WAS APPROVED BY THE MILITARY PAY AND ALLOWANCE COMMITTEE. IT APPEARS THAT LIEUTENANT MACLEOD WAS RETIRED FOR PHYSICAL DISABILITY ON JANUARY 1.

B-135734, MAY 8, 1958, 37 COMP. GEN. 739

MILITARY PERSONNEL - COMPENSATION - DOUBLE - FOREIGN POST, ETC., ALLOWANCES - BASIC COMPENSATION THE POST SALARY DIFFERENTIAL WHICH IS PAYABLE TO EMPLOYEES OUTSIDE OF THE CONTINENTAL UNITED STATES UNDER 5 U.S.C. 118H AND EXECUTIVE ORDER NO. 10000 IS NOT REGARDED AS A PART OF THE BASIC COMPENSATION OF THE POSITION WITHIN THE MEANING OF THE DUAL COMPENSATION LIMITATION IN 5 U.S.C. 59A, AND, THEREFORE, A RETIRED OFFICER OF THE UNIFORMED SERVICES WHOSE RETIRED PAY AND CIVILIAN COMPENSATION EXCEEDS THE $10,000 DUAL COMPENSATION LIMITATION ONLY WHEN THE POST DIFFERENTIAL IS INCLUDED MAY BE PAID RETIRED PAY AND RECEIVE THE CIVILIAN COMPENSATION AND POST DIFFERENTIAL WITHOUT VIOLATING THE DUAL COMPENSATION PROHIBITION.

TO LIEUTENANT COLONEL C. W. GRIFFIN, DEPARTMENT OF THE AIR FORCE, MAY 8, 1958:

ON APRIL 2, 1958, THE DIRECTORATE OF ACCOUNTING AND FINANCE, HEADQUARTERS, U.S. AIR FORCE, FORWARDED YOUR UNDATED LETTER REQUESTING AN ADVANCE DECISION CONCERNING THE LEGALITY OF PAYING SECOND LIEUTENANT DUNCAN B. MACLEOD, USAF, RETIRED, $150.07, REPRESENTING RETIRED PAY WITHHELD FROM HIM FOR THE PERIOD SEPTEMBER 16, 1957, THROUGH OCTOBER 21, 1957, UNDER THE $10,000 DUAL COMPENSATION LIMITATION FIXED IN SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A. THE SUBMISSION OF YOUR REQUEST FOR DECISION WAS APPROVED BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS AIR FORCE REQUEST NO. 332.

IT APPEARS THAT LIEUTENANT MACLEOD WAS RETIRED FOR PHYSICAL DISABILITY ON JANUARY 1, 1945, UNDER SECTION 5 OF THE ACT OF APRIL 3, 1939, AS AMENDED, 10 U.S.C. 456 (1946 EDITION), AND THAT HIS NONREGULAR STATUS (APPARENTLY AS A MEMBER OF THE OFFICERS' RESERVE CORPS) TERMINATED ON APRIL 1, 1953, SINCE HIS LIMITED TERM APPOINTMENT WAS NOT CONTINUED FOR AN INDEFINITE TERM UNDER SECTION 224 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 487, 50 U.S.C. 948. YOU REPORT THAT HE WAS RECEIVING RETIRED PAY AT THE RATE OF $2,182.80 PER ANNUM WHEN HE ACCEPTED EMPLOYMENT WITH THE U.S. INFORMATION AGENCY ON FEBRUARY 1, 1956, AND THAT UPON HIS BEING ASSIGNED TO DUTY OVERSEAS WITH THAT AGENCY IN KARACHI, PAKISTAN, HIS SALARY OF $7,765, INCREASED BY 20 PERCENT BECAUSE OF POST SALARY DIFFERENTIAL, PLUS HIS RETIRED PAY, EXCEEDED THE $10,000 DUAL COMPENSATION LIMITATION OF SECTION 212 OF THE ECONOMY ACT. YOU SAY THAT THE POST SALARY DIFFERENTIAL WAS PAID EFFECTIVE SEPTEMBER 16 THROUGH OCTOBER 21, 1957, WHEN HE TERMINATED HIS FEDERAL EMPLOYMENT.

YOUR DOUBTS IN THIS MATTER APPEAR TO BE BASED ON OUR DECISION OF OCTOBER 28, 1946, 26 COMP. GEN. 271, 278, HOLDING THAT THE "ANNUAL RATE OF COMPENSATION" MENTIONED IN SECTION 212 OF THE ECONOMY ACT "HAS REFERENCE TO THE BASIC COMPENSATION OF THE CIVILIAN OFFICE OR POSITION," AND THAT THE SALARY DIFFERENTIAL THEN PAYABLE TO CERTAIN CIVILIAN EMPLOYEES OF THE GOVERNMENT EMPLOYED OUTSIDE THE UNITED STATES, WAS A PART OF BASIC COMPENSATION. SUCH SALARY DIFFERENTIAL WAS PAID PURSUANT TO AN ADMINISTRATIVE PRACTICE RATHER THAN EXPRESS PROVISIONS OF LAW. THE POST SALARY DIFFERENTIAL RECEIVED BY LIEUTENANT MACLEOD WAS PAID UNDER AUTHORITY CONTAINED IN SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED BY SECTION 104 OF THE SUPPLEMENTAL INDEPENDENT OFFICES APPROPRIATION ACT, 1949, 62 STAT. 1205, 5 U.S.C. 118H. THAT ACT PROVIDES THAT FUNDS AVAILABLE FOR THE PAYMENT OF SALARIES OR COMPENSATION TO PERSONS STATIONED OUTSIDE THE UNITED STATES WHOSE "RATES OF BASIC COMPENSATION" ARE FIXED BY STATUTE, SHALL BE AVAILABLE FOR THE PAYMENT OF "ADDITIONAL COMPENSATION" WITHIN THE LIMITATIONS THERE PROVIDED, UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT. SUCH REGULATIONS ARE CONTAINED IN EXECUTIVE ORDER NO. 10000, SEPTEMBER 16, 1948.

SINCE THE SALARY DIFFERENTIAL PAYABLE UNDER ADMINISTRATIVE REGULATIONS IN EFFECT PRIOR TO SEPTEMBER 16, 1948, WAS CONSIDERED TO BE A PART OF BASIC COMPENSATION, SUCH DIFFERENTIAL CONSTITUTED A PART OF THE BASE COMPENSATION FROM WHICH RETIREMENT DEDUCTIONS WERE REQUIRED TO BE MADE. 22 COMP. GEN. 769. HOWEVER, SECTION 106 (B), EXECUTIVE ORDER NO. 10000, PROVIDES THAT FOREIGN POST SALARY DIFFERENTIALS PAID UNDER PART I OF THAT ORDER "SHALL NOT BE INCLUDED IN THE BASE USED IN COMPUTING OVERTIME PAY, NIGHT DIFFERENTIAL, HOLIDAY PAY, AND RETIREMENT OR COST-OF-LIVING ALLOWANCES.' SECTION 208 (B) IS TO THE SAME EFFECT BUT IS APPLICABLE TO THE TERRITORIAL POST DIFFERENTIAL. SUCH POST SALARY DIFFERENTIALS ARE REGARDED AS ADDITIONAL COMPENSATION RATHER THAN AN INCREASE IN THE RATE OF BASIC COMPENSATION. 28 COMP. GEN. 266, 269, AND 28 COMP. GEN. 377, 379. INCREASED COMPENSATION ON AN OVERTIME BASIS HAS NOT BEEN REGARDED AS PART OF BASIC COMPENSATION WITHIN THE MEANING OF THE ECONOMY ACT. 22 COMP. GEN. 795.

IN VIEW OF THE FOREGOING COMMENTS, WE CONCLUDE THAT THE POST SALARY DIFFERENTIAL PAID TO LIEUTENANT MACLEOD WAS NOT A PART OF HIS BASIC COMPENSATION (COMPARE 28 COMP. GEN. 506 AND 29 COMP. GEN. 25); HENCE, THE RETIRED PAY COVERED BY THE SUBMITTED VOUCHER DOES NOT EXCEED THE $10,000 LIMITATION OF THE ECONOMY ACT, AS AMENDED. THEREFORE, PAYMENT ON THE SUBMITTED VOUCHER, RETURNED HEREWITH, IS AUTHORIZED, OF OTHERWISE CORRECT.

CONCERNING YOUR INQUIRY WHETHER THE COST-OF-LIVING ALLOWANCE, AS DISTINGUISHED FROM MONETARY ALLOWANCE IN LIEU OF QUARTERS, PRESCRIBED FOR CERTAIN EMPLOYEES ON DUTY IN FOREIGN COUNTRIES, AND POST SALARY DIFFERENTIAL ARE SYNONYMOUS FOR DUAL COMPENSATION PURPOSES, NO DECISION MAY BE RENDERED ON THAT QUESTION SINCE IT IS NOT INVOLVED IN THE PAYMENT TO BE MADE ON THE SUBMITTED VOUCHER. A DISBURSING OFFICER IS ENTITLED TO A DECISION ONLY ON A QUESTION INVOLVED IN A VOUCHER WHICH IS PROPERLY BEFORE HIM FOR PAYMENT. 22 COMP. GEN. 588.