B-145077, APRIL 28, 1961, 40 COMP. GEN. 603

B-145077: Apr 28, 1961

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHO IS ALSO IN RECEIPT OF MILITARY RETIRED PAY UNDER 10 U.S.C. 3914. IS TO BE REGARDED AS BASIC COMPENSATION FOR PURPOSES OTHER THAN THOSE SPECIFICALLY MENTIONED IN SECTION 9 OF THE ACT. REQUESTS OUR DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON VOUCHER FOR $55.72. FULLER WAS RETIRED ON JANUARY 31. WAS ADVANCED ON THE ARMY OF THE UNITED STATES RETIRED LIST TO THE GRADE OF CAPTAIN ON AUGUST 21. FULLER IS NOT ENTITLED TO BE PAID AT A RATE WHICH. TO BE PAID TO CITIZENS OF THE UNITED STATES WHO ARE STATIONED IN THE CANAL ZONE. PAYMENT OF THE AMOUNT WITHHELD IS NOW PROPOSED TO BE MADE ON THE VOUCHER ENCLOSED WITH YOUR LETTER. WE HAVE HELD THAT THE RATE OF COMPENSATION MENTIONED IN SECTION 212 OF THE ECONOMY ACT "HAS REFERENCE TO THE BASIC COMPENSATION OF THE CIVILIAN OFFICE.'.

B-145077, APRIL 28, 1961, 40 COMP. GEN. 603

CIVILIAN PERSONNEL - DOUBLE COMPENSATION - FOREIGN POST, ETC; ALLOWANCES - TROPICAL DIFFERENTIAL IN THE ABSENCE OF ANY INDICATION IN THE LEGISLATIVE HISTORY OF THE ACT OF JULY 25, 1958, THAT THE 25 PERCENT TROPICAL DIFFERENTIAL PAID UNDER SECTION 7 OF THE ACT TO AN EMPLOYEE IN THE CANAL ZONE, WHO IS ALSO IN RECEIPT OF MILITARY RETIRED PAY UNDER 10 U.S.C. 3914, IS TO BE REGARDED AS BASIC COMPENSATION FOR PURPOSES OTHER THAN THOSE SPECIFICALLY MENTIONED IN SECTION 9 OF THE ACT, THE DIFFERENTIAL SHOULD NOT BE INCLUDED AS A PART OF THE EMPLOYEE'S COMPENSATION IN THE COMPUTATION OF THE $10,000 LIMITATION ON CIVILIAN SALARY AND RETIRED PAY IMPOSED UNDER THE DUAL COMPENSATION RESTRICTION IN SECTION 212 OF THE ECONOMY ACT OF 1932, 5 U.S.C. 59A.

TO LIEUTENANT COLONEL R. H. MACPHERSON, DEPARTMENT OF THE ARMY, APRIL 28, 1961:

YOUR LETTER OF JANUARY 16, 1961, FORWARDED HERE BY THE ASSISTANT, ENTITLEMENTS AND DISBURSEMENTS DIVISION FOR THE CHIEF OF FINANCE, FILE FINCS-E FULLER, WILLIAM P., O 488 812 (1RETIRED), REQUESTS OUR DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON VOUCHER FOR $55.72, REPRESENTING A PORTION OF RETIRED PAY WITHHELD FOR THE MONTH OF NOVEMBER 1960, FROM WILLIAM P. FULLER, BECAUSE OF HIS CIVILIAN EMPLOYMENT WITH THE DEPARTMENT OF JUSTICE IN THE CANAL ZONE.

THE RECORD SHOWS MR. FULLER WAS RETIRED ON JANUARY 31, 1954, AS A MASTER SERGEANT UNDER 10 U.S.C. 3914, AND WAS ADVANCED ON THE ARMY OF THE UNITED STATES RETIRED LIST TO THE GRADE OF CAPTAIN ON AUGUST 21, 1957, UNDER 10 U.S.C. 3964, AS AMENDED. 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, IF OTHERWISE APPLICABLE, MR. FULLER IS NOT ENTITLED TO BE PAID AT A RATE WHICH, WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM HIS CIVILIAN POSITION, MAKES THE TOTAL RATE FROM BOTH COMPENSATION AND RETIRED PAY MORE THAN $10,000. HOWEVER, MR. FULLER'S COMPENSATION FROM THE DEPARTMENT OF JUSTICE INCLUDES THE 25 PERCENT TROPICAL DIFFERENTIAL AUTHORIZED BY SECTION 7 OF THE ACT OF JULY 25, 1958, 72 STAT. 407, TO BE PAID TO CITIZENS OF THE UNITED STATES WHO ARE STATIONED IN THE CANAL ZONE. BY COMBINING THE BASIC COMPENSATION, THE 25 PERCENT TROPICAL DIFFERENTIAL, AND THE RETIRED PAY RECEIVED BY MR. FULLER THE TOTAL RATE FROM THOSE SOURCES EXCEEDS THE RATE OF THE $10,000 LIMITATION PRESCRIBED BY SECTION 212 OF THE ECONOMY ACT. THEREFORE, AN AMOUNT IN EXCESS OF THAT RATE LIMITATION HAS BEEN WITHHELD FROM MR. FULLER'S RETIRED PAY. PAYMENT OF THE AMOUNT WITHHELD IS NOW PROPOSED TO BE MADE ON THE VOUCHER ENCLOSED WITH YOUR LETTER.

WE HAVE HELD THAT THE RATE OF COMPENSATION MENTIONED IN SECTION 212 OF THE ECONOMY ACT "HAS REFERENCE TO THE BASIC COMPENSATION OF THE CIVILIAN OFFICE.' SEE 26 COMP. GEN. 271, 278. THEREFORE, YOU DESIRE TO KNOW WHETHER THE TROPICAL DIFFERENTIAL SHOULD BE REGARDED AS A PART OF BASIC COMPENSATION FIXED FOR HIS POSITION IN COMPUTING THE MAXIMUM ALLOWABLE RATE OF $10,000 UNDER SECTION 212, PARTICULARLY SINCE THE DIFFERENTIAL ALLOWANCE IS COMBINED WITH BASIC COMPENSATION UNDER SECTION 9 OF THE 1958 ACT, 72 STAT. 408, FOR PURPOSES OF DETERMINING BENEFITS RELATED TO BASIC COMPENSATION.

SECTION 9 OF THE ACT OF JULY 25, 1958, PROVIDES AS FOLLOWS:

SEC. 9. FOR THE PURPOSES OF DETERMINING---

(1) AMOUNTS OF INSURANCE UNDER THE FEDERAL LIFE INSURANCE ACT OF 1954, AS AMENDED ( 5 U.S.C. 2091-2103),

(2) AMOUNTS OF COMPENSATION FOR DEATH OR DISABILITY UNDER THE FEDERAL EMPLOYEES COMPENSATION ACT, AS AMENDED (5 U.S.C. 751 ET SEQ.),

(3) AMOUNTS OF OVERTIME PAY OR OTHER PREMIUM COMPENSATION,

(4) BENEFITS UNDER THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED (5 U.S.C. 2251-2267).

(5) ANNUAL LEAVE BENEFITS, AND

(6) ANY OTHER BENEFITS WHICH ARE RELATED TO BASIC COMPENSATION, THE BASIC COMPENSATION OF EACH EMPLOYEE WHO IS A CITIZEN OF THE UNITED STATES SHALL INCLUDE---

(A) THE RATE OF BASIC COMPENSATION FOR HIS POSITION ESTABLISHED IN THE MANNER PROVIDED BY SECTION 5 OF THIS ACT, AND

(B) THE AMOUNT OF THE ALLOWANCE AND THE DIFFERENTIAL DETERMINED IN THE MANNER PROVIDED BY SECTION 7 OF THIS ACT.

IT IS EVIDENT FROM A READING OF SECTION 9 JUST QUOTED THAT UNLESS THERE IS INVOLVED HERE A BENEFIT WHICH IS "RELATED TO BASIC COMPENSATION" SUCH DIFFERENTIAL WOULD NOT COME WITHIN THE PURVIEW OF SECTION 9 SO AS TO BE INCLUDED AS A PART OF BASIC COMPENSATION. WE DO NOT REGARD THE RESTRICTION IN SECTION 212 OF THE ECONOMY ACT AS TO THE AMOUNT OF RETIRED PAY WHICH MAY BE RECEIVED IN ADDITION TO CIVILIAN COMPENSATION AS A BENEFIT. RATHER, SUCH RESTRICTION IS A DETRIMENT TO THE RETIRED INDIVIDUAL IN THAT IT DEPRIVES HIM OF A PORTION OF HIS RETIRED PAY.

MOREOVER, WE DO NOT FIND ANY INDICATION IN THE LEGISLATIVE HISTORY OF THE ACT OF JULY 25, 1958, THAT THE CANAL ZONE DIFFERENTIAL IS TO BE REGARDED AS PART OF BASIC COMPENSATION FOR PURPOSES OTHER THAN THOSE SPECIFIED IN SECTION 9 THEREOF. THEREFORE, WE ARE OF THE OPINION THAT THE DIFFERENTIAL PAYABLE TO EMPLOYEES STATIONED IN THE CANAL ZONE SHOULD NOT BE INCLUDED AS A PART OF BASIC COMPENSATION IN COMPUTING THE $10,000 LIMITATION FOR CIVILIAN SALARY AND RETIRED PAY AS IMPOSED BY SECTION 212 OF THE ECONOMY ACT.