B-149173, JULY 31, 1962, 42 COMP. GEN. 67

B-149173, JULY 31, 1962, 42 COMP. GEN. 67

COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - FOREIGN POST, ETC., ALLOWANCES COST-OF-LIVING ALLOWANCES WHICH ARE PAID TO EMPLOYEES IN OVERSEAS AREAS PURSUANT TO ADMINISTRATIVE REGULATION ARE NOT A PART OF THE EMPLOYEES' BASIC COMPENSATION AND, THEREFORE, IN THE APPLICATION OF THE $10,000 DUAL COMPENSATION LIMITATION IN SECTION 212 OF THE ECONOMY ACT OF 1932, 5 U.S.C. 59A, THE COST-OF-LIVING ALLOWANCES PAID TO OVERSEAS EMPLOYEES WHO ARE CONCURRENTLY RECEIVING RETIRED PAY AND CIVILIAN COMPENSATION ARE NOT FOR INCLUSION.

TO LIEUTENANT COLONEL ALVIN H. VAN PELT, DEPARTMENT OF THE AIR FORCE, JULY 31, 1962:

YOUR LETTER OF JUNE 7, 1962, REFERENCE HCPEX-F, POINTS OUT THAT AN EMPLOYEE OF THE EXCHANGE IS RECEIVING CURRENT SALARY OF $7,600 PER ANNUM AND RETIRED PAY OF $2,312.72, WHICH TOTALS LESS THAN THE $10,000 PER ANNUM LIMITATION PRESCRIBED BY SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A. YOU SAY THE EMPLOYEE HAS BEEN DETERMINED ADMINISTRATIVELY TO BE SUBJECT TO THE PROVISIONS OF SECTION 212 BUT THAT IN ADDITION TO REGULAR SALARY THAT ACOST OF LIVING ALLOWANCE IS BEING PAID THE EMPLOYEE IN THE AMOUNT OF $1,330 PER ANNUM PURSUANT TO ADMINISTRATIVE REGULATIONS AR 60-21 AND AFR 147-15, EXCHANGE SERVICE PERSONNEL PROCEDURES, MAY 1959, PARAGRAPH 67.

YOUR QUESTION IS, IN EFFECT, WHETHER SUCH ALLOWANCE IS TO BE CONSIDERED A PART OF "BASIC" COMPENSATION THUS MAKING IT SUBJECT TO THE PROVISIONS OF 5 U.S.C. 59A. YOU ASK THAT WE GIVE YOU A DECISION THEREON.

SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, READS IN PERTINENT PART AS FOLLOWS:

AFTER JUNE 30, 1932, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT * * * SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER * * * AT A RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $10,000 * * *

ATTENTION IS DIRECTED TO OUR DECISIONS, 37 COMP. GEN. 739 AND B 136309, JULY 18, 1958, IN WHICH WE HELD THAT THE POST SALARY DIFFERENTIAL AND THE TERRITORIAL COST OF LIVING ALLOWANCE, RESPECTIVELY, BEING 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, WERE CONSIDERED "ADDITIONAL, COMPENSATION IN VIEW OF THE LANGUAGE THEREOF AND THUS NOT BASIC COMPENSATION SO AS TO BE SUBJECT TO THE LIMITATION IN SECTION 212. THOSE DECISIONS ARE PREDICATED ON STATUTORY PROVISIONS, WHEREAS HERE THE COST OF LIVING ALLOWANCE IS PREDICATED ON REGULATIONS.

HOWEVER, WE NOTE THAT THE REGULATIONS WHICH AUTHORIZE A COST OF LIVING ALLOWANCE IN OVERSEAS AREAS STATE THAT SUCH AN ALLOWANCE IS EXCLUDED FOR PURPOSES OF RETIREMENT DEDUCTIONS, GROUP INSURANCE AND LUMP-SUM LEAVE PURPOSES. ALSO, WE NOTE FROM THE CORRESPONDENCE ATTACHED THAT SUCH AN ALLOWANCE HAS APPARENTLY NEVER BEEN REGARDED AS A PART OF BASIC COMPENSATION FOR OTHER PURPOSES SUCH AS OVERTIME COMPENSATION AND NIGHT DIFFERENTIAL. ACCORDINGLY, WE CONCLUDE THAT THE PAYMENT OF THE COST OF LIVING ALLOWANCE WITHOUT REGARD TO THE BASIC COMPENSATION LIMITATION OF $10,000 PER ANNUM AS SPECIFIED IN SECTION 212 OF THE ACT OF JUNE 30, 1932, IS WARRANTED UNDER THE RELATED CIRCUMSTANCES.