B-152683, NOV. 18, 1963

B-152683: Nov 18, 1963

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DEPARTMENT OF COMMERCE REFERENCE IS MADE TO LETTER OF OCTOBER 11. THE EMPLOYEE WAS ORIGINALLY APPOINTED TO HIS POST IN JAPAN IN MAY OF 1959. BECAUSE OF INADEQUATE MEDICAL FACILITIES IT WAS NECESSARY THAT SHE BE RETURNED TO THE UNITED STATES FOR HOSPITALIZATION AND TREATMENT. THE EMPLOYEE HAS HIS THREE CHILDREN AND DEPENDENT MOTHER WITH HIM AND IS CURRENTLY SERVING HIS THIRD TOUR OF DUTY IN JAPAN. THAT HE DID NOT APPLY FOR SUCH ALLOWANCE AT THAT TIME BECAUSE HE WAS UNAWARE OF HIS RIGHT TO DO SO. IT WAS NOT UNTIL HIS RETURN TO THIS COUNTRY. THE MARITIME ADMINISTRATION HAS BEEN DELEGATED THE AUTHORITY TO GRANT AND ACCOUNT FOR ALLOWANCES AND DIFFERENTIALS TO ITS EMPLOYEES IN FOREIGN AREAS AND WOULD LIKE TO APPROVE THE ALLOWANCE IN THIS CASE AS OF THE DATE THE EMPLOYEE'S WIFE WAS RETURNED TO THE UNITED STATES.

B-152683, NOV. 18, 1963

TO ROBERT E. GILES, MARITIME ADMINISTRATION, DEPARTMENT OF COMMERCE

REFERENCE IS MADE TO LETTER OF OCTOBER 11, 1963, FROM THE DEPUTY MARITIME ADMINISTRATOR, REQUESTING WHETHER OUR OFFICE WOULD OBJECT TO THE RETROACTIVE APPROVAL BY THE MARITIME ADMINISTRATION OF A SEPARATE MAINTENANCE ALLOWANCE TO THE ADMINISTRATION'S FOREIGN MARITIME REPRESENTATIVE STATIONED IN JAPAN.

THE EMPLOYEE WAS ORIGINALLY APPOINTED TO HIS POST IN JAPAN IN MAY OF 1959, AND IN AUGUST 1959 HIS WIFE AND THREE CHILDREN JOINED HIM THERE. FEW MONTHS LATER HIS WIFE SUFFERED A NERVOUS BREAKDOWN, AND BECAUSE OF INADEQUATE MEDICAL FACILITIES IT WAS NECESSARY THAT SHE BE RETURNED TO THE UNITED STATES FOR HOSPITALIZATION AND TREATMENT. THE WIFE RETURNED TO THIS COUNTRY IN FEBRUARY OF 1960 AND HAS BEEN CONFINED IN A HOSPITAL SINCE THAT DATE. THE EMPLOYEE HAS HIS THREE CHILDREN AND DEPENDENT MOTHER WITH HIM AND IS CURRENTLY SERVING HIS THIRD TOUR OF DUTY IN JAPAN.

SECTION 5.08 OF DEPARTMENT OF COMMERCE ADMINISTRATIVE ORDER NO. 202 25 (REVISED) PROVIDES FOR THE GRANT OF A SEPARATE MAINTENANCE ALLOWANCE IN ACCORDANCE WITH CHAPTER 260 AND SECTION 943 OF THE DEPARTMENT OF STATE'S STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS). THE EVIDENCE PRESENTED BY YOU INDICATES THAT THE EMPLOYEE DID QUALIFY UNDER THE APPLICABLE DEPARTMENT OF STATE REGULATIONS FOR A SEPARATE MAINTENANCE ALLOWANCE FOR HIS WIFE AT THE TIME OF HER RETURN TO THIS COUNTRY IN FEBRUARY 1960, BUT THAT HE DID NOT APPLY FOR SUCH ALLOWANCE AT THAT TIME BECAUSE HE WAS UNAWARE OF HIS RIGHT TO DO SO. IT WAS NOT UNTIL HIS RETURN TO THIS COUNTRY, WHILE ON HOME LEAVE, IN JUNE OR JULY OF 1963 THAT HE SUBMITTED AN APPLICATION FOR THE ALLOWANCE.

THE MARITIME ADMINISTRATION HAS BEEN DELEGATED THE AUTHORITY TO GRANT AND ACCOUNT FOR ALLOWANCES AND DIFFERENTIALS TO ITS EMPLOYEES IN FOREIGN AREAS AND WOULD LIKE TO APPROVE THE ALLOWANCE IN THIS CASE AS OF THE DATE THE EMPLOYEE'S WIFE WAS RETURNED TO THE UNITED STATES. YOU SAY THAT IT IS THE POLICY OF THE ADMINISTRATION TO APPROVE SUCH ALLOWANCES. MOREOVER, WE UNDERSTAND THAT THERE ARE UNOBLIGATED PRIOR YEAR FUNDS AVAILABLE IN THE TREASURY FOR PAYMENT OF THE ALLOWANCE. THE ONLY POINT ON WHICH THERE IS DOUBT IS THE QUESTION OF RETROACTIVITY, PARTICULARLY IN VIEW OF PARAGRAPH 264.1 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) WHICH PROVIDES:

"THE GRANT OF A SEPARATE MAINTENANCE ALLOWANCE NORMALLY SHALL TERMINATE AS OF JUNE 30 OF THE CURRENT FISCAL YEAR EXCEPT WHEN TERMINATED UNDER ONE OF THE PROVISIONS OF SECTIONS 264.2 THROUGH 264.5. A SEPARATE MAINTENANCE ALLOWANCE GRANT SHALL NOT BE RENEWED EXCEPT UPON SUBMISSION AND APPROVAL OF A NEW APPLICATION, FULLY SUPPORTED IF REQUIRED BY SECTION 262.2.'

THE SAME OR SIMILAR LANGUAGE HAS APPEARED IN THE REGULATION FROM THE DATE THE EMPLOYEE AND HIS DEPENDENT WERE SEPARATED.

PARAGRAPH 263.2 OF THE STANDARDIZED REGULATIONS WHICH ALSO HAS BEEN IN EFFECT, IN THE SAME OR SUBSTANTIALLY THE SAME FORM, DURING THE ENTIRE PERIOD IN QUESTION, PROVIDES:

"IF A SEPARATE MAINTENANCE ALLOWANCE IS GRANTED TO AN EMPLOYEE DURING THE PERIOD OF HIS SERVICE AT A POST OF ASSIGNMENT, THE GRANT SHALL COMMENCE AS OF THE DATE SEPARATION FROM DEPENDENTS OCCURS EXCEPT AS LIMITED BY SECTION 268.1.'

PARAGRAPH 263.2, QUOTED ABOVE, IS A STATUTORY REGULATION WHICH WAS PROMULGATED PURSUANT TO EXECUTIVE ORDER NO. 10903, DATED JANUARY 9, 1961, AND HAS THE SAME FORCE AND EFFECT AS IF IT WERE INCLUDED IN THE OVERSEAS DIFFERENTIALS AND ALLOWANCE ACT, 74 STAT. 792. IT IS CLEAR FROM THE LANGUAGE OF PARAGRAPH 263.2 THAT THE OBLIGATION OF THE GOVERNMENT TO PAY A SEPARATE MAINTENANCE ALLOWANCE COMMENCES ON THE DATE THE SEPARATION OCCURS, UNLESS A LATER DATE IS DESIGNATED BY THE APPROVING AUTHORITY. HOWEVER, WE MUST DETERMINE WHETHER THE LANGUAGE OF PARAGRAPH 264.1 WAS INTENDED TO RESTRICT AUTOMATICALLY THE RETROACTIVE PERIOD OVER WHICH AN ALLOWANCE MAY BE GRANTED.

THAT PARAGRAPH (PARAGRAPH 264.1) PROVIDES THAT A SEPARATION ALLOWANCE WILL "NORMALLY TERMINATE AS OF JUNE 30 OF THE CURRENT FISCAL YEAR.' CONSIDER THAT THE INCLUSION OF THE WORD "NORMALLY" IN THE PARAGRAPH REASONABLY MAY BE CONSTRUED AS GRANTING CERTAIN ADMINISTRATIVE DISCRETION IN THE MATTER OF DETERMINING WHETHER A SEPARATE MAINTENANCE ALLOWANCE TERMINATES ON JUNE 30 OF A CURRENT FISCAL YEAR WHEN UNUSUAL CIRCUMSTANCES ARE PRESENT. THE DEPARTMENT OF STATE HAS INFORMALLY ADVISED US THAT SUCH CONSTRUCTION ACCORDS WITH ITS VIEWS ON THE INTENT OF PARAGRAPH 264.1.

WE CONCLUDE, THEREFORE, THAT IT IS WITHIN YOUR ADMINISTRATIVE DISCRETION TO DETERMINE THAT PARAGRAPH 264.1 DOES NOT OPERATE TO LIMIT THE RETROACTIVE PERIOD FOR WHICH PAYMENT OTHERWISE WOULD BE DUE UNDER PARAGRAPH 263.2. ACCORDINGLY, THE GRANT OF THE SEPARATE MAINTENANCE ALLOWANCE WOULD RELATE BACK--- AS PROVIDED FOR IN PARAGRAPH 263.2--- TO THE DATE THE SEPARATION OCCURRED. PAYMENT OF THE ALLOWANCE FOR THE PERIOD PRIOR TO THE BEGINNING OF THE CURRENT FISCAL YEAR SHOULD BE MADE FROM THE UNOBLIGATED PRIOR YEAR FUNDS AVAILABLE IN THE TREASURY, AS INDICATED IN YOUR LETTER. THE ALLOWANCE DUE FOR PERIOD BEGINNING WITH THE CURRENT FISCAL YEAR SHOULD BE PAID FROM THE CURRENT ..END :