B-155356, NOV. 20, 1964

B-155356: Nov 20, 1964

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MAY AN AGENCY DETERMINE THAT IT WOULD BE IN THE PUBLIC INTEREST TO INCLUDE THE ALLOWANCE IN THE LUMP-SUM PAYMENT IF THE AFFECTED EMPLOYEE WERE TO REMAIN IN THE STATES IN AN ANNUAL LEAVE STATUS FOR THE FEW DAYS UNTIL HIS SEPARATION? PROVIDED THE EMPLOYEE RETURNS TO AN OVERSEAS POST OR THE AGENCY DETERMINES THAT IT IS IN THE PUBLIC INTEREST NOT TO RETURN THE EMPLOYEE TO SUCH A POST. SINCE THEY ARE CONCERNED WITH EMPLOYEES WHO VOLUNTARILY RETURN TO THE UNITED STATES IN LEAVE STATUS INCIDENT TO SEPARATION. IT COULD BE CLEARLY IN THE GOVERNMENT'S INTEREST NOT TO RETURN HIM OVERSEAS A SHORT TIME BEFORE HE IS DUE TO BE SEPARATED. "WHEN AN EMPLOYEE OTHERWISE ENTITLED TO COST-OF-LIVING ALLOWANCE IN A NONFOREIGN AREA IS RETURNED TO THE MAINLAND FOR TEMPORARY OFFICIAL DUTY SUCH AS A CONFERENCE.

B-155356, NOV. 20, 1964

TO HONORABLE JOHN W. MACY, JR., CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION:

THIS REFERS TO YOUR LETTER OF OCTOBER 7, 1964, PERTAINING TO AN INQUIRY FROM AN AGENCY AS TO THE INCLUSION OF COST-OF-LIVING ALLOWANCE IN AN EMPLOYEE'S LUMP-SUM LEAVE PAYMENT UNDER THE CONDITIONS SPECIFIED THEREIN.

THE LETTER READS IN PERTINENT PART AS FOLLOWS:

"THE AGENCY ASKS: "MUST AN EMPLOYEE, CURRENTLY SERVING AT AN OVERSEAS POST AND OTHERWISE ENTITLED TO THE COST-OF-LIVING ALLOWANCE, RETURN TO HIS REGULAR OVERSEAS POST AFTER AN OFFICIAL CONFERENCE ON THE MAINLAND IN ORDER TO QUALIFY FOR THE ALLOWANCE UPON HIS IMMINENT SEPARATION? CONVERSELY, MAY AN AGENCY DETERMINE THAT IT WOULD BE IN THE PUBLIC INTEREST TO INCLUDE THE ALLOWANCE IN THE LUMP-SUM PAYMENT IF THE AFFECTED EMPLOYEE WERE TO REMAIN IN THE STATES IN AN ANNUAL LEAVE STATUS FOR THE FEW DAYS UNTIL HIS SEPARATION? SUCH A COURSE WOULD RESULT IN THE SAVING OF NO SMALL AMOUNT OF TRAVEL AND PER DIEM EXPENSE AND WOULD BE PREFERABLE TO THE PLOYEE.'

"THE AGENCY REFERS TO SECTION 591.401/G) (1) OF THE CIVIL SERVICE REGULATIONS, WHICH AUTHORIZES CONTINUATION OF THE ALLOWANCE FOR ALL PERIODS OF TEMPORARY ABSENCE FROM THE OVERSEAS POST ON LEAVE, PROVIDED THE EMPLOYEE RETURNS TO AN OVERSEAS POST OR THE AGENCY DETERMINES THAT IT IS IN THE PUBLIC INTEREST NOT TO RETURN THE EMPLOYEE TO SUCH A POST.

"YOUR DECISIONS 38 COMP. GEN. 594 AND 33 COMP. GEN. 287 DO NOT APPEAR TO BE CONTROLLING, SINCE THEY ARE CONCERNED WITH EMPLOYEES WHO VOLUNTARILY RETURN TO THE UNITED STATES IN LEAVE STATUS INCIDENT TO SEPARATION. WHEN THE AGENCY HAS BROUGHT AN EMPLOYEE BACK FOR TEMPORARY DUTY, IT COULD BE CLEARLY IN THE GOVERNMENT'S INTEREST NOT TO RETURN HIM OVERSEAS A SHORT TIME BEFORE HE IS DUE TO BE SEPARATED.

"WHEN AN EMPLOYEE OTHERWISE ENTITLED TO COST-OF-LIVING ALLOWANCE IN A NONFOREIGN AREA IS RETURNED TO THE MAINLAND FOR TEMPORARY OFFICIAL DUTY SUCH AS A CONFERENCE, AND IS STILL ON THE MAINLAND WHEN THE TIME FOR HIS SEPARATION APPROACHES, IS THE COST-OF-LIVING ALLOWANCE PROPERLY INCLUDED IN HIS LUMP-SUM LEAVE PAYMENT (A) IF HE IS SEPARATED WHILE STILL IN TEMPORARY ACTIVE DUTY STATUS? (B) IF THE TEMPORARY ACTIVE DUTY IS CONCLUDED SHORTLY BEFORE HE IS DUE TO BE SEPARATED AND THE AGENCY DETERMINES THAT IT WOULD BE IN THE PUBLIC INTEREST TO PERMIT HIM TO REMAIN ON THE MAINLAND IN LEAVE STATUS FOR THE SHORT TIME REMAINING?

SECTION 591.401/C) OF THE CIVIL SERVICE REGULATIONS PROVIDES THAT PAYMENT OF THE SUBJECT ALLOWANCE SHALL BEGIN AS OF THE ARRIVAL AT THE POST OF DUTY ON REGULAR ASSIGNMENT OR TRANSFER OR UPON THE DATE OF ENTRANCE ON DUTY IN THE CASE OF LOCAL RECRUITMENT AND SHALL CEASE ON SEPARATION OR ON THE DATE OF DEPARTURE TO A NEW POST OF REGULAR ASSIGNMENT. IN CONSONANCE THEREWITH WE HAVE HELD THAT THE COST-OF LIVING ALLOWANCE IS FOR INCLUSION IN A LUMP- SUM LEAVE PAYMENT WHERE THE EMPLOYEE IS SEPARATED FROM THE SERVICE OUTSIDE THE CONTINENTAL UNITED STATES. 28 COMP. GEN. 465. CONVERSELY, WE HELD IN 38 COMP. GEN. 594, THAT AN EMPLOYEE WHO DEPARTS FROM HIS POST IN A TERMINAL LEAVE STATUS REMAINS AN EMPLOYEE OF THE UNITED STATES UNTIL ACTUALLY REMOVED FROM THE ROLLS AT THE TERMINATION OF SUCH LEAVE, AND, THEREFORE, IS NOT ENTITLED TO INCLUSION OF THE ALLOWANCE IN THE COMPUTATION OF HIS FINAL PAY FOR ANY PERIOD AFTER SUCH DEPARTURE NOR IN THE LUMP-SUM LEAVE PAYMENT DUE UPON HIS SEPARATION.

AS YOU POINT OUT THE DECISIONS 38 COMP. GEN. 594 AND 33 ID. 287 CITED THEREIN PERTAINED TO EMPLOYEES WHO VOLUNTARILY RETURNED TO CONTINENTAL UNITED STATES IN A TERMINAL LEAVE STATUS INCIDENT TO SEPARATION FROM THE SERVICE. THE PRESENT QUESTION ARISES FROM DIFFERENT CIRCUMSTANCES. HERE THE DEPARTURE OF THE EMPLOYEE FROM HIS POST IS NOT FOR THE PURPOSE OF SEPARATION FROM THE SERVICE NOR FOR THE PURPOSE OF TAKING TERMINAL LEAVE INCIDENT THERETO BUT IS IN COMPLIANCE WITH ORDERS WHICH REQUIRE TEMPORARY OFFICIAL DUTY BY HIM ON THE MAINLAND. IT IS UNDERSTOOD THAT SUCH DUTY IN THE PRESENT CASE CONSISTS OF ATTENDANCE AND PARTICIPATION IN A CONFERENCE WHICH MAY TERMINATE A FEW DAYS BEFORE THE EMPLOYEE'S SEPARATION BY RETIREMENT. IN SUCH EVENT THE EMPLOYEE WOULD BE CARRIED ON ANNUAL LEAVE FOR THE REMAINING FEW DAYS.

IT SEEMS CLEAR THAT THE EMPLOYEE WOULD BE ENTITLED TO THE ALLOWANCE FOR THE PERIOD OF TEMPORARY DUTY AND FOR THE INCIDENTAL LEAVE IF THE AGENCY DETERMINES THAT IT IS IN THE PUBLIC INTEREST NOT TO RETURN HIM TO HIS POST. SECTION591.401/G) (1) OF THE CIVIL SERVICE REGULATIONS. IN VIEW OF THE ADDITIONAL EXPENSE INVOLVED IF THE EMPLOYEE BE RETURNED TO HIS PERMANENT POST AND THE OTHER CIRCUMSTANCES INVOLVED, THERE WOULD SEEM TO BE A SUBSTANTIAL BASIS FOR A DETERMINATION THAT IT WOULD NOT BE IN THE PUBLIC INTEREST TO RETURN THE EMPLOYEE TO HIS POST FOR THE FEW DAYS FOLLOWING THE TERMINATION OF THE TEMPORARY DUTY.

SINCE THE EMPLOYEE DEPARTED HIS POST PURSUANT TO TEMPORARY DUTY ORDERS AND WAS ENTITLED TO THE ALLOWANCE UP TO AND INCLUDING THE DAY OF HIS SEPARATION PROVIDED THERE WAS A DETERMINATION THAT IT WAS NOT IN THE PUBLIC INTEREST TO RETURN HIM TO HIS PERMANENT POST OF DUTY, HIS LUMP-SUM LEAVE PAYMENT SHOULD INCLUDE THE ALLOWANCE AUTHORIZED BY THE REGULATIONS.