B-160574, JUN. 16, 1970

B-160574: Jun 16, 1970

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LONG WAS AN OFFICER IN THE UNITED STATES WOMEN'S AIR FORCE AND WAS RECEIVING AN ALLOWANCE FOR QUARTERS FROM THE AIR FORCE. THE SMA PAYMENTS WERE REINSTITUTED IN JANUARY 1969 RETROACTIVE TO THE DATE PAYMENTS WERE STOPPED. WERE FOR BASIC SMA LESS THE ALLOWANCE FOR QUARTERS RECEIVED BY MRS. THE REINSTATEMENT OF SMA WAS DIRECTED BY AID-WASHINGTON AND WAS BASED ON AN OPINION BY AID'S GENERAL COUNSEL DATED JULY 17. THAT OPINION IN PERTINENT PART STATES: "5 U.S.C. 5924(3) PROVIDES FOR THE PAYMENT OF A 'SEPARATE MAINTENANCE ALLOWANCE TO ASSIST AN EMPLOYEE WHO IS COMPELLED. ASSIGNMENT TO VIETNAM IS THE "OPEN SESAME" TO SMA FOR MARRIED EMPLOYEES. AN ISSUE IS CREATED BY THE MEANING OF THE WORD 'COMPELLED'.

B-160574, JUN. 16, 1970

TO MR. EUGENE D. TUCCI:

WE REFER FURTHER TO YOUR LETTER OF MARCH 17, 1970, WHEREIN YOU REQUEST A DECISION AS TO THE ALLOWABILITY OF SEPARATE MAINTENANCE ALLOWANCE (SMA) PAYMENTS TO MR. EARNEST K. LONG, AN AGENCY FOR INTERNATIONAL DEVELOPMENT (AID) EMPLOYEE OF THE UNITED STATES GOVERNMENT.

ACCORDING TO THE RECORD BEFORE US, MR. LONG HAS SERVED IN VIETNAM SINCE JANUARY 9, 1966. HE CLAIMED AND RECEIVED AN SMA OF $2,500 AND A $500 SPECIAL COST-OF-LIVING ALLOWANCE.

ON HIS APPLICATION FORMS FOR ALLOWANCES MR. LONG STATED HIS WIFE'S DEPENDENCY TO BE 100 PERCENT. IN MARCH OF 1968 AID OFFICIALS SUSPENDED SMA PAYMENTS TO MR. LONG WHEN THEY LEARNED THAT MRS. LONG WAS AN OFFICER IN THE UNITED STATES WOMEN'S AIR FORCE AND WAS RECEIVING AN ALLOWANCE FOR QUARTERS FROM THE AIR FORCE. THE SMA PAYMENTS WERE REINSTITUTED IN JANUARY 1969 RETROACTIVE TO THE DATE PAYMENTS WERE STOPPED. SUCH PAYMENTS, HOWEVER, WERE FOR BASIC SMA LESS THE ALLOWANCE FOR QUARTERS RECEIVED BY MRS. LONG FROM THE AIR FORCE.

THE REINSTATEMENT OF SMA WAS DIRECTED BY AID-WASHINGTON AND WAS BASED ON AN OPINION BY AID'S GENERAL COUNSEL DATED JULY 17, 1968. THAT OPINION IN PERTINENT PART STATES:

"5 U.S.C. 5924(3) PROVIDES FOR THE PAYMENT OF A 'SEPARATE MAINTENANCE ALLOWANCE TO ASSIST AN EMPLOYEE WHO IS COMPELLED, BECAUSE OF DANGEROUS, NOTABLY UNHEALTHFUL, OR EXCESSIVELY ADVERSE LIVING CONDITIONS AT HIS POST OF ASSIGNMENT IN A FOREIGN AREA *** TO MEET THE ADDITIONAL EXPENSES OF MAINTAINING, ELSEWHERE THAN AT HIS POST, HIS WIFE *** .' ORDINARILY, ASSIGNMENT TO VIETNAM IS THE "OPEN SESAME" TO SMA FOR MARRIED EMPLOYEES. BUT IN THE PRESENT CASE, AN ISSUE IS CREATED BY THE MEANING OF THE WORD 'COMPELLED'. IT HAS BEEN URGED THAT THE COUPLE LONG HAS BEEN SEPARATED BY HER EMPLOYMENT IN THE AIR FORCE, NOT HIS ASSIGNMENT TO VIETNAM. THE ARGUMENT CONTINUES THAT EVEN THOUGH DEPENDENTS ARE NOT PERMITTED IN VIETNAM, MRS. LONG IS KEPT AWAY BECAUSE IT IS THE AIR FORCE'S WILL AND NOT THE PRESIDENT'S DIRECTIVE. THE SHORT ANSWER IS THAT THE PRESENCE OF A SECOND REASON FOR SEPARATION WOULD NOT DESTROY THE EXISTENCE OF THE FIRST. WERE MAJOR (MRS.) LONG TO RESIGN FROM HER PRESENT CAREER TODAY, SHE STILL COULD NOT BE WITH HER HUSBAND. SURELY THE AGENCY DOES NOT INTEND TO INSIST UPON A RESIGNATION FROM THE WAFS BEFORE ACKNOWLEDGING THAT UNDER NO CIRCUMSTANCE WOULD WE PERMIT MRS. LONG TO JOIN HER A.I.D.- EMPLOYED HUSBAND.

"A SECOND ISSUE HAS ARISEN BECAUSE MR. LONG'S DEPENDENT RECEIVES A QUARTERS ALLOWANCE FROM THE AIR FORCE. THE PROPONENTS OF THIS THESIS WOULD ARGUE THAT BECAUSE MR. LONG RECEIVES A FIXED SUM FOR HER QUARTERS FROM THE AIR FORCE, HER HUSBAND CANNOT CLAIM THAT HE BEARS 'ADDITIONAL EXPENSES OF MAINTAINING, ELSEWHERE THAN AT HIS POST, HIS WIFE.' BUT THIS PRESUMES AN OMNISCIENCE THAT APPEARS NEITHER IN THE STATUTE NOR IN THE LEGISLATIVE HISTORY UNDERLYING IT. CONGRESS HAS NOT TOLD U.S. EMPLOYEES COVERED BY THIS SECTION THAT THE ADDITIONAL EXPENSES MUST BE ALLOCATED TO ROOM AND BOARD. IT IS FOR THE EMPLOYEE TO DECIDE HOW HE WILL SPEND THE ASSISTANCE PROVIDED. IF HE CHOOSES TO APPLY THE BULK OF THE ALLOWANCE TO LONG-DISTANCE TELEPHONE CALLS, FOR INSTANCE, AND PUTS HIS WIFE IN A TENT, IT IS NOT FOR A.I.D. TO INSIST HE MUST HANDLE HIS BUDGET DIFFERENTLY. ADDITIONAL EXPENSES UNDENIABLY ARE INCURRED WHEN FAMILIES ARE SEPARATED, AND IT WAS THE JUDGMENT OF THE CONGRESS THAT ASSISTANCE WOULD BE PROVIDED. ACCOUNTINGS NEED NOT BE, AND ARE NOT, SOUGHT.

"THERE IS ONE FINAL MATTER TO BE RESOLVED. IT IS OF A POLICY NATURE, AND RELATES TO THE TOTAL SUM TO BE ALLOTTED IN THE NAME OF SEPARATE MAINTENANCE. SINCE THE GOVERNMENT ALREADY PROVIDES THE LONGS WITH $120 PER MONTH, OR $1440 PER YEAR, I WOULD SUGGEST THAT A.I.D. LIMIT ITS ASSISTANCE SO THAT FEDERAL MAINTENANCE ALLOWANCES TO THE LONGS DO NOT EXCEED A TOTAL ANNUAL STIPEND OF $2,500. BECAUSE MRS. LONG HAPPENS TO WORK FOR THE GOVERNMENT IS NO REASON FOR THE GOVERNMENT TO PROVIDE LESS ASSISTANCE THAN NON-FEDERALLY EMPLOYED DEPENDENTS WOULD RECEIVE. BUT THE AGENCY SHOULD NOT IGNORE THE PREVIOUSLY ARRIVED AT STATE DEPARTMENT DETERMINATION THAT $2,500 WOULD BE SUFFICIENT ANNUAL COMPENSATION FOR THE FACT OF SEPARATION. SINCE MRS. LONG ALREADY RECEIVES A SUBSTANTIAL PART OF THAT SUM FROM THE FEDERAL TREASURY, I SUGGEST THAT HENCEFORTH WE LIMIT OUR ALLOTMENTS TO THE REMAINING DIFFERENTIAL.

"BECAUSE THERE HAD BEEN AN INITIAL DETERMINATION THAT SMA SHOULD BE PAID TO MR. LONG, AS EVIDENCED BY THE ALLOWANCE HE HAS ALREADY RECEIVED, THERE SHOULD BE NO ATTEMPT BY THE AGENCY TO SEEK ANY REIMBURSEMENT FROM HIM. COMMENCING FROM THE DATE THAT HIS SMA WAS STOPPED, MR. LONG SHOULD BE PAID AT AN ANNUAL RATE OF $1060."

SUBCHAPTER 260 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) SETS FORTH THE REQUIREMENTS FOR SMA. IN PERTINENT PART SUBCHAPTER 260 PROVIDES:

"261.1 DEFINITIONS

"A. 'SEPARATE MAINTENANCE ALLOWANCE' MEANS AN ALLOWANCE TO ASSIST AN EMPLOYEE WHO IS COMPELLED *** TO MEET THE ADDITIONAL EXPENSE OF MAINTAINING HIS DEPENDENTS ELSEWHERE THAN AT SUCH POST.

"B. 'DEPENDENT' FOR THE PURPOSE OF SEPARATE MAINTENANCE ALLOWANCE MEANS A MEMBER OF FAMILY AS DEFINED IN SECTION 040M (1) THROUGH (4) ***

"261.2 SCOPE

"SEPARATE MAINTENANCE ALLOWANCES ARE INTENDED TO ASSIST IN OFFSETTING THE ADDITIONAL EXPENSES INCURRED BY AN EMPLOYEE WHO IS COMPELLED *** TO MAINTAIN A SEPARATE HOUSEHOLD FOR HIS FAMILY. COSTS CONSIDERED INCLUDE ADDITIONAL HOUSING, DUPLICATION OF EXPENSES FOR HOUSEHOLD EQUIPMENT, ET CETERA. ***

"264.4 AT DISCRETION OF HEAD OF AGENCY

"THE HEAD OF AN AGENCY MAY TERMINATE THE GRANT AT ANY TIME *** .

"268 PERIODS FOR WHICH PAYMENTS CURTAILED OR NOT AUTHORIZED

"268.1 PAYMENT WITHHELD IF PER DIEM RECEIVED

"NOTWITHSTANDING OTHER PROVISIONS IN SUBCHAPTER 260, A SEPARATE MAINTENANCE ALLOWANCE SHALL NOT BE PAID ON BEHALF OF ANY DEPENDENT FOR THE PERIOD DURING WHICH TRAVEL PER DIEM IS PAYABLE ON BEHALF OF SUCH DEPENDENT.

"268.2 PAYMENT REDUCED WITH GOVERNMENT QUARTERS

"PAYMENT UNDER A SEPARATE MAINTENANCE ALLOWANCE GRANT SHALL BE REDUCED BY 50 PERCENT FOR ANY PERIOD DURING WHICH ALL DEPENDENTS ON BEHALF OF WHOM THE ALLOWANCE WAS GRANTED RESIDE IN GOVERNMENT QUARTERS AT NO COST TO THE EMPLOYEE."

SECTION 040M AND 040M(1) OF THE STANDARDIZED REGULATIONS PROVIDE:

"M. 'FAMILY' MEANS ONE OR MORE OF THE FOLLOWING RELATIVES OF AN EMPLOYEE RESIDING AT HIS POST WHO DOES NOT RECEIVE FROM THE GOVERNMENT AN ALLOWANCE OR DIFFERENTIAL SIMILAR TO THAT GRANTED TO THE EMPLOYEE AND WHO IS NOT DEEMED TO BE A DEPENDENT OR A MEMBER OF THE FAMILY OF ANOTHER EMPLOYEE FOR THE PURPOSE OF DETERMINING THE AMOUNT OF A SIMILAR ALLOWANCE:

"(1) SPOUSE;"

WE UNDERSTAND THE INTENT OF THE APPLICABLE REGULATIONS--SECTIONS 040M, 040M(1), AND SUBCHAPTER 260--WAS TO PROHIBIT, GENERALLY, PAYMENT OF SIMILAR ALLOWANCES TO AN EMPLOYEE AND HIS WIFE. ORDINARILY, UNDER THE TERMS OF THE REGULATIONS, SUCH PROSCRIPTION IS APPLICABLE ONLY WHERE A HUSBAND AND WIFE ARE RESIDING AT THE SAME POST. THUS A HUSBAND AND WIFE AT THE SAME POST WOULD NOT BE ALLOWED TO ASSERT SEPARATE ENTITLEMENTS EACH MIGHT HAVE BUT FOR THE OTHER'S PRESENCE, TO SAY, QUARTERS ALLOWANCES.

THE SEPARATE MAINTENANCE ALLOWANCE, HOWEVER, IS BY ITS NATURE PAYABLE WHERE A SPOUSE (OR OTHER APPROPRIATE FAMILY MEMBER) RESIDES OTHER THAN AT THE POST OF THE EMPLOYEE IN WHOM ENTITLEMENT RESTS. THE REGULATIONS, THEREFORE, DO NOT SPECIFICALLY PROVIDE IN THEIR LITERAL TERMS FOR ELIMINATING DUPLICATE ALLOWANCES FOR SEPARATE MAINTENANCE. DESPITE THIS OMISSION IN THE REGULATIONS, THERE IS NO DOUBT THAT THE GENERAL INTENTION THEREUNDER IS TO PRECLUDE THE PAYMENT OF SEPARATE MAINTENANCE ALLOWANCES TO BOTH A HUSBAND AND WIFE WHO MIGHT EACH BE SEPARATELY ENTITLED BY VIRTUE OF THEIR ASSIGNMENTS TO DIFFERENT POSTS OF DUTY.

HOWEVER, WITH RESPECT TO ENTITLEMENT TO A SEPARATE MAINTENANCE ALLOWANCE BY ONE SPOUSE AND ENTITLEMENT TO A QUARTERS ALLOWANCE BY THE OTHER, THE INTENT OF THE REGULATIONS CONCERNING THE ASPECT OF DUPLICATION IS NOT SO EASILY INTERPRETED. IT MIGHT BE ARGUED THAT THE TWO ALLOWANCES ARE NOT SIMILAR AND, THEREFORE, THAT ONE SHOULD NOT BE CURTAILED ON ACCOUNT OF THE OTHER. YET SECTION 268.2 QUOTED ABOVE RECOGNIZES THAT 50 PERCENT OF THE SEPARATE MAINTENANCE ALLOWANCE REFLECTS THE COST OF QUARTERS, BUT APPARENTLY, ON A FULLY FURNISHED BASIS. MOREOVER, IT IS CLEAR THAT A QUARTERS ALLOWANCE ON THE ONE HAND AND A SEPARATE MAINTENANCE ALLOWANCE ON THE OTHER DUPLICATE AT LEAST IN PART THE PURPOSES FOR WHICH EACH IS GRANTED.

ACCORDINGLY, IN LIGHT OF THE PERMISSIVE RATHER THAN MANDATORY AUTHORITIES ASSOCIATED WITH THE GRANTING OF A SEPARATE MAINTENANCE ALLOWANCE TOGETHER WITH THE UNCLEAR STATE OF THE REGULATIONS APPLICABLE THERETO, WE WOULD NOT BE REQUIRED TO OBJECT TO DISPOSITION OF MR. LONG'S CLAIM IN GENERAL ACCORDANCE WITH AID OPINION QUOTED ABOVE.

WE WOULD POINT OUT, HOWEVER, THAT IN ADDITION TO QUARTERS ALLOWANCE, MRS. LONG IS RECEIVING SUBSISTENCE ALLOWANCE PAYMENTS OF $47.88 MONTHLY. WOULD APPEAR THAT SUCH PAYMENTS FOR SUBSISTENCE DUPLICATE PAYMENTS FOR SEPARATE MAINTENANCE IN THE SAME SENSE AS DOES HER ALLOWANCE FOR QUARTERS. THEREFORE IN THE FUTURE, TO BE CONSISTENT, AN AMOUNT EQUIVALENT TO THE PAYMENTS MADE TO MRS. LONG FOR SUBSISTENCE SHOULD BE ADDED TO THE AMOUNT FOR QUARTERS DEDUCTED FROM MR. LONG'S ENTITLEMENT TO A SEPARATE MAINTENANCE ALLOWANCE.

A COPY OF THIS DECISION IS BEING FURNISHED TO THE DIRECTOR, ALLOWANCES STAFF, DEPARTMENT OF STATE, FOR HIS INFORMATION AND SUCH CHANGES IN THE REGULATIONS AS MAY BE CONSIDERED APPROPRIATE.