B-163271, FEB. 27, 1968

B-163271, FEB. 27, 1968

STATION ALLOWANCES - OVERSEAS - DEPENDENT EVACUATION DECISION TO CERTIFYING OFFICER OF USAID CONCERNING PAYMENT TO EMPLOYEE FORMERLY STATIONED IN VIETNAM FOR SPECIAL COST OF LIVING ALLOWANCE FOR EXTRA EXPENSES FOR EVACUATION OF WIFE. EMPLOYEE WHO WITH HIS WIFE WAS IN BANGKOK ON TEMPORARY DUTY FROM SAIGON WHEN EVACUATION OF DEPENDENTS FROM SAIGON TOOK PLACE AND WHO WAS TRANSFERRED TO BANGKOK MAY NOT BE CONSIDERED TO HAVE BEEN EVACUATED FROM SAIGON NOR CAN HIS WIFE WHO WAS VOLUNTARILY ABSENT FROM SAIGON BE CONSIDERED TO HAVE BEEN INVOLUNTARILY REMOVED UNDER DEPENDENT EVACUATION ORDERS AND THEREFORE EXTRAORDINARY EXPENSES ON ACCOUNT OF EVACUATION MUST BE DISALLOWED.

TO MISS MARY E. VOLZ:

WE REFER TO YOUR LETTER OF DECEMBER 18, 1967, REFERENCE ADFM: VOU. NO. 1083/67, REQUESTING OUR DECISION AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT A VOUCHER SUBMITTED BY MR. WILLIAM J. WREN, AN EMPLOYEE OF USAID, FORMERLY STATIONED IN VIETNAM, CLAIMING A SPECIAL COST OF LIVING ALLOWANCE (SCOLA) TO COVER EXTRAORDINARY EXPENSES ARISING FROM THE PURPORTED EVACUATION OF HIS WIFE FROM VIETNAM.

MR. WREN IS CLAIMING $1,242, REPRESENTING 69 DAYS PER DIEM FOR HIS WIFE AT A RATE OF $18 PER DAY. THE RECORD INDICATES THAT IN JANUARY 1965 MR. WREN WAS STATIONED IN SAIGON AND HIS WIFE WAS AT THAT POST WITH HIM. JANUARY 17, 1965, MR. WREN WAS SENT TO BANGKOK, THAILAND, ON 90 DAYS' TEMPORARY DUTY. HE WAS PAID MAXIMUM PER DIEM FOR THIS PERIOD UNTIL APRIL 18, 1965, WHEN HE WAS TRANSFERRED FROM SAIGON TO BANGKOK. MR. WREN'S WIFE ACCOMPANIED HIM TO BANGKOK AND STAYED WITH HIM THERE AT HIS OWN EXPENSE.

BEGINNING ON FEBRUARY 9, 1965, DEPENDENTS OF U.S. GOVERNMENT EMPLOYEES STATIONED IN SAIGON WERE EVACUATED FROM THAT POST. MR. WREN'S WIFE'S NAME WAS INCLUDED IN THE EMERGENCY EVACUATION TRAVEL AUTHORIZATION. ACCORDINGLY, HE CONSIDERS THAT HIS WIFE WAS A BONA FIDE EVACUEE FROM SAIGON FROM FEBRUARY 9, 1965, THROUGH APRIL 18, 1965, WHEN BANGKOK BECAME HIS POST OF DUTY SINCE SHE WAS NOT FREE TO RETURN TO THEIR HOME IN SAIGON AND WOULD NOT HAVE BEEN PERMITTED TO ACCOMPANY HIM THERE UPON COMPLETION OF HIS TEMPORARY DUTY IF HE HAD RETURNED.

THE STATE DEPARTMENT IN A DISPATCH DATED APRIL 18, 1966, SIGNED "RUSK" ADVISED THAT WREN WAS NOT ELIGIBLE FOR SCOLA SINCE HIS WIFE WAS AWAY FROM THE POST AND THE ALLOWANCE COULD BE PAID ONLY IF DEPENDENTS WERE ACTUALLY EVACUATED. THE EMPLOYEE IN SUPPORT OF HIS CLAIM CITES AN EVACUATION SITUATION THAT OCCURRED IN AUGUST 1960 WHEN HE WAS STATIONED IN VIENTIANE, LAOS. WHILE ON LEAVE IN BANGKOK WITH HIS WIFE AN EVACUATION FROM VIENTIANE OCCURRED AND HE CONTENDS THAT HIS WIFE WAS CONSIDERED A REGULAR EVACUEE TO WHOM SCOLA PAYMENTS WERE MADE. HOWEVER, IT IS APPARENT THAT IN THAT SITUATION THE EMPLOYEE RETURNED TO HIS DUTY STATION AND HIS WIFE WAS NOT PERMITTED TO DO SO.

THE ACT OF SEPTEMBER 26, 1961, PUBLIC LAW 87-304, 75 STAT. 662, AUTHORIZES THE HEAD OF A DEPARTMENT TO PROVIDE FOR ADVANCE PAYMENTS AND ADDITIONAL ALLOWANCE PAYMENTS TO EMPLOYEES OR THEIR DEPENDENTS WHOSE EVACUATION IS ORDERED FOR MILITARY OR OTHER REASONS WHICH CREATE IMMINENT DANGER TO THE LIFE OR LIVES OF THE EMPLOYEE OR DEPENDENTS. UNDER SECTION 6 OF SUCH ACT THE PRESIDENT WAS AUTHORIZED TO ISSUE NECESSARY REGULATIONS TO CARRY OUT THE PURPOSE OF THE ACT. IN EXECUTIVE ORDER NO. 10982, DATED DECEMBER 25, 1961, THE PRESIDENT DELEGATED TO THE SECRETARY OF STATE HIS AUTHORITY TO ISSUE REGULATIONS IMPLEMENTING SECTIONS 2 AND 3 OF THE ACT. THE SECRETARY OF STATE PROMULGATED SUCH REGULATIONS GOVERNING PAYMENTS DURING EVACUATION IN CHAPTER 600 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIAN, FOREIGN AREAS) PROVIDING IN PART AS FOLLOWS: "104 ENTITLEMENT "/A) EMPLOYEES AND THEIR DEPENDENTS SHALL BE ENTITLED TO BE PAID ONLY IF THEY MEET THE REQUIREMENTS OF THESE REGULATIONS. "105 DEFINITIONS "/E) -EVACUATED EMPLOYEE- MEANS AN EMPLOYEE WHO IS EVACUATED FROM HIS POST OF ASSIGNMENT OR WHO IS ORDERED TO BE EVACUATED BUT CANNOT BE EVACUATED BECAUSE OF REASONS BEYOND HIS CONTROL. "/F) -EVACUATION PAYMENT- MEANS THE MONETARY AMOUNT PAYABLE TO AN EMPLOYEE, HIS DEPENDENTS, OR A DESIGNATED REPRESENTATIVE DURING A PERIOD OF EVACUATION. "/I) - SPECIAL ALLOWANCE- MEANS AN ADDITIONAL ALLOWANCE PAYMENT TO OFFSET THE DIRECT ADDED EXPENSES INCIDENT TO AN EVACUATION. "106 ORDER OF EVACUATION "FOR PURPOSES OF THESE REGULATIONS, AN ORDER OF EVACUATION IS EITHER AN ORAL OR WRITTEN ORDER TO EVACUATE A POST OF ASSIGNMENT OR AN AREA IN WHICH THE POST OF ASSIGNMENT IS LOCATED. "130 PURPOSE OF SPECIAL ALLOWANCES "SPECIAL ALLOWANCES SPECIFIED IN SECTIONS 131 AND 133 ARE PAID TO EVACUATED EMPLOYEES TO OFFSET ANY DIRECT ADDED EXPENSES WHICH ARE INCURRED BY THE EMPLOYEE AS A RESULT OF HIS EVACUATION OR THE EVACUATION OF HIS DEPENDENTS. "131 DETERMINING DIRECT ADDED EXPENSES "/B) SUBSISTENCE EXPENSE ALLOWANCE "UNLESS OTHERWISE DIRECTED BY THE SECRETARY OF STATE, A SUBSISTENCE EXPENSE ALLOWANCE FOR THE EVACUATED EMPLOYEE OR HIS DEPENDENTS SHALL BE DETERMINED AT APPLICABLE TRAVEL PER DIEM RATES FOR THE SAFEHAVEN POST OR A STATION OTHER THAN THE SAFEHAVEN POST WHICH HAS BEEN APPROVED BY APPROPRIATE AUTHORITY. SUCH SUBSISTENCE EXPENSE ALLOWANCE SHALL BE PAID AS OF THE DATE FOLLOWING ARRIVAL AND MAY CONTINUE UNTIL TERMINATED UNDER THESE REGULATIONS. THE DAILY AMOUNT OF THE SUBSISTENCE EXPENSE ALLOWANCE SHALL BE: * * *"

UNDER THE ABOVE REGULATIONS WHICH HAVE THE FORCE AND EFFECT OF LAW THE SPECIAL ALLOWANCES ARE PAYABLE TO AN EVACUATED EMPLOYEE IN ORDER TO OFFSET ADDITIONAL EXPENSES ARISING FROM HIS EVACUATION OR THAT OF HIS DEPENDENTS. HOWEVER, MR. WREN DOES NOT COME WITHIN THE TERM "EVACUATED EMPLOYEE" AS DEFINED ABOVE SINCE HE WAS IN BANGKOK ON TEMPORARY DUTY AT THE TIME THE EVACUATION BEGAN IN SAIGON ON FEBRUARY 9, 1965, AND WHEN HIS 90-DAY PERIOD OF TEMPORARY DUTY WAS COMPLETED HE WAS TRANSFERRED TO BANGKOK. CONSEQUENTLY, HE CANNOT BE CONSIDERED TO HAVE BEEN EVACUATED FROM SAIGON. LIKEWISE, HIS WIFE, WHO ACCOMPANIED HIM DURING HIS TEMPORARY DUTY IN BANGKOK, WAS ABSENT FROM SAIGON VOLUNTARILY PRIOR TO THE START OF THE EVACUATION AND WE ASSUME SHE WOULD HAVE STAYED WITH HER HUSBAND DURING THE ENTIRE PERIOD OF TEMPORARY DUTY REGARDLESS OF THE POLICY OF EVACUATING DEPENDENTS FROM SAIGON. THEREFORE, SHE CANNOT BE CONSIDERED TO HAVE BEEN INVOLUNTARILY REMOVED FROM SAIGON UNDER ORDERS OF THE GOVERNMENT SO AS TO BE REGARDED AS AN EVACUATED DEPENDENT.

ACCORDINGLY, THE VOUCHER WHICH IS RETURNED HEREWITH MAY NOT BE CERTIFIED FOR PAYMENT.