B-165392, NOV. 1, 1968

B-165392: Nov 1, 1968

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IS REIMBURSED FOR THE TEMPORARY LODGING ALLOWANCE GRANTED BY SECTION 120 OF THE DEPARTMENT OF STATE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS. APPROPRIATIONS OR OTHER FUNDS AVAILABLE TO THE DEPARTMENTS FOR ADMINISTRATIVE EXPENSES SHALL BE AVAILABLE FOR THE REIMBURSEMENT OF ALL OR PART OF THE FOLLOWING EXPENSES OF OFFICERS OR EMPLOYEES FOR WHOM THE GOVERNMENT PAYS EXPENSES OF TRAVEL AND TRANSPORTATION UNDER SUBSECTION (A) OF SECTION 1 OF THIS ACT: "/3) THE SUBSISTENCE EXPENSES OF THE OFFICER OR EMPLOYEE AND HIS IMMEDIATE FAMILY FOR A PERIOD OF THIRTY DAYS WHILE OCCUPYING TEMPORARY QUARTERS WHEN THE NEW OFFICIAL STATION IS LOCATED WITHIN THE UNITED STATES (INCLUDING THE DISTRICT OF COLUMBIA.

B-165392, NOV. 1, 1968

TO MR. ATTORNEY GENERAL:

WE REFER TO LETTER OF OCTOBER 1, 1968, FROM YOUR ASSISTANT ATTORNEY GENERAL FOR ADMINISTRATION, PRESENTING THE FOLLOWING QUESTION FOR DECISION: "DOES SECTION 2.5B (8) OF THE BUREAU OF THE BUDGET CIRCULAR A-56 PRECLUDE THE PAYMENT OF TEMPORARY LODGING ALLOWANCE IN THE UNITED STATES, UNDER THE PROVISIONS OF PL 89-516, IF AN EMPLOYEE AT AN OVERSEAS POST OF DUTY, PURSUANT TO AN OFFICIAL TRANSFER ORDER TO A UNITED STATES POST, IS REIMBURSED FOR THE TEMPORARY LODGING ALLOWANCE GRANTED BY SECTION 120 OF THE DEPARTMENT OF STATE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREA) WHICH AUTHORIZES A MAXIMUM OF 30 DAYS ALLOWANCE PRIOR TO DEPARTURE FROM THE POST?

PUBLIC LAW 89-516, 80 STAT. 323, AMENDED THE ADMINISTRATIVE EXPENSES ACT OF 1946 TO PROVIDE, IN PART, AS FOLLOWS: "SEC. 23. UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE AND TO THE EXTENT DEEMED NECESSARY AND APPROPRIATE, AS PROVIDED THEREIN, APPROPRIATIONS OR OTHER FUNDS AVAILABLE TO THE DEPARTMENTS FOR ADMINISTRATIVE EXPENSES SHALL BE AVAILABLE FOR THE REIMBURSEMENT OF ALL OR PART OF THE FOLLOWING EXPENSES OF OFFICERS OR EMPLOYEES FOR WHOM THE GOVERNMENT PAYS EXPENSES OF TRAVEL AND TRANSPORTATION UNDER SUBSECTION (A) OF SECTION 1 OF THIS ACT:

"/3) THE SUBSISTENCE EXPENSES OF THE OFFICER OR EMPLOYEE AND HIS IMMEDIATE FAMILY FOR A PERIOD OF THIRTY DAYS WHILE OCCUPYING TEMPORARY QUARTERS WHEN THE NEW OFFICIAL STATION IS LOCATED WITHIN THE UNITED STATES (INCLUDING THE DISTRICT OF COLUMBIA, ITS TERRITORIES AND POSSESSIONS, THE COMMONWEALTH OF PUERTO RICO, AND THE CANAL ZONE * * *) * * *"

SECTION 2.5B (8) OF BUREAU OF THE BUDGET CIRCULAR NO. A-56 TO WHICH YOU REFER PROVIDES AS FOLLOWS:

"/8) IN NO CASE SHALL SUBSISTENCE EXPENSES UNDER THESE PROVISIONS BE ALLOWED WHICH DUPLICATE IN WHOLE OR IN PART PAYMENTS RECEIVED UNDER OTHER LAWS OR REGULATIONS COVERING SIMILAR COSTS.'

AN EMPLOYEE STATIONED IN A FOREIGN AREA FOR WHICH QUARTERS ALLOWANCES HAVE BEEN PRESCRIBED UNDER THE STANDARDIZED REGULATIONS IS ENTITLED TO SUCH AN ALLOWANCE UNTIL THE DATE HE COMMENCES TRAVEL UNDER TRANSFER ORDERS. DURING THE LAST 30 DAYS PRIOR TO HIS DEPARTURE FROM THE FOREIGN AREA POST, THE ALLOWANCE MAY BE EITHER IN THE FORM OF A LIVING QUARTERS ALLOWANCE OR A TEMPORARY LODGING ALLOWANCE. THE TEMPORARY LODGING ALLOWANCE MIGHT BE REGARDED AS AN ALLOWANCE IN LIEU OF THE PERMANENT (LIVING QUARTERS) ALLOWANCE FOR NOT TO EXCEED THE LAST 30 DAYS BEFORE DEPARTURE FROM THE FOREIGN POST. NEITHER SUCH ALLOWANCE IS IN ANY WAY ASSOCIATED WITH THE EMPLOYEE'S ACQUISITION OF A RESIDENCE AT HIS NEW STATION IN THE UNITED STATES.

ON THE OTHER HAND, THE LEGISLATIVE HISTORY OF THE AMENDMENT TO THE ADMINISTRATIVE EXPENSES ACT OF 1946 WHICH ADDED SECTION 23 CLEARLY INDICATES THAT ITS PURPOSE WAS TO PROVIDE SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS INCIDENT TO THE EMPLOYEE'S SEEKING PERMANENT RESIDENCE QUARTERS AT HIS NEW OFFICIAL STATION. ACCORDINGLY, WE ARE OF THE VIEW THAT THE TWO ALLOWANCES ARE DESIGNED FOR DIFFERENT PURPOSES AND ARE NOT DUPLICATIVE ONE OF THE OTHER.

IN SUCH CONNECTION WE NOTE THAT THE LEGISLATIVE HISTORY OF SECTION 23 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 CLEARLY REFLECTS AN INTENTION TO PRECLUDE AN EMPLOYEE WHO IS ENTITLED UNDER THE STANDARDIZED REGULATIONS TO A HOME SERVICE TRANSFER ALLOWANCE IN THE UNITED STATES BETWEEN ASSIGNMENTS ABROAD FROM RECEIVING ALSO SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS UNDER BUREAU OF THE BUDGET CIRCULAR NO. A-56. SEE PAGE 6 OF H.REPT. NO. 1199, OCTOBER 21, 1965, ON H.R. 10607. THE LOGICAL INFERENCE FROM SUCH REPORT IS THAT CONGRESS DID NOT CONTEMPLATE A RESTRICTION ON SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS IN THE UNITED STATES MERELY BECAUSE THE EMPLOYEE ALSO HAD RECEIVED A TEMPORARY LODGING ALLOWANCE PRIOR TO HIS DEPARTURE FROM HIS FOREIGN POST.

FINALLY, AS A FURTHER INDICATION THAT THE PAYMENT OF THE TWO ALLOWANCES IN QUESTION -- WHICH IN AGGREGATE COULD NOT EXTEND FOR A PERIOD LONGER THAN 60 DAYS -- WOULD NOT BE CONTRARY TO THE SPIRIT AND PURPOSES OF PUBLIC LAW 89-516 IS THE FACT THAT WHEN AN EMPLOYEE IS TRANSFERRED TO OR FROM HAWAII, ALASKA, THE TERRITORIES OR POSSESSIONS, THE COMMONWEALTH OF PUERTO RICO OR THE CANAL ZONE, SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS MAY BE GRANTED FOR A PERIOD AS LONG AS 60 DAYS.