B-167730, SEP. 3, 1969

B-167730: Sep 3, 1969

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EMPLOYEE WHO RECEIVED OVERPAYMENTS OF POST DIFFERENTIAL AND MAINTENANCE ALLOWANCE AFTER DEPARTURE FROM VIETNAM FOR ANOTHER ASSIGNMENT MAY HAVE POST DIFFERENTIAL CONSIDERED AS EMBRACED WITHIN TERM "PAY" AS USED IN PUBLIC LAW 90-616 AND CONSEQUENTLY HAVE LIABILITY FOR RECOVERY WAIVED. HOWEVER SEPARATE MAINTENANCE ALLOWANCE IS A PART OF THE COST-OF-LIVING ALLOWANCE AUTHORIZED FOR EMPLOYEES IN FOREIGN AREAS AND MAY NOT BE CONSIDERED PAY FOR WAIVER UNDER PUBLIC LAW 90 616. SECRETARY: REFERENCE IS MADE TO LETTER OF JUNE 19. WHILE IN VIETNAM HE WAS ENTITLED TO A 25 PERCENT POST DIFFERENTIAL (PD) AND SEPARATE MAINTENANCE ALLOWANCE (SMA) IN ADDITION TO HIS NORMAL PAY. HIS ENTITLEMENT TO THE ALLOWANCES SHOULD HAVE STOPPED UPON HIS DEPARTURE FOR THE UNITED STATES UNDER A PERMANENT CHANGE OF DUTY STATION.

B-167730, SEP. 3, 1969

CIVIL PAY - ERRONEOUS PAYMENTS WAIVER DECISION TO SECRETARY OF NAVY CONCERNING WAIVER OF EMPLOYEE'S CLAIM FOR OVERPAYMENT OF POST DIFFERENTIAL AND AND SEPARATE MAINTENANCE ALLOWANCE. EMPLOYEE WHO RECEIVED OVERPAYMENTS OF POST DIFFERENTIAL AND MAINTENANCE ALLOWANCE AFTER DEPARTURE FROM VIETNAM FOR ANOTHER ASSIGNMENT MAY HAVE POST DIFFERENTIAL CONSIDERED AS EMBRACED WITHIN TERM "PAY" AS USED IN PUBLIC LAW 90-616 AND CONSEQUENTLY HAVE LIABILITY FOR RECOVERY WAIVED. HOWEVER SEPARATE MAINTENANCE ALLOWANCE IS A PART OF THE COST-OF-LIVING ALLOWANCE AUTHORIZED FOR EMPLOYEES IN FOREIGN AREAS AND MAY NOT BE CONSIDERED PAY FOR WAIVER UNDER PUBLIC LAW 90 616.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER OF JUNE 19, 1969, FROM THE COMMANDER, U.S. NAVAL SUPPORT ACTIVITY, DA NANG, NK/GEH: SHO, 12500, SER 47/3450, FORWARDED HERE BY 1ST ENDORSEMENT OF AUGUST 12, 1969, FROM THE COMMANDER, NAVY ACCOUNTING AND FINANCE CENTER, NAFC-3121, CONCERNING A REQUEST FOR WAIVER OF CLAIM FOR OVERPAYMENT OF PAY MADE TO MR. JOHN D. KILGORE, JR.

THE INFORMATION FURNISHED SHOWS THAT UPON COMPLETION OF HIS EMPLOYMENT AGREEMENT MR. KILGORE DEPARTED VIETNAM FOR REASSIGNMENT TO ANOTHER ACTIVITY. WHILE IN VIETNAM HE WAS ENTITLED TO A 25 PERCENT POST DIFFERENTIAL (PD) AND SEPARATE MAINTENANCE ALLOWANCE (SMA) IN ADDITION TO HIS NORMAL PAY. UNDER PARAGRAPH 264.2 OF THE STANDARDIZED REGULATIONS, HIS ENTITLEMENT TO THE ALLOWANCES SHOULD HAVE STOPPED UPON HIS DEPARTURE FOR THE UNITED STATES UNDER A PERMANENT CHANGE OF DUTY STATION. HOWEVER, DUE TO AN ADMINISTRATIVE ERROR, MR. KILGORE WAS OVERPAID FROM THE DATE OF HIS DEPARTURE, JANUARY 16, 1969, THROUGH FEBRUARY 22, 1969, IN THE AMOUNT OF $412.30 SMA AND $336.96 PD, FOR A TOTAL OVERPAYMENT OF $749.26.

PUBLIC LAW 90-616, CONTAINED IN 5 U.S.C. 5584, AUTHORIZES, UNDER THE CONDITIONS SET FORTH THEREIN AND THE IMPLEMENTING STANDARDS PROMULGATED BY OUR OFFICE AND PUBLISHED IN TITLE 4, CHAPTER III OF THE CODE OF FEDERAL REGULATIONS (REVISED AS OF JANUARY 1, 1969), THE WAIVER OF ERRONEOUS PAYMENTS OF PAY MADE TO AN EMPLOYEE. UNDER THE PROVISIONS OF 5 U.S.C. 5925 A POST DIFFERENTIAL IS REFERRED TO AS ADDITIONAL PAY AND MAY BE CONSIDERED OR EMBRACED WITHIN THE TERM "PAY" AS USED IN PUBLIC LAW 90- 616. HOWEVER, A SEPARATE MAINTENANCE ALLOWANCE IS A PART OF THE COST-OF- LIVING ALLOWANCES AUTHORIZED BY 5 U.S.C. 5924 TO AN EMPLOYEE IN A FOREIGN AREA, AND NOWHERE THEREIN ARE SUCH ALLOWANCES REFERRED TO AS PAY. ACCORDINGLY, ERRONEOUS PAYMENTS OF SEPARATE MAINTENANCE ALLOWANCES MADE IN A FOREIGN AREA ARE NOT TO BE REGARDED AS SUBJECT TO THE WAIVER PROVISIONS OF THE ACT.

SINCE THE AMOUNT OF THE OVERPAYMENT TO BE CONSIDERED FOR WAIVER WOULD BE THE AMOUNT PAID MR. KILGORE FOR POST DIFFERENTIAL, $336.96, WAIVER OF RECOVERY OF SUCH ERRONEOUS PAYMENTS WOULD BE FOR CONSIDERATION BY THE DEPARTMENT OF THE NAVY IN ACCORDANCE WITH PART 201.4 (B) OF THE ABOVE REFERRED TO STANDARDS ISSUED BY THE COMPTROLLER GENERAL WHICH WERE FORWARDED TO HEADS OF EXECUTIVE AGENCIES BY CIRCULAR LETTER B-152040, B- 158422, DATED DECEMBER 26, 1968.

THE CORRESPONDENCE ATTACHED TO THE 1ST ENDORSEMENT OF AUGUST 12, 1969, IS RETURNED.