B-168411, JUL. 9, 1970

B-168411: Jul 9, 1970

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A-56 WERE MORE RESTRICTIVE THAN REQUIRED. COST-OF-LIVING ALLOWANCES OR SUBSISTENCE EXPENSE PAYMENTS ARE NOT CONSIDERED WITHIN TERM "PAY" FOR WAIVER AS ERRONEOUS PAYMENTS UNDER PUBLIC LAW 90-616. SUCH OVERPAYMENTS WERE DETERMINED ON THE BASIS OF DECISIONS BY THIS OFFICE CONSTRUING THE PROVISIONS OF SECTION 2.5B(8) OF BUREAU OF THE BUDGET CIRCULAR NO. A-56 WAS AGAIN REVISED JUNE 26. WITH RESPECT TO SECTION 2.5B(8) LANGUAGE WAS ADDED PROVIDING THAT A COST-OF-LIVING ALLOWANCE PAYABLE UNDER 5 U.S.C. 5941 IS NOT A DUPLICATION OF SUBSISTENCE EXPENSES. WE NOTE IN PARAGRAPH 4 OF TRANSMITTAL MEMORANDUM COVERING THE 1969 REVISION THAT THE ADDITION TO SECTION 2.5B(8) IS REFERRED TO AS A LANGUAGE CHANGE TO CLARIFY THE PROVISION RATHER THAN AS A REVISION.

B-168411, JUL. 9, 1970

CIVIL PAY -- CONCURRENT PAYMENTS OF COST-OF-LIVING ALLOWANCES AND SUBSISTENCE FOR TEMPORARY QUARTERS OCCUPANCY -- WAIVER OF OVERPAYMENTS DECISION TO THE SECRETARY OF DEFENSE CONCLUDING THAT PRIOR HOLDINGS PRECLUDING CONCURRENT RECEIPT OF SUBSISTENCE FOR OCCUPANCY OF TEMPORARY QUARTERS AND COST-OF-LIVING ALLOWANCES AS BEING A DUPLICATION OF PAYMENTS UNDER SEC. 2.5B(8) OF BUREAU OF THE BUDGET CIRCULAR NO. A-56 WERE MORE RESTRICTIVE THAN REQUIRED. EMPLOYEES WHO HAD PAYMENTS FOR SUBSISTENCE EXPENSES WHILE OCCUPYING TEMPORARY QUARTERS WITHHELD AS BEING DUPLICATIVE OF AMOUNTS CONCURRENTLY RECEIVED AS TERRITORIAL COST-OF-LIVING ALLOWANCES MAY NOW BE ALLOWED SUCH AMOUNTS. COST-OF-LIVING ALLOWANCES OR SUBSISTENCE EXPENSE PAYMENTS ARE NOT CONSIDERED WITHIN TERM "PAY" FOR WAIVER AS ERRONEOUS PAYMENTS UNDER PUBLIC LAW 90-616. B-162977, DEC. 26, 1967; B-162977, APRIL 29, 1968; B-167038, JUNE 16, 1969; AND B-167038, MARCH 26, 1970 OVERRULED.

TO MR. SECRETARY:

BY LETTER OF NOVEMBER 15, 1969, MR. ROBERT C. MOOT, ASSISTANT SECRETARY OF DEFENSE, REQUESTED A DECISION ON CERTAIN QUESTIONS IN CONNECTION WITH THE IMPLEMENTATION OF PUBLIC LAW 90-616, APPROVED OCTOBER 21, 1968, 5 U.S.C. 5584, CONCERNING WAIVER OF CLAIMS FOR ERRONEOUS PAYMENTS OF PAY.

THE QUESTIONS RAISED INVOLVE OVERPAYMENTS WHICH RESULTED FROM PAYMENTS OF COST-OF-LIVING ALLOWANCES DURING PERIODS FOR WHICH THE EMPLOYEES INVOLVED QUALIFIED FOR AND RECEIVED ALLOWANCES FOR SUBSISTENCE EXPENSES WHILE OCCUPYING TEMPORARY QUARTERS. SUCH OVERPAYMENTS WERE DETERMINED ON THE BASIS OF DECISIONS BY THIS OFFICE CONSTRUING THE PROVISIONS OF SECTION 2.5B(8) OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966, THAT: "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."

CIRCULAR NO. A-56 WAS AGAIN REVISED JUNE 26, 1969, AND WITH RESPECT TO SECTION 2.5B(8) LANGUAGE WAS ADDED PROVIDING THAT A COST-OF-LIVING ALLOWANCE PAYABLE UNDER 5 U.S.C. 5941 IS NOT A DUPLICATION OF SUBSISTENCE EXPENSES. WE NOTE IN PARAGRAPH 4 OF TRANSMITTAL MEMORANDUM COVERING THE 1969 REVISION THAT THE ADDITION TO SECTION 2.5B(8) IS REFERRED TO AS A LANGUAGE CHANGE TO CLARIFY THE PROVISION RATHER THAN AS A REVISION. ALSO, WE HAVE RECEIVED A REPORT FROM THE BUREAU OF THE BUDGET ASSERTING THAT IT WAS NOT THE BUREAU'S ORIGINAL INTENT TO REQUIRE AN EMPLOYEE TO FORFEIT HIS ENTITLEMENT TO A COST-OF-LIVING ALLOWANCE OR PART OF HIS ENTITLEMENT TO THE ALLOWANCE FOR SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS WHEN BOTH WERE PROPERLY PAYABLE, AND THAT APPLICATION OF THE AMENDED REGULATION FROM JULY 21, 1966, WOULD BE IN KEEPING WITH THE INTENT OF THE EARLIER REGULATION.

UPON A FULL REVIEW OF THE QUESTION POSED BY CASES SIMILAR TO THE ONES THAT GENERATED THE ASSISTANT SECRETARY'S REQUEST FOR AN OPINION, WE ARE NOW OF THE VIEW THAT OUR PRIOR HOLDINGS ON THE QUESTION OF DUPLICATION WITH RESPECT TO CONCURRENT RECEIPT OF SUBSISTENCE AND COST-OF-LIVING ALLOWANCES HAVE BEEN MORE RESTRICTIVE THAN CONTEMPLATED BY THE STATUTORY REGULATION THEN IN EFFECT.

ACCORDINGLY, PAYMENTS FOR SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS WHICH HAVE BEEN WITHHELD BECAUSE THEY WERE CONSIDERED TO DUPLICATE, IN WHOLE OR IN PART, AMOUNTS CONCURRENTLY PAID AS TERRITORIAL COST-OF-LIVING ALLOWANCES SHOULD NOW BE ALLOWED.

WHILE IN LIGHT OF THE CONCLUSION REACHED HEREIN, ANSWERS TO SPECIFIC QUESTIONS RELATING TO WAIVER OF THE OVERPAYMENTS INVOLVED IS NOT REQUIRED, WE WOULD POINT OUT THAT PUBLIC LAW 90-616 PROVIDES AUTHORITY FOR WAIVER OF CLAIMS ARISING OUT OF ERRONEOUS PAYMENTS OF PAY, AND THAT THE REGULATIONS AT PART 91, CHAPTER I OF TITLE 4 OF THE CODE OF FEDERAL REGULATIONS DO NOT INCLUDE COST-OF-LIVING ALLOWANCES OR SUBSISTENCE EXPENSES WITHIN THE MEANING OF THAT TERM. SUCH ALLOWANCES ARE NOT REGARDED AS SUBJECT TO THE WAIVER PROVISIONS OF PUBLIC LAW 90-616.