B-168621, MARCH 18, 1970, 49 COMP. GEN. 596

B-168621: Mar 18, 1970

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IS NOT REQUIRED. 1970: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4. IN WHICH YOU STATE THAT YOU HAVE RECEIVED AN INQUIRY FROM THE CHAIRMAN OF THE HOUSE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS AND ALSO FROM THE DEPARTMENT OF DEFENSE ON THE QUESTION OF WHETHER AN EMPLOYEE'S REGISTERING TO VOTE IN GUAM WOULD CAUSE TERMINATION OF HIS NONFOREIGN POST DIFFERENTIAL AND OTHER FRINGE BENEFITS. YOUR LETTER STATES THAT IT APPEARS THAT EMPLOYEES WHO DESIRE TO REGISTER AND VOTE IN GUAM HAVE BEEN REFRAINING FROM DOING SO BECAUSE OF THE FEAR THAT THE ATTESTATION REQUIRED IN THE AFFIDAVIT OF REGISTRATION WOULD HAVE THAT EFFECT ALTHOUGH YOU HAVE NOT BEEN TOLD OF ANY INSTANCE IN WHICH AN EMPLOYEE HAS REGISTERED WITH SUCH A RESULT.

B-168621, MARCH 18, 1970, 49 COMP. GEN. 596

OFFICERS AND EMPLOYEES -- OVERSEAS -- REGISTRATION TO VOTE -- EFFECT ON BENEFITS REGISTERING TO VOTE IN GUAM DOES NOT DEPRIVE A CIVILIAN EMPLOYEE OF THE BENEFITS PRESCRIBED FOR OVERSEAS SERVICE WHERE NEITHER THE ACTS INVOLVED NOR THEIR LEGISLATIVE HISTORIES INDICATE AN INTENT THAT AN EMPLOYEE BE DENIED ENTITLED BENEFITS BECAUSE OF THE REGISTRATION. THEREFORE, TERMINATION OF THE EMPLOYEE'S ENTITLEMENT TO THE NONFOREIGN POST DIFFERENTIAL AUTHORIZED IN 5 U.S.C. 5941(A)(2) AND EXECUTIVE ORDER NO. 10,000 AS A RECRUITMENT INCENTIVE; TO THE HOME LEAVE PROVIDED IN 5 U.S.C. 6305(A) AFTER 24 MONTHS OF CONTINUOUS SERVICE OUTSIDE THE UNITED STATES; TO THE UP TO 45 DAYS ACCUMULATION OF UNUSED LEAVE UNDER 5 U.S.C. 6304(B); TO TRAVEL TIME WITHOUT CHARGE TO LEAVE UNDER 5 U.S.C. 6303(D); AND TO PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES PURSUANT TO 5 U.S.C. 5728(A), INCIDENT TO VACATION LEAVE TO THE "PLACE OF ACTUAL RESIDENCE" ESTABLISHED AT THE TIME OF THE EMPLOYEE'S APPOINTMENT OR TRAVEL OVERSEAS, IS NOT REQUIRED.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, MARCH 18, 1970:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4, 1970, IN WHICH YOU STATE THAT YOU HAVE RECEIVED AN INQUIRY FROM THE CHAIRMAN OF THE HOUSE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS AND ALSO FROM THE DEPARTMENT OF DEFENSE ON THE QUESTION OF WHETHER AN EMPLOYEE'S REGISTERING TO VOTE IN GUAM WOULD CAUSE TERMINATION OF HIS NONFOREIGN POST DIFFERENTIAL AND OTHER FRINGE BENEFITS.

YOUR LETTER STATES THAT IT APPEARS THAT EMPLOYEES WHO DESIRE TO REGISTER AND VOTE IN GUAM HAVE BEEN REFRAINING FROM DOING SO BECAUSE OF THE FEAR THAT THE ATTESTATION REQUIRED IN THE AFFIDAVIT OF REGISTRATION WOULD HAVE THAT EFFECT ALTHOUGH YOU HAVE NOT BEEN TOLD OF ANY INSTANCE IN WHICH AN EMPLOYEE HAS REGISTERED WITH SUCH A RESULT.

SPECIFICALLY YOU REQUEST OUR DECISION AS TO WHETHER AN EMPLOYEE'S ATTESTING AS REQUIRED IN THE AFFIDAVIT OF REGISTRATION WOULD REQUIRE TERMINATION OF HIS ENTITLEMENT TO (1) NONFOREIGN DIFFERENTIAL UNDER 5 U.S.C. 5941(A)(2) AND EXECUTIVE ORDER NO. 10,000; (2) HOME LEAVE UNDER 5 U.S.C. 6305; (3) ACCUMULATION OF UNUSED ANNUAL LEAVE UP TO 45 DAYS UNDER 5 U.S.C. 6304(B); (4) CERTAIN TRAVEL TIME WITHOUT CHARGE TO LEAVE UNDER 5 U.S.C. 6303(D) AND (5) PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES TO THE "PLACE OF ACTUAL RESIDENCE" ON VACATION LEAVE UNDER 5 U.S.C. 5728.

THE MATERIAL ENCLOSED WITH YOUR LETTER DID NOT INCLUDE A COPY OF THE "AFFIDAVIT OF REGISTRATION" BUT IT DOES DISCLOSE THAT THE LEGISLATURE OF GUAM ENACTED "PL 8-59, 9 AUGUST 1965," WHICH INTER ALIA, PROVIDES FOR A 1- YEAR RESIDENCE REQUIREMENT. THE ATTORNEY GENERAL OF GUAM HAS INTERPRETED THIS LAW TO REQUIRE, IN ADDITION TO PHYSICAL PRESENCE, THE PREEXISTENCE FOR A PERIOD OF 1 YEAR OF AN INTENT TO REMAIN PERMANENTLY IN THE TERRITORY OF GUAM. THE OATH WHICH IS A PART OF THE "AFFIDAVIT OF REGISTRATION" REQUIRES THE APPLICANT TO ATTEST TO HIS INTENTION OF MAKING GUAM HIS HOME TO THE EXCLUSION OF ALL OTHER PLACES FOR A PERIOD OF 1 YEAR IMMEDIATELY PRECEDING THE DAY OF THE NEXT GENERAL ELECTION AND THAT HE POSSESSES NO PRESENT INTENTION TO REMOVE HIS HOME FROM GUAM AT ANY GIVEN FUTURE TIME.

THE DIFFERENTIAL HERE INVOLVED IS BASED UPON 5 U.S.C. 5941(A) WHICH PROVIDES:

(A) APPROPRIATIONS OR FUNDS AVAILABLE TO AN EXECUTIVE AGENCY, EXCEPT A GOVERNMENT CONTROLLED CORPORATION, FOR PAY OF EMPLOYEES STATIONED OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA WHOSE RATES OF BASIC PAY ARE FIXED BY STATUTE, ARE AVAILABLE FOR ALLOWANCES TO THESE EMPLOYEES. THE ALLOWANCE IS BASED ON--

(1) LIVING COSTS SUBSTANTIALLY HIGHER THAN IN THE DISTRICT OF COLUMBIA;

(2) CONDITIONS OF ENVIRONMENT WHICH DIFFER SUBSTANTIALLY FROM CONDITIONS OF ENVIRONMENT IN THE CONTINENTAL UNITED STATES AND WARRANT AN ALLOWANCE AS A RECRUITMENT INCENTIVE; OR

(3) BOTH OF THESE FACTORS. THE ALLOWANCE MAY NOT EXCEED 25 PERCENT OF THE RATE OF BASIC PAY. EXCEPT AS OTHERWISE SPECIFICALLY AUTHORIZED BY STATUTE, THE ALLOWANCE IS PAID ONLY IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT ESTABLISHING THE RATES AND DEFINING THE AREA, GROUPS OF POSITIONS, AND CLASSES OF EMPLOYEES TO WHICH EACH RATE APPLIES.

THE SUBSTANCE OF THESE PROVISIONS ORIGINALLY WAS INCLUDED IN SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, APPROVED APRIL 20, 1948, PUBLIC LAW 491, 80TH CONGRESS, 62 STAT. 194, AS AMENDED BY SECTION 104 OF THE SUPPLEMENTAL INDEPENDENT OFFICES APPROPRIATION ACT, 1949, APPROVED JUNE 30, 1948, PUBLIC LAW 862, 80TH CONGRESS, 62 STAT. 1205, 5 U.S.C. 118H.

PRIOR TO THE ENACTMENT OF SECTION 207, AS AMENDED, AN ADMINISTRATIVE PRACTICE HAD ARISEN OF PAYING A DIFFERENTIAL TO PERSONS WHO OCCUPIED POSITIONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, EITHER IN THE POSSESSIONS OF THE UNITED STATES OR IN FOREIGN COUNTRIES. THIS OFFICE RECOGNIZED THAT PRACTICE AS LONG AS THE DIFFERENTIAL DID NOT EXCEED BY MORE THAN 25 PERCENT THE SALARY RATES AUTHORIZED TO BE FIXED FOR THE SAME OR SIMILAR POSITIONS IN THE UNITED STATES. THAT ADMINISTRATIVE PRACTICE AROSE BECAUSE OF CONDITIONS WHICH MADE IT IMPRACTICABLE FOR VARIOUS ADMINISTRATIVE OFFICES TO RECRUIT PERSONNEL FOR POSITIONS OUTSIDE THE UNITED STATES WITHOUT PAYING HIGHER SALARY RATES THAN THOSE PRESCRIBED BY THE CLASSIFICATION ACT OF 1923, 42 STAT. 1488, FOR THE SAME OR SIMILAR POSITIONS IN THE DEPARTMENTAL SERVICE. SEE 22 COMP. GEN. 491 (1942) TO THE PRESIDENT OF THE UNITED STATES CIVIL SERVICE COMMISSION. IT WAS CONTEMPLATED, BY THE ENACTMENT OF SECTION 207, THAT THE PRESIDENT WOULD PROMULGATE RULES AND REGULATIONS WHICH WOULD MAKE THE PRACTICE UNIFORM AMONG THE AGENCIES AFFECTED. SEE H. REPT. NO. 1288, JANUARY 30, 1948, 80TH CONG., 2D SESS. EXECUTIVE ORDER NO. 10,000 WAS ISSUED FOR THAT PURPOSE. PURSUANT TO PART II OF EXECUTIVE ORDER NO. 10,000 THE CIVIL SERVICE COMMISSION ISSUED REGULATIONS WHICH ARE FOUND IN 5 CFR SEC. 591.101-591,401.

UNDER THE STATUTE AND ITS LEGISLATIVE BACKGROUND AS WELL AS UNDER PART II OF EXECUTIVE ORDER NO. 10,000, AS AMENDED, AND THE APPLICABLE CIVIL SERVICE REGULATIONS IT IS APPARENT THAT THE DIFFERENTIAL IS PAYABLE PRIMARILY AS A RECRUITMENT INCENTIVE. THERE IS NOTHING IN THE STATUTE, THE LEGISLATIVE BACKGROUND, EXECUTIVE ORDER NO. 10,000, AS AMENDED, OR THE APPLICABLE CIVIL SERVICE REGULATIONS WHICH WOULD WARRANT A CONCLUSION THAT THE DIFFERENTIAL OTHERWISE PROPERLY PAYABLE TO AN EMPLOYEE AS A RECRUITMENT INCENTIVE WOULD OR SHOULD BE WITHDRAWN FROM THE EMPLOYEE DURING ANY PART OF THE PERIOD FOR WHICH THE EMPLOYEE WAS RECRUITED, MERELY BECAUSE HE HAD REGISTERED TO VOTE IN A LOCAL ELECTION. NOR, IN OUR OPINION, IS THERE ANYTHING ABOUT THE VOTING REQUIREMENTS FOR GUAM WHICH WOULD REQUIRE SUCH A CONCLUSION.

SINCE 5 U.S.C. 6305(B) PERTAINS TO LEAVE FOR CHIEFS OF MISSIONS AND 5 U.S.C. 6305(C) PERTAINS TO LEAVE FOR CREWS OF VESSELS IT IS PRESUMED THAT YOUR QUESTION AS TO HOME LEAVE INVOLVES 5 U.S.C. 6305(A) WHICH PROVIDES:

(A) AFTER 24 MONTHS OF CONTINUOUS SERVICE OUTSIDE THE UNITED STATES, AN EMPLOYEE MAY BE GRANTED LEAVE OF ABSENCE, UNDER REGULATIONS OF THE PRESIDENT, AT A RATE NOT TO EXCEED 1 WEEK FOR EACH 4 MONTHS OF THAT SERVICE WITHOUT REGARD TO OTHER LEAVE PROVIDED BY THIS SUBCHAPTER. LEAVE SO GRANTED--

(1) IS FOR USE IN THE UNITED STATES, OR IF THE EMPLOYEE'S PLACE OF RESIDENCE IS OUTSIDE THE AREA OF EMPLOYMENT, IN ITS TERRITORIES OR POSSESSIONS INCLUDING THE COMMONWEALTH OF PUERTO RICO;

(2) ACCUMULATES FOR FUTURE USE WITHOUT REGARD TO THE LIMITATION IN SECTION 6304(B) OF THIS TITLE; AND

(3) MAY NOT BE MADE THE BASIS FOR TERMINAL LEAVE OR FOR A LUMP-SUM PAYMENT. THIS PROVISION HAD ITS ORIGIN IN SECTION 203 OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, 680, AS AMENDED, BY SECTION 401 OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT, PUBLIC LAW 86 707, APPROVED SEPTEMBER 6, 1960, 74 STAT. 799, 5 U.S.C. 2062. THE DECLARED CONGRESSIONAL PURPOSE OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT, AS SET OUT IN SECTION 101 OF THAT ACT, IS TO IMPROVE AND STRENGTHEN THE ADMINISTRATION OF OVERSEAS ACTIVITIES OF THE GOVERNMENT BY AMONG OTHER THINGS PROVIDING FOR THE UNIFORM TREATMENT OF EMPLOYEES STATIONED OVERSEAS TO THE EXTENT JUSTIFIED BY RELATIVE CONDITIONS OF EMPLOYMENT AND BY FACILITATING FOR THE GOVERNMENT THE RECRUITMENT AND RETENTION OF THE BEST QUALIFIED PERSONNEL FOR CIVILIAN SERVICE OVERSEAS.

WE HAVE FOUND NOTHING IN THE LAST CITED ACTS OR IN THEIR LEGISLATIVE HISTORIES WHICH WOULD IN ANY WAY INDICATE A CONGRESSIONAL INTENTION TO DENY HOME LEAVE TO AN EMPLOYEE OTHERWISE AUTHORIZED TO BE GRANTED SUCH LEAVE BECAUSE THE EMPLOYEE REGISTERED TO VOTE IN THE LOCAL ELECTIONS IN THE UNITED STATES TERRITORY OR POSSESSION WHERE EMPLOYED. ALSO, THERE IS NOTHING IN THE REGULATIONS AS TO HOME LEAVE PRESCRIBED BY THE CIVIL SERVICE COMMISSION UNDER AUTHORITY OF EXECUTIVE ORDER NO. 11228, JUNE 14, 1965, WHICH WOULD DENY HOME LEAVE TO SUCH AN EMPLOYEE, SEE 5 CFR 630.601- 607.

THAT PART OF 5 U.S.C. 6304 WHICH AUTHORIZES THE ACCUMULATION OF UNUSED ANNUAL LEAVE BY CERTAIN CLASSES OF EMPLOYEES STATIONED OUTSIDE THE UNITED STATES UNTIL IT TOTALS NOT MORE THAN 45 DAYS, AS WELL AS 5 U.S.C. 6303(D) WHICH PROVIDES THAT NECESSARY TRAVEL TIME AND TIME NECESSARILY OCCUPIED IN AWAITING TRANSPORTATION TO OR FROM A PORT OF DUTY OUTSIDE THE UNITED STATES, ETC., SHALL NOT BE CHARGED TO LEAVE, LIKE 5 U.S.C. 6305, SUPRA, WERE LARGELY DERIVED FROM SECTION 203 OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED BY SECTION 401 OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT. THE APPLICABLE CIVIL SERVICE REGULATIONS PRESCRIBED UNDER AUTHORITY OF 5 U.S.C. 6311 ARE FOUND IN 5 CFR 630.302 AND 5 CFR 630.207. FOR REASONS SIMILAR TO THOSE STATED IN CONNECTION WITH HOME LEAVE WE CONCLUDE THAT ACCUMULATION OF UP TO 45 DAYS OF UNUSED ANNUAL LEAVE AS WELL AS TRAVEL TIME WITHOUT CHARGE TO LEAVE MAY NOT BE DENIED TO AN EMPLOYEE WHO REGISTERED AND VOTED IN THE LOCAL ELECTIONS IN GUAM PROVIDED THE EMPLOYEE WOULD OTHERWISE BE ENTITLED TO THOSE BENEFITS.

TRAVEL AND TRANSPORTATION EXPENSES INCIDENT TO VACATION OR HOME LEAVE FOR EMPLOYEES WHOSE POSTS OF DUTY ARE OUTSIDE THE CONTINENTAL UNITED STATES (OTHER THAN CERTAIN PRESIDENTIAL APPOINTEES) IS AUTHORIZED BY 5 U.S.C. 5728(A) WHICH PROVIDES:

(A) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, AN AGENCY SHALL PAY FROM ITS APPROPRIATIONS THE EXPENSES OF ROUNDTRIP TRAVEL OF AN EMPLOYEE, AND THE TRANSPORTATION OF HIS IMMEDIATE FAMILY, BUT NOT HOUSEHOLD GOODS, FROM HIS POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO THE PLACE OF HIS ACTUAL RESIDENCE AT THE TIME OF APPOINTMENT OR TRANSFER TO THE POST OF DUTY, AFTER HE HAS SATISFACTORILY COMPLETED AN AGREED PERIOD OF SERVICE OUTSIDE THE CONTINENTAL UNITED STATES AND IS RETURNING TO HIS ACTUAL PLACE OF RESIDENCE TO TAKE LEAVE BEFORE SERVING ANOTHER TOUR OF DUTY AT THE SAME OR ANOTHER POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES UNDER A NEW WRITTEN AGREEMENT MADE BEFORE DEPARTING FROM THE POST OF DUTY. THIS PROVISION IS LARGELY BASED ON SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, WHICH FORMERLY APPEARED IN 5 U.S.C. 73B-3. WITH REFERENCE TO THAT PROVISION WE HELD IN 37 COMP. GEN. 846 (1958) WHICH INVOLVED AN EMPLOYEE HIRED IN LOS ANGELES, CALIFORNIA, UNDER AN AGREEMENT TO SERVE IN HAWAII FOR TWO YEARS, AND WHO HAD MADE HAWAII HIS HOME WITH LOS ANGELES NO LONGER HIS LEGAL OR ACTUAL RESIDENCE:

UNDER THE LANGUAGE OF THE STATUTE, THE LOCATION OF THE PLACE OF ACTUAL RESIDENCE FOR BOTH SEPARATION AND HOME LEAVE TRAVEL PURPOSES IS ESTABLISHED AT THE "TIME" OF THE EMPLOYEE'S APPOINTMENT OR TRANSFER TO THE OVERSEAS POST OF DUTY AND IS NOT AFFECTED BY CHANGES IN THE EMPLOYEE'S INTENTIONS SUBSEQUENT TO THE TIME OF SUCH APPOINTMENT OR TRANSFER. THE LEGISLATIVE HISTORY OF THE ACT DOES NOT SHOW A CONGRESSIONAL INTENT TO THE CONTRARY. THAT PART OF THE DECISION IN 35 COMP. GEN. 270 (AT PAGE 272 WHICH SAYS THAT ON ABANDONMENT OF THE RESIDENCE IN THE UNITED STATES SUBSEQUENT TO THE APPOINTMENT OVERSEAS IS A BASIS FOR BARRING BENEFITS OF RETURN TO THE UNITED STATES UNDER THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, WAS NOT NECESSARY TO THE CONCLUSION REACHED IN THAT CASE AND IS TO BE DISREGARDED SO FAR AS IT IS INCONSISTENT WITH THE STATEMENT ABOVE THAT THE LOCATION OF THE PLACE OF ACTUAL RESIDENCE FOR THE PURPOSE OF THE ACT IS ESTABLISHED AT THE TIME OF THE EMPLOYEE'S APPOINTMENT OR TRANSFER.

WHAT WAS SAID IN THAT CASE WOULD BE EQUALLY APPLICABLE UNDER THE PROVISIONS OF 5 U.S.C. 5728 TO PERSONS APPOINTED OR TRANSFERRED FOR SERVICE IN GUAM. SEE ALSO 37 COMP. GEN. 848 (1958). AS TO THE REGULATIONS GENERALLY GOVERNING THE ALLOWANCE OF TRAVEL AND TRANSPORTATION EXPENSES IN CONNECTION WITH LEAVE FOR RETURNING TO PLACE OF RESIDENCE BETWEEN TOURS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES, SEE SECTION 7 OF BUREAU OF THE BUDGET CIRCULAR NO. A-56.

THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.