B-169294, JUN. 11, 1970

B-169294: Jun 11, 1970

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THE FOLLOWING QUESTIONS ARE PRESENTED: "A. IS DIFFERENTIAL PAY COMPUTED ON FULL DAYS. IS AN ANNUAL RATE OF $44. DUNN IS A GS 14/6 AT $21. "C. IS THIS DIFFERENTIAL CONSIDERED AS 'OTHER COMPENSATION' AND NOT SUBJECT TO CIVIL SERVICE RETIREMENT DEDUCTIONS"? B. 'DIFFERENTIAL POST' MEANS "(1) A PLACE LISTED INDIVIDUALLY IN SECTION 920 FOR WHICH A POST DIFFERENTIAL RATE OTHER THAN ZERO IS SHOWN IN COLUMN 7. OR "(2) A PLACE WHICH IS NOT LISTED INDIVIDUALLY IN SECTION 920 BUT WHICH IS LOCATED IN A COUNTRY OR AREA FOR WHICH A POST DIFFERENTIAL RATE OTHER THAN ZERO IS SHOWN IN COLUMN 7 OF SECTION 920. OCCURRING WHILE THE EMPLOYEE IS ON DETAIL AT A DIFFERENTIAL POST.". AS FOLLOWS: "TO BECOME ELIGIBLE FOR POST DIFFERENTIAL *** THE EMPLOYEE *** ON DETAIL *** MUST HAVE SERVED.

B-169294, JUN. 11, 1970

TO MR. C. R. MUIRHEID:

YOUR LETTER OF MARCH 9, 1970, REFERENCE DESC-CA, REQUESTS OUR DECISION IN ACCORDANCE WITH 3 GAO 27.3 ON CERTAIN QUESTIONS CONCERNING THE ENTITLEMENT OF AN EMPLOYEE ON TEMPORARY DUTY IN VIETNAM AND THAILAND TO PAYMENT OF FOREIGN DIFFERENTIAL FOR THE PERIOD OCTOBER 5 THROUGH DECEMBER 14, 1969.

THE FOLLOWING QUESTIONS ARE PRESENTED:

"A. IS DIFFERENTIAL PAY COMPUTED ON FULL DAYS, I.E; MIDNIGHT TO MIDNIGHT? IF SO, BASED ON THE ENCLOSED ITINERARY, WOULD ENTITLEMENT BE AS FOLLOWS:

"(1) 9 OCTOBER -- 24 OCTOBER 1969 -- 25 PERCENT (VIET-NAM)

"(2) 25 OCTOBER 1969 -- 10 PERCENT (BANGKOK, THAILAND)

"(3) 26 OCTOBER -- 10 DECEMBER 1969 -- 25 PERCENT (VIET-NAM)

"B. IS AN ANNUAL RATE OF $44,900 THE MAXIMUM AGGREGATE SALARY APPLICABLE? MR. DUNN IS A GS 14/6 AT $21,621 PER ANNUM AND FOR PAY PERIODS ENDING 1 NOVEMBER, 15 NOVEMBER, AND 29 NOVEMBER 1969 HAS BEEN PAID SUFFICIENT OVERTIME TO BRING HIS GROSS PAY UP TO $1,079.20. "C. IS THIS DIFFERENTIAL CONSIDERED AS 'OTHER COMPENSATION' AND NOT SUBJECT TO CIVIL SERVICE RETIREMENT DEDUCTIONS"?

CHAPTER 500, STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) COVERS POST DIFFERENTIALS. SECTION 511 PROVIDES AS FOLLOWS:

"511 DEFINITIONS

"FOR THE PURPOSE OF THIS CHAPTER

"A. 'POST DIFFERENTIAL' MEANS THE ADDITIONAL COMPENSATION OF 10, 15, 20, OR 25 PERCENT OVER BASIC COMPENSATION GRANTED PURSUANT TO TITLE II, PART D, OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT (PUBLIC LAW 86 707) AND PROVISIONS OF THIS CHAPTER TO EMPLOYEES (SECS. 031.3 AND 040I) AT DIFFERENTIAL POSTS.

B. 'DIFFERENTIAL POST' MEANS

"(1) A PLACE LISTED INDIVIDUALLY IN SECTION 920 FOR WHICH A POST DIFFERENTIAL RATE OTHER THAN ZERO IS SHOWN IN COLUMN 7; OR

"(2) A PLACE WHICH IS NOT LISTED INDIVIDUALLY IN SECTION 920 BUT WHICH IS LOCATED IN A COUNTRY OR AREA FOR WHICH A POST DIFFERENTIAL RATE OTHER THAN ZERO IS SHOWN IN COLUMN 7 OF SECTION 920.

C. 'DETAIL' MEANS DETAIL AS DEFINED IN SECTION 040P. FOR A MINIMUM OF 24 CONSECUTIVE HOURS, COUNTED FROM TIME OF ARRIVAL, AT A PLACE OTHER THAN THE EMPLOYEE'S POST (SEC. 040H.) INCLUDING ALSO ALL PERIODS OF LEAVE WHILE SERVING AT THE PLACE OF DETAIL.

"D. 'DAY' MEANS EACH MIDNIGHT, INCLUDING THE MIDNIGHT OF THE 24-HOUR PERIOD REQUIRED BY C. ABOVE, OCCURRING WHILE THE EMPLOYEE IS ON DETAIL AT A DIFFERENTIAL POST."

SECTION 541 OF THE FOREGOING REGULATIONS READS, IN PERTINENT PART, AS FOLLOWS:

"TO BECOME ELIGIBLE FOR POST DIFFERENTIAL *** THE EMPLOYEE *** ON DETAIL *** MUST HAVE SERVED, DURING ANY ONE PERIOD OF ABSENCE, 42 DAYS (SEC. 511D) ON DETAIL AT ONE OR MORE DIFFERENTIAL POSTS *** (SEE EXCEPTION FOR VIET-NAM IN SECTION 920.)"

SECTION 920 THEREOF AT PAGE 58, PROVIDES, BEGINNING APRIL 1, 1966, THAT:

"IN LIEU OF ANY OTHER DIFFERENTIAL AUTHORIZED BY THESE REGULATIONS, AN EMPLOYEE WHO SERVES FOR A PERIOD OF 42 CONSECUTIVE CALENDAR DAYS (SEC. 511D) OR MORE ON DETAIL AT ONE OR MORE PLACES IN VIET-NAM MAY BE GRANTED THE POST DIFFERENTIAL AT THE PRESCRIBED RATE FOR THE NUMBER OF DAYS SERVED AT EACH SUCH PLACE, BEGINNING WITH THE FIRST DAY OF DETAIL IN VIET-NAM."

THAT SECTION, COLUMN 7, SHOWS A DIFFERENTIAL RATE OF 25 PERCENT FOR ALL AREAS OF VIETNAM EFFECTIVE DURING THE PERIOD OF THE CLAIMANT'S SERVICE, I.E; OCTOBER 5 THROUGH DECEMBER 14, 1969.

SINCE THE CLAIMANT SERVED 46 CONSECUTIVE DAYS, OCTOBER 26 THROUGH DECEMBER 10, 1969, IN VIETNAM HE IS ENTITLED UNDER THE PROVISIONS OF SECTION 920, QUOTED ABOVE, TO PAYMENT OF THE 25 PERCENT DIFFERENTIAL FOR THAT PERIOD. HOWEVER, SINCE ON OCTOBER 25, 1969, THE ONE DAY HE SPENT IN BANGKOK, THAILAND, A 10 PERCENT POST, HE HAD NOT YET SERVED 42 DAYS ON DETAIL AT ONE OR MORE DIFFERENTIAL POSTS, NO BASIS EXISTS UNDER SECTION 541 FOR PAYING THE POST DIFFERENTIAL FOR THAT ONE DAY OR FOR ANY DAYS PRIOR THERETO. THE COMPUTATION OF THE ALLOWABLE POST DIFFERENTIAL (25 PERCENT) FOR 46 DAYS IS TO BE MADE IN FULL DAYS (MIDNIGHT TO MIDNIGHT AS INDICATED IN THE ABOVE REGULATIONS). QUESTION A. IS ANSWERED ACCORDINGLY.

WITH RESPECT TO QUESTION B; THE PROVISIONS OF 5 U.S.C. 5547, ARE AS FOLLOWS:

"AN EMPLOYEE MAY BE PAID PREMIUM PAY UNDER SECTIONS 5542, 5545 (A) -- (C), AND 5546 (A), (B) OF THIS TITLE ONLY TO THE EXTENT THAT THE PAYMENT DOES NOT CAUSE HIS AGGREGATE RATE OF PAY FOR ANY PAY PERIOD TO EXCEED THE MAXIMUM RATE FOR GS-15."

IT SHOULD BE NOTED THAT ALTHOUGH THE LIMITATION IS PHRASED IN TERMS OF "AGGREGATE RATE OF PAY," THE BASIC STATUTE FROM WHICH IT WAS DERIVED IS PHRASED IN TERMS OF A LIMITATION ON "RATE OF BASIC COMPENSATION." SEE SECTION 943 OF FORMER TITLE 5, UNITED STATES CODE. THE ENACTMENT OF TITLE 5 AS POSITIVE LAW WAS NOT INTENDED TO ALTER THE MEANING OF THE BASIC STATUTES RESTATED.

WE DO NOT UNDERSTAND THE $44,900 FIGURE CONTAINED IN QUESTION B. ALSO WE ASSUME THIS QUESTION RELATES TO RECEIPT OF POST DIFFERENTIAL. THE MAXIMUM AGGREGATE GROSS SALARY PAYABLE BIWEEKLY UNDER THE FOREGOING PROVISIONS IS $1,079.20 WHICH IS DERIVED FROM THE RATE OF $28,069 PER ANNUM THE MAXIMUM RATE OF GRADE GS-15 IN EFFECT AT THE TIME THE SERVICE HEREIN WAS PERFORMED. THE POST DIFFERENTIAL IS "ADDITIONAL PAY" AS INDICATED IN 5 U.S.C. 5925, AND THUS WOULD NOT BE REGARDED AS PART OF THE AGGREGATE LIMITATION ON BASIC COMPENSATION REFERRED TO ABOVE. SEE 31 COMP. GEN. 466; 37 ID. 739.

IN CONNECTION WITH QUESTION C. ATTENTION IS INVITED TO PAGE 3 OF SALARY TABLE NO. 51, JULY 1969, ISSUED BY THE UNITED STATES CIVIL SERVICE COMMISSION CONCERNING RETIREMENT DEDUCTIONS WHICH CONTAINS THE FOLLOWING PERTINENT INFORMATION:

"CIVIL SERVICE RETIREMENT DEDUCTION

"SECTION 8334 OF TITLE 5, U.S.C. PROVIDES THAT THERE SHALL BE DEDUCTED AND WITHHELD FROM THE BASIC SALARY OF EACH CIVILIAN OFFICER OR EMPLOYEE TO WHOM THIS LAW APPLIES AN AMOUNT EQUAL TO 6-1/2 PERCENT OF SUCH BASIC SALARY AS A DEDUCTION FOR RETIREMENT ***

"BASIC SALARY EXCLUDES BONUSES, ALLOWANCES, OVERTIME PAY, MILITARY PAY, LUMP-SUM PAYMENTS FOR TERMINAL LEAVE, AND *** ANY SALARY, PAY, OR COMPENSATION GIVEN IN ADDITION TO THE BASE PAY OF THE POSITION AS FIXED BY LAW OR REGULATION. *** "

IN VIEW THEREOF QUESTION C. IS ANSWERED IN THE AFFIRMATIVE. SEE ANSWER TO QUESTION B.

UPON PREPARATION OF A VOUCHER IN ACCORDANCE WITH THE FOREGOING ADMINISTRATIVE PAYMENT THEREOF MAY BE MADE WITHOUT FURTHER SUBMISSION HERE. A COPY OF THIS DECISION SHOULD BE ATTACHED TO THE PAID VOUCHER.