B-181047, NOV 14, 1974

B-181047, NOV 14, 1974

ALTHOUGH EMPLOYEE WAS DETAILED FROM NONDIFFERENTIAL POST OF DUTY TO KINSHASA, ZAIRE, FOR 67-DAY PERIOD, HE MAY NOT BE PAID POST DIFFERENTIAL FOR KINSHASA PRIOR TO 43D DAY OF DETAIL SINCE, WITH THE EXCEPTION OF DETAILS TO VIET NAM, SECTION 541 OF THE STANDARDIZED REGULATIONS REQUIRES A 42-DAY ELIGIBILITY PERIOD AND SPECIFICALLY PROVIDES THAT NO POST DIFFERENTIAL IS AUTHORIZED FOR THE PERIOD REQUIRED TO OBTAIN ELIGIBILITY.

THOMAS L. THOMAS - POST DIFFERENTIAL:

BY LETTER OF MARCH 27, 1974, AN AUTHORIZED CERTIFYING OFFICER OF THE DEPARTMENT OF COMMERCE ASKED TO BE ADVISED WHETHER MR. THOMAS L. THOMAS' VOUCHER IN THE AMOUNT OF $468.48 MAY BE CERTIFIED FOR PAYMENT. THE VOUCHER COVERS A CLAIM FOR PAYMENT OF A POST DIFFERENTIAL ALLOWANCE FOR THE FIRST 42 DAYS OF MR. THOMAS' 67-DAY DETAIL TO KINSHASA, ZAIRE, FROM APRIL TO JULY 1973.

MR. THOMAS IS OF THE OPINION THAT THE PERTINENT PROVISION OF CHAPTER 500 OF THE DEPARTMENT OF STATE'S STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) AUTHORIZES PAYMENT OF A POST DIFFERENTIAL INCIDENT TO HIS DETAIL COMMENCING ON THE FIRST DAY OF ARRIVAL AT THE FOREIGN POST. THE DEPARTMENT OF COMMERCE, ON THE OTHER HAND, CONSTRUES SECTION 541 OF THE STANDARDIZED REGULATIONS AS AUTHORIZING PAYMENT OF A POST DIFFERENTIAL INCIDENT TO THE DETAIL OF AN EMPLOYEE FROM A NONDIFFERENTIAL TO A DIFFERENTIAL POST COMMENCING ON THE 43D DAY OF THAT DETAIL.

DURING THE TIME OF MR. THOMAS' DETAIL TO KINSHASA SECTION 541 OF THE STANDARDIZED REGULATIONS PROVIDED AS FOLLOWS:

"TO BECOME ELIGIBLE FOR POST DIFFERENTIAL OTHER THAN THAT PROVIDED IN SECTION 533 WHILE THE EMPLOYEE IS ABSENT FROM THE POST ON DETAIL HE MUST HAVE SERVED, DURING ANY ONE PERIOD OF ABSENCE, 43 DAYS (SEC. 511D) ON DETAIL AT ONE OR MORE DIFFERENTIAL POSTS OR PLACES DESIGNATED FOR TERRITORIAL POST DIFFERENTIAL (NOT PLACES DESIGNATED FOR TERRITORIAL COST- OF-LIVING ALLOWANCE) BY THE CIVIL SERVICE COMMISSION IN 5 CFR 350. POST DIFFERENTIAL OTHER THAN THAT PROVIDED IN SECTION 533 IS AUTHORIZED FOR THE PERIOD REQUIRED TO OBTAIN ELIGIBILITY. (SEE EXCEPTION FOR VIET- NAM *** IN SECTION 920)."

WHILE SOMEWHAT AMBIGUOUS, WE NEVERTHELESS BELIEVE THAT THE FIRST SENTENCE OF SECTION 541 ESTABLISHES A 42-DAY ELIGIBILITY PERIOD FOR EMPLOYEES DETAILED TO DIFFERENTIAL POSTS AND THE SECOND SENTENCE STATES THAT NO POST DIFFERENTIAL IS AUTHORIZED FOR THE 42-DAY ELIGIBILITY PERIOD EXCEPT IN ACCORDANCE WITH THE AUTHORITY OF SECTION 533 (INAPPLICABLE IN THIS CASE), OR IN ACCORDANCE WITH THE SPECIFIC EXCEPTION PROVIDED AT SECTION 920 FOR VIET NAM. THE CONCLUSION THAT NO DIFFERENTIAL IS PAYABLE FOR THE FIRST 42 DAYS OF DETAIL IS FURTHER SUPPORTED BY THE FACT THAT THE EXCEPTION IN SECTION 920 FOR VIET NAM EXPRESSLY ALLOWS PAYMENT OF THE DIFFERENTIAL AT THAT POST COMMENCING ON THE FIRST DAY OF THE DETAIL. IN REFERENCE TO VIET NAM, SECTION 920, IN EFFECT AFTER APRIL 1, 1966, SETS FORTH THE FOLLOWING EXCEPTION TO SECTION 541:

"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."

THE ABOVE EXCEPTION WAS ISSUED AFTER DECISION 45 COMP. GEN. 583 (1966), WHICH STATED THAT SECTION 231 OF PUBLIC LAW 86-707, 74 STAT. 795, OF THE "OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT," APPROVED SEPTEMBER 6, 1960, NOW CODIFIED AT 5 U.S.C. SEC. 5925, DID NOT NECESSARILY PRECLUDE PAYMENT OF A DIFFERENTIAL FOR DETAILS OF 42 DAYS OR LONGER RETROACTIVELY FROM THE DAY OF ARRIVAL.

SINCE THE REGULATION PROVIDES NO EXCEPTION FOR DETAILS TO KINSHASA, ZAIRE, SIMILAR TO THAT PROVIDED AT SECTION 920 FOR VIET NAM, WE FIND NO BASIS FOR PAYMENT OF POST DIFFERENTIAL TO MR. THOMAS PRIOR TO THE 43D DAY OF HIS DETAIL. ACCORDINGLY, THE VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT.