B-200854, MAR 18, 1981

B-200854, MAR 18, 1981

DIGEST: EMPLOYEE EVACUATED FROM PAKISTAN TO UNITED STATES NO LONGER RECEIVES POST DIFFERENTIAL AND THEREFORE IS NOT ENTITLED TO INCLUSION OF POST DIFFERENTIAL IN COMPUTATION OF LUMP-SUM PAYMENT FOR ACCUMULATED ANNUAL LEAVE UPON SEPARATION FROM SERVICE IN THE UNITED STATES.

PHILIP A. WHITING - CLAIM FOR INCLUSION OF POST DIFFERENTIAL IN LUMP SUM LEAVE PAYMENT:

MR. PHILIP A. WHITING, A RETIRED EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE, REQUESTS RECONSIDERATION OF OUR CLAIMS GROUP'S DENIAL OF HIS CLAIM FOR ADDITIONAL COMPENSATION REPRESENTING A 25 PERCENT POST DIFFERENTIAL IN THE LUMP-SUM PAYMENT FOR ACCUMULATED ANNUAL LEAVE HE RECEIVED UPON RETIREMENT FROM GOVERNMENT SERVICE. SINCE THE EMPLOYEE'S LUMP-SUM LEAVE PAYMENT WAS PROPERLY COMPUTED ON THE BASIS OF RETIREMENT IN THE UNITED STATES - AT A TIME HE WAS NOT ENTITLED TO A POST DIFFERENTIAL - THE DENIAL IS SUSTAINED.

MR. WHITING WAS STATIONED IN PESHAWAR, PAKISTAN, BY THE SOIL CONSERVATION SERVICE UNDER AN AGREEMENT WITH THE AGENCY FOR INTERNATIONAL DEVELOPMENT. HE REQUESTED RETIREMENT IN PAKISTAN AND HIS REQUEST WAS APPROVED. HOWEVER, PRIOR TO RETIREMENT, HE WAS EVACUATED TO THE UNITED STATES BECAUSE OF THE POLITICAL UNREST IN PAKISTAN. HE DEPARTED ON NOVEMBER 22, 1979, AND SUBSEQUENTLY RETIRED AT HIS SAFEHAVEN IN THE UNITED STATES ON DECEMBER 29, 1979. THE POST DIFFERENTIAL ALLOWANCE OF 25 PERCENT WHICH HE WAS RECEIVING WHILE STATIONED IN PAKISTAN WAS NOT INCLUDED IN THE LUMP-SUM LEAVE PAYMENT MADE BY HIS AGENCY FOR UNUSED ANNUAL LEAVE.

LUMP-SUM PAYMENT FOR ACCUMULATED ANNUAL LEAVE IS AUTHORIZED BY 5 U.S.C. 5551 (1976), WHICH PROVIDES IN PART THAT "THE LUMP-SUM PAYMENT SHALL EQUAL THE PAY THE EMPLOYEE OR INDIVIDUAL WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL EXPIRATION OF THE PERIOD OF THE ANNUAL OR VACATION LEAVE." THE COMPTROLLER GENERAL HAS HELD THAT THE LUMP-SUM LEAVE PAYMENT IS TO BE COMPUTED ON THE BASIS OF THE EMPLOYEE'S RIGHTS AT THE TIME OF SEPARATION UNDER ALL APPLICABLE LAWS AND REGULATIONS EXISTING AT THAT TIME WHICH WOULD HAVE AFFECTED HIS COMPENSATION HAD HE REMAINED IN THE SERVICE FOR THE PERIOD COVERED BY HIS LEAVE. 26 COMP.GEN. 102 (1946); 36 ID. 18 (1956); 38 ID. 161 (1958).

AT THE TIME OF HIS SEPARATION MR. WHITING WAS NOT ENTITLED TO POST DIFFERENTIAL. SECTION 532(E) OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) PROVIDES THAT AN EMPLOYEE'S ENTITLEMENT TO POST DIFFERENTIAL (AUTHORIZED UNDER 5 U.S.C. CH. 59) TERMINATES AS OF THE CLOSE OF BUSINESS ON THE DATE THE EMPLOYEE DEPARTS HIS POST FOR LEAVE OR DETAIL DURING THE PERIOD WHEN THE POST IS IN AN EMERGENCY EVACUATION SITUATION.

OUR CLAIMS GROUP DENIED MR. WHITING'S CLAIM ON THE GROUNDS THAT HIS AGENCY HAD CORRECTLY APPLIED THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) IN DISALLOWING HIS CLAIM. IN HIS APPEAL, MR. WHITING CONTENDS IN ESSENCE THAT THE POST DIFFERENTIAL SHOULD HAVE BEEN INCLUDED IN THE LUMP-SUM PAYMENT BECAUSE THE DETERMINATION SEEMS TO CONFLICT WITH A 1973 DECISION OF THIS OFFICE, THAT HE WAS EVACUATED FROM HIS POST IN PAKISTAN ON NOVEMBER 22, 1979, AND NOT TRANSFERRED TO ANOTHER POST, AND THAT HE WAS AT A SAFEHAVEN UNTIL THE DATE OF HIS SEPARATION ON DECEMBER 29, 1979.

MR. WHITING HAS SUBMITTED IN SUPPORT OF HIS APPEAL A COPY OF A TRANSMITTAL LETTER FROM THE AGENCY FOR INTERNATIONAL DEVELOPMENT (AID) DATED DECEMBER 19, 1973, WHICH INDICATES THAT COMPTROLLER GENERAL DECISION B-178428, 52 COMP.GEN. 993 (1973), DETERMINED THAT AID EMPLOYEES SEPARATED AT A DIFFERENTIAL POST ARE ENTITLED TO INCLUSION OF POST DIFFERENTIAL IN ANY LUMP-SUM PAYMENT THAT IS DUE AND THAT TO BE ELIGIBLE THE EMPLOYEE MUST BE PHYSICALLY SEPARATED AT POST. INEXPLICABLY, THIS TRANSMITTAL LETTER FURTHER STATES THAT AN EMPLOYEE WHO, ON THE DATE OF SEPARATION, IS AT A SAFEHAVEN POST OFFICIALLY APPROVED FOR HIS DEPENDENTS IS CONSIDERED TO BE AT POST. NO AUTHORITY IS GIVEN FOR THIS CONCLUSION AND WE FIND NO BASIS IN THE LAW, APPLICABLE REGULATIONS NOR IN OUR DETERMINATION IN 52 COMP.GEN. 993, TO SUPPORT ARRIVING AT SUCH A CONCLUSION IN THE CIRCUMSTANCES OF MR. WHITING'S CASE.

TO THE CONTRARY, WE HELD IN THE MATTER OF WILLIAM E. POPE, JR., B-186046, NOVEMBER 9, 1976, THAT AN EMPLOYEE SCHEDULED FOR SEPARATION FROM HIS EMPLOYMENT IN VIETNAM THROUGH A REDUCTION IN FORCE BUT WHO, DUE TO THE EMERGENCY SITUATION, WAS EVACUATED TO THE UNITED STATES WHERE HE WAS SEPARATED FROM GOVERNMENT SERVICE AFTER 60 DAYS WAS NOT ENTITLED TO INCLUSION OF POST DIFFERENTIAL IN COMPUTATION OF LUMP-SUM PAYMENT. THIS INSTANCE, MR. WHITING CONTINUED ON DUTY IN THE UNITED STATES APPROXIMATELY 30 DAYS AFTER HIS ORIGINALLY INDICATED RETIREMENT DATE. SINCE HE WAS NOT ENTITLED TO POST DIFFERENTIAL AT THE TIME OF HIS RETIREMENT IN THE UNITED STATES, IT MAY NOT BE INCLUDED IN COMPUTATION OF HIS LUMP-SUM LEAVE PAYMENT UPON RETIREMENT.

ACCORDINGLY, THE ACTION OF OUR CLAIMS GROUP IN DISALLOWING MR. WHITING'S CLAIM IS SUSTAINED.