B-4021, JUNE 19, 1939, 18 COMP. GEN. 939

B-4021: Jun 19, 1939

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IS ADMINISTRATIVELY APPROVED EFFECTIVE AT A SUBSEQUENT DATE. HE IS GRANTED CUMULATIVE ANNUAL LEAVE OF ABSENCE WITH PAY TO THE EFFECTIVE DATE OF RETIREMENT WITH PERMISSION TO VISIT THE UNITED STATES. QUARTERS AT THE FOREIGN POST UNDER LEASE WERE MAINTAINED AND PAID FOR BY THE OFFICER. NO OBJECTION WILL BE RAISED TO THE PAYMENT MADE AS ALLOWANCE FOR LIVING QUARTERS FOR THE PERIOD OF SUCH MAINTENANCE IN VIEW OF THE BROAD DISCRETION CONFERRED BY STATUTE AND REGULATIONS UPON THE ADMINISTRATIVE OFFICE WITH REGARD TO THE GRANTING OF ALLOWANCES DURING LEAVE OR OTHER ABSENCE FROM POST OF DUTY. IS AS FOLLOWS: REFERENCE IS MADE TO A NOTICE OF EXCEPTION ISSUED UNDER DATE OF JANUARY 7. IT DOES NOT APPEAR THAT THE PROVISIONS OF PARAGRAPH 9 (D) OF THE STANDARDIZED REGULATIONS TO GOVERN ALLOWANCES FOR LIVING QUARTERS ARE APPLICABLE TO HIS CASE AS INDICATED ON THE NOTICE OF EXCEPTION UNDER REFERENCE.

B-4021, JUNE 19, 1939, 18 COMP. GEN. 939

QUARTERS ALLOWANCE - FOREIGN SERVICE OFFICER RETIRED EFFECTIVE AFTER PERMISSION TO VISIT THE UNITED STATES - RENTED QUARTERS MAINTAINED FOR FAMILY AT FOREIGN POST AFTER OFFICER'S DEPARTURE WHERE A FOREIGN SERVICE OFFICER'S REQUEST FOR PERMISSION TO RETIRE ON THE BASIS OF 30 YEARS OF SERVICE UNDER THE ACT OF FEBRUARY 23, 1931, 46 STAT. 1211, IS ADMINISTRATIVELY APPROVED EFFECTIVE AT A SUBSEQUENT DATE, AND HE IS GRANTED CUMULATIVE ANNUAL LEAVE OF ABSENCE WITH PAY TO THE EFFECTIVE DATE OF RETIREMENT WITH PERMISSION TO VISIT THE UNITED STATES, TRANSPORTATION EXPENSES AND PER DIEM OF HIMSELF AND FAMILY AND COST OF SHIPPING HOUSEHOLD EFFECTS TO BE AT GOVERNMENT EXPENSE, AND QUARTERS AT THE FOREIGN POST UNDER LEASE WERE MAINTAINED AND PAID FOR BY THE OFFICER, AFTER HIS DEPARTURE, FOR HIS FAMILY WHO DEPARTED PRIOR TO THE EFFECTIVE DATE OF HIS RETIREMENT, NO OBJECTION WILL BE RAISED TO THE PAYMENT MADE AS ALLOWANCE FOR LIVING QUARTERS FOR THE PERIOD OF SUCH MAINTENANCE IN VIEW OF THE BROAD DISCRETION CONFERRED BY STATUTE AND REGULATIONS UPON THE ADMINISTRATIVE OFFICE WITH REGARD TO THE GRANTING OF ALLOWANCES DURING LEAVE OR OTHER ABSENCE FROM POST OF DUTY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF STATE, JUNE 19, 1939:

YOUR LETTER OF APRIL 26, 1939, IS AS FOLLOWS:

REFERENCE IS MADE TO A NOTICE OF EXCEPTION ISSUED UNDER DATE OF JANUARY 7, 1939, SUSPENDING THE SUM OF $34.25 AGAINST THE CHARGE FOR ALLOWANCE FOR LIVING QUARTERS ON AN UNNUMBERED VOUCHER IN THE JUNE 1938 ACCOUNTS OF ALEXANDER P. CRUGER, AMERICAN FOREIGN SERVICE OFFICER AT FUNCHAL, MADEIRA.

MR. CRUGER DEPARTED FROM HIS POST AT FUNCHAL ON JUNE 15, 1938, TO TAKE LEAVE IN THE UNITED STATES PRIOR TO HIS RETIREMENT FROM THE FOREIGN SERVICE ON OCTOBER 31, 1938, AND HIS FAMILY REMAINED AT FUNCHAL UNTIL JULY 28, 1938.

SINCE MR. CRUGER PROCEEDED TO THE UNITED STATES ON LEAVE OF ABSENCE ON JUNE 15, 1938, LEFT HIS FAMILY AT HIS POST UNTIL JULY 28, 1938, AND MAINTAINED AND PAID FOR LIVING QUARTERS UNDER A LEASE THEREAT UNTIL JULY 31, 1938, AS SHOWN BY HIS ACCOUNTS FOR THE PERIOD JULY 1 TO SEPTEMBER 30, 1938, IT DOES NOT APPEAR THAT THE PROVISIONS OF PARAGRAPH 9 (D) OF THE STANDARDIZED REGULATIONS TO GOVERN ALLOWANCES FOR LIVING QUARTERS ARE APPLICABLE TO HIS CASE AS INDICATED ON THE NOTICE OF EXCEPTION UNDER REFERENCE. PARAGRAPH 9 (D) APPLIES TO THE CASE OF AN OFFICER RESIGNING, DISMISSED, OR RETIRING. MR. CRUGER WAS IN NONE OF THESE CATEGORIES WHEN HE LEFT HIS POST AT FUNCHAL ON JUNE 15, 1938. HE WAS AN ACTIVE OFFICER IN THE FOREIGN SERVICE AND REMAINED SUCH UNTIL HIS RETIREMENT ON OCTOBER 31, 1938. IT IS SUBMITTED THAT PARAGRAPH 9 (D) WOULD HAVE HAD APPLICATION TO HIS CASE ONLY HAD HE REMAINED AT FUNCHAL AND OCCUPIED LIVING QUARTERS THERE, UP TO AND BEYOND OCTOBER 31, 1938.

WHEN MR. CRUGER LEFT FUNCHAL ON JUNE 15, 1938, HIS STATUS WAS THAT OF AN ACTIVE OFFICER ENTERING ON A PERIOD OF LEAVE OF ABSENCE WITH PAY GRANTED HIM BY THE SECRETARY OF STATE IN THE EXERCISE OF THE DISCRETION ALLOWED HIM IN SUCH MATTERS. IT WOULD THEREFORE APPEAR THAT PARAGRAPH 9 (G) OF THE STANDARDIZED REGULATIONS HAS APPLICATION TO HIS CASE RATHER THAN PARAGRAPH 9 (D); AND AS THE AMOUNT HERE IN QUESTION WAS CHARGED IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 9 (G) IT IS BELIEVED THAT THE SUSPENSION SHOULD BE REMOVED.

MR. CRUGER'S APPLICATION FOR RETIREMENT, AT THE CONCLUSION OF HIS PERIOD OF LEAVE OF ABSENCE, HAD BEEN GRANTED PRIOR TO HIS DEPARTURE FROM HIS POST, AND HE WAS AUTHORIZED TO RETURN TO THE UNITED STATES AND SHIP HIS HOUSEHOLD EFFECTS, AT GOVERNMENT EXPENSE, DURING HIS PERIOD OF LEAVE OR AT THE CONCLUSION THEREOF. IT IS THE DEPARTMENT'S INTERPRETATION THAT HIS DEPARTURE FROM FUNCHAL PRIOR TO THE EXPIRATION OF HIS LEAVE, AND TO THE EFFECTIVE DATE OF HIS RETIREMENT, DID NOT ALTER HIS STATUS AS THAT OF AN ACTIVE OFFICER ON AUTHORIZED LEAVE OF ABSENCE WITH PAY. THIS HAS, IN FACT, BEEN THE DEPARTMENT'S INTERPRETATION IN OTHER SIMILAR CASES AND WAS BELIEVED TO HAVE THE CONCURRENCE OF YOUR OFFICE.

THEREFORE, FOR THE PROPER ADJUSTMENT OF THE SUSPENSION IN QUESTION, AS WELL AS FOR THE FUTURE GUIDANCE OF THE ADMINISTRATIVE OFFICERS OF THE DEPARTMENT, IT IS REQUESTED THAT YOU RE-EXAMINE THE MATTER IN THE LIGHT OF THE FURTHER INFORMATION FURNISHED IN THIS LETTER.

BY STATE DEPARTMENT LETTER OF NOVEMBER 3, 1937, THE OFFICER WAS ADVISED, IN PART PERTINENT, AS FOLLOWS:

WITH REFERENCE TO YOUR DESPATCH DATED OCTOBER 11, 1937, REQUESTING PERMISSION TO RETIRE ON THE BASIS OF THIRTY YEARS OF SERVICE UNDER THE ACT OF FEBRUARY 23, 1931, YOU ARE INFORMED THAT YOUR RETIREMENT HAS BEEN APPROVED EFFECTIVE AT THE CLOSE OF BUSINESS ON OCTOBER 31, 1938.

YOU ARE HEREBY GRANTED CUMULATIVE ANNUAL LEAVE OF ABSENCE FOR ONE HUNDRED AND EIGHTY DAYS WITH PERMISSION TO VISIT THE UNITED STATES IN 1938 WITH SALARY. THIS LEAVE SHOULD NOT EXTEND BEYOND OCT. 31, 1938, THE EFFECTIVE DATE OF YOUR RETIREMENT. YOU ARE REQUESTED TO INFORM THE DEPARTMENT OF THE EXACT DATE OF YOUR DEPARTURE FROM YOUR POST FOR THE UNITED STATES ON OR AFTER MAY 1, 1938, AND THE EXACT DATE OF YOUR ARRIVAL AT YOUR HOME OR DESTINATION.

THE TRANSPORTATION EXPENSES AND PER DIEM OF YOURSELF AND FAMILY AND THE COST OF SHIPPING YOUR EFFECTS ARE AUTHORIZED SUBJECT TO THE PROVISIONS OF THE TRAVEL REGULATIONS FROM FUNCHAL TO BROOKLYN, NEW YORK, YOUR PLACE OF RESIDENCE IN THE UNITED STATES AT THE TIME OF YOUR APPOINTMENT, OR TO ANY OTHER POINT TO WHICH THE COST WOULD BE NO GREATER. * * *

THE RECORD DISCLOSES THAT MR. CRUGER, IN PURSUANCE OF THE ABOVE, DEPARTED FROM HIS POST AT FUNCHAL, MADEIRA, ON JUNE 15, 1938, PROCEEDING AT GOVERNMENT EXPENSE TO BROOKLYN, N.Y.; THAT QUARTERS UNDER LEAVE WERE MAINTAINED AND PAID FOR BY THE OFFICER AT THE FORMER POST OF DUTY UNTIL JULY 31, 1938, AND OCCUPIED BY HIS DEPENDENTS UNTIL THE ACTUAL DATE OF THEIR DEPARTURE FOR THE UNITED STATES ON JULY 28, 1938; THAT, BY REASON OF THE MAINTENANCE AT THE OFFICER'S EXPENSE OF QUARTERS AT HIS REGULAR POST OF ASSIGNMENT ABROAD, ALLOWANCES WERE CLAIMED AND PAID TO JULY 31, 1938, UNDER THE STANDARDIZED REGULATIONS TO GOVERN ALLOWANCES FOR LIVING QUARTERS, HEAT, FUEL, AND LIGHT FOR CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT STATIONED IN FOREIGN COUNTRIES PROMULGATED BY AUTHORITY OF THE ACT OF JUNE 26, 1930, 46 STAT. 818; AND THAT CREDIT WAS WITHHELD FOR THE PAYMENT OF SUCH ALLOWANCES FOR THE PERIOD SUBSEQUENT TO THE DATE OF THE OFFICER'S DEPARTURE ON JUNE 15, 1938, UNDER PARAGRAPH 9 (D) OF SAID REGULATIONS PROVIDING:

ALLOWANCES TO AN OFFICER OR EMPLOYEE RESIGNING, DISMISSED, OR RETIRING WILL TERMINATE THE DAY SUCH OFFICER OR EMPLOYEE LEAVES HIS POST OR THE DAY THE RESIGNATION, DISMISSAL, OR RETIREMENT BECOMES EFFECTIVE, WHICHEVER IS THE EARLIER.

IT IS NOW ALLEGED THAT WHEN MR. CRUGER LEFT FUNCHAL ON JUNE 15, 1938, HIS STATUS WAS THAT OF AN ACTIVE OFFICER ENTERING ON A PERIOD OF LEAVE OF ABSENCE WITH PAY GRANTED HIM BY THE SECRETARY OF STATE IN THE EXERCISE OF THE DISCRETION ALLOWED HIM IN SUCH MATTERS; THAT HE REMAINED IN SUCH STATUS TO THE EFFECTIVE DATE OF HIS RETIREMENT, AND ACCORDING TO THE DEPARTMENT'S INTERPRETATION, WAS ENTITLED TO PAYMENT OF SUCH ALLOWANCES UNDER PARAGRAPH 9 (G) OF THE CITED REGULATIONS PROVIDING:

THE RIGHT TO ALLOWANCES WILL CONTINUE (1) NOT TO EXCEED 90 DAYS DURING AUTHORIZED LEAVE OF ABSENCE WITH PAY, PLUS TRANSIT TIME WHEN LEAVE IS TAKEN IN THE UNITED STATES OR, (2) WHILE TEMPORARILY ABSENT UNDER ORDERS FROM POST OF ASSIGNMENT, SUBJECT TO THE CONDITION, HOWEVER, IN EITHER CASE, THAT THE OFFICER OR EMPLOYEE MAINTAINS AND PAYS FOR HIS QUARTERS AT HIS REGULAR POST OF ASSIGNMENT DURING SUCH PERIOD, A CERTIFICATE BY THE OFFICER OR EMPLOYEE TO THIS EFFECT TO APPEAR ON THE VOUCHER IN THE SPACE PROVIDED THEREFOR. UNDER THE SAME CONDITIONS ALLOWANCES MAY BE CONTINUED DURING THE PERIOD WHEN AN OFFICER OR EMPLOYEE IS ABSENT FROM REGULAR POST OF ASSIGNMENT WITHOUT PAY ON ACCOUNT OF ILLNESS OR BEYOND THE PERIOD SPECIFIED ABOVE OF LEAVE WITH PAY, PROVIDED THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED IS SATISFIED AND SO DETERMINES THAT SAID CONTINUANCE WOULD BE IN THE PUBLIC INTEREST.

SECTION 22 OF THE ACT OF FEBRUARY 23, 1931, 46 STAT. 1210, PROVIDES, IN PART:

THE SECRETARY OF STATE IS AUTHORIZED, WHENEVER HE DEEMS IT TO BE IN THE PUBLIC INTEREST, TO ORDER TO THE UNITED STATES ON HIS STATUTORY LEAVE OF ABSENCE ANY FOREIGN SERVICE OFFICER OR VICE CONSUL OF CAREER WHO HAS PERFORMED THREE YEARS OR MORE OF CONTINUOUS SERVICE ABOARD: PROVIDED, THAT THE EXPENSES OF TRANSPORTATION AND SUBSISTENCE OF SUCH OFFICERS AND THEIR IMMEDIATE FAMILIES, IN TRAVELING FROM THEIR POST TO THEIR HOMES IN THE UNITED STATES AND RETURN, SHALL BE PAID UNDER THE SAME RULES AND REGULATIONS APPLICABLE IN THE CASE OF OFFICERS GOING TO AND RETURNING FROM THEIR POST UNDER ORDERS OF THE SECRETARY OF STATE WHEN NOT ON LEAVE: AND PROVIDED FURTHER, THAT WHILE IN THE UNITED STATES THE SERVICES OF SUCH OFFICERS SHALL BE AVAILABLE FOR TRADE CONFERENCE WORK OR FOR SUCH DUTIES IN THE DEPARTMENT OF STATE AS THE SECRETARY OF STATE MAY PRESCRIBE * * *.

THAT THE INSTRUCTIONS OF NOVEMBER 3, 1937, SUPRA, CONSTITUTE AN ORDER FOR TRAVEL TO THE UNITED STATES FOR THE PURPOSE OF GRANTING STATUTORY LEAVE, RATHER THAN AN ORDER FOR TRAVEL TO THE UNITED STATES FOR PURPOSES OF RETIREMENT WITH THE GRANTING OF LEAVE AS A MERE INCIDENT THERETO, IS NOT ENTIRELY CLEAR FROM THE LANGUAGE USED IN SAID INSTRUCTIONS. HOWEVER, IN VIEW OF THE BROAD DISCRETION CONFERRED BY THE STATUTE AND THE REGULATIONS UPON THE ADMINISTRATIVE OFFICE WITH RESPECT TO THE GRANTING OF ALLOWANCES DURING LEAVE OR OTHER ABSENCE FROM POST OF DUTY THE VOUCHER, IF OTHERWISE CORRECT, WILL BE PASSED TO THE CREDIT OF THE INVOLVED DISBURSING OFFICER.