B-79371, SEPTEMBER 8, 1948, 28 COMP. GEN. 153

B-79371: Sep 8, 1948

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OR CONSULATES UNDER SECTION 562 OF THE FOREIGN SERVICE ACT OF 1946 ARE NOT FOREIGN SERVICE EMPLOYEES ON WHOSE ACCOUNT SUBSISTENCE AND QUARTERS ALLOWANCES MAY BE CHARGED TO THE CURRENT APPROPRIATION FOR "1LIVING AND QUARTERS ALLOWANCES. ARE CHARGEABLE TO THE CURRENT APPROPRIATION FOR "1SALARIES AND EXPENSES. 1948: REFERENCE IS MADE TO LETTER OF AUGUST 16. AS FOLLOWS: IT WILL BE APPRECIATED IF I MAY HAVE YOUR OPINION ON A PROBLEM CONFRONTING THE DEPARTMENT WHICH INVOLVES THE EXPENDITURE OF FUNDS APPROPRIATED FOR USE DURING THE CURRENT FISCAL YEAR. THIS SUM IS TO BE USED IN IMPLEMENTATION OF A PROGRAM TO REPLACE ALIEN EMPLOYEES BY AMERICAN PERSONNEL AND TO STRENGTHEN THE SECURITY PROGRAM AT FOREIGN SERVICE ESTABLISHMENTS.

B-79371, SEPTEMBER 8, 1948, 28 COMP. GEN. 153

APPROPRIATIONS - STATE DEPARTMENT - AVAILABILITY FOR SUBSISTENCE AND QUARTERS ALLOWANCES OF NAVY ENLISTED PERSONNEL ASSIGNED TO EMBASSIES, ETC. ENLISTED NAVY AND MARINE CORPS PERSONNEL ASSIGNED TO CUSTODIAL DUTIES AT EMBASSIES, LEGATIONS, OR CONSULATES UNDER SECTION 562 OF THE FOREIGN SERVICE ACT OF 1946 ARE NOT FOREIGN SERVICE EMPLOYEES ON WHOSE ACCOUNT SUBSISTENCE AND QUARTERS ALLOWANCES MAY BE CHARGED TO THE CURRENT APPROPRIATION FOR "1LIVING AND QUARTERS ALLOWANCES, FOREIGN SERVICE; " HOWEVER, SUCH ALLOWANCES, NOT IN EXCESS OF THOSE PAYABLE UNDER THE LAWS AND REGULATIONS APPLICABLE TO THE NAVY AND MARINE CORPS, MAY BE REGARDED AS "NECESSARY EXPENSES OF THE FOREIGN SERVICE" AND, AS SUCH, ARE CHARGEABLE TO THE CURRENT APPROPRIATION FOR "1SALARIES AND EXPENSES, FOREIGN SERVICE.'

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, SEPTEMBER 8, 1948:

REFERENCE IS MADE TO LETTER OF AUGUST 16, 1948, FROM THE ASSISTANT SECRETARY OF STATE, AS FOLLOWS:

IT WILL BE APPRECIATED IF I MAY HAVE YOUR OPINION ON A PROBLEM CONFRONTING THE DEPARTMENT WHICH INVOLVES THE EXPENDITURE OF FUNDS APPROPRIATED FOR USE DURING THE CURRENT FISCAL YEAR.

PUBLIC LAW 785--- 80TH CONGRESS, AN ACT TO PROVIDE APPROPRIATIONS TO SUPPLY DEFICIENCIES IN CERTAIN APPROPRIATIONS FOR THE FISCAL YEAR ENDING JUNE 30, 1948, AUTHORIZES A SUM OF $1,250,000 FOR THE DEPARTMENT OF STATE, FOREIGN SERVICE. THIS SUM IS TO BE USED IN IMPLEMENTATION OF A PROGRAM TO REPLACE ALIEN EMPLOYEES BY AMERICAN PERSONNEL AND TO STRENGTHEN THE SECURITY PROGRAM AT FOREIGN SERVICE ESTABLISHMENTS. OF THE TOTAL AMOUNT THEREIN APPROPRIATED $250,000 WAS AUTHORIZED AS AN ADDITIONAL AMOUNT TO AUGMENT THE APPROPRIATION " LIVING AND QUARTERS ALLOWANCES, FOREIGN SERVICE.' IN THIS CONNECTION, IT IS TO BE NOTED THAT THE BASIC APPROPRIATION FOR THE DEPARTMENT OF STATE, PUBLIC LAW 597--- 80TH CONGRESS, TITLE I," LIVING AND QUARTERS ALLOWANCES, FOREIGN SERVICE," PROVIDES FOR ALLOWANCES AS AUTHORIZED BY SECTION 901 (1) AND (2) OF THE FOREIGN SERVICE ACT OF 1946 22 U.S.C. 1131).

THE FOREIGN SERVICE ACT OF 1946, TITLE V, PART G, SECTION 562, CONTEMPLATES THE ASSIGNMENT OF ENLISTED MEN OF THE NAVY AND THE MARINE CORPS TO SERVE AS CUSTODIANS UNDER THE SUPERVISION OF THE PRINCIPAL OFFICER AT AN EMBASSY, LEGATION, OR CONSULATE.

WHEN THE REQUEST FOR FUNDS FOR THE FOREIGN SERVICE WAS PRESENTED TO THE CONGRESS, IT WAS NOT KNOWN WHETHER THE DEPARTMENT OF THE NAVY WAS IN A POSITION TO AUTHORIZE THE USE OF ENLISTED PERSONNEL OF THE NAVY AND MARINE CORPS FOR THIS PURPOSE. HOWEVER, SINCE THE ENACTMENT OF THE APPROPRIATION LAWS, HEREIN-ABOVE MENTIONED, THE DEPARTMENT HAS BEEN ADVISED THAT SUCH SERVICES ARE AVAILABLE TO IT.

THE MATTER WHICH IS PRESENTED FOR YOUR CONSIDERATION AND OPINION IS WHETHER, UNDER THE AUTHORITY OF SECTION 601 OF THE ECONOMY ACT OF1932, AS AMENDED, (31 U.S.C. 686) AND THE FOREIGN SERVICE ACT OF 1946, FUNDS AVAILABLE TO THE DEPARTMENT UNDER THE APPROPRIATION " LIVING AND QUARTERS ALLOWANCES, FOREIGN SERVICE" MAY BE USED TO DEFRAY, IN PART, THE EXPENSES OF THE CUSTODIAL SERVICES, I. E., TO PAY THAT PORTION OF THE TOTAL EXPENSE WHICH CORRESPONDS TO THE SUBSISTENCE AND QUARTERS ALLOWANCES FOR THE NAVY AND MARINE CORPS PERSONNEL ASSIGNED TO THE DEPARTMENT OF STATE PURSUANT TO SECTION 562 OF THE FOREIGN SERVICE ACT OF 1946.

SECTION 562 OF THE FOREIGN SERVICE ACT OF 1946, 60 STAT. 1011, REFERRED TO IN THE ABOVE-QUOTED LETTER, PROVIDES:

THE SECRETARY OF THE NAVY IS AUTHORIZED, UPON REQUEST OF THE SECRETARY OF STATE, TO ASSIGN ENLISTED MEN OF THE NAVY AND THE MARINE CORPS TO SERVE AS CUSTODIANS UNDER THE SUPERVISION OF THE PRINCIPAL OFFICER AT AN EMBASSY, LEGATION, OR CONSULATE.

THUS, THERE IS SPECIFIC AUTHORITY FOR THE CONTEMPLATED ASSIGNMENT OF ENLISTED MEN, ALTHOUGH THERE IS NOT FOUND ANY SPECIFIC STATUTORY AUTHORITY FOR PAYMENT OF THEIR ALLOWANCES FROM STATE DEPARTMENT FUNDS. HOWEVER, IT IS WELL ESTABLISHED THAT, IN THE ABSENCE OF STATUTORY PROVISION TO THE CONTRARY, ALLOWANCES FOR TRAVEL AND SUBSISTENCE TO WHICH ARMY AND NAVY PERSONNEL ARE ENTITLED WHEN DETAILED TO CIVILIAN AGENCIES ARE PAYABLE FROM THE FUNDS OF THE SAID AGENCIES, ALTHOUGH IN THE SERVICE FROM WHICH DETAILED. SEE 3 COMP. DEC. 588; 1 COMP. GEN. 98; 2 ID. 923; 24 ID. 200. COMPARE 15 COMP. GEN. 377, WHERE A STATUTE PROVIDED THAT ARMY AND NAVY OFFICERS ASSIGNED TO THE STATE DEPARTMENT FOREIGN SERVICE SHOULD BE ENTITLED TO THE SAME TRAVEL ALLOWANCES AS FOREIGN SERVICE OFFICERS.

AS STATED IN THE ABOVE-QUOTED LETTER, THE APPROPRIATION FOR " LIVING AND QUARTERS ALLOWANCES, FOREIGN SERVICE," 62 STAT. 307, PROVIDES ONLY "FOR ALLOWANCES AS AUTHORIZED BY SECTION 901 (1) AND (2) OF THE FOREIGN SERVICE ACT OF 1946.' SAID SECTION 901 (1) AND (2) OF THE FOREIGN SERVICE ACT, 60 STAT. 1025, 1026, SPECIFICALLY APPLIES ONLY TO "ANY OFFICER OR EMPLOYEE OF THE ( FOREIGN) SERVICE.' INASMUCH AS NAVY OR MARINE CORPS PERSONNEL ASSIGNED TO THE FOREIGN SERVICE CANNOT BE REGARDED AS EMPLOYEES OF THE FOREIGN SERVICE (CF. 3 COMP. DEC. 588; 2 COMP. GEN. 373; 13 ID. 150), THE SAID APPROPRIATION FOR LIVING AND QUARTERS ALLOWANCES IS NOT AVAILABLE FOR ANY PAYMENT TO SUCH PERSONNEL.

HOWEVER, THE APPROPRIATION " SALARIES AND EXPENSES, FOREIGN SERVICE," INCLUDED IN PUBLIC LAW 597, 62 STAT. 306, IS SPECIFICALLY AVAILABLE "FOR NECESSARY EXPENSES OF THE FOREIGN SERVICE, EXCEPT AS OTHERWISE PROVIDED FOR, INCLUDING THOSE AUTHORIZED BY THE FOREIGN SERVICE ACT OF 1946," WITH CERTAIN EXCEPTIONS NOT PERTINENT TO THE INSTANT MATTER. IT WOULD SEEM, UNDER THE CIRCUMSTANCES, THAT THE CONTEMPLATED EXPENDITURES PROPERLY MAY BE REGARDED AS "NECESSARY EXPENSES OF THE FOREIGN SERVICE," AND, AS SUCH, FOR PAYMENT FROM THE APPROPRIATION FOR SALARIES AND EXPENSES, FOREIGN SERVICE.

ACCORDINGLY, YOU MAY BE ADVISED THAT THE CONTEMPLATED EXPENDITURES APPEAR TO BE PAYABLE FROM THE APPROPRIATION FOR SALARIES AND EXPENSES, THOUGH NOT IN AMOUNTS EXCEEDING THOSE TO WHICH THE ASSIGNED PERSONNEL WOULD BE ENTITLED UNDER THE LAWS AND REGULATIONS APPLICABLE TO THE NAVY AND MARINE CORPS.