B-83590, MARCH 10, 1949, 28 COMP. GEN. 506

B-83590: Mar 10, 1949

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IRRESPECTIVE OF WHETHER THE BASE PAY IS AT A RATE EQUAL TO THE $10. YOUR FIRST QUESTION IS WHETHER THE ADDITIONAL COMPENSATION AUTHORIZED TO BE PAID UNDER THE ABOVE-CITED PROVISIONS OF THE LAWS AND REGULATIONS IS FOR PAYMENT EFFECTIVE AT THE BEGINNING OF THE PAY PERIOD THAT INCLUDES JANUARY 1. IRRESPECTIVE OF WHETHER THE BASE PAY IS AT A RATE OF $10. 330 IS CONTAINED IN THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946. IS AMENDED BY STRIKING OUT "$10. (B) SECTION 7 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1946 IS AMENDED BY STRIKING OUT $10. TO WHICH REFERENCE IS MADE IN YOUR LETTER. THE COMPENSATION RATE LIMITATION PRESCRIBED IN THE ABOVE-CITED SALARY ACTS IS APPLICABLE ONLY WHERE THE BASIC COMPENSATION.

B-83590, MARCH 10, 1949, 28 COMP. GEN. 506

COMPENSATION - DIFFERENTIAL FOR POSITIONS OUTSIDE CONTINENTAL UNITED STATES THE ADDITIONAL COMPENSATION AUTHORIZED BY SECTIONS 350.10 AND 350.11 OF THE CIVIL SERVICE REGULATIONS, ISSUED PURSUANT TO SECTION 202 OF EXECUTIVE ORDER NO. 10000 AND SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED, FOR SERVICE OUTSIDE THE CONTINENTAL UNITED STATES MAY BE ALLOWED IN ADDITION TO THE BASE PAY, IRRESPECTIVE OF WHETHER THE BASE PAY IS AT A RATE EQUAL TO THE $10,330 PER ANNUM MAXIMUM SALARY LIMITATION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, MARCH 10, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 7, 1949, IN WHICH YOU PRESENT FOR DECISION TWO QUESTIONS INVOLVING SECTIONS 350.10 AND 350.11 OF THE CIVIL SERVICE REGULATIONS, ISSUED PURSUANT TO SECTION 202 OF EXECUTIVE ORDER NO. 10000, DATED SEPTEMBER 16, 1948, AND SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED BY SECTION 104 OF THE SUPPLEMENTAL INDEPENDENT OFFICES APPROPRIATION ACT, 1949, 62 STAT. 1205, RELATING, GENERALLY, TO ADDITIONAL COMPENSATION FOR SERVICE OUTSIDE CONTINENTAL UNITED STATES.

IN EFFECT, YOUR FIRST QUESTION IS WHETHER THE ADDITIONAL COMPENSATION AUTHORIZED TO BE PAID UNDER THE ABOVE-CITED PROVISIONS OF THE LAWS AND REGULATIONS IS FOR PAYMENT EFFECTIVE AT THE BEGINNING OF THE PAY PERIOD THAT INCLUDES JANUARY 1, 1949, OR NOT LATER THAN JANUARY 2, 1949, AND, ALSO, WHETHER SUCH ADDITIONAL COMPENSATION MAY BE ALLOWED IN ADDITION TO THE BASE PAY, IRRESPECTIVE OF WHETHER THE BASE PAY IS AT A RATE OF $10,330 PER ANNUM OR LESS.

THE SALARY RATE LIMITATION OF $10,330 IS CONTAINED IN THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946, AS AMENDED, AND IN THE POSTAL RATE REVISION AND FEDERAL EMPLOYEES SALARY ACT OF 1948.

SECTION 303 OF THE POSTAL RATE REVISION AND FEDERAL EMPLOYEES SALARY ACT OF 1948, 62 STAT. 1268, PROVIDES:

(A) SECTION 603 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, IS AMENDED BY STRIKING OUT "$10,000" WHERE IT FIRST APPEARS IN SUCH SECTION AND INSERTING IN LIEU THEREOF ,$10,330.'

(B) SECTION 7 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1946 IS AMENDED BY STRIKING OUT $10,000" AND INSERTING IN LIEU THEREOF "$10,330.'

(C) NO OFFICER OR EMPLOYEE SHALL, BY REASON OF ANY PROVISION OF THIS TITLE BE PAID WITH RESPECT TO ANY PAY PERIOD, BASIC COMPENSATION, OR BASIC COMPENSATION PLUS ANY ADDITIONAL COMPENSATION PROVIDED BY THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, AT A RATE IN EXCESS OF $10,330 PER ANNUM.

AS RECOGNIZED IN OFFICE DECISION OF DECEMBER 29, 1948, B-80850, 28 COMP. GEN. 383, TO WHICH REFERENCE IS MADE IN YOUR LETTER, THE COMPENSATION RATE LIMITATION PRESCRIBED IN THE ABOVE-CITED SALARY ACTS IS APPLICABLE ONLY WHERE THE BASIC COMPENSATION, OR BASIC COMPENSATION PLUS ANY ADDITIONAL COMPENSATION PROVIDED BY THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, WOULD BE AT A RATE IN EXCESS OF $10,330 PER ANNUM, AND THE ADDITIONAL COMPENSATION PROVIDED BY SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED, IS ADDITIONAL COMPENSATION OTHER THAN THAT PROVIDED BY THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED. ALSO, IT IS SIGNIFICANT THAT SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED, CONTAINS NOTHING SIMILAR TO THE PROVISO WHICH ORIGINALLY WAS INCLUDED IN THAT SECTION AS FOLLOWS: "PROVIDED, THAT NO SUCH SALARY OR COMPENSATION SHALL EQUAL THE MAXIMUM PROVIDED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED.' THE OBVIOUS INTENT AND PURPOSE OF THAT PROVISO WAS TO PREVENT ANY PERSON FROM RECEIVING ON ACCOUNT OF THE ENACTMENT OF THAT SECTION, AN AMOUNT AT A RATE WHICH WOULD EXCEED THE MAXIMUM RATE PROVIDED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED, WHICH RATE AT THE PRESENT TIME IS $10,330 PER ANNUM. OMITTING THAT PROVISO OR ANYTHING SIMILAR FROM THE SECTION AS AMENDED, IT IS REASONABLE TO CONCLUDE THAT CONGRESS INTENDED TO REMOVE THE LIMITATION WHICH WAS INCLUDED IN THE SECTION PRIOR TO ITS AMENDMENT.

IN THE LIGHT OF THE FOREGOING, YOUR FIRST QUESTION AS STATED ABOVE IS ANSWERED IN THE AFFIRMATIVE.

YOUR SECOND QUESTION IS WHETHER THE ADDITIONAL COMPENSATION AUTHORIZED TO BE PAID PURSUANT TO AUTHORITY CONTAINED IN SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, SUPRA, IS TO BE INCLUDED IN LUMP SUM PAYMENTS FOR LEAVE AUTHORIZED TO BE PAID IN ACCORDANCE WITH THE ACT OF DECEMBER 21, 1944, 58 STAT. 845.

WITH RESPECT TO SAID QUESTION YOUR ATTENTION IS INVITED TO OFFICE DECISION OF DECEMBER 23, 1948, B-81954, 28 COMP. GEN. 377, WHICH HELD, CITING 27 COMP. GEN. 341, THAT, IN PROPER CASES, SUCH ,ADDITIONAL COMPENSATION" IS FOR CONSIDERATION IN COMPUTING SUCH LUMP SUM PAYMENTS. ALSO SEE DECISION OF FEBRUARY 18, 1949, B-81954, 28 COMP. GEN. 465, WHICH HELD, INTER ALIA, THAT, WHEN A PERSON IS RETURNED TO THIS COUNTRY UNDER AUTHORITY CONTAINED IN SECTION 7 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 808, FOR THE PURPOSE OF SEPARATION, AND WHEN HE ACTUALLY IS SEPARATED IN THIS COUNTRY, HE WOULD NOT BE RECEIVING THE ADDITIONAL COMPENSATION AUTHORIZED TO BE PAID UNDER SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED, AT THE TIME OF SEPARATION (SEC. 106 (A) (1) OF EXECUTIVE ORDER NO. 10000) AND, THEREFORE, SUCH COMPENSATION WOULD NOT BE FOR CONSIDERATION IN COMPUTING THE LUMP-SUM PAYMENT DUE SUCH AN EMPLOYEE.