B-97653, FEBRUARY 5, 1951, 30 COMP. GEN. 337

B-97653, FEBRUARY 5, 1951, 30 COMP. GEN. 337

ALLOWANCES AND DIFFERENTIALS - FOREIGN POST DIFFERENTIAL - ADMINISTRATIVE AUTHORIZATION REQUIREMENT UNDER SECTION 105 OF EXECUTIVE ORDER NO. 10000, AS IMPLEMENTED BY REGULATIONS OF THE DEPARTMENT OF STATE, AN EMPLOYING AGENCY IS VESTED WITH THE DISCRETION AND RESPONSIBILITY FOR DETERMINING AN EMPLOYEE'S ELIGIBILITY TO RECEIVE A FOREIGN POST DIFFERENTIAL, SO THAT WHERE DEPARTMENT OF THE ARMY REGULATIONS PROHIBIT CONCURRENT PAYMENT OF SUCH DIFFERENTIAL TO BOTH SPOUSES IN THE SAME DIFFERENTIAL AREA THIS OFFICE IS REQUIRED TO ACCEPT THE DEPARTMENT DETERMINATION DENYING PAYMENT OF THE POST DIFFERENTIAL TO AN EMPLOYEE WHOSE HUSBAND RECEIVED SUCH DIFFERENTIAL INCIDENTAL TO EMPLOYMENT IN THE SAME POST DIFFERENTIAL AREA.

ACTING COMPTROLLER GENERAL YATES TO RUTH L. DARLING, FEBRUARY 5, 1951:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 30, 1950, AND TO PRIOR CORRESPONDENCE RELATIVE TO YOUR REQUEST FOR REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT OF JUNE 8, 1950, WHICH DISALLOWED YOUR CLAIM FOR FOREIGN POST DIFFERENTIAL ALLEGED TO BE DUE YOU AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, MANILA DISTRICT, DURING THE PERIOD JANUARY 23 THROUGH OCTOBER 13, 1949, AND FOR SUCH PERIOD SUBSEQUENT TO OCTOBER 13, 1949, THAT SUCH DIFFERENTIAL HAS BEEN OR SHALL HAVE BEEN DENIED.

THE DISALLOWANCE OF YOUR CLAIM WAS PREDICATED UPON THE FACT THAT DURING THE PERIOD IN QUESTION YOUR HUSBAND, WHO WAS EMPLOYED IN THE SAME POST DIFFERENTIAL AREA AS YOURSELF, RECEIVED PAYMENT OF SUCH DIFFERENTIAL, AND THAT UNDER REGULATIONS PROMULGATED BY THE DEPARTMENT OF THE ARMY ( CIVILIAN PERSONNEL REGULATION T7.2), ONLY ONE SPOUSE IN THE SAME DIFFERENTIAL AREA MAY RECEIVE THE DIFFERENTIAL FOR A GIVEN PERIOD.

IT IS CONTENDED IN YOUR LETTER OF JULY 21, 1950, (1) THAT THE ACTION OF THE DEPARTMENT OF THE ARMY IN DENYING YOU THE DIFFERENTIAL BECAUSE OF YOUR MATERIAL STATUS IS DISCRIMINATORY, AND (2) THAT REGULATIONS OF THE DEPARTMENT OF THE ARMY, UNDER THE AUTHORITY OF WHICH THE SAID DIFFERENTIAL WAS DENIED, WERE NOT APPLICABLE TO YOU SINCE THE FUNDS FROM WHICH YOUR COMPENSATION WAS PAID WERE ,AUTHORIZED BY THE REHABILITATION ACT OF 1946" (60 STAT. 128) AND WERE TO BE EXPENDED UNDER THE SOLE AUTHORITY AND DISCRETION OF THE DEPARTMENT OF STATE.

SECTION 105 OF EXECUTIVE ORDER NO. 10000, SEPTEMBER 16, 1948, IS IN PART, AS FOLLOWS:

SEC. 105. PERSONS ELIGIBLE TO RECEIVE FOREIGN POST DIFFERENTIAL. (A) IN ORDER THAT AN EMPLOYEE BE ELIGIBLE TO RECEIVE A FOREIGN POST DIFFERENTIAL UNDER THIS PART * * * (2) HIS RESIDENCE IN THE PLACE TO WHICH THE FOREIGN POST DIFFERENTIAL APPLIES, AT THE TIME OF RECEIPT THEREOF, SHALL BE FAIRLY ATTRIBUTABLE TO HIS EMPLOYMENT BY THE UNITED STATES, AND (3) HIS RESIDENCE AT SUCH PLACE OVER AN APPROPRIATE PRIOR PERIOD OF TIME MUST NOT BE FAIRLY ATTRIBUTABLE TO REASONS OTHER THAN EMPLOYMENT BY THE UNITED STATES OR BY UNITED STATES FIRMS, INTERESTS, OR ORGANIZATIONS.

THE REGULATIONS ISSUED BY THE DEPARTMENT OF STATE UNDER THE AUTHORITY AND IN IMPLEMENTATION OF EXECUTIVE ORDER NO. 1000, SUPRA, APPEARING IN TITLE 5, PART 325 OF THE CODE OF FEDERAL REGULATIONS, PROVIDE IN PART, AS FOLLOWS:

325.4 PERSONS ELIGIBLE. IN ORDER TO BE ELIGIBLE FOR FOREIGN POST DIFFERENTIAL AN EMPLOYEE MUST BE A CITIZEN OR NATIONAL OF THE UNITED STATES AND THE EMPLOYING AGENCY MUST DETERMINE THAT THE EMPLOYEE IS LOCATED AT THE POST BECAUSE OF HIS EMPLOYMENT BY THE UNITED STATES. THIS INCLUDES, BUT IS NOT NECESSARILY LIMITED TO, UNITED STATES CITIZENS OR NATIONALS IN THE FOLLOWING GROUPS:

(A) THOSE RECRUITED OR TRANSFERRED FROM THE UNITED STATES, EXCEPT IN THE CASE OF THE SPOUSE OF A PERSON EMPLOYED, STATIONED OR RESIDENT IN THE AREA, WHERE THE AGENCY CONCERNED DETERMINES THAT THE SPOUSE'S PRESENCE THERE IS PRIMARILY IN ORDER TO BE WITH SUCH INDIVIDUAL.

UNDER THE QUOTED REGULATIONS, THE EMPLOYING AGENCY IS VESTED WITH THE DISCRETION AND RESPONSIBILITY FOR DETERMINING AN EMPLOYEE'S ELIGIBILITY FOR THE FOREIGN POST DIFFERENTIAL IN ACCORDANCE WITH THE CRITERIA PRESCRIBED IN EXECUTIVE ORDER NO. 10000 AND THE IMPLEMENTING REGULATIONS OF THE DEPARTMENT OF STATE. THE REGULATIONS OF THE DEPARTMENT OF THE ARMY, PROHIBITING CONCURRENT PAYMENT OF THE FOREIGN POST DIFFERENTIAL TO BOTH SPOUSES IN THE SAME DIFFERENTIAL AREA, OBVIOUSLY WERE BASED UPON A DETERMINATION THAT THE PRESENCE OF THE SPOUSES IN THE SAME AREA PRIMARILY ATTRIBUTABLE TO A DESIRE ON THEIR PART TO BE WITH EACH OTHER RATHER THAN ATTRIBUTABLE PRIMARILY TO THEIR EMPLOYMENT BY THE UNITED STATES. IN THE ABSENCE OF EVIDENCE IN INDIVIDUAL CASES TO ESTABLISH THAT SUCH WAS NOT THE FACT, THIS OFFICE IS REQUIRED TO ACCEPT THE ADMINISTRATIVE DETERMINATION IN THE MATTER.

MOREOVER, THE FACT THAT YOUR COMPENSATION WAS PAID FROM FUNDS TRANSFERRED TO THE DEPARTMENT OF THE ARMY FROM DEPARTMENT OF STATE APPROPRIATIONS FOR PHILIPPINE REHABILITATION DOES NOT ALTER THE FACT THAT YOU WERE AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY DURING THE PERIOD IN QUESTION, AND THAT THE DEPARTMENT OF THE ARMY WAS YOUR EMPLOYING AGENCY WITHIN THE MEANING OF THE DEPARTMENT OF STATE REGULATIONS RELATIVE TO THE RESPONSIBILITY OF EMPLOYING AGENCIES IN THE MATTER OF DETERMINING EMPLOYEE ELIGIBILITY OR THE FOREIGN POST DIFFERENTIAL.

ACCORDINGLY, UPON THE BASIS OF THE RECORD PRESENTLY BEFORE THIS OFFICE, THE SETTLEMENT OF JUNE 8, 1950, MUST BE AND IS SUSTAINED.