B-146122, MAY 17, 1963, 42 COMP. GEN. 637

B-146122, MAY 17, 1963, 42 COMP. GEN. 637

FOREIGN SERVICE - HOME SERVICE TRANSFER ALLOWANCE - EFFECTIVE DATE. FOREIGN SERVICE - HOME SERVICE TRANSFER ALLOWANCE - TEMPORARY LODGINGS THE TRANSFER OF FOREIGN SERVICE EMPLOYEES BY THE AGENCY FOR INTERNATIONAL DEVELOPMENT FROM OVERSEAS POSTS TO WASHINGTON, D.C., FOR APPROXIMATELY 6 MONTHS' TRAINING, FOLLOWED BY RETRANSFER TO PERMANENT POSITIONS IN WASHINGTON, UPON COMPLETION OF WHICH ASSIGNMENTS THE EMPLOYEES ARE TRANSFERRED TO FOREIGN POSTS DOES NOT CONSTITUTE A REASSIGNMENT WITHIN THE MEANING OF SECTION 252 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS), PROVIDING THAT A TRANSFER MEANS A REASSIGNMENT FROM AN OVERSEAS POST TO ONE IN THE CONTINENTAL UNITED STATES, UPON COMPLETION OF WHICH THE EMPLOYEE IS AGAIN ASSIGNED TO A POST ABROAD; THEREFORE, THE EMPLOYEES DO NOT QUALIFY FOR THE HOME SERVICE TRANSFER ALLOWANCE, PRESCRIBED BY SECTION 252 AS A COST-OF-LIVING ALLOWANCE INCIDENT TO THE ESTABLISHMENT OF A RESIDENCE AT A POST IN THE CONTINENTAL UNITED STATES BETWEEN ASSIGNMENTS TO POSTS ABROAD UNTIL THE ACCOMPLISHMENT OF THEIR TRANSFERS TO PERMANENT POSITIONS IN WASHINGTON, AND THEN ONLY IF THE TRANSFER IS WITHIN THE SCOPE OF ZONES AUTHORIZED UNDER SECTION 252.12. FOREIGN SERVICE EMPLOYEES OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT WHO DURING A PERIOD OF TRANSFER TO WASHINGTON, D.C., FROM OVERSEAS POSTS FOR TRAINING AND RETRANSFER TO PERMANENT POSITIONS OCCUPY APARTMENTS OR HOMES, WHICH ARE EXCLUDED AS TEMPORARY LODGINGS UNDER SECTION 252.12 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS), UNLESS THE HEAD OF THE AGENCY AGREES THE OCCUPANCY IS TEMPORARY, ARE NOT ENTITLED TO THE TEMPORARY LODGING ALLOWANCE PORTION OF THE HOME SERVICE TRANSFER ALLOWANCE AUTHORIZED BY SECTION 252.12 TO COVER NECESSARY AND REASONABLE HOTEL EXPENSES INCURRED BY AN EMPLOYEE AT A POST OF ASSIGNMENT IN THE CONTINENTAL UNITED STATES WHILE LOCATING AND ARRANGING FOR SUITABLE PERMANENT QUARTERS, IN THE ABSENCE OF AN ADMINISTRATIVE DETERMINATION THAT THE EMPLOYEES OCCUPIED TEMPORARY LODGINGS.

TO MARY C. ROBERTS, AGENCY FOR INTERNATIONAL DEVELOPMENT, MAY 17, 1963:

YOUR LETTER OF JANUARY 23, 1963, REQUESTS OUR DECISION CONCERNING THE PROPRIETY OF ALLOWANCE OF THE TRANSFER PORTION AND THE TEMPORARY LODGING PORTION OF THE HOME SERVICE TRANSFER ALLOWANCE IN THE CASES OF TWO EMPLOYEES OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT.

YOUR LETTER SETS FORTH THE FACTS AS FOLLOWS:

1. A FOREIGN SERVICE EMPLOYEE OF THIS AGENCY WAS TRANSFERRED EFFECTIVE JULY 10, 1960 FROM HIS POST IN BONN, GERMANY TO THE AID/W FULL COMPLEMENT RESERVE, TRAINING COMPLEMENT. TRAINING FOR A PERIOD OF SEVERAL MONTHS WAS TO BE PRECEDED BY A PERIOD OF CONSULTATION IN AID/W NOT TO EXCEED 5 DAYS. NO PER DIEM WAS AUTHORIZED IN AID/W FOR THE PERIOD IMMEDIATELY BEFORE, DURING OR AFTER THE TRAINING PERIOD. ON DECEMBER 4, 1960, AFTER COMPLETION OF THE TRAINING COURSE, THE EMPLOYEE WAS ASSIGNED TO A REGULAR POSITION IN AID/W. ON INITIAL ASSIGNMENT TO THE FULL COMPLEMENT RESERVE THE EMPLOYEE OCCUPIED TEMPORARY LODGINGS AND INCURRED EXPENSES INCIDENT THERETO PRIOR TO ESTABLISHING HIMSELF IN HIS PERMANENT QUARTERS AT HIS POST OF ASSIGNMENT IN THE UNITED STATES. HIS TRANSFER TO THE TRAINING COMPLEMENT WAS FOLLOWED BY A RE-TRANSFER TO A PERMANENT POSITION WITH THE AGENCY IN WASHINGTON. FURTHERMORE, UPON COMPLETION OF THE LATTER ASSIGNMENT, THE EMPLOYEE ACCEPTED A TRANSFER TO A FOREIGN POST.

2. A FOREIGN SERVICE EMPLOYEE OF THIS AGENCY WAS TRANSFERRED EFFECTIVE IN APRIL 1960 FROM TEGUCIGALPA, HONDURAS TO THE WASHINGTON TRAINING COMPLEMENT TO ATTEND A COURSE ON ICA PROGRAM DEVELOPMENT. THE EMPLOYEE OCCUPIED TEMPORARY QUARTERS FROM THE TIME OF HIS ARRIVAL IN EARLY JULY 1960 FOR A PERIOD OF APPROXIMATELY 6 MONTHS. OCCUPANCY OF THE TEMPORARY QUARTERS WAS NECESSITATED BY THE LIMITED DURATION OF THE ASSIGNMENT THAT WAS ANTICIPATED FOR THE TRAINING PROGRAM. IN DECEMBER 1960, THE EMPLOYEE WAS RE-TRANSFERRED TO A PERMANENT POSITION WITH THE AGENCY IN WASHINGTON AND UPON COMPLETION OF THE LATTER ASSIGNMENT, HE ACCEPTED A TRANSFER TO A FOREIGN POST.

YOU SAY THAT NO PER DIEM WAS PAID DURING THE PERIODS IN QUESTION, AND THE SHIPMENT OF HOUSEHOLD EFFECTS WAS AUTHORIZED ONLY AFTER THE EMPLOYEES WERE REASSIGNED TO PERMANENT POSITIONS IN WASHINGTON, D.C.

A DECISION IS REQUESTED AS TO WHEN THESE EMPLOYEES MAY BE CONSIDERED TRANSFERRED TO WASHINGTON SO AS TO QUALIFY FOR THE TEMPORARY LODGING PORTION AND THE TRANSFER PORTION OF THE HOME SERVICE TRANSFER ALLOWANCE, (1) AT THE TIME THEY WERE ASSIGNED TO THE FULL COMPLEMENT RESERVE OR (2) AT THE TIME OF THEIR REASSIGNMENT TO A PERMANENT POSITION IN WASHINGTON FOLLOWING THE CONCLUSION OF THEIR TRAINING.

SECTION 252, SUBSECTION 252.11 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS), IN EFFECT AT THE TIME THE TRAVEL IN QUESTION WAS PERFORMED, PROVIDES, REGARDING HOME SERVICE TRANSFER ALLOWANCE, AS FOLLOWS:

252.11 DEFINITIONS

A. "HOME SERVICE TRANSFER ALLOWANCE" MEANS A COST-OF-LIVING ALLOWANCE GRANTED TO AN EMPLOYEE PURSUANT TO SECTION 901 (2) (II) OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED BY THE FOREIGN SERVICE ACT AMENDMENTS OF 1955, FOR EXTRAORDINARY AND NECESSARY EXPENSES DEEMED INCIDENT TO THE ESTABLISHMENT OF HIS RESIDENCE AT A POST (SEC. 215E) IN THE CONTINENTAL UNITED STATES BETWEEN ASSIGNMENTS TO POSTS ABROAD.

B. "TRANSFER" MEANS A REASSIGNMENT THAT INVOLVES TRAVEL FROM A POST IN A FOREIGN AREA, OR FROM A TERRITORY OR POSSESSION OF THE UNITED STATES LISTED IN SECTION 251.22, TO A POST IN THE CONTINENTAL UNITED STATES WITH AN UNDERSTANDING CERTIFIED TO BY THE AGENCY AND THE EMPLOYEE THAT HE WILL, UPON COMPLETION OF SUCH REASSIGNMENT, AGAIN BE ASSIGNED TO A POST ABROAD.

SECTION 215E (1) OF THAT REGULATION PROVIDES:

"POST," WHEN USED IN CONNECTION WITH AN EMPLOYEE'S ASSIGNMENT, MEANS THE PERMANENT STATION OF THE EMPLOYEE, REGARDLESS WHETHER HE IS DETAILED ELSEWHERE OR RESIDES AT ANOTHER PLACE WITH THE AUTHORIZATION OR APPROVAL OF THE HEAD OF HIS AGENCY.

SECTION 252.12 OF THAT REGULATION PROVIDES:

SCOPE

THE HOME SERVICE TRANSFER ALLOWANCE IS COMPOSED OF TWO ELEMENTS (1) A TRANSFER PORTION SIMILAR TO THAT PROVIDED IN SECTION 251 FOR TRANSFERS FROM ZONES 1 OR 3 TO ZONE 2 AND (2) A TEMPORARY LODGING PORTION DESIGNED TO OFFSET THE COST OF ROOM AND BATH (INCLUDING HEAT, LIGHT, FUEL, GAS, ELECTRICITY, RENTAL AND LAUNDERING OF BED AND BATH LINEN, AND TAXES IMPOSED BY LAW ON THE OCCUPANT, IF CHARGED FOR SEPARATELY) AT HOTELS OR OTHER TEMPORARY LODGING ORDINARILY USED BY GOVERNMENT EMPLOYEES ARRIVING AT A POST IN THE CONTINENTAL UNITED STATES. A HOUSE OR APARTMENT MAY NOT BE DESIGNATED AS "TEMPORARY LODGING" UNLESS THE HEAD OF AGENCY AGREES THAT IT IS OCCUPIED ON A TEMPORARY BASIS. THE PRICE OF MEALS AND TIPS OF ALL KINDS ARE EXCLUDED. THE AMOUNT PAID UNDER THE TEMPORARY LODGING PORTION IS EITHER THE EMPLOYEE'S DAILY EXPENSES FOR ALLOWABLE ITEMS OR THE MAXIMUM PRESCRIBED RATE (SEC. 942.2), WHICHEVER IS LESS. THE TEMPORARY LODGING PORTION IS GRANTED FOR PERIODS DURING WHICH EXPENSES FOR TEMPORARY LODGING WERE INCURRED WITHIN THE TIME LIMITS ESTABLISHED IN SECTION 252.22.

OUR OPINION IS THAT UNDER THE REGULATIONS THE "TRANSFER" TO WASHINGTON, D.C., TO THE TRAINING COMPLEMENT WHILE A PARTICIPANT IN THE FIFTH SESSION OF THE INSTITUTE ON ICA (NOW AID) PROGRAM DEVELOPMENT TRAINING, PRIOR TO A NEW ASSIGNMENT ABROAD, DID NOT CONSTITUTE A REASSIGNMENT TO A POST IN THE CONTINENTAL UNITED STATES. THEREFORE, DURING THE PERIOD OF TRAINING THE EMPLOYEES DID NOT QUALIFY FOR A HOME SERVICE TRANSFER ALLOWANCE. AT THE TIME OF THEIR TRANSFERS TO PERMANENT POSITIONS IN WASHINGTON IN DECEMBER 1960, THE HOME SERVICE TRANSFER ALLOWANCE WOULD BE PAYABLE INCIDENT TO SUCH TRANSFER, PROVIDED THE OTHER REQUIREMENTS OF THE REGULATIONS WERE SATISFIED.

IN CASE NUMBER 1 WE NOTE THAT THE EMPLOYEE WAS TRANSFERRED FROM BONN, GERMANY, WHICH IS IN TRANSFER ZONE 2 TO WASHINGTON, WHICH IS ALSO IN TRANSFER ZONE 2. THEREFORE, UNDER SECTION 252.12, QUOTED ABOVE, THE EMPLOYEE WOULD NOT BE ELIGIBLE FOR THE TRANSFER PORTION OF THE ALLOWANCE. WE UNDERSTAND THAT IN CASE NUMBER 1 THE EMPLOYEE RENTED AN APARTMENT APPROXIMATELY A MONTH AFTER ARRIVING IN WASHINGTON AND HAD HIS HOUSEHOLD EFFECTS, WHICH APPARENTLY WERE IN STORAGE IN WASHINGTON, DELIVERED AT GOVERNMENT EXPENSE TO HIS APARTMENT. THE INFORMATION AVAILABLE ALSO INDICATES THAT THE EMPLOYEE AS LATE AS JUNE 1961 WAS OCCUPYING THE SAME APARTMENT. IN CASE NUMBER 2 THE FACT THAT THE EMPLOYEE HAD TRAVELED TO WASHINGTON FOR THE TRAINING ASSIGNMENT AND WAS THERE AT THE TIME OF THE TRANSFER IN DECEMBER 1960, WOULD NOT PRECLUDE PAYMENT OF THE TRANSFER PORTION OF THE ALLOWANCE IF OTHERWISE ALLOWABLE. WE UNDERSTAND THAT THIS EMPLOYEE LEASED A FURNISHED HOME FOR THE PERIOD JULY 10 TO DECEMBER 31, 1960. WE HAVE NO INFORMATION TO SHOW WHERE HE LIVED IN WASHINGTON SUBSEQUENT TO THE EXPIRATION OF THE LEASE. WE NOTE THAT THE EMPLOYEE IS CLAIMING THE ALLOWANCE FOR THE PERIOD NOVEMBER 4 TO DECEMBER 3, 1960, WHICH PERIOD IS COVERED BY THE LEASE.

IN OUR DECISION OF JULY 21, 1961, B-146122, REFERRED TO BY YOU, WE SAID THAT ONE OF THE ELEMENTS TO BE CONSIDERED IN THE HOME SERVICE TRANSFER ALLOWANCE IS TEMPORARY LODGING ORDINARILY USED BY GOVERNMENT EMPLOYEES ARRIVING AT A POST IN THE CONTINENTAL UNITED STATES. THIS WAS INTENDED TO COVER NECESSARY AND REASONABLE HOTEL EXPENSES INCURRED BY AN EMPLOYEE AT A POST OF ASSIGNMENT WHILE LOCATING AND ARRANGING FOR SUITABLE PERMANENT QUARTERS. SECTION 252.12 OF THE REGULATIONS SPECIFICALLY EXCLUDES A HOUSE OR APARTMENT AS TEMPORARY LODGING UNLESS THE HEAD OF AGENCY AGREES THAT IT IS OCCUPIED ON A TEMPORARY BASIS. SINCE IT APPEARS THAT BOTH OF THE EMPLOYEES COME WITHIN THE EXCEPTION AND THE RECORD DOES NOT SHOW THAT THERE HAS BEEN AN ADMINISTRATIVE DETERMINATION THAT THEY WERE OCCUPYING TEMPORARY LODGING DURING THE APPLICABLE PERIODS THEY WOULD NOT BE ENTITLED TO TEMPORARY LODGING ALLOWANCE.