B-130148, JAN. 31, 1958

B-130148: Jan 31, 1958

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SMITH: WE HAVE FURTHER CONSIDERED. AS THE RESULT OF AN APPEAL TO THE CIVIL SERVICE COMMISSION YOU WERE ADMINISTRATIVELY REINSTATED UPON YOUR RETURN TO OKINAWA. THE SOLE QUESTION FOR CONSIDERATION IS YOUR ENTITLEMENT TO THE FOREIGN POST DIFFERENTIAL OF OKINAWA FOR THE PERIOD YOU WERE AWAY FROM THAT AREA AS A CONSEQUENCE OF ADMINISTRATIVE ACTION. THE QUESTION WAS PREVIOUSLY CONSIDERED IN OUR DECISION OF FEBRUARY 1. THAT YOU WERE NOT ENTITLED TO THE FOREIGN POST DIFFERENTIAL FOR THE PERIOD OF YOUR ABSENCE FROM THE FOREIGN POST. IS CLEAR FROM THE CONTROLLING STATUTE AND REGULATIONS (5 U.S.C. 118H. 5 CFR 325) THAT ENTITLEMENT TO PAYMENT OF A FOREIGN POST DIFFERENTIAL IS PREDICATED UPON THE EMPLOYEE'S BEING AT THE DIFFERENTIAL POST.

B-130148, JAN. 31, 1958

TO MR. CHARLES J. SMITH:

WE HAVE FURTHER CONSIDERED, AS REQUESTED IN YOUR LETTER OF DECEMBER 6, 1957, YOUR CLAIM FOR ADDITIONAL COMPENSATION, NAMELY, THE FOREIGN POST DIFFERENTIAL FOR THE PERIOD OF YOUR IMPROPER SEPARATION FROM OVERSEAS EMPLOYMENT WITH THE DEPARTMENT OF THE ARMY.

ON DECEMBER 18, 1955, YOU DEPARTED FROM OKINAWA, YOUR POST OF DUTY, INCIDENT TO YOUR SEPARATION EFFECTIVE DECEMBER 21, 1955. AS THE RESULT OF AN APPEAL TO THE CIVIL SERVICE COMMISSION YOU WERE ADMINISTRATIVELY REINSTATED UPON YOUR RETURN TO OKINAWA, MAY 2, 1956. YOU SUBSEQUENTLY RECEIVED THE BASIC COMPENSATION OF YOUR POSITION FOR THE PERIOD OF YOUR REMOVAL.

THE SOLE QUESTION FOR CONSIDERATION IS YOUR ENTITLEMENT TO THE FOREIGN POST DIFFERENTIAL OF OKINAWA FOR THE PERIOD YOU WERE AWAY FROM THAT AREA AS A CONSEQUENCE OF ADMINISTRATIVE ACTION. THE QUESTION WAS PREVIOUSLY CONSIDERED IN OUR DECISION OF FEBRUARY 1, 1957, 36 COMP. GEN. 560. THAT DECISION WE HELD, FOLLOWING THE DECISION OF THE COURT OF CLAIMS IN KALV V. UNITED STATES, 128 C.CLS. 207, DECIDED MAY 4, 1954, DENYING A DIFFERENTIAL CLAIM UNDER SIMILAR CIRCUMSTANCES, THAT YOU WERE NOT ENTITLED TO THE FOREIGN POST DIFFERENTIAL FOR THE PERIOD OF YOUR ABSENCE FROM THE FOREIGN POST.

IN YOUR LETTER OF DECEMBER 6, 1957, YOU URGE THAT WE DISREGARD THE DECISION OF THE COURT OF CLAIMS IN THE KALV CASE AS NOT BEING WELL FOUNDED IN LAW. WE, HOWEVER, FIND NO SOUND BASIS FOR IGNORING THAT DECISION. IS CLEAR FROM THE CONTROLLING STATUTE AND REGULATIONS (5 U.S.C. 118H; EXECUTIVE ORDER NO. 10000, AS AMENDED; 5 CFR 325) THAT ENTITLEMENT TO PAYMENT OF A FOREIGN POST DIFFERENTIAL IS PREDICATED UPON THE EMPLOYEE'S BEING AT THE DIFFERENTIAL POST. PAYMENT COMMENCES UPON ARRIVAL AT THE POST AND TERMINATES UPON DEPARTURE, WHETHER FOR SEPARATION, TRANSFER, OR DETAIL. WHILE, AS INDICATED IN YOUR LETTER, THE REGULATIONS DO PROVIDE FOR THE CONTINUANCE OF THE DIFFERENTIAL WHEN AN EMPLOYEE IS AWAY FROM HIS DIFFERENTIAL POST IN A LEAVE WITH PAY STATUS, THAT EXCEPTION CANNOT BE ENLARGED UPON TO COVER THE SITUATION OF A SEPARATION, EVEN THOUGH SUCH SEPARATION SUBSEQUENTLY IS DETERMINED TO HAVE BEEN ERRONEOUS. SEE IN THAT CONNECTION 5 CFR 325.1 (K), DEFINING "SEPARATION.'

WE CONSIDER THE KALV CASE AS CONTROLLING, EVEN THOUGH YOU WERE EMPLOYED BY THE DEPARTMENT OF JUSTICE AT GUAM AND RECEIVED A TERRITORIAL POST DIFFERENTIAL DURING SEVERAL WEEKS OF YOUR PERIOD OF SEPARATION FROM THE OKINAWA POSITION. WHILE THE COURT STATED IN THE KALV CASE THAT "PLAINTIFF WAS ABROAD NOT A SINGLE DAY DURING THE PERIOD FOR WHICH HE IS CLAIMING THE ADDITIONAL PENSATION," THE SIGNIFICANT FACT, APPARENT FROM THE OPINION AS A WHOLE, IS THAT THE PLAINTIFF WAS NOT AT THE DIFFERENTIAL POST DURING THE PERIOD FOR WHICH HE CLAIMED THE POST DIFFERENTIAL.