B-81954, FEBRUARY 18, 1949, 28 COMP. GEN. 465

B-81954, FEBRUARY 18, 1949, 28 COMP. GEN. 465

LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - ADDITIONAL COMPENSATION FOR POSITIONS OUTSIDE CONTINENTAL U.S. THE ADDITIONAL COMPENSATION PAYABLE PURSUANT TO SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED, AND EXECUTIVE ORDER NO. 10000 ISSUED THEREUNDER, TO EMPLOYEES STATIONED OUTSIDE THE CONTINENTAL UNITED STATES, MAY NOT BE CONSIDERED IN COMPUTING THE LUMP SUM PAYMENT FOR LEAVE UNDER THE ACT OF DECEMBER 21, 1944, DUE AN EMPLOYEE RETURNED TO THE UNITED STATES UNDER THE AUTHORITY IN SECTION 7 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, FOR PURPOSES OF SEPARATION FROM SERVICE, AND WHO ACTUALLY IS SEPARATED IN THIS COUNTRY. 28 COMP. GEN. 377, AMPLIFIED. THE PAYMENT OF ANY ALLOWANCES TO EMPLOYEES STATIONED IN FOREIGN AREAS PURSUANT TO THE AUTHORITY IN SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED, IS TO BE REGARDED AS "ADDITIONAL COMPENSATION" AND PROPERLY IS FOR CONSIDERATION IN COMPUTING LUMP-SUM LEAVE PAYMENTS UNDER THE ACT OF DECEMBER 21, 1944, EVEN THOUGH SUCH ALLOWANCES BE DENOMINATED AS "FOREIGN POST DIFFERENTIAL," " TERRITORIAL POST DIFFERENTIAL," AND " TERRITORIAL COST OF-LIVING ALLOWANCE.'

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, FEBRUARY 18, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 18, 1949, REQUESTING CLARIFICATION OF THE WORDING IN THE CONCLUDING PARAGRAPH OF OFFICE DECISION OF DECEMBER 23, 1948, B-81954, 28 COMP. GEN. 377, WHICH HELD THAT, IN PROPER CASES, THE "ADDITIONAL COMPENSATION" AUTHORIZED TO BE PAID PURSUANT TO THE AUTHORITY CONTAINED IN 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, IS FOR CONSIDERATION IN COMPUTING THE LUMP-SUM PAYMENTS IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 1 AND 2 OF THE THE ACT OF DECEMBER 21, 1944, 58 STAT. 845. ALSO YOU REQUEST A DECISION UPON THE QUESTION OF WHETHER CERTAIN OTHER ALLOWANCES MAY BE INCLUDED IN SUCH

PAYMENTS.

IT IS STATED IN YOUR LETTER THAT, AFTER STUDYING THE SAID DECISION OF DECEMBER 23, 1948, AND DECISIONS TO WHICH REFERENCE IS MADE THEREIN, YOU STILL ARE NOT CERTAIN WHETHER THE "ADDITIONAL COMPENSATION" PROPERLY IS FOR CONSIDERATION IN COMPUTING THE LUMP-SUM PAYMENTS TO EMPLOYEES RETURNED TO THIS COUNTRY PURSUANT TO AUTHORITY CONTAINED IN SECTION 7 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 806, 808, FOR SEPARATION FROM THE SERVICE. THAT UNCERTAINTY IS STATED TO HAVE ARISEN BECAUSE OF STATEMENTS IN SECTIONS 106 (A) (1) AND 208 (A) (1) OF EXECUTIVE ORDER NO. 10000, APPROVED SEPTEMBER 16, 1948, TO THE EFFECT THAT THE PAYMENT OF SUCH ADDITIONAL COMPENSATION SHALL STOP AS OF DEPARTURE FROM THE POST FOR SEPARATION, TRANSFER, OR DETAIL.

SECTION 106 (A) (1) OF EXECUTIVE ORDER NO. 10000 PROVIDES AS TO THE PAYMENT OF FOREIGN POST DIFFERENTIALS AS FOLLOWS:

SEC. 106. PAYMENT OF FOREIGN POST DIFFERENTIALS.--- (A) THE FOLLOWING SHALL GOVERN THE PAYMENT OF FOREIGN POST DIFFERENTIALS UNDER THIS PART:

(1) PAYMENTS SHALL BEGIN AS OF THE DATE OF ARRIVAL AT THE POST ON ASSIGNMENT TRANSFER, OR DETAIL AND SHALL STOP AS OF DEPARTURE FROM THE POST FOR SEPARATION, TRANSFER, OR DETAIL AND SHALL STOP AS OF DEPARTURE FROM THE POST FOR SEPARATION, TRANSFER, OR DETAIL, EXCEPT THAT IN CASE OF LOCAL RECRUITMENT SUCH PAYMENTS SHALL BEGIN AND STOP AS OF THE BEGINNING AND END OF EMPLOYMENT. SECTION 208 (A) (1) OF THAT EXECUTIVE ORDER, RELATIVE TO THE PAYMENT OF TERRITORIAL POST DIFFERENTIALS AND COST-OF- LIVING ALLOWANCE, IS WORDED SUBSTANTIALLY THE SAME AS SECTION 106 (A) (1), JUST QUOTED. IT WILL BE NOTED THAT, AS TO SUCH PAYMENTS, IT SPECIFICALLY IS PROVIDED THAT PAYMENT "SHALL STOP AS OF DEPARTURE FROM THE POST FOR SEPARATION.' ACCORDINGLY, WHEN A PERSON IS RETURNED TO THIS COUNTRY UNDER AUTHORITY CONTAINED IN SECTION 7 OF THE ACT OF AUGUST 2, 1946, SUPRA, 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 217 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED, AT THE TIME OF HIS SEPARATION. SECTION 1 OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, WHICH PROVIDES FOR A LUMP-SUM PAYMENT FOR ACCUMULATED OR ACCRUED ANNUAL LEAVE DUE UPON SEPARATION FROM THE SERVICE, ALSO PROVIDES THAT "SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF SUCH ANNUAL OR VACATION LEAVE.' SINCE AN EMPLOYEE SEPARATED FROM THE SERVICE IN THE UNITED STATES WOULD NOT, AT THE TIME OF SEPARATION, BE RECEIVING THE "ADDITIONAL COMPENSATION" PROVIDED BY THE APPLICABLE STATUTE AND REGULATION, SUPRA, IT FOLLOWS THAT SUCH ADDITIONAL COMPENSATION WOULD NOT BE FOR CONSIDERATION IN COMPUTING THE LUMP-SUM PAYMENT DUE SUCH AN EMPLOYEE. I BELIEVE THE FOREGOING COVERS THE POINT UPON WHICH CLARIFICATION IS REQUESTED.

ALSO, YOUR LETTER NOTES THAT THERE ARE TWO TYPES OF PAYMENTS IN ADDITION TO BASE SALARY PAYMENTS WHICH MAY BE MADE TO EMPLOYEES STATIONED IN FOREIGN AREAS, NAMELY (A) FOREIGN POST DIFFERENTIALS PAYABLE PURSUANT TO AUTHORITY CONTAINED IN SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AND OTHER AUTHORITY AS OUTLINED IN THE STANDARDIZED GOVERNMENT CIVILIAN ALLOWANCE REGULATIONS ISSUED BY THE SECRETARY OF STATE PURSUANT TO AUTHORITY CONTAINED IN EXECUTIVE ORDER NO. 10011 DATED OCTOBER 22, 1948. FURTHER, YOUR LETTER NOTES THAT, IN ADDITION TO BASE SALARY PAYMENTS WHICH MAY BE MADE TO EMPLOYEES STATIONED IN THE TERRITORIES, THERE MAY BE PAYMENTS OF (A) TERRITORIAL POST DIFFERENTIALS AND (B) TERRITORIAL COST-OF-LIVING ALLOWANCES, BOTH OF WHICH ARE PAYABLE ONLY PURSUANT TO AUTHORITY CONTAINED IN SECTION 207 OF THE INDEPENDENT OFFICE APPROPRIATION ACT, 1049, AS AMENDED. AS TO ALL FOUR OF THESE TYPES OF PAYMENTS, YOU REQUEST TO BE ADVISED WHETHER THEY "ARE TO BE CONSIDERED AS ADDITIONAL COMPENSATION PAYABLE UPON A PERSONAL BASIS AND HENCE FOR CONSIDERATION IN COMPUTING LUMP-SUM PAYMENTS IN PROPER CASES, OR WHETHER THE FOREIGN ALLOWANCES OR TERRITORIAL COST-OF-LIVING ALLOWANCES, OR BOTH, SHOULD BE CONSIDERED AS PAYMENTS TO OFFSET STANDARD PERSONAL EXPENSES ACCRUING FROM THE EMPLOYMENT AND THEREFORE IN THE NATURE OF A COMMUTATION PAYMENT AND NOT FOR CONSIDERATION IN COMPUTING LUMP-SUM PAYMENTS.' IT IS STATED BY YOU THAT IN THE PAST THE DEPARTMENT OF COMMERCE HAS NOT CONSIDERED THE FOREIGN ALLOWANCES IN COMPUTING LUMP-SUM PAYMENTS.

IN ANSWER TO THE QUESTION SO PRESENTED, IT MAY BE STATED THAT ONLY THOSE OF THE ALLOWANCES MENTIONED WHICH ARE BASED UPON AUTHORITY CONTAINED IN SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED, PROPERLY MAY BE CONSIDERED AS "ADDITIONAL COMPENSATION" AND, THEREFORE, FOR CONSIDERATION IN PROPER CASES IN COMPUTING LUMP-SUM PAYMENTS. ANY ,ALLOWANCES" PAID PURSUANT TO AUTHORITY CONTAINED IN THAT SECTION ACTUALLY ARE DENOMINATED IN SAID SECTION AS ,ADDITIONAL COMPENSATION.' THAT FACT SHOULD NOT BE OVERLOOKED EVEN THOUGH SUCH COMPENSATION BEARS SUCH LABELS IN PARTICULAR CASES AS "FOREIGN POST DIFFERENTIAL," " TERRITORIAL POST DIFFERENTIAL," AND " TERRITORIAL COST-OF -LIVING ALLOWANCE.' IN OTHER WORDS, IF THE PAYMENT, REGARDLESS OF WHAT IT MAY BE CALLED, IS MADE PURSUANT TO AUTHORITY CONTAINED IN SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, IT IS "ADDITIONAL COMPENSATION" AND, THEREFORE, IS PROPERLY FOR CONSIDERATION IN COMPUTING LUMP-SUM PAYMENTS WHICH ARE MADE IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845.