B-117121, OCTOBER 8, 1953, 33 COMP. GEN. 158

B-117121, OCTOBER 8, 1953, 33 COMP. GEN. 158

ALLOWANCES AND DIFFERENTIALS - COST-OF-LIVING ALLOWANCE - INCLUSION IN LUMP-SUM LEAVE PAYMENTS AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE STATIONED IN PUERTO RICO WHOSE RESIGNATION WAS EFFECTIVE SUBSEQUENT TO THE PUBLICATION, IN THE FEDERAL REGISTER, OF A CIVIL SERVICE COMMISSION REGULATION WHICH REVOKED THE 25 PERCENT COST-OF-LIVING ALLOWANCE FOR FEDERAL EMPLOYEES STATIONED IN PUERTO RICO, AND SUBSEQUENT TO THE DATE AN ADMINISTRATIVE DIRECTIVE WAS ISSUED ESTABLISHING THE EFFECTIVE DATE OF SUCH REGULATION WITHIN THAT DEPARTMENT, MAY NOT HAVE SUCH ALLOWANCE INCLUDED IN LUMP SUM LEAVE PAYMENT FOR THE LEAVE PERIOD EXTENDING BEYOND THE EFFECTIVE DATE ESTABLISHED IN SUCH DIRECTIVE, NOTWITHSTANDING THE EMPLOYEE'S RESIGNATION WAS EFFECTIVE PRIOR TO THE DATE ESTABLISHED BY THE ADMINISTRATIVE DIRECTIVE.

COMPTROLLER GENERAL WARREN TO JESSE W. LEE, DEPARTMENT OF AGRICULTURE, OCTOBER 8, 1953:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 15, 1953, TRANSMITTING A SUPPLEMENTAL PAYROLL VOUCHER IN FAVOR OF MR. SIMPLICIO VERA-ROSADO, AN EMPLOYEE OF THE PRODUCTION AND MARKETING ADMINISTRATION, SAN JUAN, PUERTO RICO, IN THE AMOUNT OF $235.75 FOR COST-OF-LIVING ALLOWANCE INCIDENT TO A LUMP-SUM LEAVE PAYMENT, AND REQUESTING A DECISION AS TO WHETHER SAID VOUCHER PROPERLY MAY BE CERTIFIED FOR PAYMENT.

IT IS STATED IN YOUR LETTER THAT MR. VERA-ROSADO RESIGNED EFFECTIVE AT THE CLOSE OF BUSINESS JULY 31, 1953; THAT HE WAS PAID FOR 607 HOURS ACCUMULATED AND ACCRUED ANNUAL LEAVE ON D.O. VOUCHER NO. 24-1224, AUGUST 17, 1953; AND THAT HIS ANNUAL LEAVE WOULD HAVE EXTENDED TO SEVEN HOURS AFTER THE BEGINNING OF BUSINESS NOVEMBER 16, 1953. THE 25 PERCENT COST-OF -LIVING ALLOWANCE WAS EXCLUDED FROM THE AFOREMENTIONED PAYMENT BECAUSE OF THE AMENDMENT OF CHAPTER III, PART 350, SECTIONS 350.10 AND 350.11, OF THE REGULATIONS OF THE CIVIL SERVICE COMMISSION, PUBLISHED IN THE FEDERAL REGISTER JULY 22, 1953, WHICH REVOKED THE 25 PERCENT COST-OF-LIVING ALLOWANCE FOR PUERTO RICO AND THE VIRGIN ISLANDS OF THE UNITED STATES. IS FURTHER STATED THAT THE AMENDED REGULATION BECAME EFFECTIVE IN THE DEPARTMENT OF AGRICULTURE ON AUGUST 2, 1953.

YOU EXPRESS DOUBT AS TO THE APPLICABILITY OF THE AMENDED REGULATION TO EXCLUDE THE COST-OF-LIVING ALLOWANCE FROM THE LUMP-SUM LEAVE PAYMENT SINCE MR. VERA-ROSADO RESIGNED SUBSEQUENT TO THE DATE OF PUBLICATION THEREOF BUT PRIOR TO THE DATE IT BECAME EFFECTIVE IN THE DEPARTMENT OF AGRICULTURE.

THE AFOREMENTIONED AMENDMENT TO PART 350 OF THE REGULATION, 18 F.R. 4247, PROVIDES, WITH RESPECT TO EFFECTIVE DATE, AS FOLLOWS:

EFFECTIVE UPON PUBLICATION IN THE FEDERAL REGISTER OR AT ANY SUBSEQUENT DATE NOT LATER THAN THE BEGINNING OF THE FIRST PAY PERIOD WHICH BEGINS AFTER THE DATE OF PUBLICATION IN THE FEDERAL REGISTER, AS ELECTED BY EACH DEPARTMENT OR AGENCY SECTIONS 350.10 AND 350.11 ARE AMENDED AS SET OUT BELOW.

THE EFFECTIVE DATE WAS ESTABLISHED WITHIN THE DEPARTMENT OF AGRICULTURE BY BUDGET AND FINANCE MEMORANDUM NO. 255, ISSUED JULY 28, 1953, AS AUGUST 2, 1953.

IT WAS HELD IN DECISION OF AUGUST 8, 1946, 26 COMP. GEN. 102, AS FOLLOWS (QUOTING FROM YLLABUS):

THE LUMP-SUM PAYMENT FOR LEAVE AUTHORIZED BY THE ACT OF DECEMBER 21, 1944, UPON SEPARATION FROM SERVICE IS NOT FOR COMPUTATION ON THE BASIS OF ANY AND ALL COMPENSATION CHANGES OCCURRING IN THE INTERIM BETWEEN THE DATE OF SEPARATION AND THE EXPIRATION OF THE LEAVE PERIOD TO BE CONSIDERED IN DETERMINING THE AMOUNT OF SUCH PAYMENT, BUT ON THE BASIS OF THE EMPLOYEE'S RIGHTS UNDER ALL APPLICABLE LAWS AND REGULATIONS EXISTING AT THE TIME OF SEPARATION WHICH WOULD HAVE AFFECTED HIS COMPENSATION HAD HE REMAINED IN THE SERVICE FOR THE PERIOD COVERED BY HIS LEAVE.

APPLYING THE FOREGOING RULE TO THE INSTANT CASE, PAYMENT OF THE 25 PERCENT COST-OF-LIVING ALLOWANCE MAY NOT BE MADE BEYOND AUGUST 1, 1953, SINCE THE REGULATION PROVIDING FOR THE DISCONTINUANCE OF THE ALLOWANCE AND THE ADMINISTRATIVE DIRECTIVE ESTABLISHING THE EFFECTIVE DATE AS AUGUST 2, 1953, WERE IN EXISTENCE PRIOR TO THE DATE OF SEPARATION. CF. 26 COMP. GEN. 214.

ACCORDINGLY, THE PAYROLL VOUCHER, RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.