B-143078, JUN. 17, 1960

B-143078, JUN. 17, 1960

TO MR. LOUIS L. JIRA:

ON MAY 17, 1960, YOU REQUESTED REVIEW OF OUR SETTLEMENT OF OCTOBER 24, 1957, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION AT AN EMPLOYEE OF THE VETERANS ADMINISTRATION IN SAN JUAN, PUERTO RICO.

THE EVIDENCE YOU HAVE SUBMITTED SHOWS THAT YOU WERE TRANSFERRED FROM CLEVELAND, OHIO, TO SAN JUAN ON NOVEMBER 7, 1954, UNDER AN AGREEMENT TO REMAIN WITH THE VETERANS ADMINISTRATION IN SAN JUAN FOR 24 MONTHS; THAT AT THE TIME OF YOUR TRANSFER YOU WERE ALLOWED 25 PERCENT ADDITIONAL COMPENSATION; THAT YOU EXECUTED AN EMPLOYMENT AGREEMENT ON NOVEMBER 8, 1956, AGREEING TO REMAIN WITH THE VETERANS ADMINISTRATION IN SAN JUAN AN ADDITIONAL 24 MONTHS; THAT THE RATE OF YOUR ADDITIONAL COMPENSATION WAS REDUCED TO 17 1/2 PERCENT IN MAY 1957; AND THAT THE AMOUNT OF SUCH COMPENSATION WAS REDUCED TO 12 1/2 PERCENT IN MARCH 1960.

YOU CONTEND THAT THE INTRA AGENCY TRANSFER REQUEST, VA FORM 5-3918, DATED SEPTEMBER 27, 1954, UNDER WHICH YOU WERE TRANSFERRED TO SAN JUAN, AND THE AGREEMENT ON THE REVERSE SIDE OF THAT FORM MUST BE READ TOGETHER AS A CONTRACT FOR OVERSEAS EMPLOYMENT, AND THAT YOU ARE ENTITLED TO RECEIVE THE 25 PERCENT ADDITIONAL COMPENSATION PROVIDED THEREIN DURING YOUR ENTIRE OVERSEAS TOUR BY THE TERMS OF THAT CONTRACT.

WE FIND NO EVIDENCE TO SUPPORT THE VIEW THAT THE OBVERSE OF THE VA FORM 5 -3918 IN QUESTION IS IN ANY WAY A PART OF THE AGREEMENT FOR TRANSPORTATION WHICH APPEARS UPON THE REVERSE THEREOF. ON THE CONTRARY THE OBVERSE OF THAT FORM APPEARS TO BE THE ADMINISTRATIVE DOCUMENTATION OF YOUR TRANSFER, INCLUDING A STATEMENT OF YOUR WILLINGNESS TO ACCEPT SUCH TRANSFER, AND THE REVERSE IS MERELY THE TRANSPORTATION AGREEMENT REQUIRED OF EMPLOYEES WHO ARE ASSIGNED OVERSEAS UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 808, AS AMENDED, 5 U.S.C. 73B-3. MOREOVER, IRRESPECTIVE AS TO ANY DIFFERENCES OF OPINION CONCERNING THE TERMS "CONTRACT" AND "EMPLOYMENT AGREEMENT," WE ARE NOT AWARE OF ANY AUTHORITY UNDER WHICH THE VETERANS ADMINISTRATION, BY CONTRACT OR OTHERWISE, COULD AUTHORIZE PAYMENT TO YOU OF ADDITIONAL COMPENSATION OTHER THAN SPECIFIED IN THE APPLICABLE STATUTE AND REGULATIONS, REFERRED TO HEREINAFTER. THE REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION IN 350.3 PROVIDED THAT NO TERRITORIAL COST -OF-LIVING ALLOWANCE OR TERRITORIAL POST DIFFERENTIAL SHALL BE PAID "DURING THE PERIOD OF HIS CONTRACT TO ANY EMPLOYEE SERVING UNDER A CONTRACT, AS DEFINED IN SECTION 350.1 (H), ON THE EFFECTIVE DATE OF REGULATIONS IN THIS PART.' THOSE REGULATIONS WERE EFFECTIVE JANUARY 1949 AND YOU WERE NOT TRANSFERRED TO PUERTO RICO UNTIL 1954. THEREFORE, IT IS CLEAR THAT THE "CONTRACT" EMPLOYEE EXCLUSION--- OR SAVINGS CLAUSE--- HAS NO APPLICATION TO YOUR CASE.

REGARDING THE STATEMENT IN BLOCK 9 OF VA FORM 5-3918 THAT YOUR COMPENSATION WOULD INCLUDE 25 PERCENT "DIFFERENTIAL," AT THE TIME IN QUESTION, THE VETERANS ADMINISTRATION HAD NO AUTHORITY TO PAY A TERRITORIAL POST DIFFERENTIAL AS DEFINED IN SECTION 350.1 (D) OF TITLE 5, CHAPTER III, OF THE CODE OF FEDERAL REGULATIONS TO EMPLOYEES IN PUERTO RICO, BUT UNDER SECTION 350.10 OF THAT CHAPTER THE PAYMENT OF 25 PERCENT TERRITORIAL COST-OF-LIVING ALLOWANCE IN PUERTO RICO WAS AUTHORIZED. KNOW OF NO AUTHORITY FOR THE PAYMENT OF A DIFFERENTIAL TO EMPLOYEES ASSIGNED TO SAN JUAN AT THE TIME IN QUESTION. THEREFORE, THE ADDITIONAL COMPENSATION AUTHORIZED IN YOUR FORM S-3918 MUST BE VIEWED AS TERRITORIAL COST-OF-LIVING ALLOWANCE DESPITE THE FACT THAT IT WAS IMPROPERLY DESIGNATED AS A DIFFERENTIAL. WE NOTE THAT THE REGULATIONS CONTAINED IN SECTION 350 OF TITLE 5, CHAPTER III, OF THE CODE OF FEDERAL REGULATIONS ARE STATUTORY REGULATIONS, AND HAVE THE FORCE AND EFFECT OF LAW SINCE THEY WERE ISSUED BY THE CIVIL SERVICE COMMISSION UNDER SECTION 204 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1949, 62 STAT. 194 AS AMENDED, 5 U.S.C. 118H, AND EXECUTIVE ORDER NO. 10,000.

FOR THE REASONS STATED WE MUST HOLD THAT YOU HAVE NO RIGHT TO ADDITIONAL COMPENSATION AND THAT YOU ARE ENTITLED TO A TERRITORIAL COST-OF-LIVING ALLOWANCE ONLY AS PROVIDED BY THE CURRENT REGULATIONS. THEREFORE, OUR SETTLEMENT OF OCTOBER 24, 1957, WHICH DISALLOWED YOUR CLAIM, IS SUSTAINED.