B-155734, DEC. 28, 1964, 44 COMP. GEN. 365

B-155734, DEC. 28, 1964, 44 COMP. GEN. 365

COMPENSATION - REMOVALS, SUSPENSION, ETC. - DAMAGES, LOSS, ETC., OTHER THAN BACK PAY - ALLOWANCES EVEN THOUGH THE LIVING QUARTERS ALLOWANCE PROVIDED BY SECTION 211 OF THE OVER-SEAS DIFFERENTIALS AND ALLOWANCES ACT, 5 U.S.C. 3036, FOR EMPLOYEES NOT FURNISHED GOVERNMENT QUARTERS WITHOUT CHARGE IS NOT COMPENSATION WITHIN THE MEANING OF SECTION 6 OF THE ACT OF AUGUST 24, 1912, AUTHORIZING ,RETROACTIVE COMPENSATION" FOR EMPLOYEES REINSTATED AFTER AN UNJUSTIFIED OR UNWARRANTED REMOVAL OR SUSPENSION, WHEN AN OVERSEAS EMPLOYEE DEPRIVED OF GOVERNMENT QUARTERS DURING A PERIOD OF SUSPENSION OBTAINS PRIVATE QUARTERS FOR HIMSELF IN GERMANY AND HIS DEPENDENTS IN FRANCE, HE IS ENTITLED UPON RESTORATION TO DUTY, IN ADDITION TO BASIC COMPENSATION FOR THE REMOVAL PERIOD, TO A LIVING QUARTERS ALLOWANCE, BUT NOT AT HIS ANNUAL RATE IN VIEW OF THE EXPENSES HE INCURRED DURING THE SUSPENSION PERIOD, HOWEVER, THE EMPLOYEE MAY BE GRANTED A "WITH FAMILY" ALLOWANCE NOTWITHSTANDING HE AND HIS FAMILY WERE SEPARATED.

TO MAJOR K. R. DARRINGTON, DEPARTMENT OF THE ARMY, DECEMBER 28, 1964:

WE REFER TO YOUR LETTER OF OCTOBER 9, 1964, YOUR REFERENCE AENCO-FF, IN WHICH YOU REQUEST OUR DECISION AS TO THE PROPRIETY OF PAYMENT OF THE ENCLOSED VOUCHER IN FAVOR OF MR. ANDREW V. HORNICK COVERING LIVING QUARTERS ALLOWANCE FOR A PART OF THE PERIOD HE WAS ERRONEOUSLY SEPARATED FROM FEDERAL SERVICE.

YOU STATE THE FACTS INVOLVED AS FOLLOWS:

MR. HORNICK WAS REMOVED FROM THE FEDERAL SERVICE EFFECTIVE 2 JULY 1963. ON 26 DECEMBER 1963, THE REMOVAL ACTION WAS CANCELLED RESTORING HIM TO HIS FORMER POSITION EFFECTIVE 2 JULY 1963. ON THE BASIS OF THE REMOVAL ACTION, MR. HORNICK WAS ORDERED TO VACATE HIS GOVERNMENT QUARTERS ON 10 SEPTEMBER 1963. HE WAS THEN REQUIRED TO OBTAIN LIVING QUARTERS FOR HIMSELF AND HIS DEPENDENT IN THE LOCAL ECONOMY. RETROACTIVE PAYMENT OF BASIC COMPENSATION (BASE PAY) IN THE AMOUNT OF $3,551.20 WAS MADE ON VOUCHER NO. 300471, 20 JANUARY 1964, ACCOUNTS OF A. R. OTTE, MAJOR, FC, SYMBOL 6458. MR. HORNICK NOW CLAIMS RETROACTIVE LIVING QUARTERS ALLOWANCE.

THE PERIOD COVERED BY THE VOUCHER IS SEPTEMBER 26 THROUGH DECEMBER 24, 1963, DURING WHICH PERIOD MR. HORNICK AND HIS FAMILY WERE NOT FURNISHED GOVERNMENT QUARTERS AND THEREFORE RENTED PRIVATE QUARTERS FOR HIMSELF IN HANAU, GERMANY, AND APPARENTLY QUARTERS FOR HIS FAMILY IN MEUSE, FRANCE.

SECTION 6 (B) (1) OF THE ACT OF AUGUST 24, 1912, CH. 389, 37 STAT. 555, AS AMENDED BY THE ACT OF JUNE 10, 1948, CH. 477, 62 STAT. 354, 5 U.S.C. 652 (B) (1) PROVIDES THAT EMPLOYEES REINSTATED AFTER AN UNJUSTIFIED OR UNWARRANTED REMOVAL OR SUSPENSION:

* * * SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH REMOVAL OR SUSPENSION, FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS REMOVED OR SUSPENDED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD, AND SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD. * * *

A SIMILAR PROVISION IS CONTAINED IN SUBSECTION 6 (B) (2), 5 U.S.C. 652 (B) (2), WITH REGARD TO EMPLOYEES REINSTATED AFTER A DISCHARGE, SUSPENSION OR FURLOUGH WHICH IS CONSIDERED TO BE UNJUSTIFIED OR UNWARRANTED UNDER THE PROVISIONS OF SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, APPROVED JUNE 27, 1944, CH. 287, 58 STAT. 390, AS AMENDED, 5 U.S.C. 863.

UNDER THOSE PROVISIONS AN EMPLOYEE WHO IS SERVING OVERSEAS WHEN HE IS ERRONEOUSLY SEPARATED IS ENTITLED TO HAVE ANY POST DIFFERENTIAL HE WAS RECEIVING AT THE TIME OF SUCH SEPARATION INCLUDED AS PART OF HIS BACK PAY BECAUSE A POST DIFFERENTIAL AS AUTHORIZED BY SECTION 231 OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT, APPROVED SEPTEMBER 6, 1960, PUBLIC LAW 86-707, 74 STAT. 795, 5 U.S.C. 3038, IS "ADDITIONAL COMPENSATION.' SEE 40 COMP. GEN. 479. ON THE OTHER HAND THE QUARTERS ALLOWANCE PROPOSED FOR PAYMENT TO MR. HORNICK IS AN ALLOWANCE AUTHORIZED BY SECTION 211 OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT, 5 U.S.C. 3036, FOR EMPLOYEES ASSIGNED TO CERTAIN FOREIGN AREAS TO COVER THE COST OF RENT AND OTHER CHARGES FOR LIVING ACCOMMODATIONS WHEN GOVERNMENT QUARTERS ARE NOT FURNISHED TO THE EMPLOYEE WITHOUT CHARGE. ALTHOUGH SUCH AN ALLOWANCE IS NOT COMPENSATION AND THUS MAY NOT BE ALLOWED AS "RETROACTIVE COMPENSATION" UNDER SECTION 6 OF THE ACT OF AUGUST 24, 1912, 5 U.S.C. 652, THERE IS FOR CONSIDERATION WHETHER MR. HORNICK MAY BE RETROACTIVELY GRANTED A QUARTERS ALLOWANCE PURSUANT TO THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT, 5 U.S.C. 3036, AND THE APPLICABLE REGULATIONS.

SINCE MR HORNICK (1) WAS RESTORED TO DUTY AND PAID BASIC COMPENSATION FOR THE PERIOD OF HIS REMOVAL, (2) REMAINED AT HIS OVERSEAS DUTY POST AND INCURRED EXPENSES FOR QUARTERS DURING THE PERIOD OF HIS ERRONEOUS SEPARATION, AND (3) WAS NOT FURNISHED GOVERNMENT QUARTERS WITHOUT CHARGE, WE SEE NO REASON WHY HE MAY NOT BE GRANTED A RETROACTIVE LIVING QUARTERS ALLOWANCE PURSUANT TO THE PROVISIONS OF 5 U.S.C. 3036, SECTION 130 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) AND CHAPTER T7 OF THE CIVILIAN PERSONNEL REGULATIONS OF THE DEPARTMENT OF THE ARMY. HOWEVER, ON THE PRESENT RECORD--- AND WITH PARTICULAR REFERENCE TO THE EXPENSES SHOWN TO HAVE BEEN INCURRED DURING THE PERIOD IN QUESTION--- WE HAVE DOUBT WHETHER MR. HORNICK IS ENTITLED TO PAYMENT OF SUCH ALLOWANCE AT THE ANNUAL RATE SPECIFIED ($1,600) IN VIEW OF SECTION 134.2 OF THE STANDARDIZED REGULATIONS AND SECTION 2-3A OF CPR T7. UNDER THE PARTICULAR CIRCUMSTANCES HERE INVOLVED WE WOULD NOT QUESTION THE GRANTING OF A "WITH FAMILY" ALLOWANCE EVEN THOUGH THE WIFE OF THE EMPLOYEE WAS LIVING IN FRANCE FOR ALL OR PART OF THE PERIOD HERE INVOLVED.

THE VOUCHER, TOGETHER WITH ACCOMPANYING PAPERS, IS RETURNED HEREWITH AND MAY BE PAID IN THE AMOUNT FOUND DUE AFTER RECONSIDERATION IN ACCORDANCE WITH THE ABOVE.