B-156055, APR. 21, 1965

B-156055, APR. 21, 1965

TO MR. LEOPOLD J. LECLAIR, POLICY OFFICER, MOTION PICTURE SERVICE, UNITED STATES INFORMATION AGENCY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 15, 1965, CONCERNING THE EXCEPTION TAKEN BY OUR OFFICE TO A PART OF THE EDUCATION ALLOWANCE PAID YOU FOR THE SCHOOL YEAR FEBRUARY TO NOVEMBER 1963 WHILE YOUR TWO DAUGHTERS, ISABELLA AND MARY JOELLE, WERE ATTENDING SCHOOL IN INDIA INCIDENT TO YOUR ASSIGNMENT TO COLOMBO, CEYLON, AS AN EMPLOYEE OF THE UNITED STATES INFORMATION AGENCY.

YOU WERE GRANTED THE EDUCATION ALLOWANCE IN QUESTION ON MARCH 22, 1963, IN THE TOTAL AMOUNT OF $1,580 UNDER SECTION 221 (4) (A) OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT, APPROVED SEPTEMBER 6, 1960, PUB.L. 86- 707, 74 STAT. 794, 5 U.S.C. 3037 (4) (A), AS IMPLEMENTED BY CHAPTER 270 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS). THE AMOUNT ALLOWED WAS PAID UNDER THE "SCHOOL AWAY FROM POST" AUTHORITY APPLICABLE TO EMPLOYEES STATIONED AT COLOMBO AND INCLUDED REIMBURSEMENT FOR COSTS OF TUITION, BOOKS, SUPPLIES, FEES, ROOM, BOARD, AND TRANSPORTATION BETWEEN YOUR POST AND THE LOCATION OF THE SCHOOL. THE ALLOWANCE APPEARS TO HAVE BEEN PROPERLY COMPUTED AND APPROPRIATELY PAID IN ADVANCE UNDER SECTION 221 (4) (A) AND THE APPLICABLE REGULATIONS.

ON APRIL 11 SHORTLY AFTER THE ALLOWANCE WAS GRANTED YOU WERE NOTIFIED THAT YOU WOULD BE RETURNED TO THE UNITED STATES FOR HOME LEAVE AND ASSIGNMENT TO WASHINGTON, D.C. YOU LEFT COLOMBO JUNE 17 WITH YOUR WIFE AND TWO OF YOUR CHILDREN AND AFTER PERIODS OF TRAVEL AND LEAVE YOU REPORTED FOR DUTY IN WASHINGTON ON SEPTEMBER 30. YOUR TWO DAUGHTERS WHO WERE ATTENDING SCHOOL IN INDIA REMAINED THERE UNTIL THE SCHOOL YEAR ENDED ON NOVEMBER 26, AFTER WHICH THEY RETURNED TO THE UNITED STATES.

YOU HAVE BEEN INFORMED THAT YOU MUST REFUND $239.92 OF THE $1,580 EDUCATION ALLOWANCE PAID YOU BECAUSE YOU WERE NOT STATIONED OVERSEAS AFTER SEPTEMBER 30 AND THE ALLOWANCE COVERED THE PERIOD FEBRUARY 13 TO NOVEMBER 26, 1963.

SECTION 221 OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT PROVIDES IN PERTINENT PART:

"THE FOLLOWING COST-OF-LIVING ALLOWANCES MAY BE GRANTED, WHERE APPLICABLE, TO AN EMPLOYEE IN A FOREIGN AREA:

"/4) AN EDUCATION ALLOWANCE OR PAYMENT OF TRAVEL COSTS TO ASSIST AN EMPLOYEE WITH THE EXTRAORDINARY AND NECESSARY EXPENSES, NOT OTHERWISE COMPENSATED FOR, INCURRED BY REASON OF HIS SERVICE IN ANY FOREIGN AREA OR FOREIGN AREAS IN PROVIDING ADEQUATE EDUCATION FOR HIS DEPENDENTS, AS FOLLOWS:

"/A) AN ALLOWANCE NOT TO EXCEED THE COST OF OBTAINING SUCH ELEMENTARY AND SECONDARY EDUCATIONAL SERVICES AS ARE ORDINARILY PROVIDED WITHOUT CHARGE BY THE PUBLIC SCHOOLS IN THE UNITED STATES, PLUS, IN THOSE CASES WHERE ADEQUATE SCHOOLS ARE NOT AVAILABLE AT THE EMPLOYEE'S POST, BOARD AND ROOM, AND PERIODIC TRANSPORTATION BETWEEN SUCH POST AND THE NEAREST LOCALITY, WHERE ADEQUATE SCHOOLS ARE AVAILABLE, WITHOUT REGARD TO THE LIMITATIONS OF SECTION 3648 OF THE REVISED STATUTES, AS AMENDED (31 U.S.C. 529); BUT THE AMOUNT OF THE ALLOWANCE GRANTED SHALL BE DETERMINED ON THE BASIS OF THE EDUCATIONAL FACILITY USED; * * *"

REGULATIONS ISSUED UNDER THAT PROVISION REGARDING THE TERMINATION OF EDUCATION ALLOWANCES ARE FOUND IN SECTION 274.2 OF THE STANDARDIZED REGULATIONS WHICH ARE IN PERTINENT PART AS FOLLOWS:

"274.22 NORMAL TERMINATION

"A GRANT NORMALLY WILL TERMINATE AT THE END OF THE SCHOOL YEAR, OR FRACTION THEREOF, UPON WHICH THE GRANT IS BASED, WHEN NO AMENDMENT OF THE GRANT IS REQUIRED UNDER SECTION 274.23

"274.23 OTHER TERMINATION

"WHERE A GRANT IS NOT TERMINATED NORMALLY UNDER SECTION 274.22 IT WILL BE TERMINATED AS OF THE FOLLOWING DATES:

"A. THE DATE THE EMPLOYEE TRANSFERS OR IS SEPARATED;

"B. THE DATE THE POST IS RECLASSIFIED FOR EDUCATION ALLOWANCES IN THE CHILD'S GRADE AND EDUCATIONAL FACILITY;

"C. THE DATE THE EDUCATIONAL FACILITY (SEC. 271C) FOR THE CHILD IS CHANGED;

"D. THE DATE THE CHILD IS WITHDRAWN FROM SCHOOL FOR THE REMAINDER OF THE SCHOOL YEAR; AND

"E. ANY DATE SPECIFIED BY THE OFFICER DESIGNATED TO AUTHORIZE ALLOWANCES.'

SECTION 276 OF THOSE REGULATIONS CONTAINS A PROVISION FOR THE CONTINUED PAYMENT OF AN EDUCATION ALLOWANCE TO AN EMPLOYEE WHO TRANSFERS BETWEEN FOREIGN POSTS DURING A SCHOOL YEAR FOR WHICH HE HAS BEEN GIVEN SUCH AN ALLOWANCE; HOWEVER, WE FIND NO AUTHORITY TO CONTINUE PAYMENT OF AN ALLOWANCE TO EMPLOYEES WHO ARE TRANSFERRED TO THE UNITED STATES DURING THE SCHOOL YEAR FOR WHICH THE ALLOWANCE HAS BEEN GRANTED. WE ARE INFORMALLY ADVISED BY THE DEPARTMENT OF STATE THAT THE REGULATIONS IN QUESTION WERE WRITTEN AND ARE ADMINISTERED TO PRECLUDE PAYMENT OF AN EDUCATION ALLOWANCE TO AN EMPLOYEE FOR PERIODS HE IS STATIONED IN THE UNITED STATES.

WE MUST CONCLUDE THAT THE STANDARDIZED REGULATIONS DO NOT PERMIT THE CONTINUANCE OF AN EDUCATION ALLOWANCE AFTER AN EMPLOYEE HAS BEEN TRANSFERRED TO THE UNITED STATES EVEN THOUGH SUCH TRANSFER OCCURS DURING A SCHOOL YEAR FOR WHICH AN ALLOWANCE HAS PREVIOUSLY BEEN APPROVED AND PAID IN ADVANCE. FURTHERMORE, WE MUST POINT OUT THAT THE PAYMENT OF AN EDUCATION ALLOWANCE FOR ANY PERIOD AN EMPLOYEE IS NOT STATIONED OVERSEAS WOULD BE OF DOUBTFUL VALIDITY UNDER THE PROVISIONS OF THE OVERSEAS DIFFERENTIALS ALLOWANCES ACT.

THEREFORE, THE AUDIT EXCEPTION TAKEN BY OUR OFFICE TO THE PAYMENT OF AN EDUCATION ALLOWANCE TO YOU FOR A PERIOD AFTER YOU HAD TRANSFERRED TO DUTY IN THE UNITED STATES WAS CORRECT. THE AMOUNT OF THE OVERPAYMENT SHOULD BE REFUNDED BY YOU IN ACCORDANCE WITH ARRANGEMENTS PREVIOUSLY MADE.