B-162977, APR. 29, 1968
Highlights
WHICH HELD THAT AN EMPLOYEE WHO IS ENTITLED TO A TERRITORIAL COST-OF- LIVING ALLOWANCE IS NOT ENTITLED TO SUBSISTENCE BENEFITS UNDER SECTION 2.5 OF BUREAU OF THE BUDGET CIRCULAR NO. MUCH THE SAME VIEWS ADVANCED IN THE LETTER OF FEBRUARY 29 IN SUPPORT OF THE POSITION THAT AN EMPLOYEE'S ENTITLEMENT TO SUBSISTENCE BENEFITS UNDER SECTION 2.5 IS NOT AFFECTED IN ANY WAY BY REASON OF HIS CONCURRENT ENTITLEMENT TO A TERRITORIAL COST-OF-LIVING ALLOWANCE WERE CONSIDERED CAREFULLY AND REJECTED PRIOR TO OUR RENDERING THE DECEMBER 26 DECISION. IN VIEW THEREOF AND OF THE SPECIFIC PROVISION IN SECTION 2.5B (8) OF BUREAU OF THE BUDGET REGULATION WHICH WAS QUOTED IN OUR DECEMBER 26 DECISION. THE REVERSAL OF THAT DECISION WOULD NOT BE WARRANTED AND THE HOLDING THEREIN HEREBY IS AFFIRMED.
B-162977, APR. 29, 1968
TO MR. MCKEE:
WE REFER TO LETTER OF FEBRUARY 29, 1968, FROM THE ACTING ADMINISTRATOR, REQUESTING RECONSIDERATION OF OUR DECISION OF DECEMBER 26, 1967, B-162977, WHICH HELD THAT AN EMPLOYEE WHO IS ENTITLED TO A TERRITORIAL COST-OF- LIVING ALLOWANCE IS NOT ENTITLED TO SUBSISTENCE BENEFITS UNDER SECTION 2.5 OF BUREAU OF THE BUDGET CIRCULAR NO. A-56 TO THE EXTENT THAT SUCH BENEFITS DUPLICATE AMOUNTS RECEIVED AS A TERRITORIAL COST-OF-LIVING ALLOWANCE.
MUCH THE SAME VIEWS ADVANCED IN THE LETTER OF FEBRUARY 29 IN SUPPORT OF THE POSITION THAT AN EMPLOYEE'S ENTITLEMENT TO SUBSISTENCE BENEFITS UNDER SECTION 2.5 IS NOT AFFECTED IN ANY WAY BY REASON OF HIS CONCURRENT ENTITLEMENT TO A TERRITORIAL COST-OF-LIVING ALLOWANCE WERE CONSIDERED CAREFULLY AND REJECTED PRIOR TO OUR RENDERING THE DECEMBER 26 DECISION.
TO REVERSE THE HOLDING IN SUCH DECISION WOULD PERMIT AN EMPLOYEE TO RECEIVE FULL SUBSISTENCE EXPENSE REIMBURSEMENT UNDER SECTION 2.5 -- ON AN ACTUAL EXPENSE BASIS -- WHEN HE ALREADY HAS BEEN PAID A TERRITORIAL COST- OF-LIVING ALLOWANCE WHICH COVERED ALL OR PART OF SUCH EXPENSES, A RESULT WHICH APPEARS INCONSISTENT WITH THE PURPOSE AND SPIRIT OF THE CONTROLLING STATUTE -- PUBLIC LAW 89-516, 5 U.S.C. APPENDIX 73B-4A (3). IN VIEW THEREOF AND OF THE SPECIFIC PROVISION IN SECTION 2.5B (8) OF BUREAU OF THE BUDGET REGULATION WHICH WAS QUOTED IN OUR DECEMBER 26 DECISION, THE REVERSAL OF THAT DECISION WOULD NOT BE WARRANTED AND THE HOLDING THEREIN HEREBY IS AFFIRMED.
HOWEVER, WE RECOGNIZE THAT THERE IS NO SPECIFIC STATUTORY PROVISION PRECLUDING THE CONCURRENT RECEIPT OF THE TWO BENEFITS, AND THAT THE LEGISLATIVE HISTORY OF PUBLIC LAW 89-516 DOES NOT EXPRESSLY REFLECT AN INTENT TO PRECLUDE THE CONCURRENT RECEIPT OF THE TWO BENEFITS. YOU INDICATE THAT YOUR ADMINISTRATION CONSTRUED THE APPLICABLE PROVISIONS OF PUBLIC LAW 89-516 AS WELL AS SECTION 2.5B (8) OF BUREAU OF THE BUDGET CIRCULAR A-56 AS NOT PRECLUDING THE CONCURRENT RECEIPT OF THE TWO BENEFITS BECAUSE SUCH BENEFITS WERE DESIGNED FOR SEPARATE AND DISTINCT PURPOSES. WE DO NOT CONSIDER SUCH CONSTRUCTION TO BE CORRECT. HOWEVER, WE WILL ACCEPT YOUR VIEW THAT UNDER THE APPLICABLE LAW AND REGULATIONS THE MATTER WAS SUFFICIENTLY DOUBTFUL AS NOT TO REQUIRE OUR OFFICE TO INSIST UPON RECOVERY FROM EMPLOYEES WHO RECEIVED THE TWO BENEFITS CONCURRENTLY PRIOR TO THE DATE OF THAT DECISION (DECEMBER 26, 1967).