B-170773, DEC 14, 1970, 50 COMP GEN 386

B-170773, DEC 14, 1970, 50 COMP GEN 386

STATION ALLOWANCES - MILITARY PERSONNEL - EXCESS LIVING COSTS OUTSIDE UNITED STATES, ETC. - DEPENDENTS' ABSENCES WHEN A MEMBER OF THE UNIFORMED SERVICES REMAINS AT HIS PERMANENT DUTY STATION OUTSIDE THE UNITED STATES WHILE ONE OR MORE OF HIS DEPENDENTS RETURNS TO THE UNITED STATES FOR A VISIT, THE COST-OF-LIVING ALLOWANCE ADJUSTMENT REQUIRED BY PARAGRAPH M4301-3C(1), ITEMS 1, 2, AND 3 OF THE JOINT TRAVEL REGULATIONS MAY BE WAIVED IF THE ABSENCE IS FOR 30 DAYS OR LESS, AND THE PARAGRAPH AMENDED ACCORDINGLY. 37 U.S.C. 405, WHICH AUTHORIZES THE CONSIDERATION OF THE COST-OF-LIVING ELEMENT IN PRESCRIBING THE PAYMENT OF A PER DIEM, INDICATES NO REQUIREMENT TO ADJUST COST-OF- LIVING ALLOWANCES DURING ABSENCE OF A MEMBER'S DEPENDENTS FOR SHORT PERIODS; AND THE WAIVER OF THE ADJUSTMENT WOULD BE IN HARMONY WITH THE REGULATIONS IMPLEMENTING THE COST-OF-LIVING ALLOWANCES PROVIDED BY SECTION 221 OF THE OVERSEAS DIFFERENTIAL AND ALLOWANCES ACT, 5 U.S.C. 5924, FOR CIVILIAN EMPLOYEES OF THE GOVERNMENT.

TO THE SECRETARY OF THE ARMY, DECEMBER 14, 1970:

FURTHER REFERENCE IS MADE TO THE LETTER OF AUGUST 19, 1970, FROM THE DEPUTY FOR RESERVE AFFAIRS, REQUESTING A DECISION OF THE COMPTROLLER GENERAL CONCERNING THE LEGALITY OF A PROPOSED AMENDMENT OF PARAGRAPH M4301 -3C(1), ITEMS 1, 2, AND 3 OF THE JOINT TRAVEL REGULATIONS, AS RECOMMENDED BY ONE OF THE UNIFORMED SERVICES. THE PROPOSED AMENDMENT WOULD RESTRICT THE REQUIREMENT OF THE CITED PARAGRAPH TO ADJUST THE COST-OF-LIVING ALLOWANCE FOR A MEMBER OF THE UNIFORMED SERVICES WHO REMAINS AT HIS PERMANENT DUTY STATION OUTSIDE THE UNITED STATES, WHILE ONE OR MORE OF HIS DEPENDENTS RETURNS TO THE UNITED STATES FOR A VISIT, TO CASES WHERE THE PERIOD OF ABSENCE OF THE DEPENDENT OR DEPENDENTS IS FOR MORE THAN 30 DAYS. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 70 45 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE LETTER INDICATES THAT, IN THE CASE OF ABSENCES OF 30 DAYS OR LESS, THE COSTS OF MAKING THE ADJUSTMENTS ARE, ON THE AVERAGE, MORE THAN THE AMOUNTS COLLECTED. USING ALASKA AS AN EXAMPLE, IT IS STATED THAT THE DAILY AMOUNT COLLECTED IN THESE CASES AVERAGES 20 CENTS, WHILE MANPOWER COSTS ALONE TO PROCESS THE INDIVIDUAL ADJUSTMENTS ARE APPROXIMATELY $10. INDIVIDUAL CASES ARE DESCRIBED WHICH SHOW ADJUSTMENTS OF FROM $1 TO $5.82 WHERE THE VISITS INVOLVED ONE OR TWO DEPENDENTS AND RANGED FROM FIVE TO 13 DAYS. IN ADDITION TO THIS SAVINGS IN MANPOWER COSTS, IT IS INDICATED THAT FURTHER SAVINGS WILL ACCRUE FROM A REDUCTION IN MATERIAL AND COMPUTER COSTS AND PERSONNEL OPERATIONS INCIDENT TO ANNUAL CERTIFICATION FOR COST- OF-LIVING ALLOWANCES.

THE DEPUTY FOR RESERVES AFFAIRS SAYS THAT ALTHOUGH IT IS RECOGNIZED THAT, GENERALLY, THE EXPENSES WHICH COMPROMISE THE COST-OF-LIVING ALLOWANCE MAY NOT BE INCURRED WHILE THE MEMBER AND/OR HIS DEPENDENTS ARE IN THE UNITED STATES, IT IS QUESTIONABLE WHETHER, UNDER THE ECONOMIC THEORY OF DIMINISHING RETURNS, THE ADJUSTMENT IS WARRANTED. HE CONCLUDES, HOWEVER, BY SAYING THAT DOUBT EXISTS AS TO THE LEGALITY OF THE AMENDMENT DISCUSSED ABOVE AND, THEREFORE, OUR DECISION THEREON IS REQUESTED.

SECTION 405 OF TITLE 37 U.S.C. PROVIDES THAT, WITHOUT REGARD TO THE MONETARY LIMITATIONS OF THAT TITLE, THE SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT OF A PER DIEM, CONSIDERING ALL ELEMENTS OF THE COST OF LIVING TO MEMBERS OF THE UNIFORMED SERVICES UNDER THEIR JURISDICTION AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES, TO SUCH A MEMBER WHO IS ON DUTY OUTSIDE THE UNITED STATES, OR IN HAWAII, OR ALASKA, WHETHER OR NOT HE IS IN A TRAVEL STATUS, EXCEPT THAT DEPENDENTS MAY NOT BE CONSIDERED IN DETERMINING THE PER DIEM ALLOWANCE FOR A MEMBER IN A TRAVEL STATUS. UNDER THE LAW AS AMENDED BY THE ACT OF OCTOBER 22, 1970, PUBLIC LAW 91-486, 84 STAT. 1085, THE HOUSING ALLOWANCE AND COST OF-LIVING ALLOWANCE PORTIONS OF THE PER DIEM MAY BE PRESCRIBED INDEPENDENTLY OF EACH OTHER AND WITHOUT REGARD TO THE ELEMENTS OF COST OF LIVING USED IN COMPUTING EACH OTHER.

SECTION 221 OF THE OVERSEAS DIFFERENTIAL AND ALLOWANCES ACT, 74 STAT. 793, 794, 5 U.S.C. 5924, SUPP. V, PROVIDES FOR COST-OF-LIVING ALLOWANCES TO CIVILIAN EMPLOYEES OF THE GOVERNMENT ASSIGNED TO FOREIGN POSTS WHEN THE COST OF LIVING IS SUBSTANTIALLY HIGHER THAN IN WASHINGTON, D.C. IMPLEMENTING REGULATIONS GOVERNING THE COST-OF-LIVING ALLOWANCES FOR CIVILIAN EMPLOYEES ARE PRESCRIBED IN CHAPTER 200, STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS FOREIGN AREAS). SUBCHAPTER 225 "CONTINUANCE DURING ABSENCE FROM POST" PROVIDES IN PERTINENT PART:

225.2 EMPLOYEE WITH FAMILY

THE POST ALLOWANCE GRANT TO AN EMPLOYEE WITH FAMILY CONTINUES AT THE "WITH FAMILY" RATE INCLUDING INCREMENTS, IF ANY, FOR CHILDREN

A. WHILE THE EMPLOYEE AND ALL MEMBERS OF HIS FAMILY ARE OUTSIDE THE COUNTRY OF ASSIGNMENT FOR SHORT PERIODS OF ABSENCES (UP TO 30 CONSECUTIVE CALENDAR DAYS) UNLESS THE OFFICER DESIGNATED TO AUTHORIZE ALLOWANCES DETERMINES THAT THE GRANT SHOULD NOT CONTINUE. ON THE 31ST DAY OF ABSENCE THE GRANT IS TO BE TERMINATED. ***

B. WHILE THE EMPLOYEE IS TEMPORARILY ABSENT FROM THE COUNTRY OF ASSIGNMENT UNDER OFFICIAL DUTY ORDERS AND HIS FAMILY REMAINS IN THE COUNTRY OF ASSIGNMENT; AND

C. FOR A PERIOD NOT IN EXCESS OF 30 DAYS WHILE ANY OR ALL MEMBERS OF HIS FAMILY ARE TEMPORARILY ABSENT FROM THE POST AND THE EMPLOYEE REMAINS IN THE COUNTRY, EXCEPT AS OTHERWISE PROVIDED IN SECTIONS 227.1 AND 227.2. THE 31ST DAY ANY GRANT SHALL BE REDUCED APPROPRIATELY.

THIS OFFICE HAS NOT OBJECTED TO CONTINUANCE OF THE ALLOWANCES DURING SUCH TEMPORARY ABSENCE.

WE HAVE RECOGNIZED THAT, IN AUTHORIZING A PER DIEM, 37 U.S.C. 405 HAS REFERENCE TO THE OVERALL COST OF LIVING OF MEMBERS SERVING IN OVERSEAS AREAS, REGARDLESS OF WHEN ANY OF THE PARTICULAR COSTS MAY HAVE TO BE PAID; AND WHEN A PER DIEM IS PRESCRIBED IN ACCORDANCE WITH THE STATUTE, IT REPRESENTS A COMMUTATION ON A DAILY BASIS OF THE AVERAGE EXCESS LIVING COST OF ALL MEMBERS CONCERNED AND IS PAYABLE IN PROPER CASES WITHOUT REGARD TO WHEN OR WHETHER THE ACTUAL COSTS IN ANY INDIVIDUAL CASE ARE INCURRED. 47 COMP. GEN. 362, 364 (1968).

IN THAT VIEW OF THE MATTER, AND CONSIDERING THAT BASICALLY THE STATUTES AUTHORIZING PAYMENT OF COST-OF-LIVING ALLOWANCES TO MILITARY AND CIVILIAN PERSONNEL WERE ENACTED FOR THE SAME PURPOSE, AND SINCE THERE IS NOTHING IN SECTION 405 OR ITS LEGISLATIVE HISTORY TO INDICATE A REQUIREMENT TO ADJUST COST-OF-LIVING ALLOWANCES DURING ABSENCE OF A MEMBER'S DEPENDENTS FOR SHORT PERIODS, WE PERCEIVE NO LEGAL OBJECTION TO AMENDING THE JOINT TRAVEL REGULATIONS, VOLUME 1, IN THE MANNER PROPOSED.