B-174341, FEB 28, 1972

B-174341, FEB 28, 1972

CIVILIAN EMPLOYEES - COMBAT DIFFERENTIAL - CONCURRENT AUTHORITY CONCERNING WHETHER THE CIVIL SERVICE COMMISSION MAY PRESCRIBE AN ENVIRONMENTAL DIFFERENTIAL UNDER THE COORDINATED FEDERAL WAGE SYSTEM TO BE PAID TO CIVILIAN WAGE BOARD EMPLOYEES WORKING IN A COMBAT ZONE. THE PAYMENT OF A POST DIFFERENTIAL IS AUTHORIZED BY 5 U.S.C. 5925 IN FOREIGN AREAS WHERE CONDITIONS OF ENVIRONMENT DIFFER SUBSTANTIALLY FROM THOSE OF THE CONTINENTAL UNITED STATES. IT IS THE OPINION OF THE COMP. GEN. THAT THE TERM "CONDITIONS OF ENVIRONMENT" WOULD EMBRACE SERVICE IN A COMBAT AREA FOR WHICH A DIFFERENTIAL, ALREADY INCLUDING WAGE BOARD EMPLOYEES, IS AUTHORIZED BY THE STANDARDIZED REGULATIONS OF THE DEPARTMENT OF STATE. CONSEQUENTLY, THE PRESCRIBING OF AN ADDITIONAL DIFFERENTIAL FOR WAGE BOARD EMPLOYEES UNDER THE AUTHORITY OF APPENDIX J TO THE FEDERAL PERSONNEL MANUAL SUPPLEMENT, WITHOUT REGARD TO WORK FACTORS OTHER THAN COMBAT, WOULD CONSTITUTE AN UNAUTHORIZED DUPLICATION AND MUST BE PROHIBITED.

TO MR. ROBERT E. HAMPTON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 8, 1971, IN WHICH YOU REQUEST OUR DECISION ON THE QUESTION WHETHER THE CIVIL SERVICE COMMISSION IS PROHIBITED FROM PRESCRIBING AN ENVIRONMENTAL DIFFERENTIAL UNDER THE COORDINATED FEDERAL WAGE SYSTEM TO BE PAID TO CIVILIAN WAGE EMPLOYEES WORKING IN A COMBAT ZONE.

YOU POINT OUT THAT WAGE POSITIONS OCCUPIED BY AMERICAN CITIZENS OVERSEAS ARE INCLUDED IN THE COORDINATED FEDERAL WAGE SYSTEM, THEIR WAGE SCHEDULES BEING BASED ON THE SCHEDULES FOR AREAS IN THE UNITED STATES. YOU STATE THAT THE DIFFERENTIALS LISTED IN APPENDIX J TO THE FEDERAL PERSONNEL MANUAL SUPPLEMENT 532-1, COORDINATED FEDERAL WAGE SYSTEM, "SCHEDULE OF ENVIRONMENTAL DIFFERENTIALS PAID FOR EXPOSURE TO VARIOUS DEGREES OF HAZARDS, PHYSICAL HARDSHIPS, AND WORKING CONDITIONS OF AN UNUSUAL NATURE," ARE APPLIED TO OVERSEAS POSITIONS WHENEVER THE CONDITIONS EXIST WHICH MAKE THE APPLICATION APPROPRIATE. YOU FURTHER STATE THE REASON FOR THE QUESTION IS THAT COMBAT ZONES EXIST ONLY IN FOREIGN COUNTRIES AND THAT THE PRESCRIBING OF AN ENVIRONMENTAL DIFFERENTIAL FOR CIVILIAN WAGE EMPLOYEES IN SUCH AREAS MIGHT CONFLICT WITH THE AUTHORITY OF THE DEPARTMENT OF STATE TO PRESCRIBE POST DIFFERENTIALS IN FOREIGN COUNTRIES ON THE BASIS OF CONDITIONS OF ENVIRONMENT. AS YOUR LETTER FURTHER STATES, UNDER THE PROVISIONS OF CHAPTER 500, POST DIFFERENTIAL, STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS), NO REFERENCE IS MADE TO COMBAT AS A FACTOR IN DETERMINING THE AMOUNT OF THE DIFFERENTIAL BUT THAT IN ITEM 79 OF THE POST DIFFERENTIAL QUESTIONNAIRE (DSP-36 DATED MARCH 1961) SPECIFIC REFERENCE IS MADE TO THE DEGREE OF PERSONAL DANGER, RESTRICTION ON ACTIVITIES, AND PROTECTION AVAILABLE WITH REGARD TO AN AREA IN WHICH THERE IS WAR OR CIVIL STRIFE.

THE PAYMENT OF A POST DIFFERENTIAL IN FOREIGN AREAS IS AUTHORIZED BY 5 U.S.C. 5925 IN PERTINENT PART AS FOLLOWS:

"A POST DIFFERENTIAL MAY BE GRANTED ON THE BASIS OF CONDITIONS OF ENVIRONMENT WHICH DIFFER SUBSTANTIALLY FROM CONDITIONS OF ENVIRONMENT IN THE CONTINENTAL UNITED STATES AND WARRANT ADDITIONAL PAY AS A RECRUITMENT AND RETENTION INCENTIVE. *** "

THE STANDARDIZED REGULATIONS OF THE DEPARTMENT OF STATE PRESCRIBE A POST DIFFERENTIAL OF 25 PER CENTUM OF BASIC COMPENSATION FOR EMPLOYEES ASSIGNED TO DUTY IN VIETNAM WHICH WOULD INCLUDE WAGE BOARD EMPLOYEES. IN 1966 THE REGULATIONS WERE AMENDED AS FOLLOWS:

"IN LIEU OF ANY OTHER DIFFERENTIAL AUTHORIZED BY THESE REGULATIONS, AN EMPLOYEE WHO SERVES FOR A PERIOD OF 42 CONSECUTIVE CALENDAR DAYS (SEC. 511 D) OR MORE ON DETAIL AT ONE OR MORE PLACES IN VIET-NAM MAY BE GRANTED THE POST DIFFERENTIAL AT THE PRESCRIBED RATE FOR THE NUMBER OF DAYS SERVED AT EACH SUCH PLACE, BEGINNING WITH THE FIRST DAY OF DETAIL IN VIET-NAM."

WE BELIEVE THE TERM "CONDITIONS OF ENVIRONMENT" AS USED IN 5 U.S.C. 5925, WITH RESPECT TO A FOREIGN AREA, WOULD EMBRACE SERVICE IN A COMBAT AREA. THIS VIEW IS SUPPORTED BY THE REFERENCE TO SUCH A SITUATION IN THE QUESTIONNAIRE PREVIOUSLY REFERRED TO; ALSO, BY THE FACT THAT THE STANDARDIZED REGULATIONS WERE AMENDED IN 1966 TO PERMIT RETROACTIVE PAYMENT OF THE POST DIFFERENTIAL IN VIETNAM AFTER AN EMPLOYEE HAS BEEN ON DUTY THERE FOR 42 CONSECUTIVE DAYS, WHEREAS IN OTHER DIFFERENTIAL AREAS THE DIFFERENTIAL DOES NOT BEGIN UNTIL THE 43D DAY AND IS NOT RETROACTIVE.

ACCORDINGLY, IT REASONABLY APPEARS THAT THE PRESCRIBING OF A DIFFERENTIAL FOR WAGE BOARD EMPLOYEES WORKING IN A COMBAT ZONE WITHOUT REGARD TO OTHER WORK FACTORS WOULD BE A DUPLICATION AND UNAUTHORIZED WHERE A POST DIFFERENTIAL FOR A PARTICULAR AREA HAS BEEN PRESCRIBED BY THE STANDARDIZED REGULATIONS OF THE DEPARTMENT OF STATE.