B-187542, MAR 16, 1977

B-187542, MAR 16, 1977

NATIONAL SCIENCE FOUNDATION (NSF) EMPLOYEES DETAILED TO THE ANTARTIC FOR PERIODS OF 1 TO 3 MONTHS MAY NOT BE ISSUED PERMANENT CHANGE OF STATION ORDERS FOR THE SOLE PURPOSE OF ENTITLING THEM TO POST DIFFERENTIAL PAYMENTS FROM THE DATE OF ARRIVAL AT POST. SINCE THERE IS NO STATUTORY RESTRICTION ON PAYMENT OF POST DIFFERENTIAL FOR THE FIRST 42 DAYS OF AN EXTENDED DETAIL OF 42 DAYS OR MORE, NSF SHOULD REQUEST STATE DEPARTMENT TO AUTHORIZE RETROACTIVE PAYMENT OF THE DIFFERENTIAL AS IT HAS IN THE CASE OF DETAILS TO LEBANON AND VIET NAM. SEE 45 COMP.GEN. 583 (1966).

POST DIFFERENTIAL PAYMENTS FOR DETAILS TO THE ANTARTIC:

THE ACTING DIRECTOR OF THE NATIONAL SCIENCE FOUNDATION HAS REQUESTED OUR CONCURRENCE IN A PROPOSAL TO PAY POST DIFFERENTIAL TO EMPLOYEES ASSIGNED TO DUTY IN THE ANTARTIC COMMENCING ON THE FIRST DAY OF THEIR ARRIVAL ON THAT CONTINENT. THE INDIVIDUAL ASSIGNMENTS ARE FROM 1 TO 3 MONTHS IN DURATION. IN THE EVENT POST DIFFERENTIAL IS NOT AUTHORIZED COMMENCING ON THE FIRST DAY OF THEIR ARRIVAL THE AGENCY PROPOSES TO SEND EMPLOYEES TO THE ANTARTIC AS A CHANGE OF STATION AND THEN WAIVE THE FULFILLMENT OF SERVING THE 1-YEAR SERVICE AGREEMENT WHICH WOULD BE REQUIRED INCIDENT TO A PERMANENT CHANGE OF STATION.

NOTING THAT POST DIFFERENTIAL IS PAYABLE AFTER THE 42ND DAY OF A DETAIL UNDER SECTION 540 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS), THE ACTING DIRECTOR POINTS OUT, HOWEVER, THAT SUCH DIFFERENTIAL IS PAYABLE FROM DATE OF ARRIVAL AT POST INCIDENT TO TRANSFER OF STATION UNDER SECTION 530 OF THE STANDARDIZED REGULATIONS. BECAUSE OF THE SEVERE ENVIRONMENTAL CONDITIONS AND CONSEQUENT DIFFICULTIES IN ASSIGNING EMPLOYEES TO DUTY IN THE ANTARTIC, THE NATIONAL SCIENCE FOUNDATION PROPOSES TO ISSUE PERMANENT CHANGE OF STATION ORDERS TO ALL EMPLOYEES SO ASSIGNED. THE ACTING DIRECTOR QUESTIONS WHETHER PERMANENT CHANGE OF STATION ORDERS MAY BE ISSUED WHEN IT IS KNOWN THAT THE EMPLOYEES WILL REMAIN IN THE ANTARCTIC ONLY BRIEFLY AN WILL BE UNABLE TO FULFILL THE TERMS OF THE 1-YEAR AGREEMENT REQUIRED TO BE EXECUTED IN CONNECTION WITH TRANSFERS OF STATION.

THIS OFFICE HAS REPEATEDLY HELD THAT AN AGENCY MAY NOT DESIGNATE AN EMPLOYEE'S OFFICIAL STATION AT SOME PLACE OTHER THAN THE PLACE AT WHICH HE IS EXPECTED TO PERFORM THE PREPONDERANCE OF HIS DUTIES FOR THE PURPOSE OF ENTITLING HIM TO PER DIEM. 31 COMP.GEN. 289 (1952); 32 ID. 87 (1952). WOULD SIMILARLY BE IMPROPER TO DESIGNATE AN ASSIGNMENT AS A PERMANENT CHANGE OF STATION FOR THE SOLE PURPOSE OF ENTITLING EMPLOYEES TO PAYMENT OF POST DIFFERENTIAL.

WHILE WE BELIEVE IT WOULD BE INAPPROPRIATE TO ISSUE PERMANENT CHANGE OF STATION ORDERS TO EMPLOYEES ASSIGNED TO THE ANTARCTIC FOR SHORT PERIODS OF FROM 1 TO 3 MONTHS UNDER THE CIRCUMSTANCES DESCRIBED, WE NOTE THAT THERE IS NO STATUTORY RESTRICTION AGAINST PAYMENT OF POST DIFFERENTIAL FOR THE FIRST 42 DAYS OF A TEMPORARY DUTY ASSIGNMENT WHERE THE DETAIL IS OF MORE THAN 42 DAYS DURATION. IN RESPONSE TO A LETTER FROM THE DEPUTY UNDER SECRETARY OF STATE FOR ADMINISTRATION INDICATING THAT THE RESTRICTION ON PAYMENT OF POST DIFFERENTIAL FOR THE FIRST 42 DAYS OF TEMPORARY DUTY WAS HINDERING ASSIGNMENTS TO VIET NAM, WE HELD IN 45 COMP.GEN. 583 (1966) AS FOLLOWS:

"H. REPT. NO. 902, PAGE 18, 86TH CONGRESS, 1ST SESS., TO ACCOMPANY H.R. 7758, WHICH WAS ENACTED AS PUBLIC LAW 86-707, RECOGNIZED IN CONNECTION WITH THE 'EXTENDED DETAIL' PROVISION THAT THE THEN EXISTING LIMITATION IN THE REGULATION WAS THAT NO PAYMENT FOR 'DETAILS' OVERSEAS WOULD BE ALLOWED UNLESS THE EMPLOYEE HAD SERVED 42 DAYS ON DETAIL AT ONE OR MORE DIFFERENT POSTS. THE STATED PURPOSE OF THE RESTRICTION WAS TO PREVENT PAYMENT OF THE DIFFERENTIAL TO EMPLOYEES WHO MAKE ONLY SHORT TRIPS TO FOREIGN AREAS IN WHICH THE DIFFERENTIAL APPLIES. WE DO NOT BELIEVE THE LANGUAGE OF THE STATUTE OR ITS LEGISLATIVE HISTORY REQUIRES THE CONCLUSION THAT IN THE CASE OF SERVICE IN THE DIFFERENTIAL AREA FOR 42 DAYS OR LONGER IT WOULD BE ILLEGAL TO PERMIT BY REGULATION THAT THE DIFFERENTIAL IN SUCH CASES BE ALLOWED RETROACTIVELY FROM THE DAY OF ARRIVAL FOR DUTY IN THE FOREIGN AREA."

SEE ALSO B-181047, NOVEMBER 14, 1974.

EFFECTIVE APRIL 1, 1966, THE STATE DEPARTMENT AMENDED SECTION 920 OF THE STANDARDIZED REGULATIONS TO AUTHORIZE RETROACTIVE PAYMENT OF POST DIFFERENTIAL FOR THE FIRST 42 DAYS OF ASSIGNMENT TO VIET NAM 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. 511D) 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."

ALTHOUGH THAT SPECIFIC PROVISION IS NO LONGER IN EFFECT, A SIMILAR AUTHORITY NOW EXISTS FOR RETROACTIVE PAYMENT OF POST DIFFERENTIAL IN CONNECTION WITH EXTENDED DETAILS TO LEBANON. THEREUNDER EMPLOYEES MAY BE PAID POST DIFFERENTIAL FROM THE FIRST DAY OF DETAIL IN LEBANON IF THE ASSIGNMENT IS OF 42 DAYS OR MORE DURATION.

IN LIEU OF THE ACTING DIRECTOR'S PROPOSAL TO ISSUE PERMANENT CHANGE OF STATION ORDERS TO EMPLOYEES DETAILED FOR BRIEF PERIODS TO THE ANTARCTIC, WE SUGGEST THAT THE NATIONAL SCIENCE FOUNDATION REQUEST THE DEPARTMENT OF STATE TO AMEND SECTION 920 OF THE STANDARDIZED REGULATIONS TO PROVIDE AUTHORITY FOR PAYMENT OF POST DIFFERENTIAL FOR THE FIRST 42 DAYS OF EXTENDED DETAILS TO THE ANTARTIC SIMILAR TO THAT NOW APPLICABLE TO EXTENDED DETAILS TO LEBANON. IF THE DEPARTMENT OF STATE CONCURS IN THE NATIONAL SCIENCE FOUNDATION'S FINDING THAT RETROACTIVE PAYMENT OF POST DIFFERENTIAL FOR THE FIRST 42 DAYS OF ASSIGNMENT WILL ALLEVIATE PROBLEMS IN ASSIGNING PERSONNEL TO THE ANTARCTIC, WE WOULD HAVE NO OBJECTION TO ITS IMPLEMENTATION OF SUCH AUTHORITY.