B-202346.OM, SEP 28, 1981

B-202346.OM, SEP 28, 1981

DIGEST: 1. EDUCATIONAL TRAVEL EXPENSES ERRONEOUSLY PAID TO AN EMPLOYEE FOR HIS STEPDAUGHTER'S TRAVEL UNDER THE PROVISIONS OF 5 U.S.C. 5924(4)(B) ARE PRECLUDED FROM WAIVER UNDER 5 U.S.C. 5584. ALTHOUGH SECTION 5924 IS ENTITLED "COST-OF-LIVING ALLOWANCES," AMONG OTHER THINGS IT SPECIFICALLY PROVIDES FOR PAYMENT OF TRAVEL EXPENSES. THEREFORE, THE EDUCATIONAL TRAVEL ALLOWANCES PAID UNDER SECTION 5924 ARE CLEARLY TRAVEL ALLOWANCES EXCLUDED FROM WAIVER UNDER 5 U.S.C. 5584(A). 2. UNDER 5 U.S.C. 5584(A), ERRONEOUS PAYMENTS OF RELOCATION EXPENSES PAYABLE UNDER 5 U.S.C. 5724A ARE EXCLUDED FROM WAIVER IN ADDITION TO TRAVEL AND TRANSPORTATION ALLOWANCES AND EXPENSES.

THE COMPTROLLER GENERAL:

HEREWITH IS THE FILE OF VERNON R. SCOTT, A RETIRED EMPLOYEE OF THE DEPARTMENT OF STATE. A QUESTION HAS ARISEN AS TO WHETHER THE EDUCATIONAL TRAVEL ALLOWANCE MR. SCOTT ERRONEOUSLY RECEIVED ON BEHALF OF HIS STEPDAUGHTER CAN BE CONSIDERED FOR WAIVER UNDER THE PROVISIONS OF 5 U.S.C. 5584.

THE RECORD SHOWS THAT DURING 1977 AND 1978, MR. SCOTT'S STEPDAUGHTER, MARCELA, HIS LEGAL DEPENDENT, WAS ATTENDING THE UNIVERSITY OF COSTA RICA, SAN JOSE, COSTA RICA. DURING THESE SAME YEARS MR. SCOTT WAS ASSIGNED TO BANGKOK, THAILAND. IN JANUARY 1977, MR. SCOTT REQUESTED AN EDUCATIONAL TRAVEL ALLOWANCE FOR MARCELA IN ORDER THAT SHE COULD TRAVEL FROM BANGKOK TO SAN JOSE, A REQUEST THE DEPARTMENT OF STATE SUBSEQUENTLY APPROVED. THE FALL OF 1977, MR. SCOTT REQUESTED ANOTHER EDUCATIONAL TRAVEL ALLOWANCE IN ORDER THAT MARCELA COULD TRAVEL FROM SAN JOSE TO BANGKOK AND IN JANUARY 1978, HE AGAIN REQUESTED THE ALLOWANCE TO PERMIT MARCELA TO RETURN TO SAN JOSE. THE DEPARTMENT OF STATE APPROVED BOTH OF THESE REQUESTS. THE TOTAL AMOUNT MR. SCOTT RECEIVED FOR THE THREE EDUCATIONAL TRAVEL ALLOWANCES WAS $3,669.50.

THE DEPARTMENT OF STATE THEN DETERMINED THAT MR. SCOTT WAS NOT ENTITLED TO THESE PAYMENTS, BECAUSE UNDER THE PROVISIONS OF 5 U.S.C. 5924(4)(B), EDUCATIONAL TRAVEL ALLOWANCES MAY BE PAID ONLY IF THE EMPLOYEE'S DEPENDENT IS TRAVELING BETWEEN THE EMPLOYEE'S FOREIGN DUTY POST AND A SCHOOL LOCATED IN THE UNITED STATES. MR. SCOTT APPEALED THIS DETERMINATION, BUT THE DEPARTMENT OF STATE DETERMINED THAT THE STATUTE DID NOT PROVIDE FOR ANY EXCEPTIONS.

MR. SCOTT THEN ASKED FOR RELIEF UNDER THE PROVISIONS OF SECTION 636(B) OF THE FOREIGN ASSISTANCE ACT (1961). ON APRIL 30, 1979, THE DEPARTMENT OF STATE DETERMINED THAT RELIEF UNDER THIS ACT WAS NOT APPROPRIATE. THEY MADE THIS DETERMINATION PARTLY ON THE BASIS OF OUR DECISION IN B-188968, OCTOBER 17, 1978.

MR. SCOTT ALSO REQUESTED RELIEF UNDER 5 U.S.C. 5584 ON THE BASIS THAT HE HAD ACCEPTED THE PAYMENTS IN GOOD FAITH. THE DEPARTMENT OF STATE DETERMINED THAT ALTHOUGH THE PAYMENTS WERE ERRONEOUS ONES, THEY REPRESENTED THE OVERPAYMENT OF TRAVEL ALLOWANCES. SINCE 5 U.S.C. 5584 SPECIFICALLY PRECLUDES TRAVEL ALLOWANCES FROM WAIVER CONSIDERATION, THE AGENCY DETERMINED THAT MR. SCOTT'S DEBT COULD NOT BE CONSIDERED FOR WAIVER. MR. SCOTT HAS NOW APPEALED THIS DETERMINATION, AS WELL AS THE EARLIER DETERMINATIONS HIS AGENCY MADE.

IT APPEARS TO US THAT THE DEPARTMENT OF STATE'S DETERMINATIONS IN REGARD TO 5 U.S.C. 5924(4)(B) AND SECTION 636(B) OF THE FOREIGN ASSISTANCE ACT WERE CORRECT, AND THEREFORE, THE PAYMENTS WERE ERRONEOUS WHEN MADE. HOWEVER, THERE IS A QUESTION CONCERNING THE APPLICABILITY OF THE WAIVER LAW TO MR. SCOTT'S CASE.

ALTHOUGH 5 U.S.C. 5584 PRECLUDES FROM WAIVER CONSIDERATION ERRONEOUS PAYMENTS ARISING FROM THE OVERPAYMENT OF TRAVEL OR TRANSPORTATION ALLOWANCES, THE STATUTE SPECIFICALLY EXCLUDES ONLY THOSE TRAVEL AND TRANSPORTATION EXPENSES AND ALLOWANCES AND RELOCATION EXPENSES PAYABLE UNDER 5 U.S.C. 5724(A). IN MR. SCOTT'S CASE, HIS STEPDAUGHTER'S ALLOWANCE WAS PAID UNDER THE PROVISIONS OF 5 U.S.C. 5924(4)(B). FURTHERMORE, THE ALLOWANCES FOR WHICH 5 U.S.C. 5924 PROVIDES ARE LABELED "COST OF LIVING ALLOWANCES", NOT "TRAVEL ALLOWANCES".

IN B-186565, JANUARY 27, 1977, AND B-173783.156, APRIL 11, 1977, WE HELD THAT BECAUSE THE WAIVER STATUTE IS REMEDIAL LEGISLATION, IT SHOULD BE CONSTRUED BROADLY. THEREFORE, WE QUESTION WHETHER THE EDUCATIONAL TRAVEL ALLOWANCE PAID TO MR. SCOTT MAY BE CONSIDERED A COST OF LIVING ALLOWANCE WHICH HAPPENED TO BE FOR THE PURPOSE OF TRAVEL, AND AS SUCH MAY THUS BE CONSIDERED WITHIN THE MEANING OF "PAY AND ALLOWANCES" WHICH ARE APPROPRIATE FOR WAIVER CONSIDERATION.

IF THIS ERRONEOUS PAYMENT CAN BE CONSIDERED FOR WAIVER, WE REALIZE THAT THE FACTS AND CIRCUMSTANCES OF MR. SCOTT'S CASE SUPPORT A CONCLUSION THAT HE ACCEPTED THE ERRONEOUS PAYMENTS IN GOOD FAITH AND CONSEQUENTLY, HIS WAIVER APPLICATION WOULD BE APPROVED. IN VIEW OF THE ISSUES INVOLVED, THE MATTER IS SUBMITTED FOR YOUR CONSIDERATION AND INSTRUCTIONS.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858)

RETURNED. THE DEPARTMENT OF STATE'S DETERMINATION APPEARS CORRECT THAT RELIEF UNDER THE PROVISIONS OF SECTION 636(B) OF THE FOREIGN ASSISTANCE ACT OF 1961, PUB.L. NO. 87-195, SEPTEMBER 6, 1961, 75 STAT. 458 (22 U.S.C. 2396(B) (1976), WAS NOT APPROPRIATE. SECTION 636(B) AUTHORIZES PAYMENTS FOR COMPENSATION, ALLOWANCES, AND TRAVEL OF PERSONNEL WHOSE SERVICES ARE UTILIZED PRIMARILY FOR PURPOSES OF FOREIGN ASSISTANCE, BUT PROVIDES NO AUTHORITY TO COMPENSATE FOR ALLOWANCES OR TRAVEL OF DEPENDENTS OF SUCH PERSONNEL WHO KNOWINGLY OR UNKNOWINGLY FAILED TO COMPLY WITH A SPECIFIC STATUTORY REQUIREMENT. SEE DISCUSSION IN B-188968, OCTOBER 17, 1978.

AS TO WHETHER THE EDUCATIONAL TRAVEL EXPENSES ERRONEOUSLY PAID FOR MR. SCOTT'S STEPDAUGHTER MAY BE CONSIDERED FOR WAIVER UNDER 5 U.S.C. 5584, AS YOU KNOW SUBSECTION 5584(A) SPECIFICALLY EXCLUDES FROM WAIVER ERRONEOUS PAYMENTS OF -

"TRAVEL AND TRANSPORTATION EXPENSES AND ALLOWANCES AND RELOCATION EXPENSES PAYABLE UNDER SECTION 5724A OF THIS TITLE (5 U.S.C. 5724A)."

THE AUTHORITY FOR PAYING THE TRAVEL EXPENSES OF DEPENDENTS OF AN EMPLOYEE TO AND FROM SCHOOL IN THE UNITED STATES TO OBTAIN AN AMERICAN SECONDARY OR UNDERGRADUATE COLLEGE EDUCATION IS CONTAINED IN 5 U.S.C. 5924. THAT SECTION, ENTITLED "COST-OF-LIVING ALLOWANCES," CONTAINS AUTHORIZATION FOR SEVERAL DIFFERENT TYPES OF ALLOWANCES FOR AN EMPLOYEE IN A FOREIGN AREA INCLUDING:

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

"(B) THE TRAVEL EXPENSES OF DEPENDENTS OF AN EMPLOYEE TO AND FROM A SCHOOL IN THE UNITED STATES TO OBTAIN AN AMERICAN SECONDARY OR UNDERGRADUATE COLLEGE EDUCATION ***."

THE REGULATIONS ISSUED BY THE SECRETARY OF STATE PROVIDING FOR THE ALLOWANCES AUTHORIZED BY 5 U.S.C. 5924 ARE FOUND IN THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS), CHAPTER 280.

SECTION 281A OF THESE REGULATIONS DEFINES EDUCATIONAL TRAVEL TO AND FROM A SCHOOL IN THE UNITED STATES FOR SECONDARY EDUCATION (IN LIEU OF AN EDUCATION ALLOWANCE) AND FOR COLLEGE EDUCATION, AS A SEPARATE ALLOWANCE. FURTHER SECTION 285.2 PROVIDES THAT SUCH EDUCATIONAL TRAVEL SHALL BE PAID OR REIMBURSED IN ACCORDANCE WITH THE FEDERAL TRAVEL REGULATIONS.

THE EMPLOYEE IN THIS CASE REQUESTED AND WAS ERRONEOUSLY AUTHORIZED PAYMENT OF HIS STEPDAUGHTER'S TRAVEL AND TRANSPORTATION EXPENSES (AIR TRAVEL, BAGGAGE, PER DIEM AND TAXI FARES). SEE THE TRAVEL AUTHORIZATIONS AND COLLECTION VOUCHERS IN THE FILE. THEREFORE, THE AMOUNTS PAID BY THE GOVERNMENT WERE CLEARLY TRAVEL AND TRANSPORTATION EXPENSES. THE MERE FACT THAT THE STATUTORY PROVISION UNDER WHICH EDUCATIONAL TRAVEL IS AUTHORIZED IS HEADED COST-OF-LIVING ALLOWANCES DOES NOT CHANGE THE ERRONEOUS PAYMENTS TO SOMETHING OTHER THAN ERRONEOUS PAYMENTS OF TRAVEL AND TRANSPORTATION EXPENSES.

FURTHER, THERE APPEARS NO BASIS TO CONCLUDE THAT 5 U.S.C. 5584(A) EXCLUDES FROM WAIVER ONLY TRAVEL ALLOWANCES PAYABLE UNDER 5 U.S.C. 5724A. SECTION 5724A REFERRED TO IN 5 U.S.C. 5584(A) RELATES TO RELOCATION EXPENSES WHICH ARE PRECLUDED FROM WAIVER IN ADDITION TO TRAVEL AND TRANSPORTATION ALLOWANCES AND EXPENSES.

ACCORDINGLY, THE EDUCATIONAL TRAVEL EXPENSES ERRONEOUSLY PAID TO MR. SCOTT ARE NOT SUBJECT TO WAIVER UNDER 5 U.S.C. 5584 AND THE IMPLEMENTING REGULATIONS.