B-32751, MARCH 15, 1943, 22 COMP. GEN. 901

B-32751, MARCH 15, 1943, 22 COMP. GEN. 901

EXCHANGE LOSSES ON PAYMENTS OF UNIFORM AND EQUIPMENT ALLOWANCE THE ALLOWANCE FOR UNIFORMS AND EQUIPMENT AUTHORIZED FOR CERTAIN ARMY OFFICERS BY THE ACT OF DECEMBER 4, 1942--- REFERRED TO AS A "GRATUITY" IN EARLIER STATUTES CONTAINING COMPARABLE PROVISIONS FOR OTHER SERVICES -- IS WITHIN THE SCOPE OF THE TERM "NET PAY AND ALLOWANCES" AS USED IN EXECUTIVE ORDER NO. 7972, AS AMENDED, ISSUED PURSUANT TO THE EXCHANGE LOSS ACT OF MARCH 26, 1934, IN PRESCRIBING THE BASIS UPON WHICH FOREIGN CURRENCY APPRECIATION LOSSES ARE PAYABLE TO EMPLOYEES SERVING GENERALLY UNDER THE WAR DEPARTMENT, AND, THEREFORE, A CURRENCY APPRECIATION LOSS IS PAYABLE ON THE SAID ALLOWANCE FOR UNIFORMS AND EQUIPMENT, IF OTHERWISE PROPER. FOREIGN CURRENCY APPRECIATION LOSSES ON THE UNIFORM AND EQUIPMENT ALLOWANCES AUTHORIZED FOR CERTAIN ARMY OFFICERS BY THE ACT OF DECEMBER 4, 1942, AND CERTAIN PRIOR STATUTES, NOW REPEALED, ARE PAYABLE UNDER THE EXCHANGE LOSS ACT OF MARCH 26, 1934, AND EXECUTIVE REGULATIONS ISSUED PURSUANT THERETO, ONLY IF THE OFFICERS WERE (OR ARE) "IN SERVICE IN FOREIGN COUNTRIES" ON THE DATES OF ACCRUAL OF THE RIGHT TO PAYMENT OF THE ALLOWANCES, AND THE EXCHANGE LOSS VOUCHERS SHOULD CONTAIN A STATEMENT (VERIFIED BY REFERENCE TO THE ORIGINAL ALLOWANCE VOUCHERS) OF THE EACH ALLOWANCE PAYMENT, OR PART THEREOF, BECAME DUE AND PAYABLE AND EVIDENCE AS TO THE ACTUAL BUYING RATE OF EXCHANGE LOCALLY IN EFFECT ON THOSE DATES.

ACTING COMPTROLLER GENERAL ELLIOTT TO MAJ. ROY W. BARTLETT, U.S. ARMY, MARCH 15, 1943:

BY FIRST ENDORSEMENT DATED FEBRUARY 24, 1943, FILE SPFDR 241.13, THE CHIEF OF FINANCE FORWARDED HERE FOR CONSIDERATION YOUR LETTER OF FEBRUARY 13, 1943, AS FOLLOWS:

THERE HAS BEEN PRESENTED TO ME, A DISBURSING OFFICER OF THE UNITED STATES, THE ATTACHED VOUCHERS OF FIRST LIEUT. WILLIAM E. MOSSBAUER, 10247222, INF., AND 2ND LIEUT. GUY E. DOHNER, 10491210, AGD, ON WHICH THE OFFICERS ARE CLAIMING FOREIGN SERVICE PAY APPRECIATION LOSSES AUTHORIZED BY EXECUTIVE ORDER 7972, SEPTEMBER 15, 1938, AS AMENDED, ON THE PAYMENT OF THE UNIFORM AND EQUIPMENT ALLOWANCE AUTHORIZED BY THE ACT OF DECEMBER 4, 1942.

PAYMENTS OF THE UNIFORM ALLOWANCES ON WHICH THE ABOVE-NAMED OFFICERS ARE CLAIMING THE ADDITIONAL PAY UNDER THE APPRECIATION LOSSES ACT WERE MADE ON VOUCHERS 2093 AND 9221, DECEMBER 1942 AND FEBRUARY 1943 ACCOUNTS OF THE UNDERSIGNED TO LIEUT MOSSBAUER AND TO LIEUT DOHNER IN VOUCHER 13195 NOVEMBER 1942 ACCOUNTS OF COLONEL C. K. MCALISTER, F.D., AND VOUCHER 9191, FEBRUARY 1943 ACCOUNTS OF MAJOR ROY W. BARTLETT, F.D.

IN VIEW OF THE FACT THAT THE UNIFORM ALLOWANCE, AS SUCH, IS NOT AN ITEM OF ACCRUED PAY AND ALLOWANCES BUT IS A PAYMENT OF A GRATUITOUS NATURE, IT IS THE BELIEF OF THE UNDERSIGNED THAT THE FOREIGN SERVICE APPRECIATION PAY IS NOT AUTHORIZED AND PAYMENT OF THE ATTACHED VOUCHERS WAS DECLINED.

ACCORDINGLY, DECISION IS REQUESTED WHETHER PAYMENT OF THE WITHIN VOUCHERS IS AUTHORIZED.

IT IS CERTIFIED THAT THE OFFICERS WERE ON DUTY AT CURACAO, NETHERLANDS WEST INDIES, FROM OCTOBER 18 AND FEBRUARY 11, 1942, RESPECTIVELY, TO THE DATE OF THE VOUCHERS, JANUARY 29, 1943, AND THAT THE UNIFORM ALLOWANCES WERE PAID THEM IN VARIOUS ACCOUNTS DURING NOVEMBER AND DECEMBER 1942, AND FEBRUARY 1943. CURRENCY LOSS IS CLAIMED AT THE RATE OF 32 PERCENT, OR $80 IN EACH CASE, BASED UPON A BUYING RATE OF $0.5305 FOR THE CURACAO FLORIN AND A BASIC RATE OF $0.4019.

PAYMENT OF FOREIGN CURRENCY APPRECIATION LOSSES TO OFFICERS, ENLISTED MEN AND EMPLOYEES OF THE UNITED STATES WHILE IN SERVICE IN FOREIGN COUNTRIES IS AUTHORIZED, AT THE DISCRETION OF THE PRESIDENT AND SUBJECT TO HIS REGULATIONS, BY THE ACT OF MARCH 26, 1934, 48 STAT. 466, 5 U.S.C. 118C. THE CURRENT REGULATIONS ARE FOUND IN EXECUTIVE ORDER NO. 7972, SEPTEMBER 15, 1938, AS AMENDED. IN THE CASE OF EMPLOYEES SERVING GENERALLY UNDER THE WAR DEPARTMENT, LOSS IS PAYABLE UPON THE BASIS OF CONVERSION INTO FOREIGN CURRENCY OF THEIR "NET PAY AND ALLOWANCES" (SECTION 2 (B) (, WHICH PHRASE IS DEFINED AS "THE EMPLOYEES FULL PAY, INCLUDING EXTRA OR ADDITIONAL PAY, AND ALL ALLOWANCES (OTHER THAN THOSE FURNISHED IN KIND) LESS DEDUCTIONS THEREFROM ON ACCOUNT OF ALLOTMENTS, FINES AND FORFEITURES, CLOTHING, HOSPITAL, CIVIL SERVICE RETIREMENT FUND, PERCENTAGE DEDUCTIONS IN COMPENSATION, AND OTHER SUNDRY CHECK AGES" (SECTION 1 (B) ). THE LOSS PAYABLE IS DETERMINED FROM THE PER/SE DIFFERENCE BETWEEN THE FOREIGN EXCHANGE RATE CURRENT WHEN THE RIGHT TO PARTICULAR PAYMENT ACCRUES (SECTION 3 (B) ( AND THE PRESCRIBED BASIC RATE WHICH, IN THE CASE OF THE NETHERLANDS WEST INDIES, IS $0.4019 ( E.O. N3. 9057, FEBRUARY 11, 1942), 16 COMP. GEN. 664.

WHILE CURRENCY LOSS HAS BEEN FOUND TO BE ALLOWABLE IN THE CASE OF ENLISTED PERSONNEL OF THE MARINE CORPS UPON THE UNDRAWN BALANCE OF CLOTHING ISSUE PAYABLE ON THEIR DISCHARGE ABROAD (14 COMP. GEN. 206), THERE APPEARS TO HAVE BEEN NO DECISION UPON WHETHER THE "NET PAY AND ALLOWANCES" UPON WHICH LOSSES ARE PAYABLE INCLUDE THE PAYMENT MADE TO SERVICE OFFICERS WITH RESPECT TO THE EXPENSE OF ACQUIRING THE PRESCRIBED UNIFORM. AT THE OUTSET, IT IS PLAIN THE OFFICER MUST BE "IN SERVICE IN FOREIGN COUNTRIES" AT THE TIME THE RIGHT TO THE PAYMENT ACCRUES--- IRRESPECTIVE OF WHEN THE ACTUAL PAYMENT IS EFFECTED--- IN ORDER TO QUALIFY UNDER THE LANGUAGE AND SCOPE OF THE EXCHANGE LOSS ACT. EARLIER STATUTES (THE NAVY APPROPRIATION ACT OF AUGUST 29, 1916, 39 STAT. 593, FOR EXAMPLE) HAVE DENOMINATED THE PAYMENT A "UNIFORM GRATUITY," BUT THE RECENT PROVISION FOR CERTAIN ARMY OFFICERS AUTHORIZES "AN ALLOWANCE OF $250 FOR UNIFORMS AND EQUIPMENT," DEDUCTING, HOWEVER,"ANY UNIFORM ALLOWANCE" PAID UNDER THE SEVERAL ACTS OF 1940, 1941, OR 1942, NOW REPEALED. SEE PUBLIC LAW 788, APPROVED DECEMBER 4, 1942, 56 STAT. 1039, AS QUOTED IN DECISION OF FEBRUARY 11, 1943, B-27272, 22 COMP. GEN. 788, AND IN WAR DEPARTMENT CIRCULAR NO. 410, DECEMBER 17, 1942. THE OTHER STATUTES REFERRED TO ARE IN SIMILAR TERMS. 20 COMP. GEN. 37. EVEN UNDER THE OLDER STATUTES WHICH TERMED THE COMPARABLE PROVISION FOR OTHER SERVICES A GRATUITY, SUCH PAYMENT WAS HELD TO BE A "RIGHT," TO WHICH THE OFFICER WAS "ENTITLED" (A- 76491, JUNE 19, 1936), AND AN "ALLOWANCE" WITHIN (1) THE ECONOMY ACT'S PERCENTAGE REDUCTION OF COMPENSATION AND ALLOWANCES (12 COMP. GEN. 587), (2) THE LANGUAGE OF APPROPRIATIONS CHARGEABLE WITH "PAY AND ALLOWANCES" (18 COMP. GEN. 713, 715; 19 ID. 375), AND (3) THE "STATUTORY PAY AND ALLOWANCES" WHICH CANNOT BE LOST BY WAIVER AND MAY BE SUED UPON IN THE COURT OF CLAIMS ( BANCROFT V. UNITED STATES, 56 C.1CLS. 218, AFFIRMED 260 U.S. 706). IT WAS MADE SUBJECT TO A THREE YEAR STATUTE OF LIMITATIONS ( ACT, JAN. 19, 1929, 45 STAT. 1090, 34 U.S.C. 771), AND WAS REGARDED, GENERALLY, AS A PROVISION INTENDED TO REIMBURSE THE OFFICER FOR THE COST OF THE REQUIRED UNIFORM. A-68613, JANUARY 3, 1936.

AS THUS ADMINISTERED, THE TERM "UNIFORM GRATUITY" IS NOT ACCURATELY DESCRIPTIVE, AND THE PAYMENT REQUIRED TO BE MADE TO AN OFFICER WHO IS ELIGIBLE UNDER THE STATUTES IS AN ALLOWANCE FULLY WITHIN THE TERM "NET PAY AND ALLOWANCES," SUPRA. IT FOLLOWS THAT A CURRENCY APPRECIATION LOSS IS PAYABLE THEREON, IF OTHERWISE PROPER.

EACH PAYMENT PROPOSED ON THE ENCLOSED VOUCHERS CAN BE APPROVED ONLY UPON CONDITION THE UNIFORM ALLOWANCE ITSELF--- THE VOUCHERS FOR WHICH HAVE NOT YET BEEN RECEIVED IN THIS OFFICE--- IS FOUND IN THE AUDIT TO HAVE BEEN LAWFULLY PAID. ALSO, FROM THE FACTS GIVEN, IT IS EVIDENT THAT THE RIGHT TO A PART OF EACH PAYMENT ACCRUED TO THE OFFICER UNDER STATUTES PRIOR TO THE ACT APPROVED DECEMBER 4, 1942, WHEN THE BALANCE BECAME PAYABLE. STATED, IT IS THE DATE UPON WHICH EACH PAYMENT, OR EACH PART THEREOF, BECAME ACTUALLY DUE AND PAYABLE THAT DETERMINES THE CONVERSION RATE APPLICABLE. THE VOUCHERS SHOULD CONTAIN A STATEMENT OF THE DATES OF SUCH ACCRUAL (WHICH WILL BE EXPECTED TO BE VERIFIED BY REFERENCE TO THE ORIGINAL ALLOWANCE VOUCHERS), AND EITHER A BANKER'S CERTIFICATION OF THE ACTUAL BUYING RATE OF EXCHANGE LOCALLY IN EFFECT ON THOSE DATES, OR A REFERENCE TO THE DISBURSING OFFICER'S ACCOUNTS IN WHICH SUCH EVIDENCE WAS FILED. 19 COMP. GEN. 652. WITH THAT RESERVATION, AND WHEN REVISED AS JUST STATED, THE VOUCHERS, WHICH ARE RETURNED HEREWITH, LAWFULLY MAY BE PAID.