B-94022, MAY 16, 1950, 29 COMP. GEN. 461

B-94022, MAY 16, 1950, 29 COMP. GEN. 461

TRANSFER ALLOWANCES - CIVILIANS APPOINTED OR TRANSFERRED FOR DUTY IN FOREIGN AREAS THE TRANSFER ALLOWANCE PRESCRIBED BY THE STANDARDIZED REGULATIONS ISSUED PURSUANT TO EXECUTIVE ORDER NO. 10011 AND DEFINED AS A COST-OF LIVING ALLOWANCE MAY BE PAID TO NEW APPOINTEES FOR SERVICE IN FOREIGN COUNTRIES, AND, THEREFORE, A PERSON NEWLY APPOINTED AFTER THE EFFECTIVE DATE OF THE REGULATIONS FOR A FOREIGN DUTY ASSIGNMENT IS ENTITLED TO RECEIVE A TRANSFER ALLOWANCE TO THE SAME EXTENT AS A PERSON TRANSFERRED FROM ONE POST TO ANOTHER. THE TRANSFER ALLOWANCE PRESCRIBED BY THE STANDARDIZED REGULATIONS ISSUED PURSUANT TO EXECUTIVE ORDER NO. 10011 AND DEFINED AS A COST-OF LIVING ALLOWANCE MAY BE PAID TO AN EMPLOYEE WHOSE TRAVEL TO HIS PERMANENT DUTY STATION IN A FOREIGN COUNTRY, UPON TRANSFER FROM A STATION WITHIN THE UNITED STATES, WAS BEGUN PRIOR TO THE EFFECTIVE DATE OF THE REGULATIONS, PROVIDED THE REGULATIONS WERE IN EFFECT AT THE FOREIGN DUTY STATION AT THE TIME OF HIS ARRIVAL.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS AFFAIRS, MAY 16, 1950:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 24, 1950, WITH WHICH WAS ENCLOSED A VOUCHER SUBMITTED BY HAROLD V. SEIFERD CLAIMING THE TRANSFER ALLOWANCE PRESCRIBED BY SECTION 6 OF THE STANDARDIZED GOVERNMENT CIVILIAN ALLOWANCE REGULATIONS ( FOREIGN AREAS) ISSUED BY THE DEPARTMENT OF STATE, PURSUANT TO THE PROVISIONS OF EXECUTIVE ORDER 10011 DATED OCTOBER 22, 1948.

IT APPEARS THAT MR. SEIFERD WAS APPOINTED TO THE POSITION OF ADJUDICATOR, VETERANS ADMINISTRATION REGIONAL OFFICE, MANILA, P.I., EFFECTIVE OCTOBER 21, 1948. TRANSPORTATION FROM BROOKLYN, NEW YORK, TO MANILA, P.I., WAS AUTHORIZED UNDER THE PROVISIONS OF SECTION 7 OF PUBLIC LAW 600, 79TH CONGRESS, 60 STAT. 808, BY TRAVEL ORDER DATED OCTOBER 1, 1948, WHICH GAVE THE APPROXIMATE DATE UPON WHICH TRAVEL WOULD BEGIN AS OCTOBER 18, 1948. BECAUSE OF THE UNAVAILABILITY OF STEAMSHIP ACCOMMODATIONS, MR. SEIFERD DID NOT COMMENCE TRAVELING UNTIL DECEMBER 20, 1948, ARRIVING IN MANILA, P.I., ON JANUARY 10, 1949. IT IS NOTED THAT THE STANDARDIZED GOVERNMENT CIVILIAN ALLOWANCE REGULATIONS BECAME EFFECTIVE AT THE BEGINNING OF THE PAY PERIOD WHICH INCLUDES JANUARY 2, 1949, IN ACCORDANCE WITH SECTION 1.3 THEREOF.

THERE WAS ENCLOSED WITH YOUR LETTER A COPY OF A LETTER DATED NOVEMBER 21, 1949, TO THE MANAGER, VETERANS ADMINISTRATION REGIONAL OFFICE, MANILA, P.I., EXPRESSING A DESIRE ON THE PART OF THE CENTRAL OFFICE THAT CLAIMS FOR THE TRANSFER ALLOWANCE BE PROCESSED AND PAID BY THE OVERSEAS STATION TO WHICH AN EMPLOYEE IS ASSIGNED OR TRANSFERRED. THE CONCLUDING PARAGRAPH OF THAT LETTER--- WHICH YOU STATE CLEARLY INDICATES THAT THE GRANTING OF THIS ALLOWANCE WOULD BE LIMITED TO EMPLOYEES TRANSFERRING FROM A DUTY STATION WITHIN THE UNITED STATES TO A DUTY STATION IN A FOREIGN COUNTRY AND DOES NOT CONTEMPLATE THE GRANTING OF THE TRANSFER ALLOWANCE TO A PERSON NEWLY APPOINTED FOR FOREIGN SERVICE WHOSE DUTY STATION OF INITIAL ASSIGNMENT IS IN A FOREIGN COUNTRY--- READS AS FOLLOWS:

SINCE THESE CLAIMS, WHICH CLASSIFIED GENERALLY AS A COST-OF-LIVING ALLOWANCE, ARE DIRECTLY INCIDENT TO THE EMPLOYEE'S CHANGE OF DUTY STATION IT HAS BEEN DETERMINED THAT LIMITATION SYMBOL .007 IS CHARGEABLE WITH THIS EXPENSE.

YOU REQUEST TO BE ADVISED AS TO WHETHER MR. SEIFERD'S CLAIM MUST BE DISALLOWED UPON THE GROUND THAT HE IS A NEW APPOINTEE, AS DISTINGUISHED FROM A TRANSFEREE. ALSO, YOU REQUEST TO BE ADVISED WHETHER EMPLOYEES TRANSFERRED FROM DUTY STATIONS WITHIN THE UNITED STATES FOR PERMANENT ASSIGNMENT TO DUTY STATIONS IN FOREIGN AREAS WHOSE TRAVEL THERETO WAS BEGUN PRIOR TO THE EFFECTIVE DATE OF THE STANDARDIZED GOVERNMENT CIVILIAN ALLOWANCE REGULATIONS ARE ELIGIBLE FOR RECEIPT OF THE TRANSFER ALLOWANCE.

SINCE THE LETTER OF NOVEMBER 21, 1949, WAS WRITTEN LONG AFTER ANY RIGHT TO THE TRANSFER ALLOWANCE OTHERWISE MIGHT HAVE ACCRUED IN THE CASE PRESENTED IT CAN, OF COURSE, BE GIVEN NO EFFECT AS TO THAT CASE. BEING PRIMARILY AN INSTRUCTION FROM ONE OFFICIAL TO ANOTHER, NEITHER MAY IT BE CONSIDERED AS A REGULATION WITHIN THE MEANING OF SECTION 1.6 OF THE STANDARDIZED GOVERNMENT CIVILIAN ALLOWANCE REGULATIONS WHICH PROVIDES IN PART THAT:

* * * WITHIN THE SCOPE OF THESE REGULATIONS, THE HEAD OF AN AGENCY MAY ISSUE SUCH FURTHER IMPLEMENTING REGULATIONS AS HE MAY DEEM NECESSARY FOR THE GUIDANCE OF HIS AGENCY WITH REGARD TO THE GRANTING OF AND ACCOUNTING FOR THESE ALLOWANCES. * * * ACCORDINGLY, EVEN AFTER THE DATE OF ISSUANCE, IT CAN HAVE NO APPLICATION IN DETERMINING THE RIGHTS OF ANY INDIVIDUAL TO A TRANSFER ALLOWANCE.

SECTION 901 (2) (II) OF THE FOREIGN SERVICE ACT OF 1946, 60 STAT. 1026, AUTHORIZES THE GRANTING OF COST-OF-LIVING ALLOWANCE WHENEVER THE SECRETARY OF STATE DETERMINES THAT EXTRAORDINARY AND NECESSARY EXPENSES, NOT OTHERWISE COMPENSATED FOR, ARE INCURRED BY AN OFFICER OR EMPLOYEE OF THE SERVICE INCIDENT TO THE ESTABLISHMENT OF HIS RESIDENCE AT HIS POST OF ASSIGNMENT;

THE DEFINITION OF "TRANSFER ALLOWANCE" AS IT ORIGINALLY APPEARED IN SECTION 6.1 OF THE STANDARDIZED GOVERNMENT CIVILIAN ALLOWANCE REGULATIONS IS:

"TRANSFER ALLOWANCE" MEANS A COST-OF-LIVING ALLOWANCE GRANTED PURSUANT TO SECTION 901 (2) (II) OF THE FOREIGN-SERVICE ACT OF 1946 (22 U.S.C. 1131 (2) ( TO AN OFFICER OR EMPLOYEE WHENEVER SUCH OFFICER OR EMPLOYEE HAS INCURRED EXTRAORDINARY AND NECESSARY EXPENSES, NOT OTHERWISE COMPENSATED FOR, INCIDENT TO THE ESTABLISHMENT OF HIS RESIDENCE AT HIS POST OF ASSIGNMENT.

THAT DEFINITION WAS AMENDED BY ALLOWANCE CIRCULAR NO. 8 OF JUNE 15, 1949, BY ADDING SECTION 6.1B AS FOLLOWS:

"TRANSFER" MEANS AN APPOINTMENT, ASSIGNMENT, RE-ASSIGNMENT, OR TRANSFER THAT INVOLVES TRAVEL ON THE PART OF AN OFFICER OR EMPLOYEE FROM ONE POST TO ANOTHER OR FROM A PLACE IN THE UNITED STATES TO A POST LISTED IN SECTION 9.1 ( ITALICS SUPPLIED.)

CERTAINLY, THERE IS NOTHING IN THE BASIC ACT OR ORIGINAL DEFINITION TO REQUIRE A CONCLUSION THAT A TRANSFER ALLOWANCE COULD NOT BE PAID IN THE CASE OF NEW APPOINTEES, AND IN VIEW OF THE AMENDED DEFINITION WHICH APPEARS TO HAVE BEEN ADDED MERELY TO CLARIFY THE ORIGINAL DEFINITION, THERE IS LITTLE ROOM FOR DOUBT AS TO THE APPLICABILITY OF THE TRANSFER ALLOWANCE PROVISIONS OF THE REGULATIONS TO NEW APPOINTEES. ACCORDINGLY, IT IS CONCLUDED THAT PERSONS NEWLY APPOINTED FOR SERVICE IN FOREIGN COUNTRIES PRESENTLY ARE, AND, SINCE THE EFFECTIVE DATE OF THE REGULATIONS, HAVE BEEN ENTITLED TO RECEIVE A TRANSFER ALLOWANCE TO THE SAME EXTENT AS PERSONS TRANSFERRED FROM ONE POST TO ANOTHER.

AS TO THE REMAINING POINT RAISED IN YOUR LETTER, ATTENTION IS INVITED TO SECTION 6.21 OF THE STANDARDIZED GOVERNMENT CIVILIAN ALLOWANCE REGULATIONS AS AMENDED BY ALLOWANCE CIRCULAR NO. 8 OF JUNE 15, 1949, WHICH READS THE SAME AS SECTION 6.2 OF THE ORIGINAL REGULATIONS, AS FOLLOWS:

THE AMOUNT OF THE TRANSFER ALLOWANCE GRANTED TO AN OFFICER OR EMPLOYEE SHALL BE DETERMINED BY THE ZONE CLASSIFICATIONS OF THE RESPECTIVE POSTS (OR PLACES) TO WHICH AND FROM WHICH HE IS TRANSFERRED, AND WHICH ARE IN EFFECT ON THE DATE OF HIS ARRIVAL AT HIS NEW POST (SEE SEC. 9.1), BY HIS SALARY (SEE SEC. 1.5C), AND HIS FAMILY STATUS (SEE SEC. 1.5B), AS PRESCRIBED BY SECTION 9.6. ( ITALICS SUPPLIED.)

IT IS CONCLUDED THAT THE ABOVE REGULATION CONSTITUTES SUFFICIENT BASIS FOR THE CONCLUSION THAT AN EMPLOYEE TRANSFERRED FROM A DUTY STATION WITHIN THE UNITED STATES FOR PERMANENT ASSIGNMENT TO A DUTY STATION IN A FOREIGN AREA MAY RECEIVE A TRANSFER ALLOWANCE, EVEN THOUGH HIS TRAVEL THERETO WAS BEGUN PRIOR TO THE EFFECTIVE DATE OF THE STANDARDIZED GOVERNMENT CIVILIAN ALLOWANCE REGULATIONS, PROVIDED THAT SUCH REGULATIONS WERE IN EFFECT AT THE FOREIGN DUTY STATION AT THE TIME OF HIS ARRIVAL.

THE VOUCHER, WHICH PROPERLY MAY BE PROCESSED FOR PAYMENT, IS RETURNED HEREWITH.