Transfer to International Organizations and Reemployment Guarantees

B-193771, DECEMBER 17, 1979, 59 COMP.GEN. 130

INTERNATIONAL ORGANIZATIONS - TRANSFER OF FEDERAL EMPLOYEES, ETC. - FEDERAL EMPLOYEES INTERNATIONAL ORGANIZATION SERVICE ACT - TRANSFER ENTITLEMENTS - REEMPLOYMENT GUARANTEES - EQUALIZATION ALLOWANCE AGENCY FOR INTERNATIONAL DEVELOPMENT (AID) EMPLOYEE TRANSFERRED TO INTERNATIONAL ORGANIZATION IN INDONESIA FOR 1 YEAR AND TO SECOND INTERNATIONAL ORGANIZATION IN MEXICO FOR 3 YEARS UNDER FEDERAL EMPLOYEES INTERNATIONAL ORGANIZATION SERVICE ACT, AS AMENDED, 5 U.S.C. 3581 TO 3584. IN DETERMINING EMPLOYEE'S ENTITLEMENT TO EQUALIZATION ALLOWANCE AID PROPERLY CONSIDERED TOTAL PAY AND ALLOWANCES RECEIVED FROM BOTH INTERNATIONAL ORGANIZATIONS SINCE EQUALIZATION ALLOWANCE IS EFFECTIVE ONLY UPON EMPLOYEE'S REEMPLOYMENT BY AID AT END OF SECOND ASSIGNMENT. INTERNATIONAL ORGANIZATIONS - TRANSFER OF FEDERAL EMPLOYEES, ETC. - FEDERAL EMPLOYEES INTERNATIONAL ORGANIZATION SERVICE ACT - TRANSFER ENTITLEMENTS - LIMITATIONS AGENCY FOR INTERNATIONAL DEVELOPMENT EMPLOYEE TRANSFERRED TO INTERNATIONAL ORGANIZATIONS FOR 4 YEARS IS NOT ENTITLED TO REST AND RECUPERATION TRAVEL, GRANTING OF EARNED LEAVE BENEFITS, AND REIMBURSEMENT OF EXPENSES INCURRED IN SHIPMENT OF PERSONAL AUTOMOBILE SINCE SUCH BENEFITS ARE NOT AUTHORIZED UNDER 5 C.F.R. 352.310(A)(3) IMPLEMENTING 5 U.S.C. 3582(B). ALSO, EMPLOYEE WAS CONSIDERED FOR PROMOTION BY AGENCY WHILE SERVING WITH INTERNATIONAL ORGANIZATIONS AS REQUIRED BY 5 C.F.R. 352.314(1970).

MATTER OF: [REDACTED] - TRANSFER TO INTERNATIONAL ORGANIZATIONS - REEMPLOYMENT GUARANTEES, DECEMBER 17, 1979:

THIS ACTION IS IN RESPONSE TO AN APPEAL BY MR. [REDACTED], A FORMER EMPLOYEE OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT (AID), DEPARTMENT OF STATE, FROM THE SETTLEMENT ACTION DATED OCTOBER 12, 1978, ISSUED BY OUR CLAIMS DIVISION, WHICH DISALLOWED HIS CLAIM FOR EARNED LEAVE BENEFITS, REIMBURSEMENT OF TRANSPORTATION EXPENSES, AND EQUALIZATION PAY, INCIDENT TO HIS TRANSFER TO TWO INTERNATIONAL ORGANIZATIONS UNDER THE PROVISIONS OF THE FEDERAL EMPLOYEES INTERNATIONAL ORGANIZATION SERVICE ACT, PUBLIC LAW 85-795, AS AMENDED, APPROVED AUGUST 28, 1958, 72 STAT. 959, CODIFIED AT 5 U.S.C. 3581 TO 3584(1970). THE CLAIMANT ALSO HAS QUESTIONED WHY HE WAS NOT CONSIDERED FOR A PROMOTION BY AID WHILE EMPLOYED BY THE INTERNATIONAL ORGANIZATIONS.

THE RECORD DISCLOSES THAT MR. [REDACTED] WHO WAS THEN AN EMPLOYEE OF AID WAS TRANSFERRED FROM AID TO COMMENCE WORK ON JUNE 22, 1970, AS A TECHNICIAN FOR THE UNITED NATIONS INDUSTRIAL DEVELOPMENT ORGANIZATION (UNIDO) IN INDONESIA FOR ONE YEAR. HE WAS NOT REEMPLOYED BY AID UPON COMPLETION OF HIS ONE-YEAR CONTRACT WITH UNIDO. INSTEAD THE DEPARTMENT OF STATE APPROVED A SECOND CONTRACT FOR THE CLAIMANT TO WORK FOR ANOTHER UNITED NATIONS (UN) AGENCY, THE UNITED NATIONS DEVELOPMENT PROGRAM (UNDP). HE WAS TO BE EMPLOYED BY UNDP, IN MEXICO, FOR A FOUR YEAR PERIOD UNTIL JUNE 21, 1975. HOWEVER, MR. [REDACTED] WAS IN FACT REEMPLOYED BY AID ON SEPTEMBER 3, 1974. HE RETIRED FROM FEDERAL SERVICE ON NOVEMBER 1, 1974.

MR. [REDACTED] CONTENDS THAT EVEN THOUGH HE WAS NOT REEMPLOYED BY AID AT THE END OF HIS ONE-YEAR ASSIGNMENT IN INDONESIA, FOR ALL INTENT AND PURPOSES, HIS CONTRACT WITH UNIDO HAD BEEN COMPLETED AND HE WAS PREPARED TO RETURN TO AID. HE STATES HOWEVER THAT HE WAS THEN ASSIGNED BY THE DEPARTMENT OF STATE TO ANOTHER UN ORGANIZATION, UNDP, UNDER A COMPLETELY NEW CONTRACT WITH DIFFERENT RESPONSIBILITIES. HE THEREFORE FEELS THAT TWO CALCULATIONS SHOULD BE MADE. THE FIRST WOULD BE A COMPUTATION OF PAY AND ALLOWANCES FOR HIS ONE-YEAR TOUR OF DUTY IN INDONESIA WHERE HE STATES HARDSHIP BENEFITS OF 25 PERCENT AND REST AND RECUPERATION TRAVEL ARE INCLUDED. THE SECOND COMPUTATION WOULD BE MADE FOR HIS SERVICE IN MEXICO WHERE THE AFOREMENTIONED BENEFITS ARE NOT PAYABLE.

THE CLAIMANT ALSO SEEKS THE GRANTING OF EARNED LEAVE BENEFITS AND REIMBURSEMENT OF EXPENSES INCURRED INCIDENT TO THE SHIPMENT OF HIS PERSONAL AUTOMOBILE. HE STATES THAT DURING THE ENTIRE PERIOD OF HIS ASSIGNMENT TO THE INTERNATIONAL ORGANIZATIONS, HE WAS NOT COMPENSATED FOR LEAVE.

MR. [REDACTED] FURTHER CONTENDS THAT EVEN THOUGH HE ADVANCED RAPIDLY WHILE ASSIGNED TO THE TWO INTERNATIONAL ORGANIZATIONS, HE WAS NOT CONSIDERED FOR A PROMOTION BY THE AID REVIEW PANEL DURING THIS PERIOD ALTHOUGH SUCH CONSIDERATION IS REQUIRED BY THE FEDERAL EMPLOYEES INTERNATIONAL ORGANIZATION SERVICE ACT.

THE RIGHTS OF FEDERAL EMPLOYEES WHO TRANSFER TO AN INTERNATIONAL ORGANIZATION ARE SET FORTH IN SECTION 3582, TITLE 5, U.S.C. (1970). SUBSECTION (A) PROVIDES THAT AN EMPLOYEE WHO TRANSFERS TO AN INTERNATIONAL ORGANIZATION WITH THE CONSENT OF THE HEAD OF HIS AGENCY IS ENTITLED TO CERTAIN RIGHTS AND BENEFITS PERTAINING TO RETIREMENT, LIFE AND HEALTH INSURANCE, COMPENSATION FOR WORK INJURIES, AND ANNUAL LEAVE. SUBSECTION (B) PROVIDES THAT SUCH AN EMPLOYEE IS ENTITLED TO BE REEMPLOYED IN THE AGENCY FROM WHICH HE TRANSFERRED IF-- (1) HE IS SEPARATED FROM THE INTERNATIONAL ORGANIZATION WITHIN 5 YEARS OR ANY EXTENSION THEREOF, OR WITHIN A SHORTER PERIOD NAMED BY THE HEAD OF THE AGENCY, AND (2) HE APPLIES FOR REEMPLOYMENT NOT LATER THAN 90 DAYS AFTER SEPARATION. THIS SUBSECTION ALSO PROVIDES THAT UPON REEMPLOYMENT AN EMPLOYEE IS ENTITLED TO THE RESTORATION OF HIS SICK LEAVE ACCOUNT AND TO BE PAID AN EQUALIZATION ALLOWANCE IN AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE PAY, ALLOWANCES, POST DIFFERENTIAL, AND OTHER MONETARY BENEFITS PAID BY THE INTERNATIONAL ORGANIZATION AND THE SAME BENEFITS THAT WOULD HAVE BEEN PAID BY THE AGENCY HAD HE BEEN DETAILED TO THE INTERNATIONAL ORGANIZATION.

A DISTINCTION IS MADE BETWEEN EMPLOYEES WHO ARE DETAILED TO INTERNATIONAL ORGANIZATIONS AND THOSE WHO ARE TRANSFERRED TO SUCH ORGANIZATIONS. DETAILED EMPLOYEES REMAIN ON THE GOVERNMENT ROLLS AND RECEIVE PAY AS BEING IN THE SERVICE OF THE UNITED STATES. THOSE TRANSFERRED ARE GUARANTEED THAT THEIR PAY WILL NOT BE LESS THAN IF THEY HAD REMAINED ON THE GOVERNMENT ROLLS, BUT SUCH GUARANTEE IS EFFECTIVE ONLY UPON CONDITION OF REEMPLOYMENT. IF AN EMPLOYEE EARNS AS MUCH AS OR MORE WHILE SERVING WITH AN INTERNATIONAL ORGANIZATION THAN HE WOULD HAVE EARNED AS A FEDERAL EMPLOYEE, NO PAYMENT UNDER THE GUARANTEE IS REQUIRED. 50 COMP.GEN. 173(1970).

WITH RESPECT TO THE CONTENTION BY MR. [REDACTED] THAT HIS EQUALIZATION PAY SHOULD BE COMPUTED SEPARATELY AS TO EACH OF HIS ASSIGNMENTS TO INTERNATIONAL ORGANIZATIONS, THE STATUTORY GUARANTEE THAT HIS PAY WILL NOT BE LESS THAN IF HE HAD REMAINED ON THE ROLLS OF AID IS EFFECTIVE ONLY UPON THE CONDITION OF REEMPLOYMENT. 50 COMP.GEN. 173, SUPRA. THE CLAIMANT WAS NOT REEMPLOYED BY AID AT THE END OF HIS INITIAL ASSIGNMENT OF ONE YEAR TO THE UNIDO. HE WAS REEMPLOYED BY THE AGENCY UPON COMPLETION OF HIS SECOND ASSIGNMENT TO THE UNDP. HENCE, THE COMPUTATION OF THE EQUALIZATION PAY, IF ANY, DUE THE CLAIMANT IS TO BE BASED UPON THE ENTIRE 4-YEAR PERIOD HE SERVED WITH BOTH INTERNATIONAL ORGANIZATIONS. THE RECORD DISCLOSES THAT THE 25 PERCENT POST DIFFERENTIAL PAID TO EMPLOYEES SERVING IN INDONESIA WAS IN FACT INCLUDED IN THE COMPUTATION OF EQUALIZATION PAY DUE THE CLAIMANT. FURTHER, WE ARE NOT AWARE OF ANY HARDSHIP BENEFITS PAYABLE TO EMPLOYEES WHO SERVE IN INDONESIA OTHER THAN THE 25 PERCENT POST DIFFERENTIAL. FINALLY, IN COMPUTING THE EQUALIZATION PAY OF MR. [REDACTED], THE RECORD DISCLOSES THAT DURING HIS SERVICE WITH THE INTERNATIONAL ORGANIZATIONS HIS SALARY AND ALLOWANCES TOTALED $144,083.79. THE SALARY AND ALLOWANCES THAT HE WOULD HAVE RECEIVED FROM AID TOTALED $143,680.56. SINCE THE SALARY AND ALLOWANCES RECEIVED FROM THE INTERNATIONAL ORGANIZATIONS EXCEEDED THOSE THAT WOULD HAVE BEEN RECEIVED FROM THE AGENCY, NO EQUALIZATION ALLOWANCE IS PAYABLE.

AS TO REST AND RECUPERATION TRAVEL TO WHICH THE CLAIMANT APPARENTLY REFERS, THIS BENEFIT ALLOWS EMPLOYEES WHO ARE ON ANNUAL LEAVE TO TRAVEL, AT GOVERNMENT EXPENSE, TO A DESIGNATED REST AREA. IT IS PROVIDED TO EMPLOYEES WHO SERVE IN REMOTE LOCATIONS. THIS BENEFIT IS NOT AN ALLOWANCE AND IS NOT INCLUDED IN THE PHRASE "PAY, ALLOWANCES, POST DIFFERENTIAL, AND OTHER MONETARY BENEFITS" AND THEREFORE MAY NOT BE INCLUDED IN THE COMPUTATION OF EQUALIZATION PAY. SEE 5 U.S.C. 3582(B)(2) AND MATTER OF MICHAEL B. MCCLELLAN, B-181853, AUGUST 23, 1976. ALSO, THE GRANTING OF EARNED LEAVE BENEFITS AND EXPENSES INCURRED INCIDENT TO THE SHIPMENT OF MR. [REDACTED]'S PERSONAL AUTOMOBILE ARE NOT CONSIDERED AS MONETARY BENEFITS AND, THEREFORE, MAY NOT BE INCLUDED IN COMPUTING THE EQUALIZATION ALLOWANCE. 5 C.F.R. 352.310(A)(3) (1970); MCCLELLAN, SUPRA.

REGARDING CONSIDERATION FOR PROMOTION THE AGENCY IS REQUIRED TO CONSIDER EACH EMPLOYEE DETAILED OR TRANSFERRED TO AN INTERNATIONAL ORGANIZATION FOR ALL PROMOTIONS FOR WHICH HE WOULD HAVE BEEN CONSIDERED WERE HE NOT ABSENT, 5 C.F.R. 352.314(1970); B-135075, MAY 10, 1968. COMPARE 28 COMP.GEN. 159(1948). THE RECORD SHOWS INDUSTRIAL DEVELOPMENT FIELD ADVISER WITH UNDP, HE WAS CONSIDERED FOR PROMOTION BY AID OFFICIALS. THE THREE MEMBERS OF THE PROMOTION PANEL STATED THAT THE CLAIMANT HAD NOT RECEIVED A FORMAL AND COMPLETE EVALUATION BY AID SINCE 1969 AND FOUND IT ALMOST IMPOSSIBLE TO RENDER AN ACCURATE EVALUATION OF MR. [REDACTED]'S PERFORMANCE AND ABILITIES. IN THIS CONNECTION A LETTER DATED AUGUST 8, 1975, ADDRESSED TO THE CLAIMANT BY THE CHIEF, LATIN AMERICA/NON-REGIONAL STAFFING BRANCH, FOREIGN SERVICE PERSONNEL, AID, STATES THAT EMPLOYEES ON TRANSFER TO INTERNATIONAL ORGANIZATIONS ARE CONSIDERED ANNUALLY BY THE EVALUATION PANELS. HOWEVER, THE LETTER POINTS OUT THAT THE EMPLOYEES' PROMOTION OPPORTUNITIES ARE LIMITED BECAUSE THE PANELS DO NOT RECEIVE MEANINGFUL PERFORMANCE EVALUATION REPORTS FROM THE SUPERVISORS OF THE TRANSFERRED EMPLOYEES IN THE INTERNATIONAL ORGANIZATION.

IN HIS LETTER OF APPEAL, MR. [REDACTED] STATES THAT HE WAS VERBALLY ASSURED THAT IN ACCEPTING HIS SECOND ASSIGNMENT WITH AN INTERNATIONAL ORGANIZATION HE WOULD CONTINUE TO BE A UNITED STATES GOVERNMENT EMPLOYEE ENTITLED TO ALL THE RIGHTS AND PRIVILEGES EXTENDED TO ANY AID EMPLOYEE ASSIGNED TO A FOREIGN COUNTRY. HE ALSO STATES THAT HE WAS POSITIVELY ASSURED THAT UNDER NO CIRCUMSTANCES, UNDER THE THEN CURRENT REGULATIONS, WOULD HE ENCOUNTER ANY FINANCIAL LOSS. HOWEVER, WHILE AID OFFICIALS MAY HAVE MADE SUCH STATEMENTS, THEY DO NOT ENTITLE MR. [REDACTED] TO ANY ADDITIONAL PAY AND ALLOWANCES SINCE, AS NOTED ABOVE, THE PAY AND ALLOWANCES RECEIVED BY HIM FROM THE INTERNATIONAL ORGANIZATIONS EXCEEDED THOSE HE WOULD HAVE RECEIVED FROM AID.

IN LIGHT OF THE FOREGOING, THE SETTLEMENT ACTION OF OCTOBER 12, 1978, BY OUR CLAIMS DIVISION, DENYING THE CLAIM OF MR. [REDACTED] FOR THE PREVIOUSLY DISCUSSED BENEFITS UNDER THE FEDERAL EMPLOYEES INTERNATIONAL ORGANIZATION SERVICE ACT, AS AMENDED, AND ITS IMPLEMENTING REGULATIONS, IS SUSTAINED.