Chairman, United States Civil Service Commission, B-168621

Citation49 Comp.Gen. 596
Decision Date18 March 1970
Docket NumberB-168621
PartiesTHE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION
CourtComptroller General of the United States

Officers and employees -- overseas -- registration to vote -- effect on benefits registering to vote in guam does not deprive a civilian employee of the benefits prescribed for overseas service where neither the acts involved nor their legislative histories indicate an intent that an employee be denied entitled benefits because of the registration. Therefore termination of the employee's entitlement to the nonforeign post differential authorized in 5 U.S.C 5941(a)(2) and executive order no. 10, 000 as a recruitment incentive; to the home leave provided in 5 U.S.C. 6305(a) after 24 months of continuous service outside the United States; to the up to 45 days accumulation of unused leave under 5 U.S.C. 6304(b); to travel time without charge to leave under 5 U.S.C. 6303(d); and to payment of travel and transportation expenses pursuant to 5 U.S.C. 5728(a) incident to vacation leave to the "place of actual residence" established at the time of the employee's appointment or travel overseas, is not required.

Reference is made to your letter of February 4, 1970, in which you state that you have received an inquiry from the chairman of the house committee on interior and insular affairs and also from the department of defense on the question of whether an employee's registering to vote in guam would cause termination of his nonforeign post differential and other fringe benefits.

Your letter states that it appears that employees who desire to register and vote in guam have been refraining from doing so because of the fear that the attestation required in the affidavit of registration would have that effect although you have not been told of any instance in which an employee has registered with such a result.

Specifically you request our decision as to whether an employee's attesting as required in the affidavit of registration would require termination of his entitlement to (1) nonforeign differential under 5 U.S.C. 5941(a)(2) and executive order no. 10, 000; (2) home leave under 5 U.S.C. 6305; (3) accumulation of unused annual leave up to 45 days under 5 U.S.C. 6304(b); (4) certain travel time without charge to leave under 5 U.S.C. 6303(d) and (5) payment of travel and transportation expenses to the "place of actual residence" on vacation leave under 5 U.S.C. 5728.

The material enclosed with your letter did not include a copy of the "affidavit of registration" but it does disclose that the legislature of guam enacted "pl 8-59 9 August 1965, " which inter alia, provides for a 1- year residence requirement. The attorney general of guam has interpreted this law to require, in addition to physical presence, the preexistence for a period of 1 year of an intent to remain permanently in the territory of Guam. The oath which is a part of the "affidavit of registration" requires the applicant to attest to his intention of making guam his home to the exclusion of all other places for a period of 1 year immediately preceding the day of the next general election and that he possesses no present intention to remove his home from guam at any given future time.

The differential here involved is based upon 5 U.S.C. 5941(a) which provides:

(a) appropriations or funds available to an executive agency except a government controlled Corporation, for pay of employees stationed outside the continental United States or in Alaska whose rates of basic pay are fixed by statute, are available for allowances to these employees. The allowance is based on--
(1) living costs substantially higher than in the District of Columbia;
(2) conditions of environment which differ substantially from conditions of environment in the continental United States and warrant an allowance as a recruitment incentive; or
(3) both of these factors. The allowance May not exceed 25 percent of the rate of basic pay. Except as otherwise specifically authorized by statute, the allowance is paid only in accordance with regulations prescribed by the president establishing the rates and defining the area, groups of positions, and classes of employees to which each rate applies.

The substance of these provisions originally was included in section 207 of the independent offices appropriation act, 1949, approved April 20, 1948, public law 491, 80th congress, 62 Stat. 194, as amended by section 104 of the supplemental independent offices appropriation act, 1949, approved June 30, 1948, public law 862, 80th congress, 62 Stat. 1205, 5 U.S.C. 118h.

Prior to the enactment of section 207, as amended, an administrative practice had arisen of paying a differential to persons who occupied positions outside the continental limits of the United States, either in the possessions of the United States or in foreign countries. This office recognized that practice as long as the differential did not exceed by more than 25 percent the salary rates authorized to be fixed for the same or similar positions in the United States. That administrative practice arose because of conditions which made it impracticable for various Administrative Offices to recruit personnel for positions outside the United States without paying higher salary rates than those prescribed by the classification act of 1923, 42 Stat. 1488, for the same or similar positions in the departmental service. See 22 Comp.Gen. 491 (1942) to the president of the United States civil service commission. It was contemplated, by the enactment of section 207, that the president would promulgate rules and regulations which would make the practice uniform among the agencies affected. See H. Rept. No. 1288, January 30, 1948, 80th cong., 2d Sess. Executive order no. 10, 000 was issued for that purpose. Pursuant to part ii of executive order no. 10, 000 the civil service commission issued regulations which are found in 5 CFR Sec. 591.101-591, 401.

Under the statute and its legislative background as well as under part ii of executive order no. 10, 000, as amended, and the applicable civil service regulations it is apparent that the differential is payable primarily as a recruitment incentive. There is nothing in the statute, the legislative background executive order no. 10, 000, as amended, or the applicable civil service regulations which would warrant a conclusion...

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