Office of the General Counsel

Date: [xxx]
Matter of: [xxx]
File Number: S9600926

Dear Mr. [xxx]:

This concerns your claim for the following items: (1) inclusion of a post differential and post allowance in your lump-sum leave payment; (2) temporary lodging allowance, subsistence, and transportation for the period after you vacated your quarters and while you were awaiting transportation to the United States; (3) transportation of your 23 year old son to the United States; and (4) retroactive payment of the post differential and allowance during your employment as a retired annuitant. You initially submitted your claim to the [agency].

Section 211 of the Legislative Branch Appropriations Act of 1996, Public Law 104-53, transferred GAOs claims settlement function to the Director of the [agency], who subsequently delegated to the [agency's] Board the authority to settle Federal employees claims for travel, transportation, and relocation expenses and allowances. We do not have the authority to consider your claim for transportation of your 23 year old son to the United States. Accordingly, we are forwarding that claim to the [agency's] Board for adjudication.

The Director of the [agency] also delegated to the Office of Personnel Management (OPM) the authority to consider and settle Federal employees claims for compensation and leave. Your claims for (1) inclusion of a post differential and post allowance in your lump-sum leave payment; (2) temporary lodging allowance and subsistence, and transportation for the period after you vacated your quarters and while you were awaiting transportation to the United States; and (4) retroactive payment of the post differential and allowance during your employment as a retired annuitant are denied for the reasons stated below.

Prior to your retirement on November 29, 1990, you worked with the [agency] in [country], as an [employee]. On November 30, 1990, you returned to work in the same position as a reemployed annuitant without a break in service. In November 1992, you received notice of the impending termination of your employment due to budgetary problems. You state in this regard that, at the beginning of November 1992, your "employment was terminated by the Commander with a 30 day notice." Thus, your termination from employment originally was scheduled to take effect at the end of November 1992. You further state that the "30 day notice was pretty severe by not taking into consideration where I was, and all the personal problems that this would cause me." Accordingly, you received permission to go on leave without pay (LWOP) for thirty days. On November 27, 1992, your overseas allowances were discontinued. On November 28, 1992, you went on LWOP until January 8, 1993, when your termination became effective. You believe that a payment for post differential and post allowances should have been included as part of the lump-sum payment for your accumulated annual leave "upon your retirement overseas."

Section 5551(a) of title 5, United States Code (U.S.C.) (1992) provides that an employee who is separated from Federal service is entitled to a lump-sum payment for his or her accumulated and current accrued annual leave. It also provides that:

The lump-sum payment shall equal the pay (excluding any differential under section 5925 [post differential] and any allowance under section 5928) the employee or individual would have received had he remained in the service until expiration of the period of the annual or vacation leave.

Section 147(b)(1) of Public Law 102-138, 105 Stat. 669 (October 28, 1991) added this provision which excludes post differentials from lump-sum payments for accumulated and current accrued annual leave. Section 147(b)(2) of Public Law 102-138 limited the application of the exclusion to "service as part of a tour of duty or extension thereof commencing on or after the date of enactment of this Act," i.e., October 28, 1991. Because you began your tour of duty as a reemployed annuitant on November 30, 1990, the exclusion does not apply to you.

The Comptroller General of the United States has ruled, however, that lump-sum leave payments are computed on the basis of the employees rights at the time of separation under all applicable laws and regulations existing at that time which would have affected his compensation if he had remained in the service for the period covered by his leave. See Phillip A. Whiting, B-200854, March 18, 1981; William E. Pope, Jr., B-186046, November 9, 1976; Secretary of State, 52 Comp. Gen. 993 (June 28, 1973). You were on LWOP from November 28, 1992 to January 8, 1993, the day your termination became effective. Section 051.2 of the Department of State Standardized Regulations (DSSR) provides in pertinent part:

All allowances granted under [the DSSR] may continue during periods while the employee is in non-pay status not in excess of 14 calendar days at any one time. For periods in non-pay status longer than 14 calendar days, payments under allowance grants are to be suspended as of the day the employee enters the non-pay status, and payment is not to be made for any part of such period, unless otherwise specifically provided in these regulations.

Section 052.2 of the DSSR concerns post differential payments and danger pay allowances, and provides in pertinent part:

Payment of post differential . . . shall be suspended while an employee is in non-pay status.

On January 8, 1993, the effective date of your separation, you were ineligible to receive a post allowance or a post differential and you were not drawing these allowances because you had been on LWOP, i.e. in a non-pay status, for more than 14 days. Accordingly, your claim that a post allowance and post differential allegedly should have been included in your lump-sum leave payment is denied.

You have made an additional claim for retroactive payment of the post differential and allowance that you allegedly should have received during your employment as a retired annuitant. In your August 10, 1995 letter to the Command General, U.S. Army Japan/IX Corps, you also stated that, when you began working as a reemployed annuitant, you were advised of the following: (1) you would continue to receive the same pay and allowances that you had received before you retired; (2) your salary would be reduced by the amount of your monthly annuity payment; (3) your salary would be reduced by an estimated amount until the exact amount of your monthly annuity payment had been determined, when an adjustment would be made. You state in this letter that you received an adjustment for your salary but not for your post allowance and post differential.

Section 837.303(a) of Title 5, Code of Federal Regulations provides in pertinent part that, when the right to receive an annuity continues during reemployment, the pay of the reemployed annuitant shall be offset by the amount of annuity allocable to the period of reemployment. The record reflects that you were reemployed as an annuitant at the GS-11 grade level. Thus, your salary as a GS-11 would be offset, or reduced, by the amount of the annuity you were receiving so that your base pay, combined with your monthly annuity payment, would equal the pay of a GS-11. By letter of October 27, 1993, your employing agency sent you a breakout, by pay period, of your base pay and annuity. The letter advised that there was no change in your allowances, which had been based on the GS-salary of your position and not on the base pay you received after your annuity was subtracted out. Because your allowances always had been based on the full salary of a GS-11 employee, they were not affected by the salary adjustment that resulted from computing the exact amount of your monthly annuity. Accordingly, your claim for retroactive payment of the post differential and allowance that you allegedly should have received during your employment as a retired annuitant also is denied.

It appears from the note that you made on the October 27, 1993 breakout of your base pay and annuity that you may question the actual computation of your annuity. The Claims Adjudication Unit of OPMs Office of the General Counsel does not have jurisdiction to consider this matter. OPMs Office of Retirement Programs has the authority to consider and adjudicate such claims. 5 U.S.C. 8347; 5 C.F.R. 831.101, 831.109. OPMs Office of Retirement Programs is located at 1900 E Street, NW, Washington, D.C. 20415-0001. If you decide to contact that Office, please include your CSA number and your full name on your correspondence.

Finally, we have reviewed your claim for temporary lodging allowance, subsistence, and transportation for the period after you vacated your quarters and while awaiting transportation to the United States. We concur with your former employing agencys analysis of, and recommendation concerning, this claim as stated in its report of June 6, 1996. Accordingly, your claim for temporary lodging allowance, subsistence, and transportation for the period after you vacated your quarters and while awaiting transportation to the United States is denied for the reasons stated in the agency report of June 6, 1996. A copy of this report is enclosed, as well as a copy of our letter transmitting to the [agency's] Board for adjudication the claim that you made for the transportation expenses of your 23 year old son to the United States.

Sincerely,

Jo-Ann Chabot

Attorney-Advisor

Enclosures (2)

cc: [agency name and address]