GENERAL COUNSEL'S OPINION NUMBER 57-2

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP78-05844A000100070020-2
• Release Decision: RIPPUB
• Original Classification: C
• Document Page Count: 3
• Document Creation Date: December 12, 2016
• Document Release Date: August 4, 2000
• Sequence Number: 20
• Publication Date: June 27, 1957
• Content Type: REGULATION

OGC HAS REVIEWED.
Approved For Release 2002/05/06: CIA-RDP78-05RAA^-nn=0070020-2
GENERAL COUNSEL'S OPINION NUMBER 57-2, DATED 27 JUNE 1957
Home service transfer allowance may not be granted to both husband
and wife.
1. You have requested our opinion whether you may legally certify for
payment claims for the transfer portion of the home service transfer allowance,
under the following circumstances.
2. Husband and wife, both staff employees, stationed at the same
overseas post are transferred to the United States (from Zone 3 to Zone 2)
on PCS orders at the same time. The employees have two children. Employee-
husband submitted a claim for the maximum entitlement at the with-family
rate, listing the two children as dependents; employee-wife claims payment
at the without-family rate. You note that the Standardized Regulations
(Government Civilian Foreign Areas) at section 252, dealing with home service
transfer allowances, is silent as regards the entitlement of married employees.
3. Section 252 of the Standardized Regulations, issued by the Secretary
of State, pursuant to the authority conferred by Executive Order 10011,
dated 22 October 1948, indicates that upon an employee's reassignment
involving transfer from a post in the foreign area to a post in the
continental United States, payment of the transfer portion of the home
service transfer allowance may be made. Executive Order 10100, dated 20
June 1949, authorizes the Director of Central Intelligence to pay allowances
conforming to those granted by the Secretary of State in accordance with the
regulations prescribed by him in Executive Order 10011 and to prescribe such
further regulations as he may deem necessary to effectuate the purposes of
the Order. In Agency which incorporates by reference and
supplements section 252, the criteria and eligibility requirements for this
payment are further prescribed. And in the matter of allowances generally,
the Standardized Regulations define "employee" as "any civilian employee of
the Government who is a citizen of the United States stationed in a foreign
area" (section 215b). Together, these regulatory issuances set forth with
a certain degree of particularity the conditions under which transfer
payments may be made, although admittedly not covering in specific language
the issue with which we are concerned here.
4. In view of this silence we must interpret the Regulation in the
light of the spirit of the Regulation and the intent of Congress and the
principles covering the expenditure of Government funds. The basic authority
for home transfer allowance is permissive and is not payment to which an
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employee is entitled as a matter of right. The Agency Regulation
provides that it shall be paid to "eligible" staff personnel provided
in paragraph 4a.,and paragraph 3b. requires that all applicable eligi-
bility criteria be met. By definition, paragraph 2 reads that the
allowances are granted to an employee for "extraordinary and necessary
expenses incident to the establishment of his residence at a PCS post."
Limitations have -then been set on the amounts which can be paid to a
single employee, an employee with one member of a family and an employee
with more than one member of a family.
5. In the present case, the employee-husband claimed the maximum
amount on the basis of two members of the family. It would appear to
be quite contrary to the spirit of the Regulation to give that same
family payments in excess of this maximum amount because of the fact
that the wife too was an employee since the fact of her employment was
incidental to the establishment of the husband's post. Under these
circumstances, the wife does not meet the eligibility criteria as an
employee and is not entitled to the allowance.
6. We believe that an analysis of the intent of Congress would
lead to the same conclusion. Basic authority is in section 901(2)(ii)
of the Foreign Service Act passed in the lst Session of the 84th
Congress in 1955. The legislative history indicates the allowance was
authorized to assist employees in meeting the out-of-pocket expenses
that result from the mobile nature of their employment. We do not feel
that Congress intended to grant to one family a greater allowance
because the wife happened to be employed than that given to the same
size family where the wife was not employed particularly as the first
family would already have the financial benefit derived from the wife's
Government salary and no additional expenses need be incurred.
7. As a matter of further incidental interest, we would point
out that Congress has been closely following the granting of transfer
allowances by the Department of State. As a result, the Department
was instructed through the medium of the Conference Report on its 1958
Appropriation Bill to restrict expenditures for transfer allowances to
a sum which is but a small fraction of that expended in the previous
year. Because of the congressionally imposed restriction, intra-zone
transfer allowances were eliminated effective 1 May 1957 and inter-
zone transfer allowances reduced.
13. Based on the foregoing, it is our opinion that it would not
be proper to certify the wife's claim for payment. In addition, in
light of the basic principles governing expenditure of funds, a claim
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based on a technicality which takes advantage of silence or ambiguity in
a regulation and which would -obtain for one---employee financial benefit
not available to other employees in the same financial status is un-
conscionable and should not be countenanced.
Lk EENCE R. HOUSTON
General Counsel
Approved For Release 2002/05/06 : CIA-RDP78-05844A000100070020-2