LETTER TO MICHAEL J. O'NEIL FROM (SANITIZED)

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CIA-RDP90B01370R001501910036-6
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RIPPUB
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K
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8
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December 21, 2016
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October 3, 2008
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36
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October 2, 1984
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LETTER
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Approved For Release 2008/10/03: CIA-RDP90B01370R001501910036-6 - M-'DUl7 Central intelligence Agency OLL 84-3727 2 October 1984 Mr. Michael J. O'Neil Chief Counsel Permanent Select Committee on Intelligence House of Representatives Washington, D.C. 20515 I am writing to provide you with copies of the statutes and regulations I mentioned in our recent telephone conversation concerning danger pay. The Agency's decision to pay retroactive danger pay followed similar action by the Department of State (DOS). The authority for both DOS and the Agency flows from 5 U.S.C. ? 5928. (Relevant portions of Title 5 are enclosed.) Under 5 U.S.C. ? 5922(c) the President is authorized to prescribe regulations to pay this allowance. The President has delegated this authority to the Secretary of State for all executive agencies by E.O. 10903 (enclosed). As a result of this delegation the Secretary of State promulgates the "Standardized Regulations" Chapter 650 of which addresses danger pay (a copy of Chapter 650 is enclosed). As I stated in our telephone conversation there probably was no need to notify the Committee of the action to pay danger pay retroactively. However because these payments were retroactive, and out of an excess of caution the Office of General Counsel decided that these payments should be premised not only on ? 5928 but also on ? 4(b)(1) of the CIA Act. As a result we decided to notify you of these payments. If I can be of further assistance on this matter please do not hesitate to call. Sincerely, STAT Office or Legislative Liaison Approved For Release 2008/10/03: CIA-RDP90B01370R001501910036-6 Approved For Release 2008/10/03: CIA-RDP90B01370R001501910036-6 Subject: Letter to Michael J. O'Neil re: Danger Pay Distribution: Original - Addressee 1 - (.OGC ) 1 - D/OLL 1 - DD/OLL 1 - OLL Chrono 1 - LEG Subject(Personnel General) 1 - ROD Signer OLL:LEG:ROD:sm (2 October 1984) STAT Approved For Release 2008/10/03: CIA-RDP90B01370R001501910036-6 M Approved For Release 2008/10/03: CIA-RDP90BO1370R001501910036-6 6 65925 GOVERNMENT ORGANIZATION 84 recruitment and retention incentive for the filling of positions at that post. additional differential for a l d An ny emp oyee un er this subsection- (1) may be paid for each assignment to a post determined to have such conditions; (2) may be paid periodically or in a lump sum; and (3) may not exceed 15 percent of the rate of basic pay of that employee for the period served under that assignment. (As amended Pub.L. 96-465, Title 11, ? 2309, Oct. 17, 1980, 94 Stat. 2165.) 1940 Amendment. Subsec. (a). Pub.L. 96-465, ? 2309(1), (2), designated existing provi- sions as aubsec. (a), and in subset. (a) as so designated, added "under this subsection" preced. ing "may not exceed". Subsec. (b). Pub.L. 96-465, i/ 2309(3). added subset. (b). Effective Date of 1980 Amendment. Amend. ment by Pub.L. 96-465 effective Feb. 15, 1981, except as otherwise provided, see section 2403 of Pub.L. 96-465, set out as a note under section 3901 of Title 22, Foreign Relations and inter- course. 9 5927. Advances of pay Savings Provisions. All actions made. issued. undertaken, entered into, or taken under the au- thority of any law repealed. modified or affected by the Foreign Service Act of 1980. Pub.L. 96-465, Oct. 17, 1980. 94 Stat. 2071, to continue ? in full force and effect until modified, revoked, or superseded by appropriate authority, see section 4172 of Title 22, Foreign Relations and Inter- course. Legislative History. For legislative history and purpose of Pub.L. 96-465. see 1980 U.S. Code Cong. and Adm. News. p. 4419. Up to three months' pay may be paid in advance to an employee upon the si t f h as gnmen o t e employee to a post in a foreign area. (Added Pub.L. 96-465, Title 11, ? 231((a), Oct. 17, 1980, 94 Stat. 2166.) Effective Date. Section effective Feb. 15, 1981. Library References except as otherwise provided, we section 2403 of Pub.L. 96-465, set out as a note under section 3901 of Title 22, Foreign Relations and Inter- course. Legislative History. For legislative history and purpose of Pub.L. 96-465, see 1980 U.S. Code Cong. and Adm. News, p. 4419. - United States tates ; and ixed by statute or, without inces and differentials pro- administrative action pur- atively in conformity with )rk of a comparable level of continental United States. of statute other than this tials provided by this sub- ially stationed in a foreign es. chapter may be paid in ad- herefor, through the prop- re considered advisable in of time during which ex- he employee. An advance wances accrued to the em- le by the Government by- npensation, amount of re- e the employee from the A by law for the recovery regulations of the Presi- ht of recovery under this would be against equity terest. 'horized by this subchap- led by the President gov- Ch. 59 ALLOWANCES 5 ? 5922 (1) payments of the allowances and differentials and the re- spective rates at which the payments are made; (2) the foreign areas, the groups of positions, and the catego- ries of employees to which the rates apply; and (3) other related matters. Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 510. Historical and Revision Notes Derivation: United States Code n-I..a o.-.- _ _ - Sept. 6, 1900, Pub.L. 86-707, f 201, 74 (b) 5 U.S.C. 3034 Stat. 793. Sept. 6, 1980, Pub.L. 86-707, 1 202, 74 (c) 5 U.S.C. 3035 Stat. 793. Sept. 6, 1960, Pub.L. 86-707, i 203, 74 Stat. 793. In subsection (a), the word "only" is omitted as surplusage. In subsection (b), the words "disburs- ing official'.' are substituted for "disburs- ing officer" because of the definition of "officer" in section 2104 which ex- cludes a member of a uniformed service. Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the pref- ace to the report. Delegation of Function,,. Secretary of Stdtie`empowered to prescribe regulations, see section 1(b) of Ex.Ord.No.10903, Jan. 11, 1961, 26 F.R. 217, set out as a note tinder section 5921 of this title. Library References C.J.S. United States 11 17, 46. Notes of Decisions Administrative orders I Discretion of Administrator of Veterans' Affairs 2 Naturalized citizens 8 1. Administrative orders Order of the Administrator of Veterans' Affairs, effective Nov. 3, 1946, establish- ing a special foreign living allowance, and seeking to bar natives of the Philip- pine Islands was discriminatory as against the plaintiff, who though a native of the Philippines, was a nat- uralized citizen of the United States, residing in the United States, who had left his permanent residence with every intention of returning, in or- der to accept employment abroad with its attendant Inconvenience and additional expense. Vallesteros Y. U. S., 1954, 125 Ct.Cl. 218. 2. Discretion of Administrator of Veter- sea' Affairs The Administrator of Veterans' Affairs has the discretion to approve allowances but his discretion must be exercised im- partially and must not be arbitrary or capricious. Vallesteros v. 1954, 125 Ct.Cl. 218. 8. Naturalized citizens Where plaintiff, a native of the Philip- pine Islands, who had served in the United States Army in World War II, and while so serving became a natural- ized citizen, was afterwards employed by the General Accounting Office in Wash- ington and pursuant to his request and effective Mar. 13, 1946, was appointed as a war service indefinite employee by transfer to a position in the Veterans' Administration Regional Office in Manila, he was entitled to a 25 percent salary differential on his base pay and where on July 14, 1946, the differential payment was discontinued and he filed with the Comptroller General a claim for the dif- ferential from July 14, 1946 to Nov. 2, 1946, differential was granted. Vallester- os v. U. S., 1954, 125 Ct.Ci. 218. I Approved For Release 2008/10/03: CIA-RDP90B01370R001501910036-6 Approved For Release 2008/10/03: CIA-RDP90BO1370R001501910036-6 5 95921 GOVERNMENT ORGANIZATION 82 EXECUTIVE ORDER NO. 10903 Jan. 11, 1961, 26 F.R. 217, as amended by Ex.Ord. No. 11228, June 14, 1965, 80 F.R. 7789; Ex.Ord. No. 11230, June 28, 1965, 30 F.R. 8447; Ex.Ord. No. 11380, Nov. 8, 1967, 32 F.R. 15627; Ex.Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055; Ex.Ord. No. 12292, Feb. 23, 1981, 46 F.R. 13967 By virtue of the authority vested in me by section 301 of title 3 of the United States Code [section 301 of Title 3, The President], and vari- ous provisions of law cited in the body of this order, and as President of the United States, it is hereby ordered as follows: Section 1. The Secretary of State is hereby designated and empowered to perform the follow- ing-described functions without the approval. rati- fication, or other action of the President: - (a) The authority vested in the President by section 5921(3) of Title 5, United States Code [par. (3) of this section], to prescribe regulations defining the term "employee". (b) The authority vested in the President by subchapter Ill of Chapter 59 of title 5 of the United States Code [this subchapter], to prescribe regulations, including the regulations referred to in sections 5922(b), 5922(c), and 5924(4)(B) of that title [sections 5922(b), 5922(c), and 5924(4) (B) of this title] (governing, respectively. (1) cer- tain waivers of recovery, (2) the payment of allow- ances and differentials authorized by said sub- chapter and certain other matters, and (3) travel expenses for dependents of certain employees). (e) The authority vested in thg President by section 5913 of title S of the United'ltes Code [section 5913 of this title], (I) to prescribe regula- tions governing the allotment to posts in foreign countries, for the purpose stated in that section, of funds available to the departments for administra- tive expenses, and (2) to designate senior officials of this Government in foreign countries. (d) The authority vested in the President by other provisions of law (including section 235(2) of Title 38 of the United States Code [now section 235(2) of Title 38, Veterans' Benefits] ) to pre- scribe regulations governing representation allow- ances similar to those authorized by section 905 of the Foreign Service Act of 1980 (22 U.S.C. 4085) [section 4085 of Title 22. Foreign Relations and Intercourse]. (e) The authority vested in the President by section 5912 of title 5 of the United States Code (section 5912 of this title) to approve regulations prescribed by heads of agencies (under which employees who are citizens of the United States permanently stationed in foreign countries may be furnished, without cost to them, living quarter, including heat, fuel, and light, in government- owned or rented buildings). ? 5923. Quarters allowances When Government owned or rented quarters are not provided without charge for an employee in a foreign area, one or more of the following quarters allowances may be granted when applicable: [See main volume for text of (1) ] (2) A living quarters allowance for rent, heat, light, fuel, gas, electricity, and water, without regard to section 3324(a) and (b) of title 31. [See main volume for text of (3)] (As amended Pub.L 97-258, ? 3(a) (15), Sept. 13, 1982, 96 Stat. 1063.) 1982 Amendment. Par. (2). Pub.L. 97-258, Legislative History. For legislative history and ? 3(a) (15). substituted "3324(a) and (b)" for purpose of Pub.L. 97-258. see 1982 U.S. Code Cong. and Adm. News. p. 1895. ? 5924. Cost-of-living allowances The following cost-of-living allowances may be granted, when applicable, to an employee in a foreign area: [See main volume for text of (1) and (2)] (3) A separate maintenance allowance to assist an employee who is compelled or authorized, because of dangerous, notably unhealthful, or excessively adverse living conditions at the employee's post of assignment in a foreign area, or for the convenience of the Government, or who requests such an allowance because Approved For Release 2008/10/03: CIA-RDP90BO1370R001501910036-6 Approved For Release 2008/10/03: CIA-RDP90BO1370R001501910036-6 a. "Danger Pay Allowance" means the additional compensation of up to 25 percent over basic compensation granted to employees (Sections 031 and 040i) for service at designated danger pay posts, pursuant to Section 5928, Title 5, United States Code (Section 2311, Foreign Service Act of 1980) and the provisions of this chapter. 1. a place listed individually in Section 920 which has been so designated by the Secretary of State; 2. a place which is not listed individually in Section 920 but which is located in a country or area which has been so designated by the Secretary of State. c. "Detail" means detail as defined in Section 040p for a minimum of 24 consecutive hours, commencing at time of arrival, at a place designated a danger pay post, other than the employee's post (Section 040h), including all periods of leave while present at such place of detail but excluding any days of absence away from the designated post or country/area. Employees transiting a post who are inadvertently detained thereat for more than one day shall be considered on detail. d. "Day" means each midnight, including the midnight of the 24-hour minimum period required by Section 651c, occurring while the employee is on detail at a designated danger pay post or country/area. a. The danger pay allowance is designed to provide additional compensation above basic compensation to all U.S. Government civilian employees, including Chiefs of mission, for service at places in foreign areas where there exist conditions of civil insurrection, civil war, terrorism or wartime conditions which threaten physical harm or imminent danger to the health or well-being of an employee. These conditions do not include acts characterized chiefly as economic crime, b. The danger pay allowance may be granted separately from any grant of post differential in Chapter 500 and may be granted at foreign posts or country/areas which have no post differential. c. The danger pay allowance, if prescribed, is in lieu of any special incentive differential authorized a post under the provisions of Chapter 570, which may have been in effect at the post at the time of designation as a danger pay post to the extent that the combined payments may not exceed 25 percent of basic compensation. d. The danger pay allowance is in lieu of that part of the hardship post differential rate (Chapter 500) at a post which is attributable to political violence. Consequently, the rate of post differential may be reduced while danger pay allowance is in effect to avoid dual crediting for political violence. However, combined danger pay and post differential for each employee will be at least five percent of basic compensation above the previous combined post differential and special incentive differential, if any, in effect at the post. e. Unless otherwise specified, the amount of the danger pay allowance shall be at the maximum rate of 25 percent of basic compensation. STANDARDIZED REGULATIONS (Government Civilians, Foreign Areas) Approved For Release 2008/10/03: CIA-RDP90BO1370R001501910036-6 Approved For Release 2008/10/03: CIA-RDP90BO1370R001501910036-6 653 ALLOWANCES A danger pay allowance is established by the Secretary of State when, and only when, civil insurrection, civil war, terrorism or wartime conditions threaten physical harm or imminent danger to the health or well being of a majority of employees officially stationed or detailed at a post or country/area in a foreign area. To determine whether the situation meets the danger pay criteria, a post usually must submit the portion of the post differential questionnaire which addresses political violence along with pertinent supporting information to the Department of State (Allowances Staff) for review. The Director of the Allowances Staff will chair a working group which will make a recommendation to the Assistant Secretary of State for Administration concerning a danger pay designation. In general, the conditions described under Sections 652a and 653.1 must be such that there must exist a continuing threat of physical harm or imminent danger to health or well being of employees at the post. Conditions at danger pay allowance posts are reviewed periodically at appropriate intervals by the working group to ensure that the danger pay allowance continues only during the existence of conditions justifying such payment. As a result of periodic reviews the danger pay allowance may be modified or removed at any time. Danger pay allowance commences on the date of designation by the Secretary of State for employees present at the post on"assignment or detail, and on the date of arrival at post for subsequently assigned or detailed employees or for employees returning to post after temporary absence. The danger pay allowance terminates as of the close of business on the day the designation is removed by the Secretary of State, or the day the employee departs the post for any reason for a post or country/area not designated for the danger pay allowances. Employees on detail at a danger pay post may be granted the danger pay allowance at the prescribed rate for all days of detail at such post except for days of absence from the post in a post or area not designated for the danger pay allowance. The danger pay allowance for full-time employees and employees appointed for temporary periods (Sections 013.3 and 031.4) shall be at the percentage of basic compensation established for the post. For part-time regularly-scheduled employees and intermittent employees the danger pay allowance shall be computed at the prescribed percentage of basic compensation earned during the applicable pay period. The danger pay allowance is not subject to any ceiling which would provide a payment less than the full percentage rate prescribed for the post. Payment of the danger pay allowance shall not be construed as part of basic compensation for computing within-grade, step, merit pay increases and Senior Executive Service or Senior Foreign Service bonuses. STANDARDIZED REGULATIONS (Government Civilians, Foreign Areas) Approved For Release 2008/10/03: CIA-RDP90BO1370R001501910036-6