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May 4, 2012 Legal Update: Revision of the DoD Instruction on Overseas Allowances; Retroactive Payment of Guam Post Differential and Other Issues

To: FEA Leaders and Educators (For Immediate Distribution)
From: H.T. Nguyen, FEA Executive Director/ General Counsel
Date: May 4, 2012
Re: May 4, 2012 Legal Update: Revision of the DoD Instruction on Overseas Allowances; Retroactive Payment of Guam Post Differential and Other Issues


There have been several recent developments affecting members of the Association's bargaining unit. These issues are addressed separately below.


A. The Revision of DoD Instruction 1400.25, Subchapter 1250 and Bargaining Unit Impact

The Association has learned that earlier this year, DoD revised DoD Instruction (DoDI) 1400.25, Subchapter 1250. This DoDI governs the payment of overseas differentials and allowances to civilian employees in DoD. The revised DoDI contains the following language, which is a change to the personally owned quarters (POQ) rules:

"Employees who own, or are purchasing a POQ, may not be paid quarters allowances under a rental contract if the POQ is within the employee's local area of work."

Obviously, if this language was implemented in the Association's bargaining unit, it would have an adverse impact on a number of the overseas (DoDDS) educators in our bargaining unit.

The Association has notified DoDEA that the above-cited change cannot be implemented in the Association's bargaining unit. When, or if, DoDEA implements this change over the Association's objections, the Association will file an Association Grievance on behalf of all bargaining unit negatively impacted by this change, and will request the arbitrator to order DoDEA not to implement the change. The Association would also ask the arbitrator to order DoDEA to follow previous arbitration decisions by not implementing the change.


B. Retroactive Payment of Guam Post Differential for educators who worked in the DoDEA schools in Guam between 2010 and the present

I. Why is retroactive Post Differential being paid to these Guam educators?

When Congress passed the Nonforeign Area Retirement Equity Assurance Act, which was part of the National Defense Authorization Act (NDAA) for Fiscal Year 2010 (Public Law 111-84), the law provided that Cost of Living Adjustment (COLA) payments to federal employees in nonforeign areas (like DDESS Guam educators) were to be "phased out," while "phasing in" Locality Pay over three years. As a result, on January 3, 2010, DDESS Guam educators began to receive Locality Pay, while simultaneously having their COLA reduced.

Subsequently, a secondary issue arose with DDESS Guam educator pay involving Post Differential payments. Post Differential is a separate and distinct allowance from COLA. Please note that under the applicable laws and regulations, Post Differential is not paid to "local hires." Furthermore, under federal law and regulations, the combined COLA and Post Differential paid to an employee cannot exceed 25%.

For a number of years, as the COLA rate in Guam had been set at 25%, DDESS Guam educators did not receive Post Differential, as this 25% was right at the allowance cap. However, as COLA began being "phased out" and Locality Pay "phased in" under the above-cited law, the COLA payments alone were no longer right at the 25% cap.

Therefore, DDESS Guam educators should have been eligible to receive Post Differential to "fill" the difference between the COLA paid and the 25% cap, but this did not happen. Now, DDESS Guam educators are going to retroactively receive the Post Differential that they should have been receiving between January 3, 2010 and the present.

II. I was a Guam DDESS Educator between at this time. How do I get this back pay?

DoDEA has begun to compile a list of DDESS educators who worked in the DoDEA Guam schools between January 3, 2010 and the present. If you were a DDESS Guam educator during this time period and subsequently left Guam, the Association would ask you to contact DoDEA's point of contact on this matter, Ms. Pauline Barcinas, to ask that your name be added to the list to receive your retroactive Post Differential. Her email is: Pauline.Barcinas@pac.dodea.edu.

The information provided by DoDEA states that once a name is added to the list, the list will be forwarded to DLA. Then, DLA will check for eligibility and send the information to DFAS. However, the information provided by DoDEA also indicates that this may take several pay periods to process.


C. Revised DoDEA's Director's Memorandum on Promoting Efficient Spending

Please be aware that the DoDEA Director has issued a new DoDEA Memorandum, Subject: Promoting Efficient Spending- Correction, dated April 25, 2012. This new memo states that there is no requirement to stay in government lodging while on official travel.

The memo can be found on the FEA website at this link.


D. Requirement for DoDDS Educators to sign a new form titled "Reimbursement Disclosure Statement" in order to receive RAT Travel Orders Challenged

The Association has learned that DoDDS educators who have applied for RAT orders this summer have been informed that they must sign a new form titled the "Reimbursement Disclosure Statement" before they can have their RAT travel orders processed. This is a new form that has never been required in the past and represents a change in the process of obtaining RAT travel orders.

The Association has requested that DoDEA rescind the requirement to sign this form before the travel orders can be processed, so that DoDDS educators will receive their RAT travel orders in a timely manner and can complete their summer travel plans.


IMPORTANT NOTICE: This update was issued on May 4, 2012. Any information contained in this update is based on the information and status of these issues as of that date. Please be aware that information contained in this update may have changed, been updated, or may be obsolete. Please visit the FEA website to check for any changes or updates to the information contained above. Thank you.