Office of the General Counsel

O.P.M. Ref. # 1996-01648

In Reply Refer To: Your Reference:

Dear [XXX]:

This responds to your December 11, 1996 correspondence requesting a decision involving the payment of uniform allowances to civilian employees of the [xxx] as authorized at 10 U.S.C. 1593. This statute authorizes the Secretary to provide a uniform or pay a uniform allowance to civilian employees who are required to wear uniforms in the performance of their duties. Of particular importance here is paragraph (b), which provides:

(b) Amount of allowance.--Notwithstanding section 5901(a) of title 5, the amount of an allowance paid, and the cost of uniforms provided, . . .may not exceed $400 per year.

As a matter of policy, the [Agency] has authorized its component agencies, including [xxx], to pay an initial uniform allowance not to exceed $400 to certain categories of employees, $300 to others, and to pay a replacement allowance not to exceed $300 for all employees. You have asked two questions regarding the implementation of this policy. Each question, and our answer, is described separately below.

Question A. Is the [Agency] authorized to provide, by allowance or issue in kind, an additional uniform allowance when a management decision is made to change the prescribed uniform?

Answer: The [Agency] may increase the amount of the allowance or issue in kind to the maximum amount authorized by the statute, but [it] may not exceed the statutory cap of $400 per year.

Both the language in the statute itself and its relationship to the statute authorizing the payment of uniforms allowances to non-[Agency] employees supports this conclusion. Section 1593 does not distinguish between initial and replacement allowances, but instead places an unambiguous annual limitation on the total amount that may be paid by allowance or issue in kind. Further, the paragraph quoted above from section 1593 expressly exempts the payment of allowances under that section from the provisions of 5 U.S.C. 5901(a), which authorizes the payment of uniform allowances to other civilian employees. Section 5901 specifically includes a provision for periodic administrative increases in the amount of the allowance. See 5 U.S.C. 5901(a)(1) and (2). Congresss decision to exclude such a provision from section 1593 further indicates Congresss intent that the uniform allowance for [Agency] civilian employees not exceed $400 per year.

Therefore, if an employee already has received a replacement allowance of $300 and a new uniform is prescribed later that same year, [it] may pay the employee only an additional $100 for that year. [it] may not authorize such an employee to receive a $400 allowance in addition to the $300 already paid because that would exceed the statutory maximum.

Question B: If not, must the [Agency] recoup the cost of the new uniform items issued by reducing the individuals uniform replacement allowances?

If the agency already has provided allowances or uniforms in excess of $400 in one year, the excess amount is an erroneous payment that must be collected from the employee. You may not deduct this amount from future allowances because that would convert the original excess payment into an unlawful advance on the employees pay. See 31 U.S.C. 3324. The normal method of recouping debts from employees is through payroll deductions, as provided at 5 U.S.C. 5514. However, a debt that resulted from an erroneous payment of an allowance is subject to waiver, as provided at 5 U.S.C. 5584. As a result of legislative and executive action, the authority to waive overpayments of pay and allowances now resides with the heads of agencies, regardless of the amount. See Pub. L. 104-316, 110 Stat. 3826, approved October 19, 1996 and Office of Management and Budget Determination Order, December 17, 1996. "Agency" for this purpose, means the [claimant's Agency], rather than the component agency. If you determine that erroneous payments have been made that are subject to waiver, you should contact Mr. Hipple for more information regarding the implementation of this new authority at [Agency].

For future reference, the [Agency] should be advised, if it contemplates additional uniform changes, that if the agency requires employees to have new uniforms after providing them with the maximum allowances for the year, the excess cost must be borne by the employees. This problem may be avoided, at least in part, by implementing any uniform changes before any replacement allowances are paid.

Sincerely,

Paul Britner
Attorney-Advisor