B-157586, AUG 16, 1971, 51 COMP GEN 97

B-157586, AUG 16, 1971, 51 COMP GEN 97

FAMILY ALLOWANCES - SEPARATION - TYPE 2 - COMMON RESIDENCE - MANAGEMENT AND CONTROL BY MEMBER THE RESTRICTION ON THE PAYMENT OF TYPE II FAMILY SEPARATION ALLOWANCE (FSA-II) OF $30 PER MONTH AUTHORIZED BY 37 U.S.C. 427(B) TO CASES WHERE THE PRIMARY DEPENDENTS OF A MEMBER OF THE UNIFORMED SERVICES ARE LIVING IN A RESIDENCE SUBJECT TO THE MEMBER'S MANAGEMENT AND CONTROL AND WHICH HE WILL SHARE WITH THEM AS A COMMON RESIDENCE DURING SUCH TIME AS DUTY ASSIGNMENTS PERMIT HAVING BEEN REMOVED BY PUBLIC LAW 91-529, AMENDING SECTION 427(B), THE FSA-II IS PAYABLE REGARDLESS OF THE RESIDENCE OF THE PRIMARY DEPENDENTS IF THE SEPARATION IS THE RESULT OF THE MEMBER'S MILITARY ORDERS. TO THE EXTENT PARAGRAPH 30311A OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL PRESCRIBING A MEMBER IS NOT A MEMBER WITH DEPENDENTS FOR FSA-II ENTITLEMENT WHEN "THE SOLE DEPENDENT RESIDES IN A HOSPITAL, SCHOOL, OR INSTITUTION" PROVIDES OTHERWISE IT IS MORE RESTRICTIVE THAN THE LAW. 47 COMP. GEN. 431 OVERRULED.

TO THE SECRETARY OF DEFENSE, AUGUST 16, 1971:

FURTHER REFERENCE IS MADE TO LETTER OF APRIL 9, 1971, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION WHETHER, AFTER ENACTMENT OF PUBLIC LAW 91-529, A LEGAL REQUIREMENT STILL EXISTS, IN ORDER FOR A MEMBER OF THE UNIFORMED SERVICES TO BE ENTITLED TO PAYMENT OF FAMILY SEPARATION ALLOWANCE, TYPE II, THAT HIS DEPENDENTS RESIDE AT A PLACE TO WHICH HE WOULD RETURN AND NORMALLY RESIDE WHEN HIS DUTY ASSIGNMENT PERMITS. A DISCUSSION OF THE MATTER IS CONTAINED IN AN ENCLOSED COPY OF DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 451.

IN 47 COMP. GEN. 431 (1968) WE HELD THAT THE FAMILY SEPARATION ALLOWANCE OF $30 PER MONTH (TYPE II) AUTHORIZED BY 37 U.S.C. 427(B) IS NOT PAYABLE IN CASES WHERE THE PRIMARY DEPENDENTS OF A MEMBER OF THE UNIFORMED SERVICES - WIFE OR CHILD - ARE LIVING IN A RESIDENCE NOT SUBJECT TO THE MEMBER'S MANAGEMENT AND CONTROL AND FOR WHICH HE HAS NO RESPONSIBILITY WHEN HE IS INVOLUNTARILY SEPARATED FROM HIS FAMILY BY REASON OF HIS DUTY ASSIGNMENT; ALSO THAT SUCH ALLOWANCE IS NOT PAYABLE UNLESS THE MEMBER MAINTAINS A RESIDENCE OR HOUSEHOLD FOR HIS DEPENDENTS WHICH HE LIKELY WOULD SHARE WITH THEM AS A COMMON RESIDENCE DURING SUCH TIMES AS HIS DUTY ASSIGNMENT PERMITS.

PUBLIC LAW 91-529, APPROVED DECEMBER 7, 1970, 84 STAT. 1389, PROVIDES, AS FOLLOWS:

THAT SECTION 427(B) OF TITLE 37, U.S.C. IS AMENDED BY ADDING THE FOLLOWING SENTENCE AT THE END THEREOF: "AN ALLOWANCE IS PAYABLE UNDER THIS SUBSECTION EVEN THOUGH THE MEMBER DOES NOT MAINTAIN FOR HIS PRIMARY DEPENDENTS WHO WOULD OTHERWISE NORMALLY RESIDE WITH HIM, A RESIDENCE OR HOUSEHOLD SUBJECT TO HIS MANAGEMENT AND CONTROL, WHICH HE IS LIKELY TO SHARE WITH THEM AS A COMMON HOUSEHOLD WHEN HIS DUTY ASSIGNMENT PERMITS."

TO IMPLEMENT THE CHANGE IN LAW, THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL HAS BEEN CHANGED BY INTERIM CHANGE 46 ANNOUNCED BY THE SERVICES IN MESSAGES DATED IN DECEMBER 1970. THE COMMITTEE QUESTIONS WHETHER THE PROVISIONS OF PARAGRAPH 30311A, PART THREE, CHAPTER 3, SECTION B OF THE MANUAL AS CHANGED ARE TOO RESTRICTIVE. PARAGRAPH 30311A READS:

30311 DEPENDENTS.

UNLESS THE RECORDS SHOW OTHERWISE A MEMBER IS NOT CONSIDERED "A MEMBER WITH DEPENDENTS" FOR FSA-II ENTITLEMENT WHEN:

A. THE SOLE DEPENDENT RESIDES IN A HOSPITAL, SCHOOL, OR INSTITUTION.

THE COMMITTEE MENTIONS THAT THE OPINION OF THOSE IN SUPPORT OF THE CHANGE, AS QUOTED ABOVE, IS THAT THE LAW WAS CHANGED ONLY TO REMOVE THE REQUIREMENT THAT THE MEMBER MUST MAINTAIN A RESIDENCE OR HOUSEHOLD "SUBJECT TO HIS MANAGEMENT AND CONTROL." UNDER THIS VIEW IT WOULD CONTINUE TO BE A REQUIREMENT THAT THE PLACE WHERE THE DEPENDENTS RESIDE BE A PLACE "WHICH HE IS LIKELY TO SHARE WITH THEM AS A COMMON HOUSEHOLD WHEN HIS DUTY ASSIGNMENT PERMITS," ALTHOUGH NOT UNDER THE MEMBER'S MANAGEMENT AND CONTROL.

IN SUPPORT OF THIS VIEW THE COMMITTEE REFERS TO THE STATED PURPOSE OF THE BILL (H. R. 110) WHICH BECAME PUBLIC LAW 91-529 AS SET FORTH ON PAGES 1 AND 2, REPORT NO. 91-662, COMMITTEE ON THE ARMED SERVICES, AS FOLLOWS:

H.R. 110 IS DESIGNED TO RESTORE THE FAMILY SEPARATION ALLOWANCE TO APPROXIMATELY 47,000 SERVICE FAMILIES WHOSE ENTITLEMENT TO THIS $30 MONTHLY ALLOWANCE WAS TERMINATED ON DECEMBER 1, 1968, AS A CONSEQUENCE OF A RULING BY THE COMPTROLLER GENERAL OF THE UNITED STATES.

IN THAT RULING THE COMPTROLLER GENERAL STATED THAT THE LEGISLATIVE HISTORY OF THE LAW SUPPORTS THE VIEW THAT THE PAYMENT MAY ONLY BE AUTHORIZED IN THOSE CASES WHERE THE SERVICE MEMBER IS ACTUALLY MAINTAINING A RESIDENCE OR HOUSEHOLD FOR HIS FAMILY - UNDER HIS MANAGEMENT AND CONTROL.

THE EFFECT OF THE RULING WAS TO DISQUALIFY A GREAT MANY FAMILIES THAT HAD MADE OTHER HOUSING ARRANGEMENTS. MOST TYPICAL IS THE CASE WHERE THE SERVICE MEMBER'S WIFE AND CHILDREN ARRANGE TO LIVE WITH HER PARENTS OR HIS PARENTS WHEN THE HUSBAND IS ORDERED TO DUTY IN A RESTRICTED AREA WHERE HIS DEPENDENTS ARE NOT AUTHORIZED TO ACCOMPANY HIM.

THE COMMITTEE SUGGESTS THAT THE ABOVE-QUOTED STATEMENT APPARENTLY IS SUPPORTED BY THE DISCUSSION ON PAGE 4916, HEARINGS H.A.S.C. NO. 91-30, SUBCOMMITTEE NO. 2, COMMITTEE ON ARMED SERVICES, NOVEMBER 12, 1969, THE INTERPRETATION BEING THAT ONLY "THE MANAGEMENT AND CONTROL" CRITERIA WAS REMOVED; THE MEMBER STILL MUST MAINTAIN A RESIDENCE OR HOUSEHOLD FOR HIS DEPENDENTS.

THE COMMITTEE FURTHER SAYS THAT THE CONTRARY VIEW IS THAT SUCH RESTRICTIVE INTERPRETATION IS NOT INTENDED AND THAT THE CIRCUMSTANCES SURROUNDING THE RESIDENCE OF THE DEPENDENTS IS NO LONGER A CRITERION, EXCEPT FOR THOSE PRIMARY DEPENDENTS WHO WOULD NORMALLY NOT RESIDE WITH THE MEMBER.

WITH RESPECT TO PARAGRAPH 30311A OF THE MANUAL QUOTED ABOVE, THE COMMITTEE POINTS OUT THAT A SPOUSE WHO IS A NURSE COULD WELL RESIDE IN THE HOSPITAL WHERE EMPLOYED, THAT A DEPENDENT CHILD OF A WIDOWER COULD BE IN A FINISHING SCHOOL FOR 9 MONTHS OF THE YEAR AND WITH THE MATERNAL GRANDMOTHER DURING THE SUMMER, AND THAT THE MEMBER COULD NOT RESIDE WITH SUCH SPOUSE NOR AT THE SCHOOL. THEREFORE, IT IS URGED THAT THE RESIDENCE OF THE PRIMARY DEPENDENT IS NO LONGER A CRITERION EXCEPT AS TO THOSE COVERED BY PARAGRAPH 30311B OF INTERIM CHANGE 46 (THE SOLE DEPENDENT IS PLACED IN AN INSTITUTION FOR A KNOWN PERIOD OF OVER 1 YEAR OR AN INDEFINITE PERIOD WHICH MAY BE EXPECTED TO EXCEED 1 YEAR) OR PARAGRAPH 30311C OF THAT CHANGE (THE SOLE DEPENDENT IS A WIFE LEGALLY SEPARATED OR CHILD (CHILDREN) IN THE LEGAL CUSTODY OF ANOTHER PERSON). IT IS EXPLAINED BY THE COMMITTEE THAT WHERE DEPENDENTS ARE INSTITUTIONALIZED IT IS FOR MENTAL OR PHYSICAL INCAPACITY, OR FOR PUNITIVE OR REHABILITATIVE REASONS.

THE LEGISLATIVE HISTORY OF THE AMENDMENT, AS REFLECTED BY THE STATEMENTS OF MR. SLATINSHEK OF THE HOUSE ARMED SERVICES COMMITTEE STAFF (PAGES 5035 AND 5036, HEARINGS H.A.S.C. NO. 91-31, COMMITTEE ON ARMED SERVICES, NOVEMBER 18, 1969), CLEARLY SHOWS THAT THE PURPOSE OF H.R. 110 WAS TO OVERCOME THE 1968 DECISION. WHILE, THEREFORE, THE LEGISLATIVE HISTORY FOR THE MOST PART EMPHASIZES THE MANAGEMENT AND CONTROL REQUIREMENT, IT IS OUR VIEW THE DECISION WAS OVERCOME IN ITS ENTIRETY BY THE EXPRESS LANGUAGE OF THE AMENDMENT WHICH ELIMINATES THE REQUIREMENT THAT THE DEPENDENTS' RESIDENCE BE A PLACE WHERE THE MEMBER WOULD RESIDE WITH THEM "WHEN HIS DUTY ASSIGNMENT PERMITS" AS WELL AS THE MANAGEMENT AND CONTROL REQUIREMENT.

ACCORDINGLY, UNDER 37 U.S.C. 427(B), AS AMENDED, THE FAMILY SEPARATION ALLOWANCE IS PAYABLE REGARDLESS OF THE RESIDENCE OF THE PRIMARY DEPENDENTS IF THE SEPARATION OF THE MEMBER FROM HIS DEPENDENTS RESULTS FROM HIS MILITARY ORDERS UNDER THE CIRCUMSTANCES SET FORTH IN THE ACT. TO THE EXTENT THAT THE QUOTED PARAGRAPH 30311A OF THE MANUAL PROVIDES OTHERWISE, IT IS MORE RESTRICTIVE THAN THE LAW. THE QUESTION IS ANSWERED ACCORDINGLY.