B-157586, FEBRUARY 10, 1969, 48 COMP. GEN. 525

B-157586, FEBRUARY 10, 1969, 48 COMP. GEN. 525

FAMILY ALLOWANCES - SEPARATION - TYPE 2 - COMMON RESIDENCE - MANAGEMENT AND CONTROL BY MEMBER THE PAYMENT OF A MONTHLY RENTAL BY A MEMBER OF THE UNIFORMED SERVICES TO HIS WIFE'S PARENTS FOR THE ACCOMMODATIONS FURNISHED HIS PREGNANT WIFE DURING HIS ABSENCE, AND THE SUPPLYING OF FUNDS FOR THE OPERATION OF HIS CAR AND TO PROVIDE CLOTHING FOR HIS WIFE AND NEEDED BABY ITEMS DO NOT ENTITLE THE MEMBER TO THE $30-MONTHLY FAMILY SEPARATION ALLOWANCE PRESCRIBED IN 37 U.S.C. 427 (B) TO COMPENSATE A MEMBER FOR THE ADDITIONAL HOUSEHOLD EXPENSES OCCASIONED BY A SEPARATION DUE TO MILITARY ASSIGNMENT. THE HOUSEHOLD OF THE WIFE'S PARENTS IS NOT SUBJECT TO THE MANAGEMENT AND CONTROL OF THE MEMBER--- A PREREQUISITE FOR THE PAYMENT OF THE ALLOWANCE-- - AND THE FACT THAT HE PAYS RENT, A COST FOR WHICH THE BASIC ALLOWANCE FOR QUARTERS PROVIDES, AND SUPPLIES OTHER FUNDS AFFORDS NO LEGAL BASIS FOR CREDITING THE MEMBER WITH FAMILY SEPARATION ALLOWANCE.

TO M. M. WOLD, DEPARTMENT OF THE NAVY, FEBRUARY 10, 1969:

THERE HAS BEEN RECEIVED BY SECOND ENDORSEMENT OF THE COMPTROLLER OF THE NAVY, DATED JANUARY 22, 1969, YOUR LETTER DATED NOVEMBER 23, 1968, REQUESTING A DECISION AS TO THE ENTITLEMENT OF DANNY L. GIBSON, BT2, USN, TO A FAMILY SEPARATION ALLOWANCE OF $30 PER MONTH IN THE CIRCUMSTANCES PRESENTED. THE REQUEST HAS BEEN ASSIGNED SUBMISSION NO. DO-N-1029, BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

IN AN ENCLOSED STATEMENT MR. GIBSON SAYS THAT HIS WIFE, WHO IS EXPECTING A CHILD IN FEBRUARY IS STAYING WITH HER PARENTS BECAUSE HE DID NOT WANT HER TO REMAIN ALONE IN AN APARTMENT AND SHE IS NEARER HER DOCTOR. HE SAYS FURTHER THAT HE AND HIS WIFE ARE PAYING HER PARENTS $40 A MONTH RENT AND THAT IF HE WERE HOME HE COULD STAY THERE FOR AS LONG AS HE WISHED.

MR. GIBSON STATES THAT IN ADDITION TO THE RENTAL PAYMENTS, HE PAYS THE EXPENSE OF OPERATING HIS AUTOMOBILE AND PAYS FOR HIS WIFE'S CLOTHING AND FOR ITEMS THAT A BABY MAY NEED. HE HAS CERTIFIED THAT THE PLACE IN WHICH HIS DEPENDENT IS RESIDING IS SUBJECT TO HIS MANAGEMENT AND CONTROL.

YOU SUGGEST THAT THE PAYMENT OF RENT FOR THE ROOM WHERE THE DEPENDENT RESIDES MAY IMPLY THAT THE HOUSEHOLD IS SUBJECT TO THE MANAGEMENT AND CONTROL OF THE MEMBER AS COULD BE THE CASE IF A NEARBY APARTMENT WERE RENTED FOR THE DEPENDENT.

UNDER THE PROVISIONS OF 37 U.S.C. 403 MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS WHEN THEY ARE NOT FURNISHED QUARTERS BY THE UNITED STATES ADEQUATE FOR THEMSELVES AND THEIR DEPENDENTS IF WITH DEPENDENTS. AN OBVIOUS PURPOSE OF THIS ALLOWANCE IS TO REIMBURSE THE MEMBERS FOR THE COST OF QUARTERS OBTAINED BY THEM FOR THEIR DEPENDENTS.

SECTION 427 (B), TITLE 37, U.S.C. AS ADDED BY SECTION 11 OF THE UNIFORMED SERVICES PAY ACT OF 1963, PUBLIC LAW 88-132, APPROVED OCTOBER 2, 1963, 77 STAT. 217, PROVIDES FOR THE PAYMENT OF A MONTHLY FAMILY SEPARATION ALLOWANCE IN THE AMOUNT OF $30 TO CERTAIN MEMBERS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS ON BEHALF OF DEPENDENTS, WHERE THE MEMBERS ARE ON DUTY UNDER SPECIFIED CONDITIONS, INCLUDING, AS IN MR. GIBSON'S CASE, DUTY ON BOARD A SHIP AWAY FROM THE HOME PORT OF THE SHIP FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS.

THE LEGISLATIVE HISTORY OF SECTION 427 (B) SHOWS THAT THE PURPOSE OF THE LEGISLATION IS TO COMPENSATE A SERVICEMAN FOR THE ADDED HOUSEHOLD EXPENSES THAT ARISE BY REASON OF HIS SEPARATION FROM HIS DEPENDENTS FOR A SUBSTANTIAL PERIOD OF TIME AS A RESULT OF HIS MILITARY DUTY ASSIGNMENT. THE SECRETARY OF THE NAVY, IN AN APPEARANCE BEFORE SUBCOMMITTEE OF THE COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE (PAGE 62 OF THE SUBCOMMITTEE HEARINGS ON H.R. 5555, WHICH WAS ENACTED AS PUBLIC LAW 88- 132), TESTIFIED AS FOLLOWS:

* * * IN THE WISDOM OF THE CONGRESS, H.R. 5555 PROVIDES A NEW FAMILY SEPARATION ALLOWANCE, WHICH I CONSIDER A MOST APPROPRIATE AND NECESSARY ADDITION. IT RECOGNIZES, FOR THE FIRST TIME, THE ADDITIONAL EXPENSES INCURRED BY MILITARY FAMILIES WHEN THE HEAD OF THE HOUSEHOLD IS CALLED AWAY FROM HOME FOR PROLONGED PERIODS IN THE LINE OF DUTY.

IT WILL OFFSET, IN A MODEST WAY, THE ADDITIONAL EXPENSES OF PLUMBERS, ELECTRICIANS, CARPENTERS, AND GENERAL HANDYMEN WHICH THE FAMILY BUDGET MUST BEAR WHEN THE HUSBAND IS ABSENT.

ON THE BASIS OF THE LEGISLATIVE HISTORY OF 37 U.S.C. 427 (B), WE HAVE CONSISTENTLY HELD THAT UNLESS THE RECORD SHOWS THAT A MEMBER IS MAINTAINING A HOUSEHOLD FOR HIS DEPENDENTS, SUBJECT TO HIS MANAGEMENT AND CONTROL SO THAT THE ATTENDANT LIABILITY AND RESPONSIBILITY WILL REST ON HIM, THE $30 MONTHLY FAMILY SEPARATION ALLOWANCE IS NOT PAYABLE. THE RESIDENCE MUST BE THE MEMBER'S AND NOT THAT OF SOMEONE ELSE. 43 COMP. GEN. 332, 350, ANSWER TO QUESTION 23; 47 COMP. GEN. 431; ID. 583.

ALTHOUGH IN HIS STATEMENT THE MEMBER INDICATES THAT IF IT WERE NOT FOR HIS WIFE'S CONDITION SHE WOULD BE LIVING IN THEIR OWN APARTMENT, HIS ENTITLEMENT MUST BE DETERMINED ON THE ACTUAL FACTS OF THE CASE.

IT SEEMS CLEAR FROM THE RECORD THAT THE DEPENDENT IN THIS CASE IS RESIDING IN A HOUSEHOLD MAINTAINED BY HER PARENTS AND NOT THE MEMBER. HAS NO RESPONSIBILITY FOR THE HOUSEHOLD MAINTENANCE EXPENSES. THE FACT THAT HE IS PAYING RENT TO HER PARENTS, A COST ITEM FOR WHICH THE BASIC ALLOWANCE FOR QUARTERS IS EXPRESSLY PROVIDED, AND SUPPLYING FUNDS FOR THE OPERATION OF HIS AUTOMOBILE, THE CLOTHING REQUIREMENTS OF HIS WIFE AND THE ANTICIPATED NEEDS OF HIS EXPECTED CHILD AFFORDS NO LEGAL BASIS FOR CREDITING HIM WITH THE $30 MONTHLY FAMILY SEPARATION ALLOWANCE.

ACCORDINGLY, ON THE PRESENT RECORD, IT MUST BE CONCLUDED THAT MR. GIBSON IS NOT ENTITLED TO THE $30 MONTHLY FAMILY SEPARATION ALLOWANCE. THE PAPERS SUBMITTED WITH YOUR REQUEST ARE BEING RETAINED HERE.