B-157586, AUGUST 18, 1966, 46 COMP. GEN. 148

B-157586, AUGUST 18, 1966, 46 COMP. GEN. 148

FAMILY ALLOWANCES - SEPARATION - TYPE 2 - COMMON RESIDENCE - FAMILY STATUS REQUIREMENT. AS THE REIMBURSEMENT OF THE ADDITIONAL HOUSEHOLD EXPENSES AUTHORIZED BY 37 U.S.C. 427/B) IS PREDICATED UPON THE SEPARATION OF A MEMBER OF THE UNIFORMED SERVICES FROM HIS DEPENDENTS FOR A SUBSTANTIAL PERIOD OF TIME AND NOT ON THE BASIS THAT HE QUALIFIES FOR SOME OTHER ALLOWANCE ON ACCOUNT OF DEPENDENTS, A MEMBER MAINTAINING A RESIDENCE FOR SECONDARY DEPENDENTS, PARENTS, MUST ESTABLISH HE AND HIS DEPENDENTS COMPRISE A "FAMILY"---A COLLECTION OF PERSONS LIVING UNDER ONE ROOF, HAVING ONE HEAD OR MANAGER--- TO ENTITLE HIM TO THE FAMILY SEPARATION ALLOWANCE PRESCRIBED BY SECTION 427/B). ALTHOUGH IN THE CASE OF SECONDARY DEPENDENTS, A MEMBER MUST ESTABLISH HE AND HIS DEPENDENTS COMPRISE A "FAMILY", A MEMBER WITH PRIMARY DEPENDENTS---SPOUSE AND/OR CHILDREN--- EVEN IF HE HAS NO PROPRIETARY INTEREST IN A RESIDENCE, IS PRESUMED FOR THE PURPOSES OF SECTION 427/B) TO HAVE A FAMILY.

TO THE SECRETARY OF DEFENSE, AUGUST 18, 1966:

REFERENCE IS MADE TO LETTER DATED JULY 14, 1966, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION WHETHER A MEMBER OF THE UNIFORMED SERVICE MUST HAVE SOME PROPRIETARY INTEREST IN THE RESIDENCE HE MAINTAINS FOR HIS SECONDARY DEPENDENTS IN ORDER TO BE ENTITLED TO THE FAMILY SEPARATION ALLOWANCE AUTHORIZED UNDER 37 U.S.C. 427/B). THERE WAS RECEIVED WITH THE LETTER A COPY OF COMMITTEE ACTION NO. 381 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, WHEREIN THE QUESTION FOR DECISION IS SET FORTH AND DISCUSSED.

IN THE DISCUSSION OF THE PROBLEM INVOLVED THE MILITARY PAY AND ALLOWANCE COMMITTEE REFERS TO OUR DECISION IN 45 COMP. GEN. 36, DATED JULY 20, 1965, AND STATES THAT IT WAS DECIDED THAT, WHILE THE MEMBER CONCERNED SUPPORTED HIS DEPENDENT MOTHER BY MEANS OF A "D" ALLOTMENT, THERE WAS NO EVIDENCE THAT HE MAINTAINED A HOUSEHOLD FOR HER WHICH HE SHARED WHEN THE OPPORTUNITY PRESENTED ITSELF, AND THUS NO AUTHORITY EXISTED FOR PAYMENT OF FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427/B). THE COMMITTEE ALSO REFERS TO OUR DECISION IN 45 COMP. GEN. 170, OCTOBER 5, 1965, A SIMILAR CASE, HOLDING THAT THE HOME MUST BE THE MEMBER'S AND NOT THE DEPENDENT'S AND IN THE ABSENCE OF EVIDENCE THAT THE MEMBER IS MAINTAINING THE HOME AS HIS RESIDENCE AND ASSUMING THE LIABILITIES AND RESPONSIBILITIES THEREOF RATHER THAN ENABLING HIS MOTHER BY MEANS OF AN ALLOTMENT TO MAINTAIN A HOME FOR HERSELF, NO AUTHORITY EXISTED FOR THE PAYMENT OF THE ALLOWANCE. THE COMMITTEE SAYS THAT THE STATEMENT IN 45 COMP. GEN. 170, THAT THE "HOME MUST BE THE MEMBER'S AND NOT THE DEPENDENT-S" HAS BEEN INTERPRETED AS MEANING THAT THE MEMBER MUST BE POSSESSED OF SOME ESTATE IN THE RESIDENCE OR HOME HE MAINTAINS AND THAT THE LACK OF ANY SUCH ESTATE WOULD DEFEAT HIS CLAIM FOR THE ALLOWANCE. ALSO, IT IS SAID THE QUESTION HAS BEEN RAISED IN ONE OF THE SERVICES IF SIMILAR INTERPRETATIONS MIGHT BE APPLIED IN PRIMARY DEPENDENT CASES.

THE COMMITTEE EXPRESSES DOUBT AS TO THE VALIDITY OF SUCH INTERPRETATION AS APPLICABLE IN ANY DEPENDENT CATEGORY, WHETHER PRIMARY OR SECONDARY. IS THEIR VIEW THAT WHILE CONSIDERATIONS OF RIGHT, TITLE AND INTEREST IN AND TO REAL ESTATE EITHER AS OWNER OR TENANT MAY BE OF ASSISTANCE IN ENTITLEMENT DETERMINATIONS IN DOUBTFUL CASES, THEY SHOULD NOT BE VIEWED AS INDISPENSABLE TO THE MEMBER'S ENTITLEMENT AND THAT THE EVIDENCE REQUIRED BY CURRENT REGULATIONS OF THE SERVICES GOVERNING PAYMENT OF FAMILY SEPARATION ALLOWANCE MEETS THE REQUIREMENTS OF THE LAW. THOSE REGULATIONS PROVIDE THAT THE MEMBER SHALL CERTIFY THAT HE MAINTAINS A RESIDENCE OR HOUSEHOLD FOR HIS DEPENDENTS AT (ADDRESS), A PLACE WHICH HE WOULD OCCUPY AS A COMMON HOUSEHOLD WITH HIS DEPENDENTS DURING PERIOD OF LEAVE OR SUCH OTHER TIMES AS HIS DUTY ASSIGNMENT MIGHT PERMIT. IN ADDITION, THE NEW DOD FORM 1561, STATEMENT TO SUBSTANTIATE PAYMENT OF FSA, INCLUDES A CERTIFICATE BY THE MEMBER THAT HE HAS ASSUMED THE LIABILITIES AND RESPONSIBILITIES OF THE RESIDENCE HE MAINTAINS FOR HIS DEPENDENTS.

SECTION 427 OF TITLE 37, U.S. CODE, IS ENTITLED "FAMILY SEPARATION ALLOWANCE", AND PROVIDES IN PERTINENT PART, AS FOLLOWS:

(B) EXCEPT IN TIME OF WAR OR OF NATIONAL EMERGENCY HEREAFTER DECLARED BY CONGRESS, AND IN ADDITION TO ANY ALLOWANCE OR PER DIEM TO WHICH HE OTHERWISE MAY BE ENTITLED UNDER THIS TITLE, INCLUDING SUBSECTION (A) OF THIS SECTION, A MEMBER OF A UNIFORMED SERVICE WITH DEPENDENTS (OTHER THAN A MEMBER IN PAY GRADE, E-1, E-2, E-3, OR E-4 (4 YEARS' OR LESS SERVICE/) WHO IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS IS ENTITLED TO A MONTHLY ALLOWANCE EQUAL TO $30 IF---

(1) THE MOVEMENT OF HIS DEPENDENTS TO HIS PERMANENT STATION OR A PLACE NEAR THAT STATION IS NOT AUTHORIZED AT THE EXPENSE OF THE UNITED STATES UNDER SECTION 406 OF THIS TITLE AND HIS DEPENDENTS DO NOT RESIDE AT OR NEAR THAT STATION;

(2) HE IS ON DUTY ON BOARD A SHIP AWAY FROM THE HOME PORT OF THE SHIP FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS; OR

(3) HE IS ON TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS AND HIS DEPENDENTS DO NOT RESIDE AT OR NEAR HIS TEMPORARY DUTY STATION.

WHILE THE SECTION REFERS TO DEPENDENTS WITHOUT DEFINITION, ITS LEGISLATIVE HISTORY SHOWS THAT THE BENEFITS WHICH IT PROVIDES ARE BASED ON THE CONCEPT THAT ENFORCED SEPARATIONS OF SERVICEMEN FROM THEIR FAMILIES CAUSE ADDED HOUSEHOLD AND FAMILY EXPENSES WHERE THE MEMBER IS ABSENT FOR ANY SUBSTANTIAL PERIOD OF TIME. (PAGE 25 OF S. REPT. NO. 387, TO ACCOMPANY H.R. 5555, WHICH WAS ENACTED AS PUBLIC LAW 88-132.) THE STATED PURPOSE OF SECTION 427/B) IS TO REIMBURSE THE MEMBERS FOR ADDITIONAL HOUSEHOLD EXPENSES THAT ARISE BY REASON OF HIS BEING AWAY FROM HIS DEPENDENTS FOR A SUBSTANTIAL PERIOD OF TIME INCIDENT TO HIS DUTY ASSIGNMENT. CONSEQUENTLY, IT SEEMS CLEAR THAT IN ENACTING THE LAW CONGRESS DID NOT INTEND IT TO APPLY IN EVERY INSTANCE WHERE THE MEMBER MAY BE ABLE TO QUALIFY FOR SOME OTHER ALLOWANCE ON ACCOUNT OF DEPENDENTS. OUR VIEW IT MUST BE CONSTRUED AS APPLICABLE ONLY IN CASES WHERE IT REASONABLY APPEARS THAT THE DEPENDENTS CONCERNED AND THE MEMBER COMPRISE A FAMILY. IN THIS REGARD, IT IS HELD GENERALLY THAT A "FAMILY" IS A COLLECTION OF PERSONS LIVING UNDER ONE ROOF, HAVING ONE HEAD OR MANAGER, AND THE HEAD OF THE FAMILY IS ONE WHO CONTROLS, SUPERVISES AND MANAGES THE AFFAIRS OF THE HOUSEHOLD. SEE GENERALLY, WORDS AND PHRASES, "FAMILY" 16 W AND P 302. ALSO, IT HAS BEEN HELD THAT THE WORD "HOUSEHOLD" IS SYNONYMOUS WITH THE WORD "HOME" AND THE WORD "FAMILY;, LETEFF V. MARYLAND CASUALTY CO; 91 SO. 2D. 123, 143.

IN THE CASE CONSIDERED IN 45 COMP. GEN. 170, THE EVIDENCE CONSISTED OF A STATEMENT BY THE MEMBER THAT IMMEDIATELY PRIOR TO DEPARTURE FROM LAST PERMANENT STATION (CANAL ZONE), HE HAD MAINTAINED A RESIDENCE OR HOUSEHOLD FOR HIS DEPENDENT MOTHER AT A DIFFERENT PLACE, LIMA, PERU, TOGETHER WITH A SHOWING THAT HE WAS SUPPORTING HIS MOTHER BY AN ALLOTMENT SUFFICIENT TO PAY FOR HER RENT, FOOD AND CLOTHING AND OTHER EXPENSES. SUCH EVIDENCE REFLECTED THAT THE MOTHER HAD AN INDEPENDENT HOUSEHOLD AND THAT THE MEMBER FURNISHED HER FINANCIAL ASSISTANCE TO MAINTAIN HER HOME. HENCE, WHILE IT MAY BE THAT HE WOULD VISIT HER DURING PERIODS OF LEAVE, AND/OR SUCH OTHER TIMES AS HIS DUTY ASSIGNMENT MIGHT PERMIT, IT DID NOT APPEAR THAT HER RESIDENCE WAS HIS HOUSEHOLD SUBJECT TO HIS MANAGEMENT AND CONTROL, WITH THE ATTENDING LIABILITIES AND RESPONSIBILITIES THEREOF RESTING WITH HIM, FACTORS WHICH IN OUR OPINION ARE NECESSARY TO SUPPORT A CONCLUSION THAT THE MEMBER AND HIS MOTHER CONSTITUTED A FAMILY OF WHICH HE IS THE HEAD. OUR CONCLUSION IN THE DECISION THAT THE HOME MUST BE THE MEMBER'S AND NOT THE DEPENDENT'S REFLECTED OUR VIEW THAT THE FAMILY HOME MUST BE HIS AND NOT THAT OF HIS DEPENDENT. THE DECISION REPORTED AT 45 COMP. GEN. 36 WAS BASED ON LIKE VIEWS.

AS TO THE QUESTION PRESENTED, THE CITED DECISIONS DO NOT HOLD THAT A MEMBER WHO HAS NO PROPRIETARY INTEREST IN THE RESIDENCE WHICH HE MAINTAINS FOR HIS FAMILY CANNOT QUALIFY FOR THE FAMILY SEPARATION ALLOWANCE IN ANY EVENT. ON THE CONTRARY WHERE THE RECORD ESTABLISHES THAT THE MEMBER AND HIS DEPENDENTS COMPRISE A FAMILY OF WHICH HE IS THE HEAD AND THAT HE MAINTAINS THE FAMILY RESIDENCE, PAYMENT OF THE FAMILY SEPARATION ALLOWANCE IS NOT PRECLUDED BY THE DECISIONS, EVEN THOUGH THE MEMBER HAS NO PROPRIETARY INTEREST IN THE RESIDENCE. UNLESS THE RECORD REFLECTS OTHERWISE WE BELIEVE THAT IN THE ORDINARY CASE OF A MEMBER WITH PRIMARY DEPENDENTS---SPOUSE OR CHILDREN---HE MAY BE PRESUMED TO HAVE A FAMILY FOR PURPOSES OF THE FAMILY SEPARATION ALLOWANCE. IN THE CASE OF SECONDARY DEPENDENTS--- PARENTS---HOWEVER, THE RECORD MUST ESTABLISH THAT THE MEMBER AND HIS DEPENDENTS COMPRISE A "FAMILY" WITHIN THE GENERALLY ACCEPTED MEANING OF THAT TERM AND THAT HE IS THE HEAD OF THAT FAMILY.