B-213696, APR 10, 1984

B-213696, APR 10, 1984

DIGEST: WHEN A SERVICE MEMBER TRANSFERRED FROM A PERMANENT DUTY ASSIGNMENT IN HAWAII TO A DUTY ASSIGNMENT IN CALIFORNIA, HIS DEPENDENTS REMAINED IN THE VICINITY OF HIS OLD DUTY STATION. AFTER 1 YEAR HE WAS TRANSFERRED TO DUTY IN OKINAWA, A RESTRICTED AREA WHERE HIS DEPENDENTS COULD NOT JOIN HIM. STATION ALLOWANCES ON ACCOUNT OF HIS DEPENDENTS ARE NOT PAYABLE SINCE THE DEPENDENTS' CONTINUING RESIDENCE IN HAWAII WAS A MATTER OF PERSONAL CHOICE AND NOT THE RESULT OF THE MEMBER'S ASSIGNMENT TO OKINAWA.

SERGEANT MAJOR JAMES L. ABRAHAM:

MAY A SERVICE MEMBER WHOSE DEPENDENTS WERE MOVED AT GOVERNMENT EXPENSE TO HAWAII DURING HIS ASSIGNMENT AT THAT LOCATION AND CONTINUED TO RESIDE THERE AFTER HE WAS ASSIGNED TO A PERMANENT DUTY STATION IN THE UNITED STATES BE PAID STATION ALLOWANCES UPON HIS SUBSEQUENT REASSIGNMENT TO A PERMANENT DUTY STATION IN A RESTRICTED AREA OUTSIDE THE UNITED STATES? FN1 THERE IS NO AUTHORITY FOR PAYMENT OF STATION ALLOWANCES ON ACCOUNT OF THE DEPENDENTS SINCE THE DEPENDENTS' RESIDENCE IN HAWAII WAS A MATTER OF PERSONAL CHOICE NOT THE RESULT OF THE MEMBER'S DUTY ASSIGNMENT.

SERGEANT MAJOR JAMES L. ABRAHAM WAS TRANSFERRED FROM A DUTY ASSIGNMENT IN HAWAII TO THE 3D MARINE AIRCRAFT WING, EL TORO, CALIFORNIA. HIS DEPENDENTS COULD HAVE TRAVELED WITH HIM TO THIS ASSIGNMENT. HOWEVER, HIS DEPENDENTS REMAINED IN HAWAII WHEN HE WAS ORDERED TO EL TORO. AFTER 1 YEAR, HE WAS REASSIGNED TO THE MARINE CORPS AIR STATION IN OKINAWA. THIS WAS AN UNACCOMPANIED TOUR AND HIS DEPENDENTS WERE PRECLUDED FROM JOINING HIM. STATION ALLOWANCES FOR HAWAII WERE NOT AUTHORIZED WHILE HE WAS AT EL TORO SINCE THE DEPENDENTS REMAINED IN HAWAII AT THEIR OWN ELECTION. SERGEANT ABRAHAM RECEIVED A VARIABLE HOUSING ALLOWANCE WHILE AT EL TORO AND SINCE HIS ASSIGNMENT TO OKINAWA HE HAS BEEN ENTITLED TO ONLY THE COST- OF-LIVING ALLOWANCE PAYABLE TO MEMBERS OCCUPYING GOVERNMENT QUARTERS AND HIS REGULAR BASIC ALLOWANCE FOR QUARTERS.

OVERSEAS STATION ALLOWANCES ARE PAYABLE PURSUANT TO 37 U.S.C. 405 UNDER WHICH THE SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT OF HOUSING ALLOWANCE AND COST-OF-LIVING ALLOWANCE CONSIDERING ALL ELEMENTS OF THE COST OF LIVING TO MEMBERS OF THE UNIFORMED SERVICES AND THEIR DEPENDENTS WHEN THE MEMBER "IS ON DUTY" OUTSIDE THE UNITED STATES OR IN HAWAII OR ALASKA.

IMPLEMENTING REGULATIONS FOR 37 U.S.C. 405 ARE CONTAINED IN CHAPTER 4, PART G OF VOLUME 1, JOINT TRAVEL REGULATIONS (1 JTR). IN LINE WITH THE PURPOSE OF 37 U.S.C. 405, PARAGRAPH M4301-1, 1 JTR, PROVIDES THAT HOUSING ALLOWANCES AND COST-OF-LIVING ALLOWANCES ARE AUTHORIZED FOR THE PURPOSE OF DEFRAYING THE AVERAGE EXCESS COSTS EXPERIENCED BY MEMBERS "ON PERMANENT DUTY" AT PLACES OUTSIDE THE UNITED STATES.

PARAGRAPH M4305-1, 1 JTR, PROVIDES THAT A MEMBER WHO IS REASSIGNED FROM A PERMANENT DUTY STATION IN THE UNITED STATES TO A PERMANENT DUTY STATION IN A RESTRICTED AREA OUTSIDE THE UNITED STATES IS NOT ENTITLED TO STATION ALLOWANCES ON BEHALF OF HIS DEPENDENTS WHEN THE DEPENDENTS MOVE TO A DESIGNATED PLACE OUTSIDE THE UNITED STATES, EXCEPT WHERE THE DEPENDENTS ARE AUTHORIZED TO BE TRANSPORTED TO PLACES UNDER CIRCUMSTANCES WHICH ARE NOT APPLICABLE IN THIS MATTER.

WE HAVE UNIFORMLY HELD THAT NO AUTHORITY EXISTS FOR PAYMENT OF OVERSEAS HOUSING ALLOWANCES AND COST-OF-LIVING ALLOWANCES ON ACCOUNT OF DEPENDENTS IF THE DEPENDENTS' RESIDENCE OUTSIDE THE UNITED STATES OR IN HAWAII OR ALASKA IS A MATTER OF PERSONAL CHOICE AND HAS NO CONNECTION WITH THE MEMBER'S DUTY ASSIGNMENT. 38 COMP.GEN. 531 (1959) AND 49 COMP.GEN. 548 (1970).

AFTER SERGEANT ABRAHAM'S TRANSFER TO EL TORO, HIS DEPENDENTS WERE NOT RESIDING IN HAWAII IN A MILITARY DEPENDENT STATUS. BECAUSE THEY ELECTED TO REMAIN THERE FOR PERSONAL REASONS NOT CONNECTED WITH HIS MILITARY DUTIES, ANY INCREASE IN LIVING COSTS INCURRED BY THEM DOES NOT COME WITHIN THE CONTEMPLATION OF 37 U.S.C. 405. 49 COMP.GEN. 548 (1970); 53 COMP.GEN. 339 (1973).

SERGEANT ABRAHAM ELECTED NOT TO MOVE HIS FAMILY TO EL TORO. THUS, THE PLACE WHERE HE LOCATED HIS FAMILY DURING HIS DUTY IN OKINAWA WAS HIS PERSONAL CHOICE AND HAD NO CONNECTION WITH HIS DUTY ASSIGNMENT.

ACCORDINGLY, PAYMENT OF STATION ALLOWANCES MAY NOT BE ALLOWED WHILE SERGEANT ABRAHAM'S DEPENDENTS ARE RESIDING IN HAWAII DURING HIS ASSIGNMENT IN OKINAWA.