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B-187876, APR 14, 1977, 56 COMP GEN 525

B-187876 Apr 14, 1977
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ETC. - DEPENDENTS - MOVE CONCURRENT WITH MEMBER'S RESTRICTED DUTY A MARINE CORPS MEMBER WITH DEPENDENTS WAS TRANSFERRED FROM DUTY IN CONTINENTAL UNITED STATES TO RESTRICTED DUTY (DEPENDENTS PROHIBITED) OVERSEAS. 1977: THIS ACTION IS IN RESPONSE TO A LETTER DATED JULY 28. COLONEL ROBINSON WAS DETACHED FROM DUTY AT THE ARMY WAR COLLEGE. TO WHICH THE MOVEMENT OF HIS DEPENDENTS WAS PROHIBITED. THE ORDERS ALSO STATED THAT IT WAS THE INTENTION OF THE COMMANDANT OF THE MARINE CORPS TO ASSIGN COLONEL ROBINSON TO DUTY AT HEADQUARTERS. PACIFIC (WHICH WE UNDERSTAND IS IN HAWAII). APPARENTLY COLONEL ROBINSON IS CLAIMING OVERSEAS STATION ALLOWANCES AS A MEMBER WITH DEPENDENTS WHO IS ASSIGNED TO DUTY IN A RESTRICTED AREA.

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B-187876, APR 14, 1977, 56 COMP GEN 525

STATION ALLOWANCES - MILITARY PERSONNEL - EXCESS LIVING COSTS OUTSIDE UNITED STATES, ETC. - DEPENDENTS - MOVE CONCURRENT WITH MEMBER'S RESTRICTED DUTY A MARINE CORPS MEMBER WITH DEPENDENTS WAS TRANSFERRED FROM DUTY IN CONTINENTAL UNITED STATES TO RESTRICTED DUTY (DEPENDENTS PROHIBITED) OVERSEAS. HIS ORDERS STATED THE INTENTION OF THE COMMANDANT TO REASSIGN HIM TO HAWAII AFTER COMPLETION OF HIS RESTRICTED DUTY ASSIGNMENT. MEMBER'S DEPENDENTS MOVED TO HAWAII CONCURRENT WITH THE MEMBER'S RESTRICTED DUTY ASSIGNMENT AND THE MEMBER NOW CLAIMS STATION ALLOWANCES FOR DEPENDENTS UNDER 37 U.S.C. 405 (1970). SINCE SUCH MOVE MAY BE VIEWED AS HAVING A CONNECTION WITH THE MEMBER'S DUTY ASSIGNMENT, THE JOINT TRAVEL REGULATIONS MAY BE AMENDED TO AUTHORIZE STATION ALLOWANCES IN SUCH CASES. HOWEVER, THIS MEMBER'S CLAIM MAY NOT BE PAID BECAUSE CURRENT REGULATIONS CLEARLY PROHIBIT IT.

IN THE MATTER OF LIEUTENANT COLONEL CHARLES D. ROBINSON, USMC, APRIL 14, 1977:

THIS ACTION IS IN RESPONSE TO A LETTER DATED JULY 28, 1976, AND ENCLOSURES, FROM MAJOR M. G. SORENSEN, USMC, DISBURSING OFFICER, MARINE CORPS AIR STATION, KANEOHE BAY, HAWAII, REQUESTING AN ADVANCE DECISION AS TO WHETHER LIEUTENANT COLONEL CHARLES D. ROBINSON, USMC, XXX-XX-XXXX, MAY BE PAID STATION ALLOWANCES ON BEHALF OF HIS DEPENDENTS AS A RESULT OF THEIR MOVE TO HAWAII INCIDENT TO THE TRANSFER OF COLONEL ROBINSON TO A RESTRICTED TOUR OF DUTY IN OKINAWA. THE REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 76-24, AND FORWARDED TO THIS OFFICE BY PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE ENORSEMENT DATED NOVEMBER 19, 1976.

PURSUANT TO ORDERS DATED MAY 4, 1976, AS SUBSEQUENTLY ENDORSED, COLONEL ROBINSON WAS DETACHED FROM DUTY AT THE ARMY WAR COLLEGE, CARLISLE BARRACKS, PENNSYLVANIA, AND TRANSFERRED ON A PERMANENT CHANGE OF STATION (PCS) TO THE 3RD MARINE AMPHIBIOUS FORCE, FLEET MARINE FORCE, OKINAWA, A RESTRICTED OVERSEAS DUTY STATION, TO WHICH THE MOVEMENT OF HIS DEPENDENTS WAS PROHIBITED. COLONEL ROBINSON'S ORDERS AUTHORIZED TRANSPORTATION OF HIS DEPENDENTS, PRIVATELY OWNED VEHICLE AND HOUSEHOLD GOODS TO HAWAII AS A DESIGNATED LOCATION IN ACCORDANCE WITH PARAGRAPH M7005-2, VOLUME 1, JOINT TRAVEL REGULATIONS (1 JTR). THE ORDERS ALSO STATED THAT IT WAS THE INTENTION OF THE COMMANDANT OF THE MARINE CORPS TO ASSIGN COLONEL ROBINSON TO DUTY AT HEADQUARTERS, FLEET MARINE FORCE, PACIFIC (WHICH WE UNDERSTAND IS IN HAWAII), FOLLOWING HIS TOUR OF DUTY IN OKINAWA. INCIDENT TO THOSE ORDERS COLONEL ROBINSON MOVED HIS DEPENDENTS AND HOUSEHOLD GOODS TO HAWAII AND THEN TRAVELED ON TO HIS NEW DUTY STATION IN OKINAWA.

ALTHOUGH NO VOUCHER ACCOMPANIED THE DISBURSING OFFICER'S SUBMISSION, APPARENTLY COLONEL ROBINSON IS CLAIMING OVERSEAS STATION ALLOWANCES AS A MEMBER WITH DEPENDENTS WHO IS ASSIGNED TO DUTY IN A RESTRICTED AREA. SUCH STATION ALLOWANCES, PRESCRIBED UNDER 37 U.S.C. 405 (1970), INCLUDE (1) HOUSING AND COST-OF-LIVING ALLOWANCES, (2) INTERIM HOUSING ALLOWANCES, AND (3) TEMPORARY LODGING ALLOWANCES. SEE 1 JTR, PARAGRAPH M4300-4.

AS INDICATED IN THE SUBMISSION, UNDER 1 JTR, PARAGRAPHS M7005-2, ITEM 3 (CHANGE 268, JUNE 1, 1975), AND M8253-2B (CHANGE 279, MAY 1, 1976, AND CHANGE 246, AUGUST 1, 1973), WHEN A MEMBER IS TRANSFERRED BY PCS ORDERS FROM A DUTY STATION IN THE UNITED STATES TO A RESTRICTED STATION, TRANSPORTATION OF DEPENDENTS AND HOUSEHOLD GOODS MAY BE AUTHORIZED BY THE SECRETARY CONCERNED TO PUERTO RICO, ALASKA, HAWAII, OR ANY TERRITORY OR POSSESSION OF THE UNITED STATES. HOWEVER, 1 JTR, PARAGRAPH M4305 SPECIFICALLY PROVIDES THAT A MEMBER WHO IS REASSIGNED FROM A PERMANENT DUTY STATION IN THE UNITED STATES TO A PERMENENT 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. PARAGRAPH M4305 INDICATES THAT SUCH PROHIBITION IS BASED ON 49 COMP.GEN. 548 (1970).

THE DISBURSING OFFICER INDICATES THAT HAD COLONEL ROBINSON DESIGNATED A PLACE WITHIN CONUS FOR TRANSPORTATION OF HIS DEPENDENTS AND HOUSEHOLD GOODS, THE GOVERNMENT WOULD HAVE INCURRED THE EXPENSE OF TRANSPORTING THEM TO THAT PLACE AND THEN LATER TO HAWAII UPON COLONEL ROBINSON'S ASSIGNMENT THERE. HE FURTHER INDICATES THAT THE DESIGNATION BY THE MEMBER OF HAWAII FOR TRANSPORTATION OF HIS HOUSEHOLD GOODS WAS NOT, THEREFORE, PURELY FOR HIS OWN CONVENIENCE, BUT ALSO FOR THE CONVENIENCE AND LESSER EXPENSE OF THE GOVERNMENT. HE STATES THAT INSOFAR AS IT IS THE POLICY OF THE MARINE CORPS TO ADVISE MEMBERS ASSIGNED TO RESTRICTED OVERSEAS TOURS OF THEIR SUBSEQUENT ASSIGNMENTS WHENEVER POSSIBLE AND THEN TO AUTHORIZE TRANSPORTATION OF DEPENDENTS TO THE VICINITY OF THAT SUBSEQNET ASSIGNMENT, IT SEEMS REASONABLE THAT OTHER ASSOCIATED ALLOWANCES SUCH AS STATION ALLOWANCES SHOULD BE PAYABLE.

BY ENDORSEMENT SUBMISSION, DATED OCTOBER 18, 1976, BY DIRECTION OF THE COMMANDANT OF THE MARINE CORPS, THE FOLLOWING COMMENTS ARE MADE ON THE CASE:

THE LITERAL TERMS OF THE APPLICABLE STATUTORY REGULATIONS, SUBPARAGRAPH M4305-2 OF THE JOINT TRAVEL REGULATIONS, WOULD PRECLUDE PAYMENT OF STATION ALLOWANCES IN THE CASE DESCRIBED IN THE BASIC CORRESPONDENCE.

THE PROHIBITORY PROVISION IS BASED ON 49 COMP.GEN. 548. THE CONCLUSION DRAWN IN THAT DECISION WAS NECESSITATED BY THE ABSENCE OF ANY CONNECTION BETWEEN THE OVERSEAS LOCATION OF DEPENDENTS AND THE PLACE OF DUTY OF THEIR SPONSOR WHEN THE MEMBER WAS TRANSFERRED FROM CONUS TO A RESTRICTED OVERSEAS STATION. THE DECISION RECOGNIZED AS VALID THE REGULATIONS UNDER WHICH STATION ALLOWANCES MAY BE AUTHORIZED A MEMBER WHOSE TRANSFER IS FROM AN UNRESTRICTED TO A RESTRICTED OVERSEAS STATION AND WHOSE DEPENDENTS EITHER REMAIN IN THE VICINITY OF HIS OLD STATION OR MOVE TO ANOTHER AREA OVERSEAS. IN THIS SITUATION, A CONNECTION IS DEEMED TO EXIST BETWEEN THE DEPENDENTS' PRESENCE OVERSEAS, EVEN THOUGH IN A DIFFERENT LOCALE FROM THE OLD STATION, AND THE MEMBER'S DUTY AT THE OLD STATION. THE MEMBER'S HAVING BEEN ON DUTY AT THAT STATION IS RENDERED THE EQUIVALENT OF BEING ON DUTY THERE FOR THE PURPOSE OF 37 U.S.C. 405, WHICH AUTHORIZES PAYMENT OF STATION ALLOWANCES TO "A MEMBER WHO IS ON DUTY OUTSIDE OF THE UNITED STATES OR IN HAWAII OR ALASKA." THE RELATIONSHIP OF DEPENDENTS' LOCATION TO THEIR SPONSOR'S PLACE OF DUTY REFERS TO DUTY REQUIRED OF THE MEMBER IN THE PAST.

IN THE CASE AT HAND, THE PRESENCE OF DEPENDENTS OVERSEAS IS RELATED TO DUTY TO BE REQUIRED OF THE MEMBER IN THE FUTURE. IT IS BELIEVED THAT IT MAY BE PERMISSIBLE UNDER 37 U.S.C. 405 TO CONSIDER THE PRESENCE OF DEPENDENTS OVERSEAS TO THE CONNECTED WITH A SCHEDULED DUTY ASSIGNMENT OF THEIR SPONSOR ON THE SAME BASIS AS A CONNECTION IS NOW MADE WITH A COMPLETED ASSIGNMENT. ASSUMING THIS TO BE VALID, THEN THE PRESENT CASE INTRODUCES A FACTOR THAT WAS NOT INVOLVED IN THE SITUATION ON WHICH THE PROHIBITORY PROVISION OF THE STATUTORY REGULATIONS IS BASED.

THAT ENDORSEMENT ALSO PRESENTS THE FOLLOWING QUESTIONS:

SINCE 37 U.S.C. 405 HAS BEEN CONSTRUED SO THAT THE PHRASE "A MEMBER WHO IS ON DUTY OUTSIDE OF THE UNITED STATES OR IN HAWAII OR ALASKA" MAY IN EFFECT ENCOMPASS A MEMBER WHO WAS ON SUCH DUTY BEFORE TRANSFER TO A RESTRICTED TOUR, WOULD THE LAW PERMIT SIMILARLY CONSIDERING THAT THE PHRASE MAY ALSO INCLUDE A MEMBER WHO WILL BE ON SUCH DUTY WHEN A CONNECTION EXISTS BETWEEN THIS FUTURE DUTY AND THE PLACE TO WHICH HIS DEPENDENTS MOVE INCIDENT TO HIS ASSIGNMENT TO A RESTRICTED TOUR, AS IN THE CASE OF THE SUBJECT NAMED CLAIMANT?

IF THE ANSWER TO THE PRECEDING QUESTION IS IN THE AFFIRMATIVE, WOULD THE LITERAL TERMS OF ITEM 1 OF SUBPARAGRAPH M4300-1 AND SUBSPARAGRAPH M4305-1 OF THE JOINT TRAVEL REGULATIONS BE BINDING IN THE PRESENT CASE UNTIL CHANGED, NOTWITHSTANDING THAT THE CONSIDERATIONS UNDERLYING THESE PROVISIONS APPARENTLY DID NOT INCLUDE THE EXISTENCE OF A CONNECTION BETWEEN THE PLACE OF A FUTURE DUTY ASSIGNMENT AND THE LOCATION OF DEPENDENTS, WHICH CHARACTERIZES THE PRESENT CASE?

IN 49 COMP.GEN. 548, SUPRA, WE WERE ASKED WHETHER THE JTR'S COULD LEGALLY BE AMENDED TO AUTHORIZE THE PAYMENT OF STATION ALLOWANCES IN THE CASE OF A MEMBER WHOSE DEPENDENTS MADE AN AUTHORIZED MOVE FROM A PLACE IN THE UNITED STATES, AS DEFINED IN THE REGULATIONS, TO A DESIGNATED PLACE IN ALASKA, HAWAII, PUERTO RICO, OR A TERRITORY OR POSSESSION OF THE UNITED STATES UPON HIS PCS FROM A DUTY STATION IN THE UNITED STATES TO A RESTRICTED AREA. WE STATED THE VIEW THAT NO AUTHORITY EXISTS FOR PAYMENT OF STATION ALLOWANCES UNDER 37 U.S.C. 405 ON ACCOUNT OF DEPENDENTS IF THE DEPENDENTS' RESIDENCE OUTSIDE THE UNITED STATES HAS NO CONNECTION WITH THE MEMBER'S DUTY ASSIGNMENT AND CITED 38 COMP.GEN. 531 (1959).

BASING OUR DECISION IN 49 COMP.GEN. 548, SUPRA, ON AN EXAMINATION OF THE PURPOSE FOR THE DEPENDENTS' MOVE FROM THE UNITED STATES TO AN OVERSEAS RESIDENCE AS CALLED FOR BY 38 COMP.GEN. 531, 532, SUPRA, WE STATED AT PAGE 550:

*** IN CASES WHERE DEPENDENTS, WHO ARE NOT AUTHORIZED TO ACCOMPANY A MEMBER TO AN OVERSEAS DUTY STATION, MOVE FROM THE UNITED STATES TO AN OVERSEAS RESIDENCE AS A DESIGNATED PLACE, THEIR OVERSEAS RESIDENCE IS PURELY A MATTER OF PERSONAL CHOICE AND, AS SUCH, IS SEPARATE AND APART FROM THE MEMBER'S OVERSEAS DUTY.

IN 38 COMP.GEN. 531, AT PAGE 532, WE NOTED THAT THE REGULATIONS, THEN AS NOW, PROVIDE THAT STATION ALLOWANCES ARE AUTHORIZED FOR THE PURPOSE OF DEFRAYING THE AVERAGE EXCESS COST OF LIVING EXPERIENCED BY MEMBERS ON PERMANENT DUTY AT PLACES OUTSIDE THE UNITED STATES. WE CONCLUDED:

*** THUS, THE CONTROLLING REGULATIONS NOT ONLY PROVIDE THAT THE DEPENDENTS MUST RESIDE IN THE VICINITY OF THE MEMBER'S STATION; THEY SPECIFICALLY SET FORTH THE ONLY PURPOSE FOR WHICH THE ALLOWANCE MAY BE PAID.

THEREFORE, IN THAT CASE WE HELD THAT A MEMBER TRANSFERRED TO FRANCE, WHOSE WIFE WAS A FRENCH NATIONAL AND WHOSE DEPENDENTS WERE ALREADY LIVING IN FRANCE AT THE TIME OF THE MEMBER'S ASSIGNMENT THERE, WAS NOT ENTITLED TO STATION ALLOWANCES SINCE HIS DEPENDENTS WERE RESIDING IN THE VICINITY OF HIS DUTY ASSIGNMENT SOLELY THROUGH COINCIDENCE AND NOT DUE TO THE MEMBER'S DUTY ASSIGNMENT.

IN THE CASE PRESENTED HERE, THE MOVE TO THE OVERSEAS RESIDENCE BY COLONEL ROBINSON'S DEPENDENTS APPARENTLY WAS A MATTER OF BOTH THEIR PERSONAL CHOICE AND THEIR ANTICIPATION, BASED ON THE INTENT MANIFESTED BY THE COMMANDANT OF THE MARINE CORPS IN THE MEMBER'S ORDERS, THAT HE WOULD BE PERMANENTLY ASSIGNED TO HAWAII UPON COMPLETION OF HIS RESTRICTED TOUR OF DUTY. IN THIS REGARD, THEIR RESIDENCE IN HAWAII MAY NOT BE "PURELY A MATTER OF PERSONAL CHOICE"; RATHER, THEIR HAWAII RESIDENCE MAY BE, TO AN EXTENT, RELATED TO THE MEMBER'S ANTICIPATED OVERSEAS PERMANENT DUTY ASSIGNMENT, ALTHOUGH NOT DIRECTLY RELATED TO HIS CURRENT ASSIGNMENT.

THE STATUTE AUTHORIZING STATION ALLOWANCES, 37 U.S.C. 405, IS A BROADLY WRITTEN STATUTE WHICH PROVIDES FOR INCREASED COST-OF-LIVING ALLOWANCES, AS AUTHORIZED BY THE SECRETARIES CONCERNED, INCIDENT TO A PERMANENT DUTY ASSIGNMENT OUTSIDE THE UNITED STATES. THE LANGUAGE OF THAT PROVISION DOES NOT PRECLUDE PAYMENT OF STATION ALLOWANCES UNDER CIRCUMSTANCES PRESENTED HERE. THE TEST, DISCUSSED ABOVE, TO EXAMINE THE PURPOSE OF THE MOVE OF A MEMBER'S DEPENDENTS TO AN OVERSEAS RESIDENCE, WHICH WE HAVE EMPLOYED BEGINNING WITH OUR DECISION IN 38 COMP.GEN. 531, SUPRA, PROVIDES PROTECTION AGAINST UNWARRANTED ABUSE OF ENTITLEMENTS PAYABLE TO MEMBERS UNDER 37 U.S.C. 405. CF. 43 COMP.GEN. 525 (1964). IN ACCORDANCE WITH THEIR AUTHORITY AND IN LINE WITH 49 COMP.GEN. 548, THE SECRETARIES HAVE SPECIFICALLY PROHIBITED PAYMENT OF STATION ALLOWANCES IN CASES IN WHICH THE DEPENDENTS' MOVE TO A DESIGNATED PLACE OUTSIDE CONUS INCIDENT TO A MEMBER'S PCS FROM A STATION INSIDE CONUS TO A RESTRICTED STATION. THEREFORE, UNDER CURRENT REGULATIONS, COLONEL ROBINSON IS NOT ENTITLED TO THE STATION ALLOWANCES CLAIMED.

CONCERNING WHETHER THE REGULATIONS MAY BE CHANGED TO AUTHORIZE PAYMENT OF STATION ALLOWANCES IN SITUATIONS SUCH AS THIS, THE STATUTE IS SUFFICIENTLY BROAD TO SUPPORT A CAREFULLY DRAWN REGULATION WHICH WOULD PROVIDE SUCH ALLOWANCES IN CASES IN WHICH A MEMBER'S DEPENDENTS MOVE FROM THE UNITED STATES TO OUTSIDE THE UNITED STATES OR TO ALASKA, HAWAII, OR A UNITED STATES TERRITORY OR POSSESSION, INCIDENT TO THAT MEMBER'S ASSIGNMENT TO A RESTRICTED TOUR IF THE PURPOSE OF THEIR MOVE IS PRIMARILY BASED ON THEIR RELIANCE UPON A PROPERLY ISSUED OFFICIAL DETERMINATION THAT THE MEMBER WILL BE REASSIGNED, IMMEDIATELY FOLLOWING COMPLETION OF THE RESTRICTED TOUR, TO THE LOCALE TO WHICH THE DEPENDENTS MOVED. ANY SUCH CHANGE IN THE REGULATIONS SHOULD BE MADE SO AS TO PRESERVE THE PRINCIPLES SET OUT IN 49 COMP.GEN. 548. WE BELIEVE, HOWEVER, THAT AS CURRENTLY WRITTEN, PARAGRAPH M4305 CLEARLY PROHIBITS PAYMENT AND, ALTHOUGH THAT PROHIBITION IS BASED ON 49 COMP.GEN. 548, WE DO NOT BELIEVE THAT ITS CLEAR PROHIBITION CAN BE AVOIDED IN COLONEL ROBINSON'S CASE. THEREFORE, PAYMENT TO HIM IS NOT AUTHORIZED.

THE QUESTIONS ARE ANSWERED ACCORDINGLY.

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