B-131836, NOVEMBER 22, 1963, 43 COMP. GEN. 444

B-131836, NOVEMBER 22, 1963, 43 COMP. GEN. 444

FAMILY ALLOWANCES - SEPARATION - TYPE 2 - COMMON RESIDENCE. FAMILY ALLOWANCES - SEPARATION - RESIDENCE DISTANCE FROM STATION. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - COMMON RESIDENCE. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - COMMON RESIDENCE. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - COMMON RESIDENCE. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - COMMON RESIDENCE THE COMMON RESIDENCE RULE ESTABLISHED IN 43 COMP. GEN. 332 WHICH PRECLUDES ENTITLEMENT TO THE FAMILY SEPARATION ALLOWANCE AUTHORIZED UNDER 37 U.S.C. 427 (B) IF THE MEMBER OF THE UNIFORMED SERVICES DOES NOT RESIDE WITH HIS DEPENDENTS IN A COMMON HOUSEHOLD AT OR IN THE VICINITY OF HIS STATION OR THE HOME PORT OF THE VESSEL IMMEDIATELY PRECEDING THE DUTY ASSIGNMENT FOR WHICH THE ALLOWANCE IS CLAIMED IS MODIFIED TO PERMIT FAMILY SEPARATION ALLOWANCE PAYMENTS IF, DURING THE PERIOD FOR WHICH THE ALLOWANCE IS PAID, THE MEMBER MAINTAINS A RESIDENCE OR HOUSEHOLD FOR HIS DEPENDENTS WHICH HE WOULD SHARE DURING PERIODS OF LEAVE OR SUCH OTHER TIMES AS HIS DUTY ASSIGNMENT MIGHT PERMIT, WHETHER OR NOT THE RESIDENCE IS LOCATED AT THE HOME PORT OR STATION FROM WHICH THE MEMBER PROCEEDED TO THE DUTY ASSIGNMENT. A MEMBER OF THE UNIFORMED SERVICES WHO, WHILE STATIONED AT CHARLESTON, S.C., MAINTAINS A RESIDENCE FOR HIS DEPENDENTS IN ATLANTA, GA.--- MORE THAN 50 MILES FROM THE DUTY STATION--- IS, UPON TRANSFER TO SEA DUTY OR TO A PLACE WHERE HIS DEPENDENTS CANNOT ACCOMPANY HIM AT GOVERNMENT EXPENSE, ENTITLED TO THE FAMILY SEPARATION ALLOWANCE AUTHORIZED UNDER 37 U.S.C. 427 (B), 43 COMP. GEN. 332, MODIFIED. (QUESTION 26) A MEMBER OF THE UNIFORMED SERVICES WHO MAINTAINS A RESIDENCE FOR HIS FAMILY IN SAN FRANCISCO WHILE ASSIGNED TO A SHIP WITH A HOME PORT AT SAN DIEGO IS ENTITLED TO A FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B), CLAUSE 2, WHEN THE VESSEL IS AWAY FROM ITS PORT FOR MORE THAN 30 DAYS. ALTHOUGH A MEMBER OF THE UNIFORMED SERVICES DOES NOT MAINTAIN A COMMON RESIDENCE FOR HIMSELF AND WIFE (HIS ONLY DEPENDENT) AT THE TIME OF DEPARTURE FROM HIS DUTY STATION OR HOME PORT OF THE SHIP TO WHICH ASSIGNED BECAUSE OF HIS WIFE'S PROLONGED HOSPITALIZATION, WHEN THE MEMBER SUBSEQUENTLY, WHILE IN A STATUS OTHERWISE MAKING HIM ELIGIBLE FOR A FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B), RENTS A HOME FOR THEIR MUTUAL USE TO WHICH THE WIFE MOVES UPON RELEASE FROM THE HOSPITAL, THE MEMBER BECOMES ENTITLED TO PAYMENT OF THE FAMILY SEPARATION ALLOWANCE FROM THE TIME THE WIFE OCCUPIES THE HOME. A MEMBER OF THE UNIFORMED SERVICES WHO PAYS LODGING AND SUBSISTENCE FOR HIS ONLY DEPENDENT, A CHILD AWAY AT SCHOOL OR IN AN INSTITUTION, BUT WHO DOES NOT SHARE A RESIDENCE WITH THE DEPENDENT WHEN HE IS ASSIGNED TO DUTY OTHERWISE ENTITLING HIM TO A FAMILY SEPARATION ALLOWANCE DOES NOT INCUR ANY ADDITIONAL HOUSEHOLD EXPENSES AS A RESULT OF THE SEPARATION AND, THEREFORE, IS NOT ENTITLED TO A FAMILY SEPARATION ALLOWANCE. A MEMBER OF THE UNIFORMED SERVICES WHO MAINTAINS A RESIDENCE FOR HIS ONLY DEPENDENT, A CHILD AWAY AT SCHOOL OR IN AN INSTITUTION WHEN THE MEMBER IS ASSIGNED TO DUTY OTHERWISE ENTITLING HIM TO A FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B), AND WHO CONTINUES TO MAINTAIN SUCH RESIDENCE IS NOT PRECLUDED, BY REASON OF THE CHILD'S ABSENCE, FROM RECEIVING A FAMILY SEPARATION ALLOWANCE; HOWEVER, IF THE CHILD'S ABSENCE IN AN INSTITUTION IS FOR AN INDEFINITE PERIOD NOT TO TERMINATE WITHIN 1 YEAR, PAYMENT OF A FAMILY SEPARATION ALLOWANCE FOR ANY PERIOD PRIOR TO THE CHILD'S RETURN TO THE RESIDENCE IS NOT AUTHORIZED.

TO THE SECRETARY OF DEFENSE, NOVEMBER 22, 1963:

REFERENCE IS MADE TO LETTER DATED OCTOBER 21, 1963, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING DECISION WHETHER THE "COMMON RESIDENCE" CRITERIA ENUNCIATED IN OUR DECISION OF OCTOBER 9, 1963, B- 131836, 43 COMP. GEN. 332, MAY BE CONSIDERED TO HAVE BEEN MET UNDER THE CIRCUMSTANCES SET FORTH IN THE QUESTION PRESENTED IN COMMITTEE ACTION NO. 329 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE OF THE DEPARTMENT OF DEFENSE. THE QUESTION PRESENTED IS AS FOLLOWS:

DO THE ANSWERS IN THE DECISION OF THE COMPTROLLER GENERAL, B-131836 OF 9 OCTOBER 1963, TO QUESTIONS 23, 24 AND 26 OF COMMITTEE ACTION NO. 328 REQUIRE THAT ENTITLEMENT UNDER CLAUSE (1), (2) OR (3) OF 37 U.S.C. 427 (B) DEPENDS UPON THE MEMBER MAINTAINING A COMMON RESIDENCE FOR HIMSELF AND DEPENDENT/S) AT HIS DUTY STATION OR HOME PORT AT THE TIME OF HIS DEPARTURE THEREFROM ON PERMANENT CHANGE OF STATION, OR WHILE ON DUTY ON BOARD A SHIP AWAY FROM ITS HOME PORT (OR WHILE ON TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION), FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS, IN THE SENSE THAT HE MUST SHARE A PLACE OF ABODE WITH DEPENDENT/S) WITHIN A REASONABLE DAILY COMMUTING DISTANCE OF HIS PERMANENT STATION OR HOME PORT, A ONE-WAY DISTANCE OF 50 MILES BEING CONSIDERED AS A MAXIMUM DISTANCE FOR THIS PURPOSE EXCEPT WHERE THE MEMBER ACTUALLY COMMUTES A GREATER DISTANCE DAILY?

IN ITS DISCUSSION THE MILITARY PAY AND ALLOWANCE COMMITTEE IN EFFECT REQUESTS RECONSIDERATION OF THE VIEW EXPRESSED IN OUR DECISION OF OCTOBER 9, 1963, THAT GENERALLY A MEMBER WOULD NOT BE ENTITLED TO AN ALLOWANCE UNDER 37 U.S.C. 427 (B) UNLESS HE AND HIS DEPENDENTS WERE RESIDING TOGETHER IMMEDIATELY PRECEDING THE DUTY INVOLVED AND THE SEPARATION RESULTS FROM SUCH DUTY ASSIGNMENT. IT IS STATED THAT THE FAMILY SEPARATION ALLOWANCE IS NEW AND UNIQUE AS MILITARY PAY LAW; THAT IT HAS OCCASIONED UNUSUAL NECESSITIES AND URGENCIES IN ITS IMPLEMENTATION; THAT THE RESTRICTED TIME ELEMENT BETWEEN ENACTMENT AND DISBURSEMENTS HAS NECESSITATED CAUTIOUS INTERPRETATIONS OF ENTITLEMENT ON THE PART OF THE SERVICES, AND, AS AN EXAMPLE, IT REFERS TO A DIRECTIVE ISSUE BY THE NAVY AND MARINE CORPS GOVERNING ENTITLEMENT UNDER CLAUSE (1) OF SECTION 427 (B) AS FOLLOWS:

B. CONDITIONS OF ENTITLEMENT (1) MAINTENANCE OF COMMON HOUSEHOLD. ORDER TO BE ENTITLED TO FSA-R, THE MEMBER MUST HAVE MAINTAINED A COMMON HOUSEHOLD FOR HIMSELF AND HIS DEPENDENTS IMMEDIATELY PRECEEDING HIS DETACHMENT FROM HIS LAST PERMANENT STATION. HOWEVER, EVEN IF HE MAINTAINED A RESIDENCE FOR HIMSELF AND HIS DEPENDENTS AT THE TIME OF HIS DETACHMENT AND HE CONTINUES TO MAINTAIN THAT RESIDENCE FOR HIS DEPENDENTS, HE WILL NOT BE ENTITLED TO FSA-R IF HIS DEPENDENTS WERE PHYSICALLY ABSENT THEREFROM FOR A PERIOD OF MORE THAN THREE MONTHS PRIOR TO THE DATE OF HIS DETACHMENT. IF THE MEMBER'S DEPENDENTS DID NOT RESIDE WITHIN A REASONABLE DAILY COMMUTING DISTANCE OF HIS PERMANENT STATION, A ONE-WAY DISTANCE OF 50 MILES BEING CONSIDERED AS THE MAXIMUM DISTANCE FOR THIS PURPOSE EXCEPT WHERE THE MEMBER ACTUALLY COMMUTED A GREATER DISTANCE DAILY, HE WILL BE CONSIDERED AS NOT HAVING MAINTAINED A COMMON RESIDENCE FOR HIMSELF AND HIS DEPENDENTS.

IN URGING RECONSIDERATION OF OUR VIEW THE COMMITTEE SAYS THAT IT IS AT LEAST DOUBTFUL THAT THE LAW AS SET FORTH IN 427 (B), OR A FAIR INTERPRETATION OF THE ANSWERS TO THE QUESTIONS INVOLVED, REQUIRES SUCH RESTRICTED APPLICATION; THAT THERE ARE INNUMERABLE INSTANCES IN WHICH THE MEMBER MAINTAINS A RESIDENCE FOR HIS DEPENDENTS AT A DISTANCE GREATER THAN 50 MILES FROM HIS PERMANENT DUTY STATION UNDER CIRCUMSTANCES WHICH WOULD RENDER DAILY COMMUTING IMPRACTICABLE, IF NOT IMPOSSIBLE. IT DESCRIBES THE SITUATION OF A MEMBER WHO IS PERMANENTLY STATIONED IN CHARLESTON, SOUTH CAROLINA, IN MAINTAINING A RESIDENCE FOR HIS WIFE AND CHILD IN ATLANTA, GEORGIA. IT IS STATED THAT HE OWNS THE HOME IN ATLANTA AND FOR REASONS OF ECONOMY, CHILD'S EDUCATION, AND OTHERS, HE DOES NOT MOVE THE FAMILY TO CHARLESTON WHERE HIS TOUR OF DUTY IS NOT OF UNLIMITED DURATION. COMMUTES TO ATLANTA WHEN HE CAN, ON LEAVE, OFTEN ON WEEKEND LIBERTY. WHILE AT HOME IT IS SAID THAT HE ATTENDS TO HOME REPAIRS, AUTOMOBILE MAINTENANCE AND CHILD CARE IN THE SAME MANNER HE WOULD ATTEND TO THEM IF THE FAMILY WERE AT CHARLESTON. HOME REPAIRS ARE ACCUMULATED IN ANTICIPATION OF HIS VISITS, BUT THEY ARE ACCOMPLISHED BY HIM NONETHELESS. HOWEVER, WHEN HE IS TRANSFERRED FROM CHARLESTON FOR SEA DUTY, OR SHORE DUTY AT A REMOTE PLACE WHERE DEPENDENTS CANNOT ACCOMPANY HIM, AND HE CAN NO LONGER EFFECT REPAIRS, IT IS CONTENDED THAT THE NEEDS RESULTING FROM FAMILY SEPARATION ARE JUST AS ACUTE AS IF HE HAD MAINTAINED A COMMON HOUSEHOLD IN CHARLESTON AT THE TIME OF HIS DEPARTURE. IN THIS REGARD, THE COMMITTEE STATES THAT IN ANY CASE WHERE THE RESIDENCE MAINTAINED MAY BE FAR REMOVED FROM THE PERMANENT DUTY STATION, THE MEMBER IS ENTITLED TO HIS LEAVE EACH YEAR, AND DISTANCE ALONE CANNOT MAKE THIS RESIDENCE PHYSICALLY INACCESSIBLE TO HIM FOR PURPOSES OF HOME REPAIR, ETC.

THE COMMITTEE SAYS THAT ANOTHER EXAMPLE WOULD BE THAT OF THE MEMBER ATTACHED TO A SHIP IN SAN DIEGO. FOR THE SAME REASONS AS THOSE STATED IN THE CASE OF THE MEMBER DESCRIBED ABOVE, HE MAINTAINS A RESIDENCE FOR HIS FAMILY IN SAN FRANCISCO. WHILE HIS SHIP IS IN PORT AT SAN DIEGO, HE IS ABLE TO COMMUTE TO SAN FRANCISCO. HOWEVER, WHEN THE SHIP IS AWAY FROM THE HOME PORT FOR AN EXTENDED PERIOD, THE FAMILY MUST ASSUME EXTRA EXPENSES. THESE EXPENSES UNDER THE CIRCUMSTANCES WOULD NOT BE LESS HAD THE MEMBER MAINTAINED HIS FAMILY RESIDENCE IN SAN DIEGO.

ALSO, THE COMMITTEE SAYS ANOTHER CASE IS THAT OF A MEMBER WHO RENTS A HOME AT HIS PERMANENT DUTY STATION WHERE HE MAINTAINS A RESIDENCE FOR HIMSELF AND HIS WIFE, HIS SOLE DEPENDENT. SHORTLY BEFORE HIS TRANSFER SHE ENTERS THE HOSPITAL FOR PROLONGED TREATMENT. HE GIVES UP THE HOME, MOVES INTO A ONE ROOM APARTMENT ADEQUATE FOR HIMSELF, INTENDING WHEN HIS WIFE IS RELEASED FROM THE HOSPITAL TO RENT ANOTHER HOME. MEANWHILE, HE IS TRANSFERRED TO A RESTRICTED STATION, AND LATER HIS WIFE MOVES FROM THE HOSPITAL TO A HOME HE RENTS FOR THEIR MUTUAL USE. IN THIS CASE, AT THE TIME OF HIS DEPARTURE FROM HIS DUTY STATION, HE WAS NOT MAINTAINING A COMMON HOUSEHOLD AND ENTITLEMENT COULD NOT COMMENCE. THE COMMITTEE SAYS THAT THERE IS GOOD REASON FOR IT TO COMMENCE, HOWEVER, AT A LATER DATE WHEN THE WIFE MOVES INTO THE RESIDENCE HE RENTS AS A HOME.

THE COMMITTEE CONTENDS THAT THE RATIONALE FOR THE FAMILY SEPARATION ALLOWANCE IS THAT ENFORCED SEPARATIONS OF SERVICEMEN FROM THEIR FAMILIES CAUSED ADDED HOUSEHOLD EXPENSES WHERE THE MEMBER IS ABSENT FOR ANY EXTENDED PERIOD OF TIME; THAT THIS CONDITION RESULTS IN AN INEQUITY AS COMPARED TO THOSE MEMBERS WHOSE DEPENDENTS ARE AUTHORIZED TO ACCOMPANY THEM, AND THAT THIS INEQUITY IS COMPOUNDED IF THE CONDITIONS UNDER WHICH THE ALLOWANCE IS INTENDED TO BE PAID EXIST, BUT NOT AT SOME PARTICULAR DATE AND PLACE. THE COMMITTEE CONCLUDES THAT IT WOULD THEREFORE SEEM THAT THE MEMBER DESCRIBED IN QUESTION 24 CONSIDERED IN THE DECISION OF OCTOBER 9, 1963, WOULD BE ENTITLED TO OTHERWISE PROPER PAYMENT OF FAMILY SEPARATION ALLOWANCE UNDER CLAUSE (1), (2), OR (3) OF 37 U.S.C. 427 (B) IF AT THE TIME HE DEPARTED FROM HIS DUTY STATION OR HOME PORT, OR DURING ANY PROPER LATER PERIOD, HE MAINTAINS A RESIDENCE FOR HIS DEPENDENT.

SECTION 427 (B), TITLE 37, U.S.C. PROVIDES 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.

A MEMBER WHO BECOMES ENTITLED TO AN ALLOWANCE UNDER THIS SUBSECTION BY VIRTUE OF DUTY DESCRIBED IN CLAUSE (2) OR (3) FOR A CONTINUOUS PERIOD OF MORE THAN THIRTY DAYS IS ENTITLED TO THE ALLOWANCE EFFECTIVE AS OF THE FIRST DAY OF THAT PERIOD.

QUESTION 23 WHICH WE ANSWERED IN OUR DECISION OF OCTOBER 9, 1963, PRESENTED THE EXAMPLE OF A DEPENDENT WIFE FROM WHOM THE MEMBER WAS LEGALLY SEPARATED, AND OTHER EXAMPLES, IN ALL OF WHICH THE MEMBER, AT THE TIME HE DEPARTED FROM HIS DUTY STATION OR HOME PORT, DID NOT MAINTAIN A RESIDENCE FOR THE DEPENDENT TO WHICH HE MIGHT RETURN AND SHARE AS A COMMON RESIDENCE. QUESTION 24 PRESENTED AN EXAMPLE IN WHICH THE MEMBER AND THE DEPENDENT WIFE WERE NOT LEGALLY SEPARATED, BUT NOT PHYSICALLY RESIDING TOGETHER BECAUSE OF HER HEALTH. ANOTHER EXAMPLE RELATED TO A CHILD WHO IS THE MEMBER'S SOLE DEPENDENT BUT DOES NOT RESIDE WITH HIM BECAUSE THE CHILD IS ATTENDING SCHOOL AWAY FROM HOME OR IS INSTITUTIONALIZED.

IN QUESTIONS 23 AND 24 SINCE IT APPEARED THAT THE DEPENDENTS WERE NOT RESIDING WITH THE MEMBER IN A COMMON HOUSEHOLD PRECEDING HIS DUTY ASSIGNMENT, WE HELD THAT THE MEMBER IN SUCH SITUATIONS WAS NOT ENTITLED TO THE $30 ALLOWANCE AUTHORIZED BY SECTION 427 (B). WE HELD IN ANSWER TO QUESTION 26 THAT IF THE MEMBER'S DEPENDENTS DO NOT RESIDE WITHIN A REASONABLE DAILY COMMUTING DISTANCE OF HIS DUTY STATION FOR WHICH ASSIGNMENT IS CLAIMED, 50 MILES BEING CONSIDERED THE MAXIMUM ONE-WAY DISTANCE FOR THIS PURPOSE EXCEPT WHERE THE MEMBER ACTUALLY COMMUTES A GREATER DISTANCE DAILY, IT MAY BE CONSIDERED THAT THE DEPENDENTS DO NOT RESIDE AT OR NEAR HIS STATION FOR THE PURPOSE OF CLAUSE (1) OF SECTION 427 (A) AND CLAUSES (1) AND (3) OF SECTION 427 (B). AS STATED BY THE COMMITTEE IN ITS DISCUSSION ACCOMPANYING THE PRESENT REQUEST FOR A DECISION, WE EXPRESSED THE VIEW THAT THE LANGUAGE OF SECTION 427 (B) CONSTRUED IN THE LIGHT OF THE LEGISLATIVE HISTORY OF THE PROVISION INDICATED THAT CONGRESS INTENDED TO PROVIDE FOR PAYMENT OF THE ALLOWANCE ONLY IN THOSE INSTANCES WHERE THE MEMBER'S DEPENDENTS OCCUPY A COMMON HOUSEHOLD WITH HIM AND THAT THE ALLOWANCE IS TO REIMBURSE HIM FOR THE 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. THEREFORE, WE CONCLUDED IN OUR DECISION OF OCTOBER 9, 1963, THAT, GENERALLY, A MEMBER WOULD NOT BE ENTITLED TO AN ALLOWANCE UNDER 427 (B) UNLESS HE AND HIS DEPENDENTS WERE RESIDING TOGETHER IMMEDIATELY PRECEDING THE DUTY INVOLVED AND THE SEPARATION RESULTS FROM SUCH DUTY ASSIGNMENT.

IT APPEARS TO BE THE COMMITTEE'S VIEW THAT THE ALLOWANCE AUTHORIZED UNDER SECTION 427 (B) SHOULD NOT BE RESTRICTED BY THE COMMON RESIDENCE RULE AND THAT IT SHOULD BE PAID IN THOSE CASES WHERE THE MEMBER MAINTAINS A RESIDENCE FOR HIS DEPENDENTS TO WHICH HE CAN RETURN AND OCCUPY WITH THEM WHEN CIRCUMSTANCES PERMIT. IT IS RECOGNIZED THAT THE LITERAL LANGUAGE OF SECTION 427 (B) DOES NOT REQUIRE THAT THE MEMBER AND HIS DEPENDENTS BE RESIDING IN A COMMON HOUSEHOLD AT OR IN THE VICINITY OF HIS STATION OR HOME PORT IMMEDIATELY PRECEDING THE DUTY ASSIGNMENT FOR WHICH THE ALLOWANCE IS CLAIMED. IN ANSWERING THE QUESTIONS CONSIDERED IN THE DECISION OF OCTOBER 9, 1963, IT WAS FELT THAT THE LEGISLATIVE HISTORY OF THE SECTION JUSTIFIED THE CONCLUSIONS THERE REACHED. IN THE LIGHT OF THE ADDITIONAL SITUATIONS THAT HAVE NOW BEEN PRESENTED FOR CONSIDERATION AND THE ARGUMENTS ADVANCED IT APPEARS, HOWEVER, THAT THE REQUIREMENT THERE STATED THAT THE MEMBER AND HIS DEPENDENTS BE RESIDING TOGETHER IMMEDIATELY PRECEDING THE DUTY ASSIGNMENT INVOLVED WOULD BAR PAYMENT IN MANY SITUATIONS IN WHICH IT PROBABLY WAS INTENDED THAT THE ALLOWANCE WOULD BE PAID. CONSEQUENTLY, WE HAVE CONCLUDED UPON FURTHER CONSIDERATION THAT WE WILL NOT QUESTION PAYMENTS UNDER SECTION 427 (B) THAT ARE OTHERWISE PROPER IF, DURING THE PERIOD FOR WHICH THE ALLOWANCE IS PAID, THE MEMBER MAINTAINS A RESIDENCE OR HOUSEHOLD FOR HIS DEPENDENTS WHICH HE LIKELY WOULD SHARE WITH THEM AS A COMMON RESIDENCE DURING PERIODS OF LEAVE OR SUCH OTHER TIMES AS HIS DUTY ASSIGNMENT MIGHT PERMIT, WHETHER OR NOT IT IS LOCATED AT THE HOME PORT OR STATION FROM WHICH HE PROCEEDED TO THE ASSIGNMENT INVOLVED.

THUS, IN THE CASE PRESENTED OF THE MEMBER WHO IS PERMANENTLY STATIONED AT CHARLESTON, SOUTH CAROLINA, BUT WHO MAINTAINS A RESIDENCE FOR HIS WIFE AND CHILD AT ATLANTA, GEORGIA, PAYMENT WOULD BE AUTHORIZED WHEN HE OTHERWISE QUALIFIES UPON TRANSFER TO SEA DUTY OR TO A PLACE WHERE HIS DEPENDENTS CANNOT ACCOMPANY HIM AT GOVERNMENT EXPENSE AS PROVIDED BY THE SECTION. LIKEWISE THE MEMBER WHO MAINTAINS A RESIDENCE FOR HIS FAMILY IN SAN FRANCISCO BUT WHO IS ATTACHED TO A SHIP WITH HOME PORT AT SAN DIEGO WOULD BE ENTITLED TO THE ALLOWANCE WHEN THE VESSEL IS AWAY FROM ITS HOME PORT FOR THE PRESCRIBED PERIOD. ALSO IN THE CASE OF A MEMBER WHO AT THE TIME OF HIS DEPARTURE FROM HIS DUTY STATION OR HOME PORT DID NOT MAINTAIN A COMMON RESIDENCE FOR HIMSELF AND WIFE (HIS SOLE DEPENDENT) BECAUSE OF HER PROLONGED HOSPITALIZATION, BUT WHO SUBSEQUENTLY RENTS A HOME FOR THEIR MUTUAL USE TO WHICH THE WIFE MOVES UPON HER RELEASE FROM THE HOSPITAL, IT IS CONCLUDED THAT PAYMENT OF THE ALLOWANCE WOULD BE AUTHORIZED IF OTHERWISE PROPER FROM THE TIME SHE OCCUPIES SUCH HOME.

WITH RESPECT TO QUESTION 24, CONSIDERED IN OUR DECISION OF OCTOBER 9, 1963, IT IS CONCLUDED UPON RECONSIDERATION OF THE MATTER THAT THE MEMBER WOULD NOT BE PRECLUDED FROM RECEIVING AN ALLOWANCE UNDER SECTION 427 (B) BY REASON OF THE FACT THAT HE AND HIS WIFE WERE NOT RESIDING TOGETHER IMMEDIATELY PRECEDING THE DUTY ASSIGNMENT INVOLVED IF HE MAINTAINS A RESIDENCE FOR HER WHICH THEY WOULD LIKELY SHARE AS A COMMON RESIDENCE DURING SUCH PERIODS AS HIS DUTY ASSIGNMENT MIGHT PERMIT. IF THE MEMBER'S SOLE DEPENDENT IS A CHILD WHO IS LIVING APART FROM THE MEMBER WHILE ATTENDING SCHOOL OR WHILE IN AN INSTITUTION, IT IS OUR VIEW THAT THE FACT THAT THE MEMBER PAYS FOR THE CHILD'S LODGING AND SUBSISTENCE AT THE SCHOOL OR INSTITUTION AFFORDS NO BASIS FOR PAYMENT OF THE FAMILY SEPARATION ALLOWANCE UNDER SECTION 427 (B) IF THE MEMBER MAINTAINS NO OTHER QUARTERS FOR THEM TO SHARE AS A RESIDENCE WHEN CIRCUMSTANCES WOULD PERMIT. THESE CIRCUMSTANCES IT SEEMS CLEAR THAT NO ADDITIONAL HOUSEHOLD EXPENSES WOULD ARISE BY REASON OF THE MEMBER'S DUTY ASSIGNMENT AND THAT PAYMENT OF AN ALLOWANCE UNDER SECTION 427 (B) WAS NOT CONTEMPLATED IN SUCH CIRCUMSTANCES. HOWEVER, IF PRIOR TO THE CHILD'S DEPARTURE FOR SCHOOL THE MEMBER WAS MAINTAINING QUARTERS FOR THEM TO SHARE AS A RESIDENCE AND HE CONTINUES TO MAINTAIN SUCH A RESIDENCE DURING THE CHILD'S ABSENCE AT SCHOOL, WE WILL NOT QUESTION PAYMENTS OF THE ALLOWANCE, IF OTHERWISE PROPER, BY REASON OF THE CHILD'S ABSENCE FROM THE RESIDENCE WHILE ATTENDING SCHOOL. LIKEWISE, IN THE CASE OF A CHILD WHO IS IN AN INSTITUTION, WE WILL NOT QUESTION PAYMENT OF THE ALLOWANCE, OTHERWISE PROPER, BY REASON OF THE CHILD'S ABSENCE FROM A RESIDENCE WHICH THE MEMBER MAINTAINS FOR THEM TO SHARE WHEN CIRCUMSTANCES PERMIT, PROVIDING THAT THE PERIOD THE CHILD WILL BE INSTITUTIONALIZED MAY REASONABLY BE EXPECTED TO NOT EXCEED 1 YEAR. IF, HOWEVER, THE CHILD IS INSTITUTIONALIZED FOR AN INDEFINITE PERIOD WHICH MAY NOT REASONABLY BE EXPECTED TO TERMINATE WITHIN 1 YEAR IT IS OUR VIEW THAT THE MATTER ADMITS OF TOO MUCH DOUBT TO WARRANT PAYMENT OF THE ALLOWANCE FOR ANY PERIOD PRIOR TO THE TIME THE CHILD RETURNS TO THE RESIDENCE MAINTAINED BY THE MEMBER FOR THEIR USE.

INSOFAR AS THE CONCLUSIONS REACHED IN OUR DECISION OF OCTOBER 9, 1963, MAY BE INCONSISTENT WITH THE VIEWS EXPRESSED ABOVE, THEY ARE MODIFIED.