B-144839, SEP. 26, 1968

B-144839, SEP. 26, 1968

TO LIEUTENANT R. A. MORIN:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 14, 1968, AND ATTACHMENTS, REQUESTING A DECISION AS TO THE ENTITLEMENT OF VARIOUS MEMBERS OF YOUR COMMAND TO FAMILY SEPARATION ALLOWANCE TYPE I UNDER THE CIRCUMSTANCES DESCRIBED. THE REQUEST WAS ASSIGNED SUBMISSION NUMBER DO-N- 991 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN THE LETTER IT IS STATED THAT AS A RESULT OF THE MIDDLE EAST CRISIS ON MAY 26, 27 AND 28, 1967, ALL DEPENDENTS OF MEMBERS ASSIGNED TO YOUR COMMAND WERE EVACUATED VIA COMMERCIAL AIR FROM CAIRO, U.A.R., TO SAFEHAVEN (ATHENS, GREECE), BY ORDER OF THE AMERICAN AMBASSADOR. SUBSEQUENTLY, ON JUNE 10, 1967, ALL MILITARY PERSONNEL WERE MOVED VIA COMMERCIAL RAIL AND SHIP TO SAFEHAVEN (ATHENS, GREECE), AND ARRIVED THERE ON JUNE 12, 1967.

YOU ASK WHETHER FAMILY SEPARATION ALLOWANCE TYPE I IS PAYABLE TO THE MEMBERS DESCRIBED IN THE EXAMPLES QUOTED BELOW, AND IF SO, THE COMMENCEMENT DATE OF SUCH ALLOWANCE.

"EXAMPLE A, MEMBER RETURNED TO FORMER DUTY STATION (CAIRO, U.A.R.):

"LCDR WARREN R. SANBORN, MSC, USN WAS EVACUATED FROM CAIRO ON 10 JUNE 1967 AND ARRIVED AT SAFEHAVEN (ATHENS, GREECE) ON 12 JUNE 1967. HIS DEPENDENT WIFE AND TWO CHILDREN HAD BEEN EVACUATED FROM CAIRO TO SAFEHAVEN ON 27 MAY 1967. LCDR SANBORN AND HIS DEPENDENTS REMAINED AT SAFEHAVEN UNTIL 27 JULY 1967. ON THAT DATE HIS DEPENDENTS WERE RETURNED AT GOVERNMENT EXPENSE TO A DESIGNATED PLACE IN THE UNITED STATES. LCDR SANBORN'S DEPENDENTS RECEIVED EMERGENCY EVACUATION ALLOWANCES WHILE IN SAFEHAVEN AND WERE PAID PER DIEM FOR 60 DAYS AT THE DESIGNATED PLACE IN CONUS.

"LCDR SANBORN REMAINED ATTACHED TO TEMPORARY LOCATION OF THE COMMAND IN ATHENS, GREECE IN A TEMPORARY DUTY AND TEMPORARY ADDITIONAL DUTY STATUS UNTIL 8 JANUARY 1968. AT THAT TIME LCDR SANBORN RETURNED TO HIS FORMER DUTY STATION, (CAIRO, U.A.R.). DUE TO THE CURRENT UNSETTLED SITUATION IN THE MIDDLE EAST, ENTRY APPROVAL AND RETURN TRAVEL TO CAIRO FOR LCDR SANBORN'S DEPENDENTS WAS NOT GRANTED BY THE COMMANDING OFFICER. LCDR SANBORN CONTINUES TO OCCUPY FORMER PRIVATE LEASED QUARTERS IN CAIRO SINCE THERE ARE NO GOVERNMENT QUARTERS AVAILABLE IN CAIRO FOR MEMBERS OF THIS COMMAND. DURING THE LCDR SANBORN'S ABSENCE FROM CAIRO HE CONTINUED TO MAINTAIN PRIVATELY LEASED QUARTERS AND INCURRED RELATED HOUSEKEEPING EXPENSES IN CAIRO.

THERE ARE THREE OFFICERS AND ONE ENLISTED MEMBER IN THIS CATEGORY.

"EXAMPLE B, MEMBER TRANSFERRED TO PARENT COMMAND'S FIELD FACILITY, ADDIS ABABA, ETHIOPIA:

"LT RONALD P. MCCAFFREY MC USNR WAS EVACUATED FROM CAIRO ON 10 JUNE 1967 AND ARRIVED AT SAFEHAVEN (ATHENS, GREECE) ON 12 JUNE 1967. HIS DEPENDENT WIFE AND THREE DEPENDENT CHILDREN HAD BEEN EVACUATED FROM CAIRO TO SAFEHAVEN ON 26 MAY 1967. LT MCCAFFREY AND HIS DEPENDENTS REMAINED AT SAFEHAVEN UNTIL 1 AUGUST 1967. ON THAT DATE HIS DEPENDENTS WERE RETURNED AT GOVERNMENT EXPENSE TO A DESIGNATED PLACE IN THE UNITED STATES. MCCAFFREY'S DEPENDENTS RECEIVED EMERGENCY EVACUATION ALLOWANCES WHILE IN SAFEHAVEN AND WERE PAID PER DIEM FOR 60 DAYS AT THE DESIGNATED PLACE IN CONUS.

"LT MCCAFFREY REMAINED ATTACHED TO THE TEMPORARY LOCATION OF THE COMMAND IN ATHENS, GREECE IN A TEMPORARY DUTY AND TEMPORARY ADDITIONAL DUTY STATUS UNTIL 21 JANUARY 1968. AT THAT TIME LT MCCAFFREY WAS PERMANENTLY TRANSFERRED TO THE PARENT COMMAND'S FIELD FACILITY IN ADDIS ABABA, ETHIOPIA FOR DUTY. THE NAMRU-3 FIELD FACILITY MAINTAINS LEASED FAMILY HOUSING FOR ASSIGNED MEMBERS. HOWEVER, ENTRY APPROVAL AND TRAVEL AT GOVERNMENT EXPENSE TO ETHIOPIA FOR LT MCCAFFREY'S DEPENDENTS WAS NOT GRANTED BECAUSE OF NON-AVAILABILITY OF GOVERNMENT LEASED QUARTERS. UNTIL THE TIME LT MCCAFFREY WAS PERMANENTLY TRANSFERRED TO THE FIELD FACILITY HE MAINTAINED HIS FORMER OCCUPIED LEASED PRIVATE QUARTERS IN CAIRO AND INCURRED RELATED HOUSEKEEPING EXPENSES.

THERE IS ONE OTHER OFFICER IN THIS CATEGORY.

"EXAMPLE C, MEMBER TRANSFERRED ON PERMANENT CHANGE OF STATION ORDERS:

"HMCS WARREN B. SPRAGUE, USN WAS EVACUATED FROM CAIRO ON 10 JUNE 1967 AND ARRIVED AT SAFEHAVEN (ATHENS, GREECE) ON 12 JUNE 1967. HIS DEPENDENT WIFE AND THREE CHILDREN HAD BEEN EVACUATED FROM CAIRO, U.A.R., TO SAFEHAVEN ON 26 MAY 1967. HMCS SPRAGUE AND HIS DEPENDENTS REMAINED AT SAFEHAVEN UNTIL 27 JULY 1967. ON THAT DATE HIS DEPENDENTS WERE RETURNED AT GOVERNMENT EXPENSE TO A DESIGNATED PLACE IN THE UNITED STATES. HMCS SPRAGUE'S DEPENDENTS RECEIVED EMERGENCY EVACUATION ALLOWANCES WHILE IN SAFEHAVEN AND WERE PAID PER DIEM FOR 60 DAYS AT THE DESIGNATED PLACE IN CONUS.

"HMCS SPRAGUE REMAINED ATTACHED TO TEMPORARY LOCATION OF THE COMMAND IN ATHENS, GREECE IN A TEMPORARY DUTY STATUS UNTIL 11 DECEMBER 1967. AT THAT TIME HMCS SPRAGUE WAS PERMANENTLY TRANSFERRED TO THE COMMANDANT, FOURTH NAVAL DISTRICT, PHILADELPHIA, PA. FOR DUTY. UP UNTIL THE TIME PERMANENT ORDERS WERE RECEIVED HMCS SPRAGUE MAINTAINED HIS FORMER QUARTERS IN CAIRO AND INCURRED RELATED HOUSEKEEPING EXPENSES.

THERE ARE THREE OFFICERS AND SEVEN ENLISTED MEMBERS IN THIS CATEGORY.'

BY ORDERS ISSUED ON JUNE 5, 1967, BY THE COMMANDING OFFICER, U.S. NAVAL MEDICAL RESEARCH UNIT NO. 3, CAIRO, U.A.R., HMI JAMES N. MCGAVOCK, USN 22914 27, WAS DIRECTED TO PROCEED ON OR ABOUT JUNE 10, 1967, TO ATHENS, GREECE, FOR TEMPORARY DUTY IN CONNECTION WITH EMERGENCY EVACUATION PROCEDURES WHERE HE WOULD REMAIN UNTIL (1) ORDERED TO RETURN TO HIS STATION OR (2) ORDERED TO PROCEED TO A PLACE DESIGNATED IN THE EVENT HIS RETURN WAS NOT AUTHORIZED. THIS ORDER APPARENTLY IS REPRESENTATIVE OF ALL THE ORDERS ISSUED TO THE MEMBERS CONCERNED MOVING THEM TO ATHENS.

WITH REFERENCE TO THE CONTINUED MAINTENANCE OF PRIVATE QUARTERS AT CAIRO, IN A LETTER DATED AUGUST 15, 1968, FROM THE CHIEF OF NAVAL PERSONNEL TO THE COMPTROLLER OF THE NAVY, IT IS EXPLAINED THAT THE PERIOD OF THE STAY AT ATHENS COULD NOT BE DETERMINED WHEN THE ORDERS WERE ISSUED AND IF THE FAMILIES WERE PERMITTED TO RETURN TO CAIRO IN A RELATIVELY SHORT TIME THE MAINTENANCE OF SUCH QUARTERS WAS NECESSARY. ALSO, IT IS EXPLAINED THAT SINCE THE MOVEMENT TO ATHENS WAS ORDERED WITHOUT DELAY, THERE WAS NO TIME TO MAKE ARRANGEMENTS FOR SHIPMENT OR STORAGE OF PERSONAL AND HOUSEHOLD EFFECTS. THEREFORE, THE LOCAL COMMAND ADVISED THE MEMBERS TO CONTINUE TO HONOR THE PROVISIONS OF THEIR LEASES ON HOMES IN CAIRO TO PROTECT THEIR PROPERTY. ARRANGEMENTS WERE MADE WITH THE SPANISH EMBASSY, CAIRO, TO CONTINUE THE MONTHLY RENT PAYMENTS FOR THE MEMBERS OF U.S. NAVAL MEDICAL RESEARCH UNIT NO. 3.

SECTION 427 (A) OF TITLE 37, U.S. CODE, PROVIDES FOR THE PAYMENT OF A MONTHLY ALLOWANCE EQUAL TO THE BASIC ALLOWANCE FOR QUARTERS PAYABLE TO A MEMBER WITHOUT DEPENDENTS IN THE SAME PAY GRADE IN INSTANCES WHERE (1) THE MEMBER IS ON PERMANENT DUTY OUTSIDE OF THE UNITED STATES OR IN ALASKA, (2) HIS DEPENDENTS ARE NOT AUTHORIZED TRANSPORTATION UNDER 37 U.S.C. 406 TO OR NEAR HIS DUTY STATION, (3) HIS DEPENDENTS DO NOT RESIDE AT OR NEAR HIS DUTY STATION, AND (4) THERE ARE NO PUBLIC QUARTERS OR HOUSING AVAILABLE FOR ASSIGNMENT TO HIM.

IN DECISION OF OCTOBER 9, 1963, 43 COMP. GEN. 332, WE SAID, IN ANSWER TO QUESTION 1, THAT WE WERE IN GENERAL AGREEMENT WITH THE VIEW EXPRESSED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE THAT THE ALLOWANCE UNDER SECTION 427 (A) IS PROVIDED FOR THE PURPOSE OF COMPENSATING A MEMBER FOR THE EXPENSE OF PROCURING PRIVATE QUARTERS FOR HIMSELF DURING PERIODS OF ENFORCED SEPARATION FROM HIS DEPENDENTS WHERE GOVERNMENT QUARTERS ARE NOT AVAILABLE FOR ASSIGNMENT TO HIM AT HIS OVERSEAS STATION, AND THEREFORE THE ALLOWANCE, BEING IN THE NATURE OF THE BASIC ALLOWANCE FOR QUARTERS AUTHORIZED BY 37 U.S.C. 403 FOR MEMBERS WITHOUT DEPENDENTS, SHOULD BE PAID SUBJECT TO THE REQUIREMENTS OF SECTION 427 (A) BEING MET.

WE CONCLUDED, HOWEVER, THAT, IN LINE WITH THE RULES APPLICABLE TO THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS, A MEMBER IN RECEIPT OF THE FAMILY SEPARATION ALLOWANCE COULD CONTINUE TO RECEIVE THE ALLOWANCE DURING PERIODS OF TEMPORARY DUTY OF LESS THAN 60 DAYS. WE STATED THAT SUCH PAYMENT SHOULD BE AUTHORIZED ONLY IF THE MEMBER CONTINUED TO MAINTAIN QUARTERS AT HIS PERMANENT DUTY STATION AND IF THE PERIOD EXCEEDS 60 DAYS, PAYMENT OF THE ALLOWANCE WOULD BE OF DOUBTFUL VALIDITY UNLESS SUPPORTED BY THE MEMBER'S CERTIFICATION OR OTHER ACCEPTABLE EVIDENCE THAT QUARTERS WERE MAINTAINED AT HIS PERMANENT STATION DURING SUCH PERIOD WHEN HE WAS NOT ACTIVELY ENGAGED IN PERFORMING HIS ASSIGNED DUTIES AT HIS PERMANENT STATION.

ALSO, IN THAT DECISION IN ANSWER TO QUESTION 18, WE HELD THAT WHEN DEPENDENTS ARE EVACUATED FROM AREAS OUTSIDE THE UNITED STATES UNDER PARAGRAPH M7101 OF THE JOINT TRAVEL REGULATIONS, DUE TO UNUSUAL OR EMERGENCY CIRCUMSTANCES (SUCH AS WAR, RIOTS, CIVIL UNREST, ETC.), THE EFFECT OF SUCH FORCED EVACUATION WOULD BE TO CONVERT THE MEMBER'S POST OF DUTY TO A RESTRICTED STATION. IN SUCH CASES, WE SAID THAT PAYMENT OF FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (A) WOULD BE PROPER IF THE CONDITIONS OF THE STATUTE OTHERWISE ARE MET.

IN ORDER TO QUALIFY FOR FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (A), HOWEVER, IT MUST APPEAR THAT THE MEMBER IS REQUIRED TO PROCURE PRIVATE QUARTERS AT HIS PERMANENT STATION OVERSEAS DURING A PERIOD OF ENFORCED SEPARATION FROM HIS DEPENDENTS. THUS, UNDER THE STATUTE AND THE DECISIONS CITED ABOVE, THE FAMILY SEPARATION ALLOWANCE AUTHORIZED BY SECTION 427 (A) IS NOT PAYABLE FOLLOWING THE DEPARTURE OF THE MEMBERS FROM CAIRO UNLESS THEY MAY BE VIEWED AS HAVING A PERMANENT DUTY STATION FOR PURPOSES OF THAT SECTION.

PARAGRAPH M1150-10A OF THE JOINT TRAVEL REGULATIONS DEFINES THE MEMBER'S DESIGNATED POST OF DUTY OR OFFICIAL STATION AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH HE IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN TEMPORARY DUTY OR TEMPORARY ADDITIONAL DUTY. IT IS THE PLACE WHERE HIS BASIC DUTY ASSIGNMENT IS FOR PERFORMANCE. THE TERM "TEMPORARY DUTY," WHICH INCLUDES TEMPORARY ADDITIONAL DUTY IS DEFINED IN PARAGRAPH M3003-2 OF THE REGULATIONS, FOR TRAVEL ALLOWANCE PURPOSES, TO MEAN DUTY AT A LOCATION OTHER THAN THE PERMANENT STATION. TO QUALIFY FOR TRAVEL ALLOWANCES UNDER SUCH PROVISIONS, TRAVEL AND TEMPORARY DUTY MUST BE PERFORMED AT A POINT, OR POINTS, REMOVED FROM THE PLACE AT WHICH THE BASIC DUTY ASSIGNMENT IS FOR PERFORMANCE.

THE QUESTION OF WHAT CONSTITUTES A MEMBER'S DESIGNATED POST OF DUTY IS ONE OF FACT, THE DETERMINATION OF WHICH IS TO BE MADE WITH THE ASSISTANCE OF ANY COMPETENT AVAILABLE EVIDENCE TO ESTABLISH THE PLACE WITHIN WHICH HE MUST PERFORM HIS BASIC DUTY ASSIGNMENT. WHILE AN ADMINISTRATIVE EVALUATION OF THE CHARACTER OF THE ASSIGNMENT, AS REFLECTED IN THE ORDERS DIRECTING ITS PERFORMANCE, ORDINARILY IS GIVEN CONSIDERABLE WEIGHT IN SUCH A DETERMINATION, IT IS NOT CONCLUSIVE IN THE MATTER WHEN OTHER AVAILABLE EVIDENCE IS CONSIDERED SUFFICIENT TO INDICATE THE EXISTENCE OF A CONTRARY FACTUAL SITUATION. 24 COMP. GEN. 667.

THE RECORD SHOWS THAT THE MOVEMENT OF THE MEMBERS TO ATHENS FOR TEMPORARY DUTY WAS ORDERED BECAUSE EGYPT BROKE DIPLOMATIC RELATIONS WITH THE UNITED STATES. THE BREAK IN DIPLOMATIC RELATIONS SEEMS CLEARLY TO HAVE REQUIRED THE TERMINATION OF ALL OFFICIAL UNITED STATES ACTIVITIES IN EGYPT, INCLUDING THE ACTIVITIES OF NAVAL MEDICAL RESEARCH UNIT NO. 3. IN SUCH CIRCUMSTANCES WE DO NOT BELIEVE THAT UNDER THE REGULATIONS CAIRO MAY PROPERLY BE CONSIDERED AS THE MEMBERS' PERMANENT DUTY STATION OR THE STATION WHERE THEIR REGULARLY ASSIGNED DUTIES WERE FOR PERFORMANCE DURING THE PERIOD OF THEIR TEMPORARY DUTY AT ATHENS. THE FACT, HOWEVER, THAT THE MEMBERS MAY NOT BE CONSIDERED AS HAVING A PERMANENT DUTY STATION IN CAIRO DURING THE PERIOD INVOLVED DOES NOT REQUIRE THE CONCLUSION THAT ATHENS BECAME THEIR PERMANENT DUTY STATION IF THEIR ASSIGNED DUTIES THEREAT WERE IN FACT TEMPORARY IN NATURE. COMPARE 27 COMP. GEN. 253.

THE MEMBERS CONCERNED WERE ORDERED TO PERFORM TEMPORARY DUTY AT ATHENS AND WE FIND NO SOUND FACTUAL BASIS FOR VIEWING THEIR DUTY AT ATHENS AS OTHER THAN TEMPORARY IN NATURE. THE ORDERS, HOWEVER, DID NOT AND COULD NOT THEN PROVIDE FOR RETURN TO CAIRO, AND THEY CLEARLY CONTEMPLATED THAT NO FURTHER ASSIGNMENT WOULD BE MADE UNTIL AFTER IT WAS DETERMINED THAT A RETURN TO CAIRO WAS NOT AUTHORIZED. IN SUCH CIRCUMSTANCES AND SINCE THE ORDERS DID NOT SPECIFY OR IMPLY ANY LIMIT TO THE PERIOD OF TEMPORARY DUTY, WE BELIEVE THAT LEGALLY THE TEMPORARY ASSIGNMENT AT ATHENS MUST BE CONSIDERED AS INDETERMINATE TEMPORARY DUTY.

IT IS OUR VIEW, THEREFORE, THAT DURING THE PERIOD OF THEIR DUTY AT ATHENS THE MEMBERS HAD NO PERMANENT OVERSEAS STATION FOR PURPOSES OF THE FAMILY SEPARATION ALLOWANCE AUTHORIZED BY 37 U.S.C. 427 (A), AND THAT THE ALLOWANCE IS NOT LEGALLY PAYABLE DURING ANY OF THAT PERIOD. UPON THEIR RETURN TO THE FORMER DUTY STATION AT CAIRO THE MEMBERS DISCUSSED IN EXAMPLE A BECAME ENTITLED TO THE FAMILY SEPARATION ALLOWANCE, TYPE I. THE MEMBERS DISCUSSED IN EXAMPLE B ARE ENTITLED TO THE ALLOWANCE UPON REPORTING TO ADDIS ABABA IF REQUIRED TO PROCURE QUARTERS AT THEIR OWN EXPENSE. SINCE THE MEMBERS DISCUSSED IN EXAMPLE C WERE NOT ASSIGNED TO PERMANENT DUTY OVERSEAS UPON THE TERMINATION OF THE TEMPORARY DUTY AT ATHENS, THE ALLOWANCE IS NOT PAYABLE TO ANY OF THOSE MEMBERS. YOUR QUESTION IS ANSWERED ACCORDINGLY. SINCE, HOWEVER, THE RECORD SHOWS THAT THE PRIMARY REASON FOR MAINTAINING THE LEASED PREMISES IN CAIRO DURING THE PERIOD OF TEMPORARY DUTY AT ATHENS WAS TO PROTECT THE PERSONAL AND HOUSEHOLD EFFECTS OF THE MEMBERS, THE CIRCUMSTANCES NOT PERMITTING THE USE OF ANY AVAILABLE STORAGE FACILITIES, THERE IS SOME BASIS FOR VIEWING THE LEASED PREMISES AS NONTEMPORARY STORAGE FACILITIES FOR STORAGE OF HOUSEHOLD GOODS DURING THAT PERIOD.

CONSEQUENTLY, IN VIEW OF THE EMERGENCY RESULTING IN THE ACTIONS TAKEN AND THE PROVISION OF PARAGRAPH M8205 OF THE JOINT TRAVEL REGULATIONS AUTHORIZING NONTEMPORARY STORAGE OF HOUSEHOLD EFFECTS WHEN A MEMBER IS ORDERED TO INDETERMINATE TEMPORARY DUTY, IF APPROVED BY THE SECRETARY CONCERNED, WE WILL NOT OBJECT TO REIMBURSEMENT OF THE RENTAL PAYMENTS FOR LEASED PREMISES DURING THE PERIODS OF TEMPORARY DUTY AT ATHENS AS NONTEMPORARY STORAGE CHARGES NOT TO EXCEED THE COST TO THE GOVERNMENT HAD THE HOUSEHOLD EFFECTS BEEN PLACED IN COMMERCIAL STORAGE IN CAIRO FOR THE PERIODS INVOLVED, PROVIDED THE SECRETARY OF THE NAVY APPROVES SUCH PAYMENTS.