B-131836, JUN. 29, 1966, 45 COMP. GEN. 838

B-131836, JUN. 29, 1966, 45 COMP. GEN. 838

FAMILY ALLOWANCES - SEPARATION - TYPE 2 - SHIP DUTY - REASSIGNMENTS THE ENFORCED ABSENCE OF A MEMBER OF THE UNIFORMED SERVICES ASSIGNED TO DUTY ABOARD SHIP ENTITLING HIM TO THE FAMILY SEPARATION ALLOWANCE PROVIDED UNDER 37 U.S.C. 427 (B) (2) IS NOT AFFECTED BY REASSIGNMENT FROM ONE VESSEL TO ANOTHER, AND THE DETACHMENT NOT INTERRUPTING THE MEMBER'S STATUS OF "ON DUTY ON BOARD A SHIP" HE IS ENTITLED TO PAYMENT OF A FAMILY SEPARATION ALLOWANCE FOR AN ABSENCE OF A CONTINUOUS PERIOD OF MORE THAN 30 DAYS ABSENT A LEGISLATIVE INTENT TO REQUIRE A MEMBER TO COUNT DUTY ON BOARD ONE SHIP ONLY, OR THAT CONSECUTIVE ASSIGNMENTS TO DUTY ON BOARD TWO OR MORE SHIPS MAY NOT BE COMBINED IN DETERMINING ENTITLEMENT TO A FAMILY SEPARATION ALLOWANCE. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - SHIP DUTY - REASSIGNMENTS A MEMBER OF THE UNIFORMED SERVICES ON DUTY ON BOARD A SHIP AWAY FROM ITS HOME PORT FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS ENTITLING HIM TO THE FAMILY SEPARATION ALLOWANCE PRESCRIBED BY 37 U.S.C. 427 (B) (2), WHO IS REASSIGNED TO A SHIP THAT HAD ALSO BEEN AWAY FROM HOME PORT FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS BUT RETURNS TO HOME PORT IN 10 DAYS AFTER THE REASSIGNMENT, THE FIRST SHIP REMAINING AWAY FROM ITS HOME PORT, IS ENTITLED TO A FAMILY SEPARATION ALLOWANCE FOR THE 10 DAYS OF DUTY UPON REASSIGNMENT, HIS STATUS OF "ON DUTY ON BOARD A SHIP," A REQUIREMENT OF SECTION 427 (B) (2), NOT HAVING BEEN INTERRUPTED, AND THE MEMBER'S ENTITLEMENT TO A FAMILY SEPARATION ALLOWANCE WOULD ALSO BE UNAFFECTED IF THE SHIP FROM WHICH HE WAS DETACHED HAD RETURNED TO ITS HOME PORT THE DAY AFTER HIS DETACHMENT. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - SHIP DUTY - REASSIGNMENTS WHEN A MEMBER OF THE UNIFORMED SERVICES IS REASSIGNED FROM A SHIP THAT HAD BEEN AWAY FROM ITS HOME PORT FOR A CONTINUOUS PERIOD OF ONLY 10 DAYS AND BOTH SHIPS REMAIN AWAY FROM HOME PORT FOR CONTINUOUS PERIODS OF MORE THAN 30 DAYS, THE MEMBER MAY COUNT THE 10-DAY PERIOD HE WAS ON DUTY ABOARD THE SHIP FROM WHICH DETACHED IN DETERMINING HIS ELIGIBILITY TO THE FAMILY SEPARATION ALLOWANCE PRESCRIBED BY 37 U.S.C. 427 (B) (2) TO COMPENSATE A MEMBER FOR THE ADDED EXPENSES INCURRED AT THE PLACE WHERE HIS DEPENDENTS RESIDE DURING HIS ABSENCE, AN ENFORCED SEPARATION THAT IS NOT AFFECTED BY THE REASSIGNMENT OF THE MEMBER FROM ONE VESSEL TO ANOTHER.

TO THE SECRETARY OF DEFENSE, JUNE 29, 1966:

FURTHER REFERENCE IS MADE TO LETTER DATED MAY 26, 1966, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION ON THREE QUESTIONS CONCERNING ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE PROVIDED BY 37 U.S.C. 427 (B) (2) UNDER THE CIRCUMSTANCES DESCRIBED AND DISCUSSED IN COMMITTEE ACTION NO. 375 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE QUESTIONS PRESENTED IN THE COMMITTEE ACTION ARE AS FOLLOWS:

1. A MEMBER HAS BEEN ON DUTY ON BOARD SHIP A AWAY FROM ITS HOME PORT A CONTINUOUS PERIOD OF MORE THAN 30 DAYS AND HE IS ENTITLED TO FAMILY SEPARATION ALLOWANCE. HE IS TRANSFERRED (PCS) TO SHIP B, DETACHED AND ATTACHED THE SAME DAY, AT WHICH TIME SHIP B HAS BEEN AWAY FROM ITS HOME PORT FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS, BUT IT RETURNS TO ITS HOME PORT IN 10 DAYS. SHIP A REMAINS AWAY FROM ITS HOME PORT. IS THE MEMBER ENTITLED TO FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B) (2) FOR THE PERIOD OF 10 DAYS HE WAS ATTACHED TO SHIP B?

2. IF THE ANSWER TO QUESTION 1 IS AFFIRMATIVE, WOULD THE ANSWER BE THE SAME IF SHIP A RETURNED TO ITS HOME PORT THE DAY AFTER THE MEMBER WAS DETACHED?

3. A MEMBER HAS BEEN ON DUTY ON BOARD SHIP A AND IS TRANSFERRED (PCS) TO SHIP B, DETACHED AND ATTACHED THE SAME DAY. AT THIS TIME SHIP A HAS BEEN AWAY FROM ITS HOME PORT FOR A CONTINUOUS PERIOD OF ONLY 10 DAYS. BOTH SHIPS REMAIN AWAY FROM THEIR HOME PORT FOR CONTINUOUS PERIOD OF MORE THAN 30 DAYS. MAY THE MEMBER COUNT THE PERIOD HE WAS ON DUTY ABOARD SHIP A IN DETERMINING HIS ELIGIBILITY FOR FAMILY SEPARATION ALLOWANCE?

SECTION 427 (B) (2) OF TITLE 37, U.S. CODE, AUTHORIZES PAYMENT OF A FAMILY SEPARATION ALLOWANCE OF $30 A MONTH IN CERTAIN CASES TO A MEMBER ENTITLED TO BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS IF---

(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; * * *

THE OPINION IS EXPRESSED IN COMMITTEE ACTION 375 THAT IN VIEW OF THE BASIC PURPOSE OF THE LAW TO COMPENSATE A MEMBER FOR THE ADDED HOUSEHOLD EXPENSES INCURRED, AT THE PLACE WHERE HIS DEPENDENTS RESIDE, AS A RESULT OF THE SEPARATION OF THE MEMBER FROM HIS DEPENDENTS FOR A SUBSTANTIAL PERIOD OF TIME, EQUITY WOULD REQUIRE AN AFFIRMATIVE ANSWER TO ALL OF THE QUESTIONS SINCE IN ALL OF THE SITUATIONS COVERED, THE MEMBER IS SEPARATED FROM THE HOUSEHOLD OF HIS DEPENDENTS FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS. IT IS STATED, HOWEVER, THAT IN OUR DECISION DATED OCTOBER 9, 1963, 43 COMP. GEN. 332, THERE ARE STATEMENTS WHICH GIVE RISE TO DOUBT AS TO THE CORRECTNESS OF THAT VIEW.

THE COMMITTEE ACTION REFERS TO THE ANSWER TO QUESTION 11 IN THE DECISION OF OCTOBER 9, 1963, WHICH CONCERNED THE ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE OF A MEMBER DURING PERIODS HE IS IN MILITARY CONFINEMENT ABOARD A SHIP, AND CONTAINS A QUOTATION FROM THAT DECISION AS FOLLOWS:

WITH RESPECT TO QUESTION 11, IT IS OUR VIEW THAT WHERE THE MEMBER IS NOT DETACHED FROM DUTY ON BOARD THE SHIP AND HIS PAY AND ALLOWANCES ARE NOT OTHERWISE LIMITED OR FORFEITED BY COURT-MARTIAL SENTENCE OR BY LAW (SEE FOR EXAMPLE, 37 U.S.C. 426; 10 U.S.C. 3636 AND 8636), HE WOULD BE ENTITLED TO SUCH ALLOWANCE FOR PERIODS HE IS IN MILITARY CONFINEMENT, ON BOARD SHIP OR ASHORE, OR IS OTHERWISE RESTRICTED BY COMPETENT MILITARY AUTHORITY FROM PERFORMING DUTY ON BOARD A SHIP WHILE AWAY FROM ITS HOME PORT. DETACHMENT FROM THE SHIP WOULD, OF COURSE, TERMINATE THE ALLOWANCE.

ALSO, REFERENCE IS MADE TO THE FOLLOWING ANSWER TO QUESTION 12:

SINCE, HOWEVER, CLAUSE (2) SPECIFICALLY REQUIRES A CONTINUOUS PERIOD OF DUTY ON BOARD A SHIP OF MORE THAN 30 DAYS AS A CONDITION PRECEDENT TO ENTITLEMENT TO THE ALLOWANCE, A MEMBER WHOSE DUTY STATUS IS LEGALLY TERMINATED WOULD BE REQUIRED TO BE ON DUTY ON BOARD THE SHIP FOR ANOTHER CONTINUOUS PERIOD OF MORE THAN 30 DAYS TO AGAIN BECOME ELIGIBLE FOR THE ALLOWANCE.

THE STATUTORY PROVISIONS HERE CONCERNED RELATE TO FAMILY SEPARATIONS DUE TO CONTINUOUS DUTY ON BOARD A SHIP AWAY FROM ITS HOME PORT AND, WHILE IT IS NOT STATED THAT SUCH DUTY MAY BE PERFORMED ON MORE THAN ONE SHIP, THE LEGISLATIVE HISTORY CONTAINS NOTHING WHICH SHOWS AN INTENT TO REQUIRE A MEMBER TO COUNT DUTY ON ONE SHIP ONLY, OR THAT CONSECUTIVE ASSIGNMENTS TO DUTY ON BOARD TWO OR MORE SHIPS MAY NOT BE COMBINED, IN DETERMINING ENTITLEMENT TO THE FAMILY SEPARATION ALLOWANCE. THE LEGISLATIVE HISTORY OF SECTION 427 (B) SHOWS THAT THE RATIONALE FOR THIS ALLOWANCE IS THAT ENFORCED SEPARATIONS OF SERVICEMEN FROM THEIR FAMILIES CAUSE ADDED HOUSEHOLD EXPENSES WHEN THE MEMBER IS ABSENT FOR ANY EXTENDED PERIOD OF TIME (PAGE 25 OF S.REPT. NO. 387, TO ACCOMPANY H.R. 5555, WHICH WAS ENACTED AS PUBLIC LAW 88-132, 37 U.S.C. 201 NOTE), AND IN THE CASES PRESENTED CLEARLY THE ENFORCED ABSENCE IS NOT AFFECTED BY THE REASSIGNMENT FROM ONE VESSEL TO ANOTHER.

THE ANSWERS TO QUESTIONS 11 AND 12 IN THE DECISION OF OCTOBER 9, 1963, TO THE EFFECT THAT DETACHMENT OF A MEMBER FROM THE SHIP TERMINATED HIS ENTITLEMENT TO THE FAMILY SEPARATION ALLOWANCE, WERE BASED ON AN UNDERSTANDING THAT SUCH DETACHMENT WOULD EFFECTIVELY TERMINATE THE MEMBER'S STATUS OF "ON DUTY ON BOARD A SHIP" AND HAVE NO APPLICATION TO CASES WHERE SUCH DETACHMENT DOES NOT INTERRUPT THE STATUS OF "ON DUTY ON BOARD A SHIP.'

ACCORDINGLY, THE QUESTIONS PRESENTED ARE ANSWERED IN THE AFFIRMATIVE.