B-131836, OCTOBER 9, 1963, 43 COMP. GEN. 332

B-131836, OCTOBER 9, 1963, 43 COMP. GEN. 332

FAMILY ALLOWANCES - SEPARATION - TYPE 1 - ENTITLEMENT. FAMILY ALLOWANCES - SEPARATION - TYPE 1 - HOSPITALIZATION, ETC., EFFECT. FAMILY ALLOWANCES - SEPARATION - TYPE 1 - LEAVE. FAMILY ALLOWANCES - SEPARATION - TYPE 1 - CONFINEMENT, ETC., EFFECT. FAMILY ALLOWANCES - SEPARATION - TYPE 1 - COMMENCEMENT. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - COMMENCEMENT AND TERMINATION. FAMILY ALLOWANCES - SEPARATION TYPE 2 - TRAVEL TIME. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - PROCEED TIME. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - BETWEEN PERMANENT STATIONS. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - SHIP DUTY. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - SHIP DUTY - ASHORE EFFECT. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - SHIP DUTY - RETURN OF SHIP TO HOME PORT. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - SHIP DUTY - HOSPITALIZATION, ETC., EFFECT. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - SHIP DUTY - CONFINEMENT, ETC., EFFECT. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - SHIP DUTY - COMMENCEMENT AND TERMINATION. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - TEMPORARY DUTY - HOSPITALIZATION, ETC., EFFECT. FAMILY ALLOWANCES - SEPARATION - DEPENDENT TRANSPORTATION DETERMINATION - TEMPORARY RESTRICTION. FAMILY ALLOWANCES - SEPARATION - DEPENDENT TRANSPORTATION DETERMINATION - AUTHORIZATION FOR SOME DEPENDENTS. FAMILY ALLOWANCES - SEPARATION - DEPENDENT TRANSPORTATION DETERMINATION - INCAPACITY, ETC., PRECLUDING TRANSPORTATION. FAMILY ALLOWANCES - SEPARATION - DEPENDENT TRANSPORTATION DETERMINATION - DEBARMENT EFFECT. FAMILY ALLOWANCES - SEPARATION - DEPENDENT TRANSPORTATION DETERMINATION - EVACUATION. FAMILY ALLOWANCES - SEPARATION - DEPENDENT TRANSPORTATION DETERMINATION - DEBARMENT EFFECT. FAMILY ALLOWANCES - SEPARATION - DEPENDENT TRANSPORTATION DETERMINATION - PERSONAL, ETC., REASON RETURN. FAMILY ALLOWANCES - SEPARATION - DEPENDENT TRANSPORTATION DETERMINATION - PERSONAL, ETC., REASON RETURN. FAMILY ALLOWANCES - SEPARATION - TYPE 1 - DEPENDENT VISITS. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - DEPENDENT VISITS. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - DEPENDENT VISITS. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - DEPENDENT VISITS. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - SOME DEPENDENTS AT OTHER PLACE. FAMILY ALLOWANCES - SEPARATION - TYPE 1 - COMMON RESIDENCE. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - COMMON RESIDENCE. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - COMMON RESIDENCE. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - INADEQUATE QUARTERS OCCUPANCY. FAMILY ALLOWANCES - SEPARATION - RESIDENCE DISTANCE FROM STATION. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - SERVICE PRIOR TO OCTOBER 1, 1963 SINCE THE FAMILY SEPARATION ALLOWANCE WHICH IS AUTHORIZED UNDER 37 U.S.C. 427 (A) TO COMPENSATE MEMBERS OF THE UNIFORMED SERVICES FOR THE COST OF PROCURING COMMERCIAL HOUSING AT THEIR PERMANENT STATION OVERSEAS OR IN ALASKA DURING ENFORCED SEPARATION FROM THEIR DEPENDENTS IS IN THE NATURE OF A QUARTERS ALLOWANCE, SIMILAR CONDITIONS OF ENTITLEMENT ARE APPLICABLE AND, THEREFORE, WHEN A MEMBER WHO IS RECEIVING A FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (A) IS ON TEMPORARY DUTY AWAY FROM HIS PERMANENT DUTY STATION, INCLUDING PERIODS OF TEMPORARY DUTY IN THE UNITED STATES, HE MAY CONTINUE TO RECEIVE THE FAMILY SEPARATION ALLOWANCE PROVIDED THAT IN CASES OF TEMPORARY DUTY IN EXCESS OF 60 DAYS, PAYMENT MAY BE MADE ONLY UPON A SHOWING THAT THE MEMBER CONTINUES TO MAINTAIN QUARTERS AT THE PERMANENT STATION. (QUESTION 1A) MEMBERS OF THE UNIFORMED SERVICES WHO ARE RECEIVING THE FAMILY SEPARATION ALLOWANCE AUTHORIZED UNDER 37 U.S.C. 427 (A) WHEN THEY ARE HOSPITALIZED AT OR AWAY FROM THEIR PERMANENT STATION, INCLUDING PERIODS OF HOSPITALIZATION IN THE UNITED STATES, MAY CONTINUE TO RECEIVE THE FAMILY SEPARATION ALLOWANCE PAYMENTS PROVIDED THAT IN CASES OF HOSPITALIZATION FOR PERIODS IN EXCESS OF 60 DAYS THERE IS A SHOWING THAT THE MEMBER CONTINUES TO MAINTAIN THE COMMERCIAL QUARTERS AT THE PERMANENT DUTY STATION. (QUESTION 1B) MEMBERS OF THE UNIFORMED SERVICES WHO ARE RECEIVING THE FAMILY SEPARATION ALLOWANCE AUTHORIZED UNDER 37 U.S.C. 427 (A) WHEN THEY ARE AUTHORIZED LEAVE WITHIN OR OUTSIDE OF THE UNITED STATES, NOT IN EXCESS OF THE LEAVE FOR WHICH THEY ARE ENTITLED TO PAY AND ALLOWANCES UNDER 37 U.S.C. 502 (A), MAY CONTINUE TO RECEIVE THE FAMILY SEPARATION ALLOWANCE PAYMENTS DURING THE LEAVE PERIOD PROVIDED THAT, IN CASES OF LEAVE IN EXCESS OF 60 DAYS, THERE IS A SHOWING THAT THE MEMBER CONTINUES TO MAINTAIN QUARTERS AT THE PERMANENT DUTY STATION. (QUESTION 1C) MEMBERS OF THE UNIFORMED SERVICES WHO ARE RECEIVING A FAMILY SEPARATION ALLOWANCE PAYMENT UNDER 37 U.S.C. 427 (A) WHEN THEY ARE PLACED IN MILITARY CONFINEMENT OR OTHERWISE RESTRICTED BY COMPETENT MILITARY AUTHORITY FROM PERFORMING DUTY MAY CONTINUE TO RECEIVE THE FAMILY SEPARATION ALLOWANCE PAYMENT DURING THE CONFINEMENT PERIOD PROVIDED THAT, IN CASES OF CONFINEMENT IN EXCESS OF 60 DAYS, HERE IS A SHOWING THAT THE MEMBER CONTINUES TO MAINTAIN THE QUARTERS AT THE PERMANENT DUTY STATION. (QUESTION 1D) SINCE A MEMBER OF THE UNIFORMED SERVICES IS REGARDED AS IN AN ENFORCED SEPARATION STATUS FROM THIS DEPENDENTS WHEN HE DEPARTS HIS PERMANENT DUTY STATION FOR TRANSFER TO A RESTRICTED STATION OVERSEAS OR IN ALASKA, AND SINCE THE ADDITIONAL HOUSEHOLD EXPENSES FOR WHICH THE FAMILY ALLOWANCE AUTHORIZED UNDER 37 U.S.C. 427 (B) IS PAYABLE EXISTS FROM THE DATE OF DEPARTURE, ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B) COMMENCES ON THE DATE OF THE MEMBER'S DEPARTURE (DETACHMENT) FROM THE OLD STATION OR THE FIRST DAY OF AUTHORIZED TRAVEL TIME, WHICHEVER IS LATER. (QUESTION 2) A MEMBER OF THE UNIFORMED SERVICES WHO IS RECEIVING A FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B), CLAUSE (1), WHEN HE IS TRANSFERRED TO A NEW PERMANENT DUTY STATION--- WHERE TRANSPORTATION OF HIS DEPENDENTS IS NOT AUTHORIZED AND WHERE HIS DEPENDENTS ARE NOT RESIDING--- MAY BE PAID THE FAMILY SEPARATION ALLOWANCE FOR THE PERIOD FOLLOWING THE DATE OF HIS DEPARTURE (DETACHMENT) FROM THE OLD PERMANENT DUTY STATION THROUGH THE DATE PRECEDING THE DATE OF REPORTING TO THE NEW PERMANENT DUTY STATION. (QUESTION 3) THE TIME FOR ENTITLEMENT TO THE FAMILY SEPARATION ALLOWANCE WHICH IS AUTHORIZED UNDER 37 U.S.C. 427 (B), CLAUSE (3), FOR MEMBERS OF THE UNIFORMED SERVICES WHILE ON TEMPORARY DUTY FOR MORE THAN 30 DAYS IS NOT LIMITED TO THE PERIOD AT THE TEMPORARY DUTY STATION BUT INCLUDES AUTHORIZED TRAVEL TIME TO AND FROM THE TEMPORARY DUTY STATION. (QUESTION 4) MEMBERS OF THE UNIFORMED SERVICES WHO ARE ON PROCEED TIME INCIDENT TO TRAVEL BETWEEN PERMANENT DUTY STATIONS ARE FREE TO TRAVEL WHERE THEY PLEASE, WITH OR WITHOUT DEPENDENTS, OR TO REMAIN AT THEIR RESIDENCES SO THAT DURING SUCH PROCEED TIME THE ELEMENT OF ENFORCED SEPARATION FOR ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B), CLAUSES (1) AND (3), IS NOT PRESENT; THEREFORE, PERIODS OF PROCEED TIME SHOULD BE EXCLUDED IN THE COMPUTATION OF FAMILY SEPARATION ALLOWANCE PAYMENTS UNDER 37 U.S.C. 427 (B). (QUESTION 5) A MEMBER OF THE UNIFORMED SERVICES WHO PERFORMS TEMPORARY DUTY FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS BETWEEN PERMANENT DUTY STATIONS AND DOES NOT HAVE HIS DEPENDENTS LIVING AT OR NEAR THE TEMPORARY DUTY STATION IS ENTITLED TO THE MONTHLY FAMILY SEPARATION ALLOWANCE AUTHORIZED UNDER 37 U.S.C. 427 (B) PROVIDED THAT, DURING THE PERIOD OF TEMPORARY DUTY, THE MEMBER DOES NOT TAKE ANY LEAVE. (QUESTION 6) A MEMBER OF THE UNIFORMED SERVICES WHO, WHILE ON DUTY ABOARD A SHIP AWAY FROM THE HOME PORT FOR WHICH A FAMILY SEPARATION ALLOWANCE IS AUTHORIZED UNDER 37 U.S.C. 427 (B), CLAUSE (2), IS ASSIGNED TO TEMPORARY DUTY, OR IS HOSPITALIZED ASHORE, OR IS ON AUTHORIZED LEAVE IS REGARDED AS IN AN ENFORCED SEPARATION STATUS FROM HIS FAMILY EVEN THOUGH HE IS NOT PHYSICALLY PERFORMING DUTIES ON BOARD THE SHIP AND, THEREFORE, ENTITLEMENT TO THE FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B), CLAUSE (2), WOULD CONTINUE DURING PERIODS OF TEMPORARY DUTY, SHORE PATROL DUTY, OR HOSPITALIZATION ASHORE WHILE THE SHIP REMAINS AWAY FROM ITS HOME PORT AND WHILE ON AUTHORIZED LEAVE NOT IN EXCESS OF THAT FOR WHICH HE IS ENTITLED TO PAY AND ALLOWANCES. (QUESTION 7) A MEMBER OF THE UNIFORMED SERVICES WHO IS RECEIVING A FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B), CLAUSE (2), FOR MEMBERS ABOARD SHIP AWAY FROM HOME PORT, WHILE ON TEMPORARY DUTY, UNDERGOING HOSPITALIZATION ASHORE, OR IN AN AUTHORIZED LEAVE STATUS WHEN HIS SHIP RETURNS TO ITS HOME PORT HAS HIS ENTITLEMENT TO THE FAMILY SEPARATION ALLOWANCE TERMINATED. (QUESTION 8) A MEMBER OF THE UNIFORMED SERVICES WHO IS RECEIVING A FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B), CLAUSE (2), FOR DUTY ABOARD A SHIP AWAY FROM HOME PORT, WHILE ON TEMPORARY DUTY, UNDERGOING HOSPITALIZATION, OR IN AN AUTHORIZED LEAVE STATUS MAY CONTINUE TO RECEIVE THE FAMILY SEPARATION ALLOWANCE UNTIL THE SHIP REACHES ITS HOME PORT. (QUESTION 9) A MEMBER OF THE UNIFORMED SERVICES WHO IS RECEIVING A FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B), CLAUSE (2), FOR DUTY ABOARD A SHIP AWAY FROM HOME PORT, WHILE UNDERGOING HOSPITALIZATION ABOARD SHIP MAY CONTINUE TO RECEIVE THE FAMILY SEPARATION ALLOWANCE, EVEN THOUGH TEMPORARILY HE IS NOT PERFORMING DUTIES, AND SUCH ENTITLEMENT CONTINUES UNTIL THE VESSEL REACHES THE HOME PORT. (QUESTION 10) A MEMBER OF THE UNIFORMED SERVICES WHO IS RECEIVING A FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B), CLAUSE (2), FOR DUTY ABOARD A SHIP AWAY FROM HOME PORT, WHEN HE IS PLACED IN MILITARY CONFINEMENT OR OTHERWISE RESTRICTED FROM PERFORMING DUTY MAY CONTINUE TO RECEIVE THE FAMILY SEPARATION ALLOWANCE WHILE THE SHIP IS AWAY FROM ITS HOME PORT PROVIDED THAT THE MEMBER IS NOT DETACHED FROM THE SHIP AND HIS PAY AND ALLOWANCES ARE NOT LIMITED OR FORFEITED BY COURT MARTIAL SENTENCE OR BY LAW, BUT WHEN THE MEMBER IS DETACHED FROM THE SHIP THE FAMILY SEPARATION ALLOWANCE TERMINATES. (QUESTION 11) A MEMBER OF THE UNIFORMED SERVICES WHO IS RECEIVING A FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B). CLAUSE (2), FOR DUTY OF MORE THAN 30 DAYS ABOARD A SHIP AWAY FROM HOME PORT WHEN HIS DUTY STATUS FOR ENTITLEMENT TO THE FAMILY SEPARATION ALLOWANCE IS LEGALLY TERMINATED WOULD BE REQUIRED TO BE ON DUTY ON BOARD SHIP FOR ANOTHER CONTINUOUS PERIOD OF MORE THAN 30 DAYS TO AGAIN BECOME ELIGIBLE FOR THE ALLOWANCE. (QUESTION 12) A MEMBER OF THE UNIFORMED SERVICES WHO IS ENTITLED TO THE FAMILY SEPARATION ALLOWANCE AUTHORIZED UNDER 37 U.S.C. 427 (B), CLAUSE (3), FOR TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION FOR MORE THAN 30 DAYS WHEN HE IS HOSPITALIZED, OR IS ON AUTHORIZED LEAVE NOT IN EXCESS OF THE LEAVE FOR WHICH HE IS ENTITLED TO PAY AND ALLOWANCES MAY CONTINUE TO RECEIVE THE FAMILY SEPARATION ALLOWANCE PROVIDED HE IS NOT DETACHED FROM THE TEMPORARY DUTY STATION. (QUESTION 13) A MEMBER OF UNIFORMED SERVICES WHOSE DEPENDENTS ARE TEMPORARILY PROHIBITED FROM MOVING INTO A RESTRICTED AREA SO THAT HE IS ENTITLED TO TRANSPORTATION FOR HIS DEPENDENTS UNDER PARAGRAPH 7005 OF THE JOINT TRAVEL REGULATIONS MAY, NEVERTHELESS, HAVE THE MOVEMENT OF HIS DEPENDENTS TO HIS PERMANENT STATION OR A PLACE NEAR THAT STATION REGARDED AS NOT AUTHORIZED AT GOVERNMENT EXPENSE UNDER 37 U.S.C. 406 WITHIN THE MEANING OF 37 U.S.C. 427 (A) AND 37 U.S.C. 427 (B), CLAUSE (1), TO QUALIFY FOR A FAMILY SEPARATION ALLOWANCE. (QUESTION 14) A MEMBER OF THE UNIFORMED SERVICES WHO IS ONLY AUTHORIZED TRANSPORTATION AT GOVERNMENT EXPENSE FOR ONE OF HIS DEPENDENTS BUT IS NOT AUTHORIZED TRANSPORTATION FOR HIS REMAINING DEPENDENTS IS REGARDED AS HAVING THE MOVEMENT OF HIS DEPENDENTS RESTRICTED AT THE VOLITION OF THE GOVERNMENT AND, THEREFORE, THE MEMBER IS ENTITLED TO PAYMENT OF THE FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B), CLAUSE (1), AND 37 U.S.C. 427 (A) SO LONG AS THE MOVEMENT OF THE MEMBER'S REMAINING DEPENDENTS TO HIS PERMANENT DUTY STATION OR PLACE NEAR THAT STATION IS NOT AUTHORIZED. (QUESTION 15) A MEMBER OF THE UNIFORMED SERVICES WHOSE WIFE BECAUSE OF PREGNANCY IS NOT AUTHORIZED TRANSPORTATION PRIOR TO THE TIME HE REPORTS TO HIS NEW PERMANENT DUTY STATION MAY BE REGARDED AS BEING PRECLUDED FROM HAVING THE MOVEMENT OF HIS DEPENDENTS TO HIS PERMANENT STATION OR PLACE NEAR THAT STATION AUTHORIZED AT GOVERNMENT EXPENSE WITHIN THE MEANING OF 37 U.S.C. 427 (A) AND 37 U.S.C. 427 (B), CLAUSE (1), AND, THEREFORE, THE CONDITION FOR ENTITLEMENT TO THE FAMILY SEPARATION ALLOWANCE IS SATISFIED. (QUESTION 16) A MEMBER OF THE UNIFORMED SERVICES WHOSE DEPENDENT IS NOT ELIGIBLE UNDER THE IMMIGRATION LAWS FOR ENTRY INTO THE UNITED STATES PRIOR TO THE TIME HE REPORTS TO HIS NEW PERMANENT DUTY STATION MAY ONLY HAVE THE MOVEMENT OF HIS DEPENDENT REGARDED AS UNAUTHORIZED FOR FAMILY SEPARATION ALLOWANCE ENTITLEMENT IF A DEPARTMENTAL REGULATION PRECLUDES AUTHORIZED TRANSPORTATION OF THE DEPENDENT AT GOVERNMENT EXPENSE IN SUCH CIRCUMSTANCE, BUT IN THE ABSENCE OF SUCH MILITARY RESTRICTION, THE MEMBER WOULD NOT BE ELIGIBLE FOR A FAMILY ALLOWANCE PAYMENT. (QUESTION 17) MEMBER OF THE UNIFORMED SERVICES WHOSE DEPENDENTS ARE EVACUATED FROM THE OVERSEAS STATION UNDER PARAGRAPH 7101 OF THE JOINT TRAVEL REGULATIONS RELATING TO UNUSUAL OR EMERGENCY CIRCUMSTANCES MAY BE REGARDED AS HAVING HIS POST OF DUTY CONVERTED TO A RESTRICTED STATION FOR ENTITLEMENT TO THE FAMILY SEPARATION ALLOWANCES AUTHORIZED UNDER 37 U.S.C. 427 (A) AND 37 U.S.C. 427 (B) FROM THE DATE THE DEPENDENTS DEPART FROM THE OVERSEAS STATION. (QUESTION 18A) A MEMBER OF THE UNIFORMED SERVICES WHOSE DEPENDENTS ARE RETURNED FROM OVERSEAS UNDER PARAGRAPH 7102 OF THE JOINT TRAVEL REGULATIONS RELATING TO THE INVOLVEMENT OF DEPENDENT IN AN INCIDENT EMBARRASSING TO THE UNITED STATES, PREJUDICIAL TO THE COMMAND, OR AFFECTING THE DEPENDENT'S SAFETY MAY NOT BE REGARDED AS HAVING HIS OVERSEAS STATION CONVERTED TO A RESTRICTED STATION BY SUCH CIRCUMSTANCES FOR ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE PAYMENTS AND, THEREFORE, BEFORE PAYMENT OF FAMILY SEPARATION ALLOWANCE IS MADE THERE SHOULD BE A CERTIFICATION BY THE OFFICER DIRECTING THE RETURN OF THE DEPENDENTS THAT THE CONDITIONS NECESSITATING THEIR RETURN WERE NOT CAUSED BY THEIR OWN MISCONDUCT. (QUESTION 18B) A MEMBER OF THE UNIFORMED SERVICES WHOSE DEPENDENTS ARE RETURNED FROM OVERSEAS UNDER PARAGRAPH 7103 OF THE JOINT TRAVEL REGULATIONS INVOLVING PERSONAL SITUATIONS MAY NOT HAVE SUCH CIRCUMSTANCES REGARDED AS DUE TO MILITARY REQUIREMENTS TO CONVERT THE MEMBER'S OVERSEAS STATION INTO A RESTRICTED STATION TO ENTITLE HIM TO FAMILY SEPARATION ALLOWANCES. (QUESTION 18C) A MEMBER OF THE UNIFORMED SERVICES WHOSE DEPENDENTS ARE RETURNED FROM OVERSEAS UNDER PARAGRAPH 7105 OF THE JOINT TRAVEL REGULATIONS RELATING TO NATIONAL INTEREST DETERMINATION PRIOR TO THE TERMINATION OF THE MEMBER'S OVERSEAS DUTY MAY BE REGARDED AS HAVING HIS STATION CHANGED TO A RESTRICTED STATION FOR ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE PAYMENTS IF A SECRETARIAL OR HIGHER DETERMINATION IS MADE THAT THE RETURN OF THE REASONS OF NATIONAL INTEREST. (QUESTION 18D) A MEMBER OF THE UNIFORMED SERVICES WHO, WHILE BEING ENTITLED TO RECEIVE A FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (A) OR 37 U.S.C. 427 (B), CLAUSE (1), HAS HIS DEPENDENTS VISIT HIM AT OR NEAR THE PERMANENT DUTY STATION MAY CONTINUE TO RECEIVE THE FAMILY SEPARATION ALLOWANCE PROVIDED THAT THE FACTS SHOW THAT THE DEPENDENTS ARE MERELY VISITING AND HAVE NOT EFFECTED A CHANGE OF RESIDENCE AND FURTHER THAT THE THREE MONTHS MAXIMUM LIMITATION FOR TEMPORARY VISITS UNDER THE QUARTERS ALLOWANCE REGULATIONS IS PRESCRIBED FOR FAMILY SEPARATION ALLOWANCE PURPOSES. (QUESTION 19) A MEMBER OF THE UNIFORMED SERVICES WHO HAS HIS DEPENDENTS VISIT HIM AT OR NEAR THE TEMPORARY DUTY STATION TO WHICH HE IS ASSIGNED FOR MORE THAN 30 DAYS MAY NOT HAVE THE RESIDENCE WITH HIS DEPENDENTS REGARDED AS A MERE VISIT TO BE ENTITLED TO PAYMENT OF THE FAMILY SEPARATION ALLOWANCE AUTHORIZED UNDER 37 U.S.C. 427 (B), CLAUSE (3), FOR TEMPORARY DUTY OF MORE THAN 30 DAYS SINCE A 31-DAY MINIMUM PERIOD OF TEMPORARY DUTY IS REQUIRED FOR ENTITLEMENT AND THE MAXIMUM PERIOD OF TEMPORARY DUTY IS GENERALLY NOT IN EXCESS OF SIX MONTHS; THEREFORE, THE RIGHT TO A FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B), CLAUSE (3), DOES NOT ACCRUE WHILE THE DEPENDENTS ARE WITH THE MEMBER AT THE TEMPORARY DUTY STATION FOR MORE THAN 30 DAYS. (QUESTION 20) A MEMBER OF THE UNIFORMED SERVICES WHO, WHILE BEING ENTITLED TO RECEIVE A FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (A) OR 37 U.S.C. 427 (B), CLAUSE (1), HAS SOME OF HIS DEPENDENTS VISIT HIM AT OR NEAR HIS PERMANENT DUTY STATION WOULD NOT LOSE THE RIGHT TO ENTITLEMENT TO THE FAMILY SEPARATION ALLOWANCE ON ACCOUNT OF THE DEPENDENTS WHO DO NOT VISIT HIM. (QUESTION 21A) A MEMBER OF THE UNIFORMED SERVICES WHO, WHILE BEING ENTITLED TO RECEIVE A FAMILY SEPARATION ALLOWANCE FOR TEMPORARY DUTY OF MORE THAN 30 DAYS UNDER 37 U.S.C. 427 (B), CLAUSE (3), HAS ONE OR MORE OF HIS DEPENDENTS VISIT HIM FOR AN EXTENDED PERIOD WOULD NOT BE REGARDED AS LOSING HIS RIGHT TO THE FAMILY SEPARATION ALLOWANCE DUE BY REASON OF THE DEPENDENTS WHO DO NOT VISIT HIM. (QUESTION 21B) A MEMBER OF THE UNIFORMED SERVICES WHO HAS ONLY ONE OF HIS DEPENDENTS (WIFE) RESIDING WITH HIM AT HIS TEMPORARY DUTY STATION WHERE HE IS ASSIGNED FOR MORE THAN 30 DAYS BECAUSE HIS OTHER DEPENDENTS ARE NOT IN HIS CUSTODY AND DO NOT RESIDE WITH HIM MAY NOT BE REGARDED AS INCURRING ADDITIONAL EXPENSES FOR ENFORCED SEPARATION FROM HIS DEPENDENTS BY REASON OF THE MILITARY ASSIGNMENT AND THEREFORE THE MEMBER IS NOT ENTITLED TO THE FAMILY SEPARATION ALLOWANCE AUTHORIZED UNDER 37 U.S.C. 427 (B), CLAUSE (3). (QUESTION 22) ALTHOUGH A MEMBER OF THE UNIFORMED SERVICES IS NOT RESIDING WITH HIS DEPENDENTS WHEN HE DEPARTS FOR PERMANENT DUTY OVERSEAS OR IN ALASKA HE INCURS THE ADDITIONAL COST OF PROCURING COMMERCIAL QUARTERS FOR HIMSELF AT THE NEW STATION FOR WHICH THE FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (A) IS AUTHORIZED AND, THEREFORE, THE FACT THAT HE WAS NOT RESIDING WITH HIS DEPENDENTS DOES NOT RESTRICT HIS ENTITLEMENT TO THE FAMILY SEPARATION ALLOWANCE AUTHORIZED UNDER 37 U.S.C. 427 (A). (QUESTION 23A) A MEMBER OF THE UNIFORMED SERVICES WHO IS NOT RESIDING WITH HIS DEPENDENTS WHEN HE DEPARTS FOR DUTY OTHERWISE ENTITLING HIM TO THE FAMILY SEPARATION ALLOWANCE AUTHORIZED UNDER 37 U.S.C. 427 (B), CLAUSES (1), (2), OR (3), IS NOT REGARDED AS INCURRING ANY ADDITIONAL EXPENSES ON ACCOUNT OF SEPARATION FROM HIS DEPENDENTS DUE TO HIS MILITARY ASSIGNMENT, AND, THEREFORE, THE MEMBER IS NOT ENTITLED TO THE FAMILY SEPARATION ALLOWANCE AUTHORIZED UNDER 37 U.S.C. 427 (B), CLAUSES (1), (2), OR (3). (QUESTION 23B) MODIFIED BY 43 COMP. GEN. 444. A MEMBER OF THE UNIFORMED SERVICES WHOSE DEPENDENTS ARE TEMPORARILY ABSENT FROM THE RESIDENCE WHEN THE MEMBER IS ASSIGNED TO DUTY OTHERWISE ENTITLING HIM TO THE FAMILY SEPARATION ALLOWANCE AUTHORIZED UNDER 37 U.S.C. 427 (A) OR UNDER 37 U.S.C. 427 (B), CLAUSES (1), (2), OR (3), MAY BE PAID THE FAMILY SEPARATION ALLOWANCE AUTHORIZED UNDER 37 U.S.C. 427 (A) REGARDLESS OF MAINTENANCE OF A COMMON HOUSEHOLD WITH HIS DEPENDENTS, BUT ENTITLEMENT TO THE FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B) IS PRECLUDED UNLESS IT IS SHOWN THAT THE MEMBER NOT ONLY MAINTAINED A RESIDENCE FOR HIMSELF AND HIS DEPENDENTS AT THE TIME OF DEPARTURE BUT CONTINUES TO MAINTAIN SUCH RESIDENCE AND PROVIDED THAT THE DEPENDENTS' TEMPORARY ABSENCE DOES NOT EXCEED THREE MONTHS. (QUESTION 24) MODIFIED BY 43 COMP. GEN. 444. A MEMBER OF THE UNIFORMED SERVICES WHO IS OTHERWISE ENTITLED TO A FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B), CLAUSES (2) OR (3), WHEN HE IS ASSIGNED INADEQUATE QUARTERS FOR THE OCCUPANCY OF HIMSELF AND DEPENDENTS AT HIS HOME PORT OR PERMANENT STATION WITHOUT LOSS OF BASIC ALLOWANCE FOR QUARTERS IS REGARDED AS MEETING THE QUARTERS ALLOWANCE CONDITION FOR ENTITLEMENT TO THE FAMILY SEPARATION ALLOWANCE AUTHORIZED UNDER 37 U.S.C. 427 (B), CLAUSES (2) OR (3), EVEN THOUGH UNDER 37 U.S.C. 407 (A) FOR INADEQUATE HOUSING THE MEMBER RECEIVES THE DIFFERENCE BETWEEN THE BASIC ALLOWANCE FOR QUARTERS AND THE FAIR RENTAL VALUE OF THE QUARTERS. (QUESTION 25) WHERE THE DEPENDENTS OF A MEMBER OF THE UNIFORMED SERVICES RESIDE MORE THAN A REASONABLE DAILY COMMUTING DISTANCE FROM THE MEMBER'S DUTY STATION- -- 50 MILES BEING CONSIDERED THE MAXIMUM ONE-WAY DISTANCE--- THE DEPENDENTS ARE NOT REGARDED AS RESIDING AT OR NEAR THE STATION WITHIN THE MEANING OF 37 U.S.C. 427 (A), CLAUSE (1), 0R 37 U.S.C. 427 (B), CLAUSES (1) AND (3), TO PRECLUDE THE MEMBER'S ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE PAYMENTS. (QUESTION 26) IN THE ABSENCE OF ANY INDICATION IN THE LEGISLATIVE HISTORY OF THE UNIFORMED SERVICES PAY ACT OF 1963, EFFECTIVE OCTOBER 1, 1963, TO SUGGEST THAT THE QUALIFYING PERIOD FOR ENTITLEMENT TO BENEFITS UNDER THE FAMILY SEPARATION ALLOWANCE PROVISIONS BEGAN PRIOR TO OCTOBER 1, 1963, PERIODS PRIOR TO THAT DATE MAY NOT BE USED IN COMPUTING THE 30 DAY SERVICE PERIOD REQUIRED UNDER 37 U.S.C. 427 (B), CLAUSES (2) AND (3). (QUESTION 27)

TO THE SECRETARY OF DEFENSE, OCTOBER 9, 1963:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 26, 1963, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION AS TO WHETHER MEMBERS OF THE UNIFORMED SERVICES MAY BE PAID FAMILY SEPARATION ALLOWANCES PURSUANT TO THE PROVISIONS OF 37 U.S.C. 427, UNDER THE CIRCUMSTANCES SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 328 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

SECTION 427, TITLE 37, OF THE U.S.C. AS ADDED BY SECTION 11 OF THE UNIFORMED SERVICES PAY ACT OF 1963, PUBLIC LAW 88-132, APPROVED OCTOBER 2, 1963, PROVIDES AS FOLLOWS:

SECTION 427. FAMILY SEPARATION ALLOWANCE

(A) IN ADDITION TO ANY ALLOWANCE OR PER DIEM TO WHICH HE OTHERWISE MAY BE ENTITLED UNDER THIS TITLE, A MEMBER OF UNIFORMED SERVICE WITH DEPENDENTS WHO IS ON PERMANENT DUTY OUTSIDE OF THE UNITED STATES, OR IN ALASKA, IS ENTITLED TO A MONTHLY ALLOWANCE EQUAL TO THE BASIC ALLOWANCE FOR QUARTERS PAYABLE TO A MEMBER WITHOUT DEPENDENTS IN THE SAME PAY GRADE 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; AND

(2) QUARTERS OF THE UNITED STATES OR A HOUSING FACILITY UNDER THE JURISDICTION OF A UNIFORMED SERVICE ARE NOT AVAILABLE FOR ASSIGNMENT TO HIM.

(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 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.

AS STATED IN THE COMMITTEE ACTION, SECTION 427 (A) 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. ACCORDING TO THE LEGISLATIVE HISTORY, THE PURPOSE OF THIS ALLOWANCE AUTHORIZED BY SECTION 427 (A) IS TO COMPENSATE THE MEMBER FOR THE ADDITIONAL EXPENSES HE MUST INCUR BY REASON OF HAVING TO PROCURE AND MAINTAIN QUARTERS FOR HIMSELF OVERSEAS OR IN ALASKA IN ADDITION TO THE QUARTERS HE NECESSARILY MAINTAINS ELSEWHERE FOR HIS DEPENDENTS. THERE IS NOTHING IN THIS SUBSECTION OF THE LAW OR ITS LEGISLATIVE HISTORY UPON WHICH IT MAY BE CONCLUDED THAT CONGRESS INTENDED TO IMPOSE ANY RESTRICTION ON A MEMBER'S ENTITLEMENT TO THE QUARTERS ALLOWANCE IN CASES WHERE HIS DEPENDENTS DO NOT MAINTAIN A COMMON HOUSEHOLD WITH HIM.

SECTION 427 (B) PROVIDES FOR THE PAYMENT OF MONTHLY FAMILY SEPARATION ALLOWANCE OF $30 TO CERTAIN MEMBERS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS ON BEHALF OF DEPENDENTS WHERE THE MEMBERS ARE ON DUTY UNDER SPECIFIED CONDITIONS RESULTING IN SEPARATION FROM THEIR DEPENDENTS. THE PURPOSE OF THIS ALLOWANCE IS 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. "THE EXTRA EXPENSES INCLUDE SUCH MATTERS AS HOME AND AUTOMOBILE MAINTENANCE AND INCREASED CHILD CARE COSTS" (PAGE 25 OF S.REPT.NO. 387 TO ACCOMPANY H.R. 5555 WHICH WAS ENACTED AS PUBLIC LAW 88-132). ALSO IT IS STATED IN THE SAME REPORT THAT:

RATIONALE FOR PROVISION.--- THE RATIONALE FOR THE FAMILY ALLOWANCE IS THAT ENFORCED SEPARATIONS OF SERVICEMEN FROM THEIR FAMILIES CAUSE ADDED HOUSEHOLD EXPENSES WHERE THE MEMBER IS ABSENT FOR ANY EXTENDED PERIOD OF TIME. THIS CONDITION RESULTS IN AN INEQUITY AS COMPARED TO THOSE MEMBERS WHOSE DEPENDENTS ARE AUTHORIZED TO ACCOMPANY THEM. THE EXTRA EXPENSES INCLUDE SUCH MATTERS AS HOME AND AUTOMOBILE MAINTENANCE, INCREASED CHILD CARE COSTS, ETC.

THUS, UNLIKE THE SITUATION UNDER SECTION 427 (A), IT SEEMS EVIDENT THAT THE PURPOSE OF THE STATUTE IS TO PROVIDE PAYMENT OF THE ALLOWANCE UNDER SECTION 427 (B) ONLY IN THOSE INSTANCES WHERE THE MEMBER'S DEPENDENTS OCCUPY A COMMON HOUSEHOLD WITH HIM.

THE QUESTION WILL BE QUOTED AND ANSWERED IN THE ORDER PRESENTED.

QUESTION 1.

MAY A MEMBER OTHERWISE ENTITLED TO FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (A) CONTINUE TO BE PAID THE ALLOWANCE FOR PERIODS HE IS:

A. ON TEMPORARY DUTY AWAY FROM HIS PERMANENT DUTY STATION, INCLUDING PERIODS HE IS ON TEMPORARY DUTY WITH THE UNITED STATES?

B. HOSPITALIZED AT OR AWAY FROM HIS PERMANENT DUTY STATION, INCLUDING PERIODS HE IS HOSPITALIZED WITHIN THE UNITED STATES?

C. ON AUTHORIZED LEAVE WITHIN OR OUTSIDE OF THE UNITED STATES NOT IN EXCESS OF THE LEAVE FOR WHICH HE IS ENTITLED TO PAY AND ALLOWANCES UNDER THE SECOND SENTENCE OF 37 U.S.C. 502 (A/?

D. IN MILITARY CONFINEMENT OR IS OTHERWISE RESTRICTED BY COMPETENT MILITARY AUTHORITY FROM PERFORMING DUTY?

WHILE THE STATUTE DOES NOT DEFINE THE TERM "ON PERMANENT DUTY OUTSIDE OF THE UNITED STATES" THE LEGISLATIVE HISTORY OF THE LAW DOES NOT SHOW THAT ANY SIGNIFICANCE WAS ATTACHED TO THE USE OF SUCH TERM OTHER THAN TO INDICATE THOSE MEMBERS WHOSE PERMANENT DUTY ASSIGNMENTS ARE OUTSIDE THE UNITED STATES OR IN ALASKA.

IT IS SUGGESTED IN THE COMMITTEE ACTION THAT SINCE 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, THE ALLOWANCE IS IN THE NATURE OF THE BASIC ALLOWANCE FOR QUARTERS AUTHORIZED BY 37 U.S.C. 403 FOR MEMBERS WITHOUT DEPENDENTS. HENCE, IT IS THE COMMITTEE'S VIEW THAT SUBJECT TO THE REQUIREMENTS OF SECTION 427 (A) BEING MET, THE ALLOWANCE CONTINUES UNDER ESSENTIALLY THE SAME CONDITIONS AS ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS CONTINUES FOR A MEMBER WITHOUT DEPENDENTS AND SHOULD BE PAID IN EACH OF THE STATUES ENUMERATED ABOVE.

SUPPORT FOR THE COMMITTEE'S VIEW IS CONTAINED IN THE REPORT BY THE HOUSE ARMED SERVICES COMMITTEE, H.REPT.NO. 208 (PAGES 28 AND 29) OF APRIL 11, 1963, TO ACCOMPANY H.R. 5555 WHICH COMPARES THE LOSS OR UNREIMBURSED EXPENSE FOR QUARTERS TO SUCH A MEMBER WITH DEPENDENTS WITH THE AMOUNT OF BASIC ALLOWANCE FOR QUARTERS AUTHORIZED FOR MEMBERS WITHOUT DEPENDENTS AND STATES THAT THE PROPOSED LEGISLATION WILL CORRECT THE DESCRIBED INEQUITY. FURTHER, IT IS FOR NOTING THAT THE AMOUNT OF THE ALLOWANCE AUTHORIZED BY THE STATUTE IS SPECIFICALLY DESIGNATED AS THAT WHICH IS EQUAL TO THE BASIC ALLOWANCE FOR QUARTERS PAYABLE TO A MEMBER WITHOUT DEPENDENTS IN THE SAME PAY GRADE.

ACCORDINGLY, WE ARE IN GENERAL AGREEMENT WITH THE COMMITTEE'S VIEW. THIS CONNECTION, HOWEVER, IT IS NOTED THAT WHILE PARAGRAPHS 5-5A AND 5-10A OF ARMY REGULATIONS NO. 37-104 PROVIDE THAT A MEMBER WITHOUT DEPENDENTS WHO IS RECEIVING BASIC ALLOWANCE FOR QUARTERS AT HIS PERMANENT STATION IS ENTITLED TO BAQ FOR PERIODS OF HOSPITALIZATION OR ORDINARY LEAVE IF HE CONTINUES TO MAINTAIN QUARTERS AT THE PERMANENT STATION, ALL DEPARTMENTAL REGULATIONS DO NOT APPEAR UNIFORM WITH RESPECT TO THAT REQUIREMENT. VIEW OF THE EXPRESSED INTENT OF CONGRESS THAT THE ALLOWANCE UNDER SECTION 427 (A) IS TO REIMBURSE THE MEMBER FOR THE COST OF HIS COMMERCIAL HOUSING AT THIS PERMANENT STATION OVERSEAS, OR IN ALASKA, WE BELIEVE THAT WHERE THE PERIOD OF HOSPITALIZATION, LEAVE, TEMPORARY DUTY OR CONFINEMENT 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 PERIODS WHEN HE WAS NOT ACTUALLY ENGAGED IN PERFORMING HIS ASSIGNED DUTIES AT HIS PERMANENT STATION.

IN VIEW OF THE PURPOSE FOR WHICH THE ALLOWANCE IS AUTHORIZED, IT IS OUR VIEW THAT, WITHOUT A SHOWING THAT THE MEMBER CONTINUED TO MAINTAIN QUARTERS AT HIS PERMANENT STATION, 60 DAYS IS A LIBERAL MAXIMUM PERIOD DURING WHICH PAYMENTS WOULD BE AUTHORIZED UNDER THE CIRCUMSTANCES INVOLVED IN THE QUESTION PRESENTED. SUCH MAXIMUM HAS BEEN SET WITH THE THOUGHT THAT ADMINISTRATIVE REGULATIONS SIMILAR TO AR 37-104, PARAGRAPHS 5-5A AND 5-10A, MIGHT WELL BE ISSUED AUTHORIZING PAYMENT UNDER THE INVOLVED CIRCUMSTANCES ONLY IF THE MEMBER CONTINUES TO MAINTAIN QUARTERS AT THE PERMANENT STATION.

QUESTION 2.

PROVIDED A MEMBER MEETS ALL OF THE CONDITIONS PRECEDENT TO ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE UNDER CLAUSE (1) OF 37 U.S.C. 427 (B) AT EITHER HIS OLD OR NEW PERMANENT DUTY STATION BUT NOT BOTH, MAY HE BE PAID THE ALLOWANCE FOR THE PERIOD FOLLOWING THE DATE OF HIS DEPARTURE (DETACHMENT) FROM HIS OLD PERMANENT DUTY STATION WITHIN OR OUTSIDE OF THE UNITED STATES THROUGH THE DATE PRECEDING THE DATE OF HIS REPORTING TO HIS NEW PERMANENT DUTY STATION WITHIN OR OUTSIDE OF THE UNITED STATES, OR MUST THE ALLOWANCE BE PAID ONLY FOR THE PERIOD HE IS ON DUTY AT THE PERMANENT DUTY STATION AT WHICH HE IS ENTITLED TO THE ALLOWANCE, INCLUDING THE DATES OF REPORTING THEREAT AND DEPARTURE (DETACHMENT) THEREFROM?

QUESTION 3.

IF A MEMBER IS ON PERMANENT DUTY OUTSIDE OF THE UNITED STATES AND IS RECEIVING FAMILY SEPARATION ALLOWANCE UNDER CLAUSE (1) OF 37 U.S.C. 427 (B), MAY HE BE PAID THE ALLOWANCE FOR THE PERIOD FOLLOWING THE DATE OF HIS DEPARTURE (DETACHMENT) FOR HIS OLD PERMANENT DUTY STATION THROUGH THE DATE PRECEDING THE DATE OF HIS REPORTING TO HIS NEW PERMANENT DUTY STATION WHERE THE MOVEMENT OF HIS DEPENDENTS TO HIS NEW STATION OR A PLACE NEAR THAT STATION IS NOT AUTHORIZED AT THE EXPENSE OF THE UNITED STATES UNDER 37 U.S.C. 406 AND HIS DEPENDENTS DO NOT RESIDE AT OR NEAR THAT TATION?

QUESTION 4.

PROVIDED A MEMBER MEETS ALL OF THE CONDITIONS PRECEDENT TO ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE UNDER CLAUSE (3) OF 37 U.S.C. 427 (B), MAY HE BE PAID THE ALLOWANCE FOR THE PERIOD FOLLOWING THE DATE OF HIS DEPARTURE (DETACHMENT) FROM HIS PERMANENT DUTY STATION THROUGH THE DATE PRECEDING THE DATE OF HIS REPORTING TO HIS TEMPORARY DUTY STATION, OR MUST THE ALLOWANCE BE PAID ONLY FOR THE PERIOD HE IS ON DUTY AT THE TEMPORARY DUTY STATION, INCLUDING THE DATES OF REPORTING THEREAT AND DEPARTURE (DETACHMENT) THEREFROM?

QUESTION 5.

IF THE ALLOWANCE IS PAYABLE UNDER CLAUSE (1) OR (3) OF 37 U.S.C. 427 (B) FOR THE PERIOD THE MEMBER IS EN ROUTE BETWEEN DUTY STATIONS, WOULD THE PERIOD OF ENTITLEMENT INCLUDE "PROCEED TIME" AND LEAVE EN ROUTE?

QUESTION 6.

WOULD THE ANSWERS TO QUESTION 2, 3, 4, AND 5 BE EQUALLY APPLICABLE IF THE MEMBER PERFORMS TEMPORARY DUTY FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS BETWEEN PERMANENT DUTY STATIONS AND HIS DEPENDENTS DO NOT RESIDE AT OR NEAR HIS TEMPORARY DUTY STATION?

THESE QUESTIONS DEAL WITH THE PAYMENT OF MONTHLY FAMILY SEPARATION ALLOWANCE OF $30 AUTHORIZED BY 37 U.S.C. 427 (B). QUESTIONS 2 AND 3 REFER TO SITUATIONS OF MEMBERS WHO ARE TRANSFERRED ON PERMANENT CHANGE OF STATION ORDERS FROM OR TO RESTRICTED STATIONS IN OR OUT OF THE UNITED STATES, OR ARE TRANSFERRED FROM A RESTRICTED STATION OUTSIDE OF THE UNITED STATES TO ANOTHER RESTRICTED STATION. QUESTIONS 2 AND 3, AS PRESENTED, DO NOT INVOLVE ANY DELAY EN ROUTE AND ARE CONSIDERED ON THAT BASIS. BASICALLY, THE QUESTION IS DOES THE FAMILY ALLOWANCE ($30 RATE,37 U.S.C. 427 (B) (1) ( COMMENCE ON THE DATE OF MEMBER'S DETACHMENT, DEPARTURE FROM THE UNITED STATES, OR ARRIVAL AT RESTRICTED STATION AND WHAT DATE GOVERNS FOR TERMINATION. IT IS ASSUMED THAT THE DEPARTURE DATE DOES NOT PRECEDE THE FIRST DAY OF AUTHORIZED TRAVEL TIME. A LITERAL READING OF 37 U.S.C. 427 (B) (1) WOULD SEEM TO INDICATE THAT THE MEMBER MUST ACTUALLY BE AT HIS PERMANENT DUTY STATION AS A CONDITION PRECEDENT TO PAYMENT, AS IT IS NECESSARY TO FIRST DETERMINE THAT HIS DEPENDENTS DO NOT RESIDE AT OR NEAR THAT STATION. LOOKING AT THE PURPOSE OF THE PROVISION, HOWEVER, AND SINCE ENFORCED SEPARATION OF THE MEMBER FROM HIS FAMILY COMMENCES WHEN HE MUST DEPART FROM HIS PERMANENT DUTY STATION UNDER CHANGE OF STATION ORDERS, AND THE ADDITIONAL HOUSEHOLD EXPENSES WHICH THE ALLOWANCE IS DESIGNED TO COVER EXIST FROM THAT DATE, IT IS OUR VIEW THAT ENTITLEMENT TO THE ALLOWANCE WOULD COMMENCE ON THE DATE OF HIS DEPARTURE (DETACHMENT) FROM HIS OLD STATION, OR THE FIRST DAY OF AUTHORIZED TRAVEL TIME WHICHEVER IS LATER. QUESTIONS 2 AND 3 ARE ANSWERED ACCORDINGLY. QUESTION 4 DEALS WITH CLAUSE (3) OF 37 U.S.C. 427 (B) WHICH PROVIDES FOR THE PAYMENT OF FAMILY SEPARATION ALLOWANCE, OTHER CONDITIONS BEING MET, IF THE MEMBER IS "ON TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION.' PRECISELY, THE QUESTION IS WHETHER THE MEMBER IS ENTITLED TO PAYMENT OF THE ALLOWANCE ONLY FOR THE PERIOD HE IS AT HIS TEMPORARY DUTY STATION, OR WHETHER THE ALLOWANCE ALSO MAY BE PAID FOR THE PERIODS OF TRAVEL TO AND FROM THE TEMPORARY DUTY STATION. FOR THE REASONS STATED ABOVE IN ANSWER TO QUESTIONS 2 AND 3, WE ARE OF THE OPINION THAT THE PERIOD OF ENTITLEMENT TO THE FAMILY SEPARATION ALLOWANCE IN SUCH CASES INCLUDES PERIODS OF TRAVEL TO AND FROM THE TEMPORARY DUTY STATION.

QUESTION 5 DEALS WITH CLAUSES (1) AND (3) OF 37 U.S.C. 427 (B) AND IN VIEW OF QUESTIONS 4 AND 13, APPEARS TO BE WHETHER A MEMBER WHO IS EN ROUTE BETWEEN PERMANENT DUTY STATIONS MAY BE PAID FAMILY SEPARATION ALLOWANCE FOR PERIODS OF "PROCEED TIME" AND LEAVE EN ROUTE. THE COURTS HAVE DEFINED LEAVE AS A PERIOD OF RESPITE FROM MILITARY DUTIES GRANTED FOR THE MEMBER'S SOLE ACCOMMODATION, DURING WHICH TIME HE IS FREE TO TRAVEL WHERE HE CHOOSES, EMPLOY HIS TIME AS HE PLEASES, OR SURRENDER HIS LEAVE IF HE SO DESIRES, THE ONLY REQUIREMENT BEING THAT HE REPORT AT HIS PROPER STATION AT THE EXPIRATION OF HIS LEAVE. FOSTER V. UNITED STATES, 43 CT.CL. 170, 174; MCCAULEY V. UNITED STATES, 50 ID. 105, 109. SEE, ALSO, 10 COMP. GEN. 213 AND 36 ID. 257.

PARAGRAPH 1150-8 OF THE JOINT TRAVEL REGULATIONS DEFINES PROCEED TIME AS FOLLOWS:

8. PROCEED TIME. THE TERM "PROCEED TIME" IS THE INTERVAL ALLOWED, SUBSEQUENT TO DETACHMENT EXCLUSIVE OF ANY AUTHORIZED DELAY, IN ADDITION TO NECESSARY TRAVEL TIME REQUIRED TO REPORT TO THE FIRST DUTY STATION NAMED IN ORDERS IN COMPLIANCE WITH ORDERS REQUIRING TRAVEL AWAY FROM A PERMANENT DUTY STATION. THIS TERM IS APPLICABLE ONLY WHEN AUTHORIZED IN SEPARATE REGULATIONS BY THE DEPARTMENT CONCERNED.

SINCE PROCEED TIME IS ROUTINE DELAY IN COMMENCING TRAVEL TO DUTY STATION ALLOWED TO A MEMBER EXCLUSIVE OF TRAVEL TIME, IT HAS LONG BEEN CONSIDERED AS A PERIOD OF AUTHORIZED DELAY, ANALOGOUS TO LEAVE, AND, IN FACT LEAVE NOT CHARGED. ACCORDINGLY, IT APPEARS THAT THE SAME CONSIDERATIONS WOULD APPLY TO PROCEED TIME AS WITH RESPECT TO LEAVE EN ROUTE.

SINCE THE MEMBER TAKES HIS LEAVE AT HIS OWN CHOICE AND IS FREE TO TRAVEL WHERE HE PLEASES, WITH OR WITHOUT HIS DEPENDENTS, OR TO REMAIN AT HIS RESIDENCE WITH THEM, DURING SUCH PERIOD THE ELEMENT OF ENFORCED SEPARATION IS NOT PRESENT IN SUCH CASES. IT IS OUR VIEW, THEREFORE THAT THE STATION DOES NOT CONTEMPLATE ENTITLEMENT TO THE $30 FAMILY SEPARATION ALLOWANCE FOR SUCH PERIODS. ACCORDINGLY, SUCH PERIODS SHOULD BE EXCLUDED IN COMPUTING PAYMENTS UNDER SECTION 427 (B).

QUESTION 6 IS WHETHER THE ANSWERS TO QUESTIONS 2, 3, 4, AND 5 WOULD BE EQUALLY APPLICABLE IF THE MEMBER PERFORMS TEMPORARY DUTY FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS BETWEEN PERMANENT DUTY STATIONS AND HIS DEPENDENTS DO NOT RESIDE AT OR NEAR HIS TEMPORARY DUTY STATION. ON THE ASSUMPTION THAT THE LEAVE IS NOT TAKEN DURING THE PERIOD OF TEMPORARY DUTY QUESTION 6 IS ANSWERED IN THE AFFIRMATIVE. AS TO LEAVE TAKEN DURING THE PERIOD OF TEMPORARY DUTY SEE THE ANSWER TO QUESTION 13.

QUESTION 7.

MAY A MEMBER OTHERWISE ENTITLED TO FAMILY SEPARATION ALLOWANCE UNDER CLAUSE (2) OF 37 U.S.C. 427 (B) CONTINUE TO BE PAID THE ALLOWANCE FOR PERIODS HE IS ON TEMPORARY DUTY OR HOSPITALIZED ASHORE, OR IS ON AUTHORIZED LEAVE NOT IN EXCESS OF THAT FOR WHICH HE IS ENTITLED TO PAY AND ALLOWANCES UNDER THE SECOND SENTENCE OF 37 U.S.C. 502 (A), PROVIDED THE SHIP DOES NOT RETURN TO ITS HOME PORT WHILE HE IS ASHORE?

QUESTION 8.

IF THE ANSWER TO QUESTION 7 IS IN THE AFFIRMATIVE, WOULD THE ANSWER BE THE SAME IF THE SHIP RETURNS TO ITS HOME PORT WHILE THE MEMBER IS ASHORE ON TEMPORARY DUTY, UNDERGOING HOSPITALIZATION OR ON AUTHORIZED LEAVE?

QUESTION 9.

IF THE ANSWER TO QUESTION 8 IS IN THE NEGATIVE, MAY THE MEMBER'S ALLOWANCE CONTINUE UNTIL THE SHIP REACHES ITS HOME PORT?

QUESTION 10.

IF THE ANSWER TO QUESTION 7 IS IN THE NEGATIVE, WOULD THE ANSWER BE THE SAME IF THE MEMBER IS HOSPITALIZED ON BOARD THE SHIP?

QUESTION 11.

MAY A MEMBER OTHERWISE ENTITLED TO FAMILY SEPARATION ALLOWANCE UNDER CLAUSE (2) AND 37 U.S.C. 427 (B) CONTINUE TO BE PAID THE ALLOWANCE FOR PERIODS HE IS IN MILITARY CONFINEMENT OR OTHERWISE RESTRICTED BY COMPETENT MILITARY AUTHORITY FROM PERFORMING DUTY ON BOARD THE SHIP?

QUESTION 12.

IF THE ANSWER TO QUESTION 7 OR 11 IS IN THE NEGATIVE, WOULD THE MEMBER BE REQUIRED TO BE ON DUTY ON BOARD THE SHIP FOR ANOTHER CONTINUOUS PERIOD OF MORE THAN 30 DAYS IN ORDER TO BE ENTITLED TO OTHERWISE PROPER PAYMENT OF THE ALLOWANCE?

QUESTION 13.

MAY A MEMBER OTHERWISE ENTITLED TO FAMILY SEPARATION ALLOWANCE UNDER CLAUSE (3) OF 37 U.S.C. 427 (B) CONTINUE TO BE PAID THE ALLOWANCE FOR PERIODS HE IS HOSPITALIZED AT OR AWAY FROM HIS TEMPORARY DUTY STATION, OR IS ON AUTHORIZED LEAVE AWAY FROM HIS TEMPORARY DUTY STATION NOT IN EXCESS OF THE LEAVE FOR WHICH HE IS ENTITLED TO PAY AND ALLOWANCES UNDER THE SECOND SENTENCE OF 37 U.S.C. 502 (A/?

THE SECOND SENTENCE OF 37 U.S.C. 502 (A) PROVIDES AS FOLLOWS:

* * * A MEMBER WHO IS ABSENT WITH LEAVE FOR ANY OTHER REASON FOR NOT LONGER THAN THE LEAVE AUTHORIZED BY THAT SECTION (10 U.S.C. 701) IS ENTITLED TO THE SAME PAY AND ALLOWANCES TO WHICH HE WOULD BE ENTITLED IF HE WERE NOT ON LEAVE, AND TO ANY ADDITIONAL ALLOWANCES OTHERWISE PROVIDED BY LAW FOR MEMBERS ON LEAVE.

10 U.S.C. 701 (B) PROVIDES THAT A MEMBER MAY NOT ACCUMULATE MORE THAN 60 DAYS' LEAVE, BUT THAT LEAVE TAKEN DURING A FISCAL YEAR MAY BE CHARGED TO LEAVE ACCUMULATED DURING THAT FISCAL YEAR WITHOUT REGARD TO SUCH 60-DAY LIMITATION.

THE COMMITTEE POINTS OUT IN CONNECTION WITH THE PHRASE "ON DUTY ON BOARD" CONTAINED IN 37 U.S.C. 427 (B) (2), THAT IF A MEMBER IS HOSPITALIZED, ON AUTHORIZED LEAVE, OR RESTRICTED FROM PERFORMING DUTY BECAUSE OF CONFINEMENT, MILITARY ARREST, ETC., HE CANNOT PERFORM HIS NORMAL DUTIES. WHEN THESE CONDITIONS PREVAIL FOR AN INDEFINITE PERIOD, A MEMBER IS NOT ENTITLED TO ADDITIONAL PAY SUCH AS SUBMARINE PAY, SEA DUTY PAY AND FOREIGN DUTY PAY, WHICH THE COMMITTEE STATES IS AUTHORIZED PRIMARILY FOR THE PERFORMANCE OF SPECIFIED DUTIES. HOWEVER, IT STATES THAT THE FAMILY SEPARATION ALLOWANCE UNDER SUBPARAGRAPH (B) (2) IS TO COMPENSATE MEMBERS FOR ADDITIONAL EXPENSES INCURRED BY DEPENDENTS AS A RESULT OF THEIR ENFORCED SEPARATION FROM THEIR FAMILIES. THE COMMITTEE THEREFORE TAKES THE POSITION THAT A MEMBER WHO IS AWAY FROM HIS HOME PORT BY REASON OF HAVING BEEN ASSIGNED DUTY ON BOARD A SHIP, BUT WHO IS NOT TEMPORARILY PERFORMING DUTIES ON BOARD THE SHIP BECAUSE OF BEING ASHORE, SHOULD CONTINUE TO RECEIVE THE ALLOWANCE WHILE ASHORE AT LEAST UNTIL THE SHIP RETURNS TO ITS HOME PORT, AND THEREAFTER PROVIDED HE MEETS THE REQUIREMENTS OF CLAUSE (3) OF 37 U.S.C. 427 (B). IF THE MEMBER IS PHYSICALLY ON BOARD THE SHIP BUT NOT TEMPORARILY PERFORMING DUTIES BECAUSE OF BEING CONFINED OR HOSPITALIZED OR UNDER MILITARY ARREST, THE COMMITTEE EXPRESSES THE BELIEF THAT PAYMENT OF THE ALLOWANCE SHOULD CONTINUE, SINCE THE ENFORCED SEPARATION FROM HIS FAMILY WITH ATTENDANT EXPENSES IS NOT ALTERED BY THE FACT THAT THE MEMBER IS NOT PHYSICALLY PERFORMING DUTIES ON BOARD THE SHIP. IT IS STATED FURTHER THAT IF 37 U.S.C. 427 (B) (2) REQUIRES THE CONTINUOUS PERFORMANCE OF DUTY ON BOARD A SHIP, THE CLAUSE COULD BE CONSTRUED TO REQUIRE THE COMMENCEMENT OF A NEW CONTINUOUS PERIOD OF MORE THAN 30 DAYS EACH TIME A MEMBER IS NOT "ON DUTY ON BOARD" THE SHIP THUS DEPRIVING MEMBERS WHO, FOR EXAMPLE, PERFORM INTERMITTENT SHORE PATROL DUTY, FROM RECEIVING THE ALLOWANCE.

FOR THE REASONS EXPRESSED IN THE COMMITTEE ACTION, IT IS OUR VIEW THAT ENTITLEMENT TO THE FAMILY SEPARATION ALLOWANCE UNDER CLAUSE (2) OF 37 U.S.C. 427 (B), IN THE CASE OF MEMBERS WHO REMAIN ATTACHED TO THE SHIP IS NOT LIMITED TO PERIODS OF ACTUAL PHYSICAL DUTY ON BOARD THE SHIP AND THAT ENTITLEMENT WOULD CONTINUE DURING PERIODS OF TEMPORARY DUTY, SHORE PATROL DUTIES, OR HOSPITALIZATION ASHORE WHILE THE SHIP REMAINS AWAY FROM ITS HOME PORT. ALSO, IN VIEW OF THE PROVISIONS OF THE SECOND SENTENCE OF 37 U.S.C. 502 (A), QUOTED ABOVE, ENTITLEMENT TO THE ALLOWANCE CONTINUES DURING THE PERIOD A MEMBER IS ON AUTHORIZED LEAVE NOT IN EXCESS OF THAT FOR WHICH HE IS ENTITLED TO PAY AND ALLOWANCES UNDER THAT SENTENCE. QUESTION NO. 7 IS THEREFORE ANSWERED IN THE AFFIRMATIVE.

WITH RESPECT TO QUESTION 8, WHEN THE SHIP RETURNS TO ITS HOME PORT, ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE UNDER CLAUSE (2) WOULD TERMINATE.

QUESTION 9 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 10 NEED NOT BE ANSWERED SINCE QUESTION 7 PERTAINING TO HOSPITALIZATION WAS ANSWERED IN THE AFFIRMATIVE.

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.

AS TO QUESTION 12, SINCE THE ANSWER TO QUESTIONS 7 AND 11 ARE IN THE AFFIRMATIVE, THE QUESTION NEED NOT BE ANSWERED. 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.

WITH RESPECT TO QUESTION 13, WE BELIEVE THAT THE ANSWERS TO QUESTIONS 7 AND 10 ABOVE, APPLY EQUALLY TO SITUATIONS UNDER CLAUSE (3) OF 37 U.S.C. 427 (B), WHEN A MEMBER IS HOSPITALIZED AT OR AWAY FROM HIS TEMPORARY DUTY STATION WITHOUT DETACHMENT FROM THAT STATION, OR IS ON AUTHORIZED LEAVE AWAY FROM HIS TEMPORARY DUTY STATION NOT IN EXCESS OF THE LEAVE FOR WHICH HE IS ENTITLED TO PAY AND ALLOWANCES UNDER THE SECOND SENTENCE OF 37 U.S.C. 502 (A). ACCORDINGLY, THE ANSWER IS IN THE AFFIRMATIVE.

QUESTION 14.

IF THE ENTRY OF A MEMBER'S DEPENDENTS INTO A RESTRICTED AREA AS DEFINED BY PARAGRAPH 1150-17, JOINT TRAVEL REGULATIONS, IS TEMPORARILY PROHIBITED BY COMPETENT AUTHORITY, AND THE MEMBER IS THUS ENTITLED TO TRANSPORTATION FOR HIS DEPENDENTS UNDER PARAGRAPH 7005, JOINT TRAVEL REGULATIONS, MAY IT BE CONSIDERED THAT "THE MOVEMENT OF HIS DEPENDENTS TO HIS PERMANENT STATION OR PLACE NEAR THAT STATION IS NOT AUTHORIZED AT THE EXPENSE OF THE UNITED STATES," UNDER 37 U.S.C. 406, WITHIN THE MEANING OF 37 U.S.C. 427 (A) AND LCAUSE (1) OF 37 U.S.C. 427 (B/?

QUESTION 14 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 15.

IF ONE OF A MEMBER'S DEPENDENTS IS AUTHORIZED TO TRAVEL CONCURRENTLY WITH HIM TO HIS PERMANENT DUTY STATION AT THE EXPENSE OF THE UNITED STATES UNDER 37 U.S.C. 406, BUT THE MOVEMENT OF HIS REMAINING DEPENDENTS TO HIS PERMANENT DUTY STATION OR A PLACE NEAR THAT STATION IS NOT AUTHORIZED AT SUCH EXPENSE, WOULD HE BE ENTITLED TO OTHERWISE PROPER PAYMENT OF FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (A) OR CLAUSE (1) OF 37 U.S.C. 427 (B/?

SOMEWHAT ANALOGOUS CIRCUMSTANCES TO THOSE IN THE QUESTION PRESENTED WERE INVOLVED IN OUR DECISION OF MARCH 11, 1955, B-121240, 34 COMP. GEN. 436, RELATING TO QUARTERS ALLOWANCE FOR AN OFFICER WHO REQUESTED PERMISSION TO BRING HIS WIFE AND 4 DEPENDENT CHILDREN WITH HIM TO HIS DUTY STATION IN MOSCOW, USSR, BUT HE WAS ALLOWED TO BRING HIS WIFE AND ONLY TWO CHILDREN TO SUCH DUTY STATION. WE HELD, IN THAT CASE, THAT BECAUSE TWO OF THE MEMBER'S DEPENDENTS COULD NOT ACCOMPANY HIM TO MOSCOW, HAVING BEEN PREVENTED BY ORDERS OF COMPETENT AUTHORITY FROM OCCUPYING THE GOVERNMENT QUARTERS ASSIGNED TO THE MEMBER, HE THEREFORE WAS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS AS AN OFFICER WITH DEPENDENTS NOTWITHSTANDING HIS WIFE AND TWO OF HIS FOUR DEPENDENT CHILDREN DID RESIDE WITH HIM IN MOSCOW.

SINCE THE CONDITIONS CREATING ENTITLEMENT TO PAYMENT OF FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (A), OR CLAUSE (1) OF 37 U.S.C. 427 (B), DO NOT NECESSARILY DISAPPEAR WHEN SOME, BUT NOT ALL OF THE MEMBER'S DEPENDENTS JOIN HIM AT HIS DUTY STATION, WE BELIEVE THE PRINCIPLE OF 34 COMP. GEN. 436 IS EQUALLY FOR APPLICATION HERE. ACCORDINGLY, AS LONG AS THE MOVEMENT OF THE MEMBER'S REMAINING DEPENDENTS TO HIS PERMANENT DUTY STATION OR PLACE NEAR THAT STATION IS NOT AUTHORIZED AT THE EXPENSE OF THE UNITED STATES UNDER 37 U.S.C. 406, THE RESTRICTION THUS BEING AT THE VOLITION OF THE UNITED STATES RATHER THAN THE MEMBER, THE MEMBER WOULD BE ENTITLED TO OTHERWISE PROPER PAYMENTS OF FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B) (1) AND 37 U.S.C. 427 (A). QUESTION 15 IS ANSWERED ACCORDINGLY. QUESTION 16.

IF, FOR REASONS OF HEALTH (SUCH AS IN THE CASE OF PREGNANCY OF A MEMBER'S WIFE), TRANSPORTATION FOR THE DEPENDENT OF A MEMBER IS NOT AUTHORIZED PRIOR TO THE TIME HE REPORTS TO HIS NEW PERMANENT DUTY STATION MAY IT BE CONSIDERED THAT "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 37 U.S.C. 406 WITHIN THE MEANING OF 37 U.S.C. 427 (A) AND CLAUSE (1) OF 37 U.S.C. 427 (B/? SINCE THE TRANSPORTATION OF THE MEMBER'S PREGNANT WIFE IS RESTRICTED BY MILITARY REGULATIONS, THE MOVEMENT OF THE INVOLVED DEPENDENT IS NOT AUTHORIZED AT THE EXPENSE OF THE UNITED STATES UNDER 37 U.S.C. 406 WITHIN THE MEANING OF 37 U.S.C. 427 (A) AND CLAUSE (1) OF 37 U.S.C. 427 (B). QUESTION 16 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 17.

IF THE DEPENDENT OF A MEMBER IS NOT ELIGIBLE UNDER IMMIGRATION LAWS FOR ENTRY INTO THE UNITED STATES PRIOR TO THE TIME HE REPORTS TO HIS NEW PERMANENT DUTY STATION WITHIN THE UNITED STATES, MAY IT BE CONSIDERED THAT "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 37 U.S.C. 406 WITHIN THE MEANING OF CLAUSE (1) OF 37 U.S.C. 427 (B/?

IN THE SITUATION PRESENTED IN QUESTION 17, THE DEPENDENT OF THE MEMBER MAY NOT BE ELIGIBLE UNDER IMMIGRATION LAWS BECAUSE OF CONTAGIOUS DISEASE, OR, IN THE CASE OF CERTAIN ALIEN DEPENDENTS, BEING POLITICALLY OR SOCIALLY UNDERSIRABLE. IF UNDER DEPARTMENTAL REGULATIONS THE DEPENDENT IS NOT AUTHORIZED TRANSPORTATION AT GOVERNMENT EXPENSE IN SUCH CIRCUMSTANCES WE BELIEVE THE MEMBER WOULD BE ENTITLED TO FAMILY SEPARATION ALLOWANCE. THE ABSENCE OF SOME SUCH MILITARY RESTRICTION UPON ENTITLEMENT TO DEPENDENT TRANSPORTATION, HOWEVER, IT IS OUR VIEW THAT THE ALLOWANCE WOULD NOT BE PAYABLE. QUESTION 17 IS ANSWERED ACCORDINGLY.

QUESTION 18.

IF A MEMBER'S DEPENDENTS ARE FURNISHED TRANSPORTATION TO HIS OVERSEAS DUTY STATION AND LATER FURNISHED TRANSPORTATION FROM HIS OVERSEAS DUTY STATION UNDER THE PROVISIONS OF PARAGRAPH 7101, 7102, 7103, OR 7105, JOINT TRAVEL REGULATIONS, MAY OTHERWISE PROPER PAYMENT OF FAMILY SEPARATION ALLOWANCES BE MADE TO HIM UNDER 37 U.S.C. 427 (A) AND CLAUSE (1) OF 37 U.S.C. 427 (B) FROM AND INCLUDING THE DATE HIS DEPENDENTS DEPART FROM HIS OVERSEAS STATION?

THE PROVISIONS OF THE JOINT TRAVEL REGULATIONS CITED IN QUESTION 18 (PARAGRAPHS 7101, 7102, 7103, AND 7105) COVER THE TRANSPORTATION OF DEPENDENTS FROM AREAS OUTSIDE THE UNITED STATES UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES AND THE PROVISIONS OF 37 U.S.C. 427/A) AND CLAUSE (1) OF 37 U.S.C. 427/B) DO NOT SPECIFICALLY COVER SUCH SITUATIONS.

UNDER PARAGRAPH 7101, JOINT TRAVEL REGULATIONS, EVACUATION OF DEPENDENTS FROM AREAS OUTSIDE THE UNITED STATES IS AUTHORIZED:

WHEN, DUE TO UNUSUAL OR EMERGENCY CIRCUMSTANCES (SUCH AS WAR, RIOTS, CIVIL UPRISINGS OR UNREST, ADVERSE POLITICAL CONDITIONS, DENIAL OR REVOCATION BY HOST GOVERNMENT OF PERMISSION TO REMAIN, NATIONAL DISASTER, EPIDEMIC, OR SIMILAR CIRCUMSTANCES OF COMPARABLE MAGNITUDE), IT BECOMES NECESSARY TO EVACUATE DEPENDENTS FROM AN AREA OUTSIDE THE UNITED STATES, *

UNDER THE CIRCUMSTANCES STATED IN PARAGRAPH 7101, THE CONDITIONS CAUSING THE EMERGENCY EVACUATION OF THE DEPENDENTS WOULD RESULT FROM MILITARY NEEDS AND WE BELIEVE THE EFFECT OF SUCH FORCED EVACUATION WOULD BE TO CONVERT THE MEMBER'S POST OF DUTY TO A RESTRICTED STATION. IN SUCH CASE PAYMENT OF FAMILY SEPARATION ALLOWANCES WOULD BE PROPER WHERE THE CONDITIONS OF THE STATUTE OTHERWISE ARE MET.

PARAGRAPH 7102, JOINT TRAVEL REGULATIONS, PROVIDES THAT---

WHEN A DEPENDENT BECOMES INVOLVED IN AN INCIDENT WHICH IS (1) EMBARRASSING TO THE UNITED STATES GOVERNMENT, (2) PREJUDICIAL TO ORDER, MORALE, AND DISCIPLINE IN THE COMMAND, OR (3) GIVES RISE TO CONDITIONS WHERE THE SAFETY OF DEPENDENTS NO LONGER CAN BE INSURED BECAUSE OF ADVERSE PUBLIC FEELING IN THE AREA, THE COMMANDING OFFICER OF THE AREA CONCERNED MAY AUTHORIZE TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE * * *.

WE DO NOT BELIEVE THAT THE THREE SITUATIONS DESCRIBED IN PARAGRAPH 7102, MAY BE VIEWED AS OF THEMSELVES CONVERTING THE MEMBER'S POST OF DUTY TO A RESTRICTED STATION FOR PURPOSES OF TRANSPORTATION OF DEPENDENTS WHERE THE MISCONDUCT OF THE DEPENDENTS IS THE CAUSE OF THEIR BEING MOVED UNDER AUTHORITY OF THAT PARAGRAPH. THEREFORE, IN CONNECTION WITH ANY CLAIM FOR PAYMENT OF FAMILY SEPARATION ALLOWANCE FOLLOWING TRANSPORTATION OF THE MEMBER'S DEPENDENTS UNDER PARAGRAPH 7102, WE BELIEVE THAT BEFORE PAYMENT IS MADE, THERE SHOULD BE A CERTIFICATION BY THE OFFICER DIRECTING THEIR RETURN THAT THE DEPENDENTS WERE NOT EVACUATED UNDER THE AUTHORITY OF PARAGRAPH 7102 BECAUSE OF CONDITIONS CAUSED BY THEIR OWN MISCONDUCT.

PARAGRAPH 7103 RELATES TO PERSONAL SITUATIONS OF THE MEMBER AND HIS DEPENDENTS, SUCH AS SERIOUS INJURY, OR ILLNESS OF DEPENDENTS AFFECTED ADVERSELY BY WEATHER OR CLIMATE; EMOTIONAL CONDITION OF A CONTINUING NATURE ON THE PART OF THE DEPENDENTS; LACK OF ADEQUATE EDUCATIONAL FACILITIES OR HOUSING FOR DEPENDENTS; CONCERN ON THE PART OF THE MEMBER OF THE SAFETY OF HIS DEPENDENTS, ETC. IN SUCH SITUATIONS THE MEMBER MAY REQUEST, AND THE COMMANDING OFFICER MAY APPROVE, TRANSPORTATION OF DEPENDENTS AFTER HE HAS ASSURED HIMSELF THAT A REASONABLE RELATIONSHIP EXISTS BETWEEN THE CONDITIONS AND THE CIRCUMSTANCES PROMPTING THE REQUEST FOR TRAVEL OF THE DEPENDENT IN EACH CASE. THESE SITUATIONS DO NOT RELATE TO MILITARY REQUIREMENTS AND IN CERTAIN INSTANCES THE DEPENDENTS MAY BE RETURNED TO THE SAME OVERSEAS STATION. IN SUCH CIRCUMSTANCES, IT IS DOUBTFUL THAT THE MEMBERS ARE TO BE VIEWED GENERALLY AS NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS TO THEIR OVERSEAS STATION WITHIN THE CONTEMPLATION OF THE STATUTE. HENCE, PAYMENT OF FAMILY SEPARATION ALLOWANCES WOULD NOT BE AUTHORIZED IN SUCH CASES.

PARAGRAPH 7105 PROVIDES THAT---

WHEN THE SECRETARY OF THE SERVICE CONCERNED, OR HIGHER AUTHORITY, DETERMINES THAT DEPENDENTS OF MILITARY MEMBERS ARE TO BE RETURNED FROM AN OVERSEAS AREA FOR REASONS OF NATIONAL INTEREST PRIOR TO TERMINATION OF THE SPONSORS' OVERSEAS TOUR OF DUTY THE MAJOR COMMANDER OF THE AREA CONCERNED, OR THE OFFICER DESIGNATED BY HIM, SHALL AUTHORIZE TRANSPORTATION OF DEPENDENTS OF MILITARY MEMBERS ENTITLED THERETO * * *.

IF A SECRETARIAL OR HIGHER DETERMINATION HAS BEEN MADE UNDER CIRCUMSTANCES STATED IN PARAGRAPH 7105 AND TRANSPORTATION IS AUTHORIZED FOR DEPENDENTS UNDER SUCH DETERMINATION OF NATIONAL INTEREST, PAYMENT OF OTHERWISE PROPER FAMILY SEPARATION ALLOWANCES WOULD BE AUTHORIZED. QUESTION 18 IS ANSWERED ACCORDINGLY.

QUESTION 19.

MAY OTHERWISE PROPER PAYMENT OF FAMILY SEPARATION ALLOWANCES BE MADE TO A MEMBER UNDER 37 U.S.C. 427 (A) AND CLAUSE (1) OF 37 U.S.C. 427 (B) DURING A PERIOD NOT EXCEEDING THREE CONTINUOUS MONTHS HIS DEPENDENTS VISIT HIM AT OR NEAR HIS PERMANENT DUTY STATION?

IN DECISION OF FEBRUARY 11, 1958, 37 COMP. GEN. 517, WE HELD THAT WHILE IT IS IMPOSSIBLE TO DETERMINE A FIXED PERIOD FOR A VISIT OF A "TEMPORARY NATURE" WHICH, UNDER ALL CIRCUMSTANCES, WOULD SAFEGUARD THE INTERESTS OF THE GOVERNMENT WHILE NOT INFRINGING UPON THE PRIVILEGES INTENDED TO BE GRANTED TO SERVICE PERSONNEL, THE LIBERAL MAXIMUM PERIOD OF 3 MONTHS UNDER EXECUTIVE ORDER NO. 10204, DURING WHICH THE WIFE OF A MEMBER OF THE UNIFORMED SERVICES MAY OCCUPY GOVERNMENT FACILITIES, PUBLIC QUARTERS ASSIGNED TO ANOTHER MEMBER, OR A GUEST HOUSE WHILE ON A SOCIAL VISIT OF A TEMPORARY NATURE WITHOUT LOSS TO THE MEMBER OF HIS RIGHT TO CONTINUE TO RECEIVE BASIC ALLOWANCE FOR QUARTERS ON HER ACCOUNT WOULD BE A REASONABLE MAXIMUM PERIOD FOR SUCH VISITS. WE BELIEVE A SIMILAR MAXIMUM PERIOD MAY BE PRESCRIBED BY REGULATIONS UNDER THE CITED CODE PROVISIONS WHERE THE FACTS CLEARLY SHOW THAT THE DEPENDENTS ARE MERELY VISITING AT OR NEAR THE PERMANENT DUTY STATION AND HAVE NOT EFFECTED A CHANGE OF RESIDENCE.

QUESTION 20.

MAY OTHERWISE PROPER PAYMENT OF FAMILY SEPARATION ALLOWANCE BE MADE TO A MEMBER UNDER CLAUSE (3) OF 37 U.S.C. 427 (B) WHILE HE MAINTAINS A RESIDENCE FOR HIS DEPENDENTS AT HIS PERMANENT DUTY STATION OR ELSEWHERE AND HIS DEPENDENTS VISIT HIM AT OR NEAR HIS TEMPORARY DUTY STATION FOR A PERIOD NOT EXCEEDING THREE CONTINUOUS MONTHS?

CLAUSE (3) PROVIDES FOR PAYMENT OF THE ALLOWANCE WHEN THE MEMBER 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. SINCE A 31 DAY MINIMUM PERIOD OF TEMPORARY DUTY IS REQUIRED FOR PAYMENT OF THE ALLOWANCE AND THE MAXIMUM PERIOD OF TEMPORARY DUTY GENERALLY WOULD NOT EXCEED 6 MONTHS, IT SEEMS REASONABLE TO CONCLUDE THAT RESIDENCE AT OR NEAR THE TEMPORARY STATION FOR MORE THAN 30 DAYS WOULD BE MORE THAN A VISIT. THUS, IT IS OUR VIEW THAT A RIGHT TO FAMILY SEPARATION ALLOWANCE UNDER CLAUSE (3), SECTION 427 (B), WOULD NOT ACCRUE TO A MEMBER WHOSE DEPENDENTS ARE WITH HIM AT HIS TEMPORARY DUTY STATION FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS.

QUESTION 21.

IF THE ANSWER TO QUESTION 19 OR 20 IS IN THE NEGATIVE, WOULD IT BE THE SAME SHOULD THE MEMBER HAVE MORE THAN ONE DEPENDENT AS DEFINED IN 37 U.S.C. 401 AND NOT ALL OF THE DEPENDENTS VISIT HIM AT OR NEAR HIS DUTY STATION?

WITH RESPECT TO THE ANSWER TO QUESTION 19, IF THE MEMBER HAS MORE THAN ONE DEPENDENT AND NOT ALL OF THE DEPENDENTS VISIT HIM AT OR NEAR HIS PERMANENT DUTY STATION, THE VISIT OF ONE OR MORE OF THE DEPENDENTS, EVEN THOUGH EXCEEDING 3 MONTHS, WOULD NOT DEPRIVE HIM OF THE ALLOWANCE UNDER SUBSECTION (A) AND CLAUSE (1) OF SUBSECTION (B) IF HE IS OTHERWISE ENTITLED TO THE ALLOWANCE BY REASON OF THE DEPENDENTS WHO DO NOT VISIT HIM. SEE THE ANSWER TO QUESTION 15. SIMILARLY, WITH RESPECT TO THE ANSWER TO QUESTION 20, IF THE MEMBER HAS MORE THAN ONE DEPENDENT AND NOT ALL OF HIS DEPENDENTS VISIT HIM AT OR NEAR HIS TEMPORARY DUTY STATION, IT IS OUR VIEW THAT THE EXTENDED VISIT OF ONE OR MORE OF HIS DEPENDENTS WOULD NOT DEPRIVE HIM OF THE ALLOWANCE UNDER CLAUSE (3) OF SUBSECTION (B) IF HE IS OTHERWISE ENTITLED TO THE ALLOWANCE BY REASON OF THE DEPENDENTS WHO DO NOT VISIT HIM.

QUESTIONS 22, 23 AND 24 ARE AS FOLLOW:

QUESTION 22.

MAY OTHERWISE PROPER PAYMENT OF FAMILY SEPARATION ALLOWANCE BE MADE TO A MEMBER UNDER CLAUSE (3) OF 37 U.S.C. 427 (B) DURING A PERIOD ONE OF HIS DEPENDENTS (HIS WIFE, FOR EXAMPLE) IN FACT RESIDES WITH HIM AT OR NEAR HIS TEMPORARY DUTY STATION BUT HIS REMAINING DEPENDENTS (CHILDREN IN THE CUSTODY OF HIS PARENTS OR FORMER WIFE, FOR EXAMPLE) DO NOT RESIDE AT OR NEAR THAT STATION?

QUESTION 23.

IF AT THE TIME A MEMBER DEPARTS FROM HIS DUTY STATION OR HOME PORT HE AND HIS DEPENDENT WIFE ARE NOT RESIDING TOGETHER BECAUSE THEY ARE LEGALLY SEPARATED, OR A MEMBER'S SOLE DEPENDENT IS A CHILD IN THE LEGAL CUSTODY OF HIS FORMER WIFE, OR HIS SOLE DEPENDENT IS HIS MOTHER AND HE AND HIS MOTHER DO NOT MAINTAIN A COMMON HOUSEHOLD, IS HE ENTITLED TO OTHERWISE PROPER PAYMENT OF FAMILY SEPARATION ALLOWANCES UNDER 37 U.S.C. 427 (A) AND CLAUSE (1), (2), OR (3) OF 37 U.S.C. 427 (B/?

QUESTION 24.

IF AT THE TIME A MEMBER DEPARTS FROM HIS DUTY STATION OR HOME PORT HE AND HIS DEPENDENT WIFE ARE NOT LEGALLY SEPARATED BUT BECAUSE OF HIS WIFE'S HEALTH OR OTHER REASONS THEY ARE NOT PHYSICALLY RESIDING TOGETHER, OR IF A MEMBER'S SOLE DEPENDENT IS A CHILD WHO IS IN HIS LEGAL CUSTODY BUT IS NOT PHYSICALLY RESIDING WITH HIM BECAUSE, FOR EXAMPLE, THE CHILD IS ATTENDING SCHOOL AWAY FROM HOME OR IS INSTITUTIONALIZED, IS HE ENTITLED TO OTHERWISE PROPER PAYMENT OF FAMILY SEPARATION ALLOWANCES UNDER 37 U.S.C. 427 (A) AND CLAUSE (1), (2), OR (3) OF 37 U.S.C. 427 (B/?

IN ITS DISCUSSION THE MILITARY PAY AND ALLOWANCE COMMITTEE RECOGNIZES THAT SINCE SECTION 427 IS ENTITLED "FAMILY SEPARATION ALLOWANCE," THERE IS A BASIS FOR THE VIEW THAT THE ALLOWANCES SHOULD NOT BE PAID IF THE FAMILY SEPARATION DID NOT RESULT FROM MILITARY ORDERS. THE COMMITTEE STATES THAT IT FINDS NOTHING IN THE LANGUAGE OF THE SECTION TO SUPPORT THIS VIEW, AND EXPRESSES THE BELIEF THAT THE LANGUAGE OF THE SECTION SHOULD BE APPLIED WITHOUT ANY SPECIAL SIGNIFICANCE BEING ATTACHED TO THE TITLE. IN THE COURSE OF ITS DISCUSSION THE COMMITTEE ALSO RECOGNIZES, HOWEVER, THAT THE PURPOSE OF THE ALLOWANCE AS EVIDENCED BY THE LEGISLATIVE HISTORY OF THE SECTION (427 (A) ( IS TO COMPENSATE A MEMBER WITH DEPENDENTS FOR THE ADDITIONAL EXPENSE OF PROCURING PRIVATE QUARTERS FOR HIMSELF AT HIS OVERSEAS STATION WHEN PUBLIC QUARTERS ARE NOT AVAILABLE AND HIS DEPENDENTS CANNOT ACCOMPANY HIM, AND TO COMPENSATE MEMBERS (427 (B) ( FOR THE EXTRA HOUSEHOLD EXPENSES SUCH AS HOME AND AUTOMOBILE MAINTENANCE RESULTING FROM AM ENFORCED SEPARATION FROM THE DEPENDENTS FOR AN EXTENDED PERIOD OF TIME UNDER THE CONDITIONS SPECIFIED.

THE SECTION DOES NOT SPECIFICALLY PROVIDE THAT THE ALLOWANCES ARE PAYABLE ONLY WHEN THE FAMILY SEPARATION RESULTS FROM MILITARY ORDERS,BUT IT IS CLEAR FROM THE PROVISIONS OF BOTH SUBSECTION (A) AND SUBSECTION (B) AS WELL AS THE TITLE OF THE SECTION THAT THE ALLOWANCES ARE PREDICATED ON A SEPARATION OF THE MEMBER AND HIS DEPENDENTS. THUS, THERE IS NO VARIANCE BETWEEN THE SECTION AND ITS TITLE. WE ARE WELL AWARE THAT IT IS A FUNDAMENTAL RULE OF STATUTORY CONSTRUCTION THAT THE PLAIN AND UNAMBIGUOUS TERMS OF A STATUTE MAY NOT BE VARIED BY RESORT TO ITS LEGISLATIVE HISTORY TO DETERMINE THE LEGISLATIVE INTENT. HOWEVER, SINCE 427 (A) AND 427 (B) (1) PROVIDE FOR THE PAYMENT OF TWO SEPARATE ALLOWANCES TO A MEMBER FOR THE SAME SERVICE UNDER THE CIRCUMSTANCES SPECIFIED, IT IS BELIEVED THAT WE ARE FULY JUSTIFIED IN EXAMINING THE LEGISLATIVE HISTORY TO DETERMINE THE CONGRESSIONAL INTENT AND PURPOSE IN ENACTING SUCH UNUSUAL AND SEEMINGLY AMBIGUOUS PROVISIONS. THE LEGISLATIVE HISTORY CLEARLY REVEALS THE LEGISLATIVE INTENT AND PURPOSE FOR AUTHORIZING THE TWO ALLOWANCES UNDER 427 (A) AND 427 (B) AS SET FORTH ABOVE. IN THIS CONNECTION, IT IS STATED IN 25 COMP. GEN. 604, 611--- * * * BY LONG SETTLED RULE OF STATUTORY CONSTRUCTION, THE OPERATION OF A STATUTE MUST BE RESTRICTED WITHIN NARROWER LIMITS THAN ITS WORDS IMPORT WHERE THE LITERAL MEANING EMBRACES CASES NOT INTENDED BY THE LEGISLATIVE BODY; THE STRICT LETTER OF A STATUTE MUST YIELD TO ITS EVIDENT SPIRIT AND PURPOSE WHEN THAT IS NECESSARY TO GIVE EFFECT TO THE INTENT OF THE CONGRESS; AND CONSTRUCTIONS OF STATUTES ARE TO BE MADE ACCORDING TO THE INTENTION OF THE MAKERS, AND SOMETIMES ARE TO BE EXPOUNDED AGAINST THE LETTER TO PRESERVE THE INTENT. 6 COMP. GEN. 288; 19 ID. 516, AND CASES CITED. SEE, ALSO, UNITED STATES V. DICKERSON, 310 U.S. 554, THAT THERE SHOULD BE "A CONSIDERED WEIGHING OF EVERY RELEVANT AID TO CONSTRUCTION" IN DETERMINING THE MEANING OF AN ACT OF CONGRESS, AND HARRISON V. NORTHERN TRUST COMPANY, 317 U.S. 476, THAT RESORT TO EXPLANATORY LEGISLATIVE HISTORY IS NOT FORBIDDEN NO MATTER HOW CLEAR THE WORDS MAY FIRST APPEAR ON SUPERFICIAL EXAMINATION.

SINCE THE ALLOWANCE AUTHORIZED IN SECTION 427 (A) IS TO REIMBURSE THE MEMBER FOR THE ADDITIONAL COST OF PROCURING COMMERCIAL QUARTERS FOR HIMSELF AT THIS STATION OVERSEAS OR IN ALASKA UNDER THE CONDITIONS SPECIFIED, THERE WOULD SEEM TO BE LITTLE SUPPORT FOR THE VIEW THAT THE ALLOWANCE WAS INTENDED TO BE PAID ONLY IF THE MEMBER AND HIS DEPENDENTS WERE RESIDING TOGETHER IMMEDIATELY PRIOR TO HIS TRANSFER OVERSEAS. THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS FOR HIS DEPENDENTS IS NOT SO RESTRICTED AND AS INDICATED ABOVE, WE HAVE NOT FOUND A SUFFICIENT BASIS TO CONCLUDE THAT CONGRESS INTENDED THAT THE PAYMENT OF THE ALLOWANCE UNDER 427 (A) WOULD BE SO RESTRICTED.

PAYMENT OF THE ALLOWANCE UNDER 427 (A), HOWEVER, PRESENTS A DIFFERENT SITUATION. THAT ALLOWANCE IS TO REIMBURSE THE MEMBER FOR THE ADDITIONAL EXPENSES SUCH AS HOME AND CAR MAINTENANCE AND INCREASED CHILD CARE COSTS THAT ARISE BY REASON OF HIS BEING AWAY FROM HIS DEPENDENTS FOR AN EXTENDED PERIOD OF TIME. CONSEQUENTLY, IT IS CLEAR THAT THE ALLOWANCE IS PREDICATED ON A SEPARATION OF THE MEMBER FROM HIS DEPENDENTS BY REASON OF HIS MILITARY ASSIGNMENT AND IS DESIGNED TO REIMBURSE HIM FOR THE ADDITIONAL EXPENSES THAT ARISE WHERE HIS DEPENDENTS RESIDE BY REASON OF HIS SEPARATION FROM THEM. THEREFORE, 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. OF COURSE, THE MEMBER WOULD NOT BE PRECLUDED FROM RECEIVING THE ALLOWANCE IF THE DEPENDENT RESIDED WITH HIM AND HE CONTINUES TO MAINTAIN THE RESIDENCE DURING A SHORT TEMPORARY ABSENCE OF THE DEPENDENT FOR SUCH REASONS AS A VISIT OR HOSPITALIZATION. CF. 29 COMP. GEN. 280.

IN THE LIGHT OF THE ABOVE DISCUSSION, QUESTION 22 IS ANSWERED IN THE NEGATIVE.

UNDER THE CIRCUMSTANCES SET FORTH IN QUESTION 23, THE MEMBER WOULD BE ENTITLED TO PAYMENT IF OTHERWISE PROPER UNDER 427 (A) BUT NOT UNDER CLAUSE (1), (2) OR (3) OF 427 (B).

UNDER THE CIRCUMSTANCES SET FORTH IN QUESTION 24, THE MEMBER WOULD BE ENTITLED TO PAYMENT IF OTHERWISE PROPER UNDER 427 (A). HE WOULD NOT BE ENTITLED TO PAYMENT UNDER 427 (B) IF, AT THE TIME OF HIS DEPARTURE FROM HIS DUTY STATION OR HOME PORT, HE WAS NOT MAINTAINING A COMMON HOUSEHOLD FOR HIMSELF AND DEPENDENT. IF, HOWEVER, HE WAS MAINTAINING SUCH A RESIDENCE FOR HIS DEPENDENT AT THE TIME OF HIS DEPARTURE AND HE CONTINUES TO MAINTAIN SUCH RESIDENCE, IT IS OUR VIEW, AS INDICATED ABOVE, THAT THE TEMPORARY PHYSICAL ABSENCE OF THE DEPENDENT FOR A SHORT PERIOD OF NOT EXCEEDING 3 MONTHS WOULD NOT PRECLUDE PAYMENT UNDER 427 (B) IF OTHERWISE PROPER. THE QUESTION IS ANSWERED ACCORDINGLY.

QUESTION 25.

IS A MEMBER ENTITLED TO OTHERWISE PROPER PAYMENT OF FAMILY SEPARATION ALLOWANCE UNDER CLAUSE (2) OR (3) OF 37 U.S.C. 427 (B) IF HE IS ASSIGNED INADEQUATE QUARTERS FOR THE OCCUPANCY OF HIMSELF AND HIS DEPENDENTS AT HIS HOME PORT OR PERMANENT DUTY STATION WITHOUT LOSS OF BASIC ALLOWANCE FOR QUARTERS AS PROVIDED FOR BY SECTION 407 OF THE ACT OF 30 AUGUST 1957 (PUBLIC LAW 85-241, 71 STAT. 556), AS AMENDED?

SECTION 407 (A) OF THE ACT OF AUGUST 30, 1957, PROVIDES THAT:

NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, MEMBERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE, WITH DEPENDENTS, MAY OCCUPY ON A RENTAL BASIS, WITHOUT LOSS OF BASIC ALLOWANCE FOR QUARTERS, INADEQUATE QUARTERS UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES, NOTWITHSTANDING THAT SUCH QUARTERS MAY HAVE BEEN CONSTRUCTED OR CONVERTED FOR ASSIGNMENT AS PUBLIC QUARTERS. THE NET DIFFERENCE BETWEEN THE BASIC ALLOWANCE FOR QUARTERS AND THE FAIR RENTAL VALUE OF SUCH QUARTERS SHALL BE PAID FROM OTHERWISE AVAILABLE APPROPRIATIONS.

SECTION 427 (B) OF TITLE 37, U.S.C. REQUIRES THAT A MEMBER BE ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS IN ORDER TO QUALIFY FOR THE FAMILY SEPARATION ALLOWANCE PROVIDED FOR BY CLAUSES (1), (2) AND (3) OF THAT SECTION. SINCE A MEMBER IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS WHILE HE AND HIS DEPENDENTS ARE ASSIGNED TO QUARTERS OF THE TYPE COVERED BY SECTION 407 (A), HIS SITUATION WITH RESPECT TO HOUSING IS THE EQUIVALENT OF THAT OF MEMBERS WHO OCCUPY HOUSING ON A RENTAL BASIS WITHOUT LOSS OF BASIC ALLOWANCE FOR QUARTERS UNDER 37 U.S.C. 403 (E), THE DISTINCTION BEING THAT HE RECEIVES THE DIFFERENCE BETWEEN THE BASIC ALLOWANCE FOR QUARTERS AND THE FAIR RENTAL VALUE OF THE QUARTERS, AND THE LATTER MEMBERS RECEIVE THE FULL BASIC ALLOWANCE FOR QUARTERS AND MAKE DIRECT PAYMENT OF THE RENTAL CHARGE. WE BELIEVE THAT IN EITHER EVENT THE CONDITIONS FOR PAYMENT OF THE $30 ALLOWANCE WOULD BE MET. HENCE THE ANSWER TO QUESTION 25 IS IN THE AFFIRMATIVE.

QUESTION 26.

IF THE DEPENDENTS OF A MEMBER DO NOT RESIDE WITHIN A REASONABLE DAILY COMMUTING DISTANCE OF HIS DUTY STATION, A DISTANCE OF 50 MILES BEING CONSIDERED AS THE MAXIMUM ONE-WAY DISTANCE FOR THIS PURPOSE EXCEPT WHERE A MEMBER ACTUALLY COMMUTES A GREATER DISTANCE DAILY, MAY IT BE CONSIDERED THAT HIS DEPENDENTS DO NOT RESIDE AT OR NEAR HIS STATION FOR THE PURPOSE OF CLAUSE (1) OF 37 U.S.C. 427 (A) OR CLAUSES (1) AND (3) OF 37 U.S.C. 427 (B/?

THE ANSWER TO QUESTION 26 IS IN THE AFFIRMATIVE. COMPARE DECISION OF AUGUST 25, 1950, B-96852, HOLDING THAT THE MOTHER OF AN ENLISTED MEMBER OF THE NAVY WHO RESIDED ABOUT 58 MILES FROM HIS PERMANENT DUTY STATION COULD NOT BE REGARDED AS ACTUALLY IN HIS HOUSEHOLD FOR PURPOSES OF CERTAIN FORMER PROVISIONS OF SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 252, AUTHORIZING CREDIT OF BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT PARENT WHO ACTUALLY RESIDED IN THE HOUSEHOLD OF THE MEMBER.

QUESTION 27.

MAY THE PERIOD A MEMBER IS ON DUTY ON BOARD A SHIP AWAY FROM THE HOME PORT OF THE SHIP OR ON TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION BEFORE 1 OCTOBER 1963 BE ADDED TO THE PERIOD HE IS IN THE SAME STATUS AFTER 30 SEPTEMBER 1963 FOR THE PURPOSE OF THE REQUIREMENT IN CLAUSES (2) AND (3) OF 37 U.S.C. 427 (B) THAT HE BE AWAY FROM HIS HOME PORT OR PERMANENT STATION FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS, SO AS TO ENTITLE HIM TO OTHERWISE PROPER PAYMENT OF FAMILY SEPARATION ALLOWANCE EFFECTIVE AS OF 1 OCTOBER 1963 UPON FULFILLING THE 30-DAY REQUIREMENT? FOR EXAMPLE, IF A MEMBER IS ON DUTY ON BOARD A SHIP AWAY FROM THE HOME PORT OF THE SHIP FOR THE PERIOD 16 SEPTEMBER 1963 THROUGH 20 OCTOBER 1963, MAY OTHERWISE PROPER PAYMENT OF FAMILY SEPARATION ALLOWANCE BE MADE TO HIM UNDER CLAUSE (2) OF 37 U.S.C. 427 (B) FOR THE PERIOD 1 THROUGH 20 OCTOBER 1963?

SINCE THE EFFECTIVE DATE OF THE UNIFORMED SERVICES PAY ACT OF 1963, IS OCTOBER 1, 1963, AND THERE IS NOTHING IN THE ACT OR ITS LEGISLATIVE HISTORY TO SUGGEST THAT THE QUALIFYING PERIOD REQUIRED FOR ENTITLEMENT TO THE BENEFITS WHICH IT PROVIDES IS TO COMMENCE PRIOR TO THAT DATE, WE DO NOT BELIEVE THERE IS ANY BASIS ON WHICH A PERIOD PRIOR TO OCTOBER 1, 1963, MAY BE CONSIDERED IN COMPUTING THE CONTINUOUS 30-DAY PERIOD REQUIRED BY CLAUSES (2) AND (3) OF 37 U.S.C. 427 (B). THE QUESTION IS ANSWERED IN THE NEGATIVE.