B-178490, MAY 6, 1974

B-178490, MAY 6, 1974

ALTHOUGH AID EMPLOYEE, STATIONED IN VIETNAM, HAD MARITAL PROBLEMS WITH HIS WIFE, HE APPLIED FOR AND WAS PAID SEPARATE MAINTENANCE ALLOWANCE (SMA). HE WAS ENTITLED TO SMA UNTIL THERE WAS DEFINITIVE EVIDENCE OF A BREACH OF DOMESTIC RELATIONS WITHIN THE MEANING OF SECTION 260 OF STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS). THEREFORE, PAYMENT OF SMA WAS PROPER UNTIL RECORD SHOWED THAT HE SPENT ONLY ONE-FOURTH OF FAMILY VISITATION LEAVE IN AREA WHERE WIFE RESIDED AND AN ATTORNEY WROTE TO EMPLOYEE, EXPRESSING WIFE'S DESIRE FOR A DIVORCE. NOTWITHSTANDING AID EMPLOYEE AND WIFE HAD MARITAL DIFFICULTIES AND SEPARATE MAINTENANCE ALLOWANCE (SMA) WAS DISCONTINUED BASED ON WIFE, SMA WAS FOR CONTINUANCE BASED ON CHILDREN SINCE CHILDREN ARE CONSIDERED TO BE IN JOINT CUSTODY ABSENT FORMAL SEPARATION AGREEMENT OR COURT DECREE TO CONTRARY, AND IT APPEARS THAT SPOUSE WOULD HAVE GIVEN CONSENT FOR CHILDREN TO ACCOMPANY EMPLOYEE TO POST IF THEY HAD BEEN PERMITTED TO DO SO BY APPLICABLE STATE DEPARTMENT REGULATIONS. ALTHOUGH DEPENDENT CHILD OF AID EMPLOYEE DID NOT RESIDE WITH MOTHER IN CONTINENTAL UNITED STATES BECAUSE HE WAS ATTENDING BOARDING SCHOOL, EMPLOYEE WAS ENTITLED TO SEPARATE MAINTENANCE ALLOWANCE (SMA) SINCE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) PERMIT SMA UNDER SUCH CIRCUMSTANCES WHEN EMPLOYEE IS ASSIGNED TO STATION WHERE FAMILY IS NOT PERMITTED TO LIVE WITH HIM. EVEN THOUGH AID EMPLOYEE MIGHT NOT BE ENTITLED TO RECEIVE SEPARATE MAINTENANCE ALLOWANCE (SMA) BASED ON WIFE, HE WOULD BE ENTITLED TO FAMILY VISITATION TRAVEL ALLOWANCE UNDER 22 U.S.C. 1136(11) AND IMPLEMENTING REGULATIONS SINCE HE WAS ENTITLED TO SMA BASED ON CHILDREN.

TO MR. J. ELMER DUNHAM:

THIS ACTION IS BASED UPON REQUEST OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT (AID), DEPARTMENT OF STATE, FOR A DECISION REGARDING THE PROPRIETY OF FURTHER EFFORTS TO COLLECT AN ALLEGED OVERPAYMENT OF SEPARATE MAINTENANCE ALLOWANCE (SMA) AND FAMILY VISITATION TRAVEL ALLOWANCE, FROM MR. J. ELMER DUNHAM, FOR THE PERIOD OCTOBER 19, 1968, TO JUNE 13, 1970, WHILE MR. DUNHAM WAS SERVING WITH AID IN VIETNAM.

MR. DUNHAM ARRIVED IN VIETNAM ON OCTOBER 24, 1968, HAVING PREVIOUSLY BEEN STATIONED IN BOGOTA, COLOMBIA. SMA WAS GRANTED EFFECTIVE OCTOBER 19, 1968, BASED ON MR. DUNHAM'S WIFE AND ONE DEPENDENT CHILD. ON OCTOBER 26, 1968, MR. DUNHAM EXECUTED THE FOLLOWING CERTIFICATION IN SUPPORT OF HIS APPLICATION FOR SMA:

"RE MY APPLICATION FOR SEPARATE MAINTENANCE ALLOWANCE:

"I CERTIFY THAT THERE IS NO BREACH IN DOMESTIC RELATIONS BETWEEN ME AND MY WIFE, THERE IS NO DIVORCE PENDING AND THAT I AM SEPARATED FROM MY DEPENDENTS ONLY BECAUSE OF MY EMPLOYMENT IN VIETNAM.

"I UNDERSTAND THAT I AM OBLIGATED TO NOTIFY USAID PERSONNEL OFFICE IMMEDIATELY OF ANY CHANGE IN CONDITIONS, INCLUDING BUT NOT LIMITED TO SUIT FOR DIVORCE, MARRIAGE OF CHILDREN BEFORE AGE 21 ETC., WHICH MAY EFFECT THAT AMOUNT OF ALLOWANCES AUTHORIZED ME."

BY MEMORANDUM OF NOVEMBER 11, 1968, MR. DUNHAM PROTESTED THE FACT THAT THE BASIS USED TO CALCULATE HIS SMA DID NOT INCLUDE HIS 16 YEAR OLD SON, WHO GENERALLY RESIDED WITH MRS. DUNHAM IN ARLINGTON, VIRGINIA, ON WEEKENDS AND ATTENDED A BOARDING SCHOOL IN BALTIMORE DURING THE WEEK. MR. DUNHAM STATED THAT HIS SON ATTENDED BOARDING SCHOOL SO THAT HE COULD RECEIVE THE ADULT MALE SUPERVISION A BOY OF THAT AGE NEEDS AND WHICH MR. DUNHAM WAS UNABLE TO GIVE BECAUSE OF HIS ASSIGNMENT TO VIETNAM. AFTER ANOTHER DENIAL, MR. DUNHAM RENEWED HIS REQUEST FOR INCREASED SMA IN A MEMORANDUM DATED FEBRUARY 25, 1969. IN THE ALTERNATIVE, HE REQUESTED AN OFF-POST EDUCATION ALLOWANCE FOR HIS SON. HOWEVER, NEITHER REQUEST WAS GRANTED.

ON OR ABOUT MARCH 31, 1969, MR. DUNHAM WAS INTERVIEWED BY AN AGENT FROM THE INSPECTIONS AND INVESTIGATIONS STAFF (IIS) OF AID, CONCERNING AN UNRELATED MATTER. THE IIS REPORT OF JUNE 16, 1970, WITH RESPECT TO THAT AND RELATED INVESTIGATIONS DETAILS WHAT APPEARS TO BE THE ONLY DIRECT STATEMENTS OBTAINED FROM MR. DUNHAM RELATING TO HIS SMA. THIS REPORT STATES:

"DURING THE COURSE OF THE PROLONGED DISCUSSIONS, DUNHAM WAS ASKED QUESTIONS ABOUT HIS PERSONAL FINANCES INCLUDING FAMILY EXPENSES. HE WAS NOT ASKED ANY QUESTIONS WHICH IN ANY WAY PERTAINED TO THE MARITAL RELATIONSHIP BETWEEN HIM AND HIS WIFE. HOWEVER, IN THE DISCUSSIONS ON MAY 1, HE VOLUNTARILY SAID SUBSTANTIALLY THE FOLLOWING:

"BY LETTER DATED DECEMBER 22, 1969, DUNHAM'S WIFE'S ATTORNEY WROTE TO DUNHAM, ASKING DUNHAM TO FILE FOR DIVORCE. DUNHAM THEN WROTE TO HIS WIFE SAYING THERE WAS 'NO HURRY' IN OBTAINING A DIVORCE. BY LETTER DATED APRIL 29, 1970, DUNHAM WROTE TO AN ATTORNEY IN THE U.S. AND ASKED HIM TO CONTACT DUNHAM'S WIFE'S ATTORNEY TO MAKE ARRANGEMENTS FOR DIVORCE PROCEEDINGS.

"DUNHAM AND HIS WIFE SEPARATED ON A TRIAL BASIS IN JULY, 1967 WHEN SHE LEFT BOGOTA, COLOMBIA AND RETURNED TO THE WASHINGTON, D.C. AREA WHERE SHE ESTABLISHED HER RESIDENCE AND OBTAINED EMPLOYMENT. HE REMAINED IN BOGOTA. ON DECEMBER 27, 1967, DUNHAM AND HIS WIFE AGREED ON A PERMANENT SEPARATION.

"ON MAY 2, DUNHAM BROUGHT TO THE CONFERENCE CERTAIN OF HIS PERSONAL RECORDS WHICH HAD BEEN REQUESTED, E.G., BANKING RECORDS, INCOME TAX RETURNS, AND THE LIKE. HE WAS NOT ASKED ANY QUESTIONS CONCERNING HIS MARITAL RELATIONSHIP AND HE WAS NOT ASKED TO FURNISH ANY RECORDS OR CORRESPONDENCE CONCERNING HIS MARITAL RELATIONSHIP. HOWEVER, HE VOLUNTARILY EXHIBITED TO THE IIS INSPECTORS TWO PIECES OF CORRESPONDENCE DESCRIBED AS FOLLOWS:

"1. A LETTER DATED DECEMBER 22, 1969 FROM DUNHAM'S WIFE'S ATTORNEY TO DUNHAM STATING THAT DIVORCE PROCEEDINGS SHOULD BE INSTITUTED.

"2. A CARBON COPY OF A LETTER DATED APRIL 29, 1970 FROM DUNHAM TO CHARLES R. LANGEN, ATTORNEY, COURT SQUARE WEST, SUITE 200, 1400 NORTH UHLE STREET, ARLINGTON, VIRGINIA 22201. THIS LETTER REQUESTED THAT LANGEN CONFER WITH DUNHAM'S WIFE'S ATTORNEY RELATIVE TO DIVORCE PROCEEDINGS AND A PROPERTY SETTLEMENT AND STATED, 'FOR YOUR INFORMATION, MY WIFE LEFT MY HOME IN BOGOTA, COLOMBIA IN JULY, 1967, LEAVING THE TWO CHILDREN STILL LIVING WITH US IN MY CHARGE. WE HAVE NOT LIVED UNDER THE SAME ROOF SINCE THAT DATE.

THERE IS NOTHING TO INDICATE THAT MR. DUNHAM WAS ADVISED, PRIOR TO THE TERMINATION OF HIS SMA, THAT THERE WAS ANY QUESTION CONCERNING HIS ELIGIBILITY FOR THOSE PAYMENTS. AS DEMONSTRATED BY THE ABOVE MATERIAL, HE WAS NEVER SPECIFICALLY QUESTIONED ABOUT HIS ELIGIBILITY FOR SMA.

ON JULY 9, 1970, MR. DUNHAM'S WIFE, LORNA DUNHAM, WAS INTERVIEWED BY AN IIS AGENT AT HER RESIDENCE IN ARLINGTON, VIRGINIA. IN A REPORT OF THE INTERVIEW, INITIALED BY MRS. DUNHAM ON JULY 13, 1970, SHE STATED THAT SHE HAD SEPARATED FROM HER HUSBAND IN JULY 1967 WHILE HE WAS STATIONED IN BOGOTA, COLOMBIA. THE CHILDREN REMAINED WITH MR. DUNHAM FOR SOME TIME AFTER SHE LEFT. THEIR DAUGHTER REJOINED MRS. DUNHAM IN DECEMBER 1967 AND THEIR SON IN JUNE 1968. MRS. DUNHAM ADMITTED THAT SHE HAD SEEN HER HUSBAND ON VARIOUS OCCASIONS AFTER JULY 1967. SHE STATED THAT THEIR SEPARATION WAS BASED ON AN ORAL AGREEMENT ONLY AND THAT THEY HAD NOT LIVED TOGETHER BETWEEN JULY 1967 AND THE DAY OF THE INTERVIEW. SHE STATED THAT SHE HAD CONSULTED AN ATTORNEY IN THE FALL OF 1969 AND HAD INSTITUTED DIVORCE PROCEEDINGS. FINALLY, SHE STATED THAT SHE HAD NO INTENTION OF RESUMING MARITAL RELATIONS WITH MR. DUNHAM.

ON OCTOBER 9, 1970, A BILL FOR COLLECTION WAS FORWARDED TO MR. DUNHAM. IT WAS IN THE TOTAL AMOUNT OF $8,116.33, WITH $5,702.33 ALLOCATED TO SMA AND $2,414 TO UNAUTHORIZED FAMILY VISITATION TRAVEL ALLOWANCES. MR. DUNHAM HAS REFUSED TO PAY THIS AMOUNT. PROSECUTION WAS DECLINED BY THE CRIMINAL DIVISION OF THE DEPARTMENT OF JUSTICE AND THE FRAUDS SECTION OF THE CIVIL DIVISION ADVISED AID TO FOLLOW ADMINISTRATIVE REMEDIES. ALL FURTHER ATTEMPTS TO NEGOTIATE A COMPROMISE WITH MR. DUNHAM WERE UNSUCCESSFUL.

IN A LETTER DATED JANUARY 18, 1971, TO MR. EDWARD DRAGON, ASSISTANT GENERAL COUNSEL FOR MANAGEMENT AND ADMINISTRATION OF AID, MR. DUNHAM SUBMITTED A DETAILED STATEMENT OF HIS POSITION REGARDING HIS ELIGIBILITY FOR SMA. THE STATUS OF THE DUNHAMS' RELATIONSHIP IS TRACED, BEGINNING IN EARLY 1967. MR. DUNHAM STATED THAT THERE WAS A 2 MONTH SEPARATION IN EARLY 1967 FOLLOWED BY A RECONCILIATION, WITH MRS. DUNHAM JOINING HIM IN BOGOTA. HE DETAILED THE EMOTIONAL PROBLEMS EXPERIENCED BY HIS WIFE WHILE IN COLOMBIA, INCLUDING PSYCHIATRIC TREATMENT. HE STATED THAT SHE RETURNED TO THE UNITED STATES IN JULY 1967 TO ENABLE HER TO DEAL WITH THESE PROBLEMS. HIS LETTER READS IN PART AS FOLLOWS:

"*** WE BOTH AGREED AT THIS TIME THAT SHE SHOULD COME TO THE U.S. AND GET A JOB HERE, AND ESTABLISH HER OWN HOME, APART FROM HER PARENTS OR GROWN CHILDREN, WHERE SHE WOULD BE FORCED TO MAKE HER OWN DECISIONS AND WOULD BE SUBJECT TO AN 8 TO 5 JOB DISCIPLINE. THERE WAS NO DISCUSSION AT THE TIME OF THIS BEING THE END OF OUR MARRIAGE OR OF A MARITAL SEPARATION. RATHER, THE PURPOSE WAS TO PUT MY WIFE INTO A SITUATION IN WHICH SHE WOULD BE FORCED TO MAKE HER OWN DECISIONS, SOMETHING WE BOTH AGREED THAT SHE NEEDED. ***"

MR. DUNHAM STATED THAT HE SAW HIS WIFE AS OFTEN AS POSSIBLE DURING THE REMAINDER OF HIS TIME IN BOGOTA AND DESCRIBED HIS STATE OF MIND AT THE TIME OF HIS TRANSFER TO VIETNAM AS FOLLOWS:

"*** IN VIEW OF THE CORDIAL RELATIONS BETWEEN MY WIFE AND I DURING THE PRECEDING SUMMER, I AM CONFIDENT THAT IF, AT THAT TIME I HAD BEEN OFFERED A POST AT A MISSION OTHER THAN VIETNAM AT A LOCATION TO WHICH WE HAD NOT PREVIOUSLY BEEN ASSIGNED, MY WIFE WOULD HAVE BEEN WILLING TO GO WITH ME. THE NERVOUSNESS AND DEPRESSION THAT SHE HAD EXPERIENCED IN BOGOTA HAD DEPARTED. I THEREFORE HAD NO DIFFICULTY, OR MENTAL RESERVATION, ON OCTOBER 26, 1968 IN SIGNING A CERTIFICATION THAT THERE WAS NO BREACH IN DOMESTIC RELATIONS BETWEEN MY WIFE AND I, AND THAT THERE WAS NO DIVORCE PENDING AND THAT I WAS SEPARATED FROM MY DEPENDENTS ONLY BECAUSE OF MY EMPLOYMENT IN VIETNAM."

MR. DUNHAM ADMITTED THAT THE RELATIONSHIP BETWEEN HIMSELF AND HIS WIFE DETERIORATED WHILE HE WAS IN VIETNAM, BUT STATED THAT HE WAS SURPRISED BY THE DECEMBER 1969 LETTER FROM THE ATTORNEY REPRESENTING HIS WIFE. ADMITTED DISCUSSING DIVORCE AND A POSSIBLE PROPERTY SETTLEMENT WITH MRS. DUNHAM WHEN HE SAW HER IN JULY 1970 WHICH WAS SHORTLY BEFORE SHE WAS INTERVIEWED BY IIS AGENTS. HE STATED THAT HE THEN TERMINATED THE SERVICES OF HIS LAWYER, TELLING HIM THAT HE WAS NOT INTERESTED IN GETTING A DIVORCE. FINALLY, MR. DUNHAM STATED THAT HE AND HIS WIFE "HAVE EFFECTED A COMPLETE RECONCILIATION, AND ARE NOW LIVING TOGETHER AS MAN AND WIFE WITH NO THOUGHT OF SEPARATION OR DIVORCE."

APPENDED TO MR. DUNHAM'S LETTER IS A STATEMENT SIGNED BY MRS. DUNHAM WHICH SAYS:

"THIS STATEMENT IS TO CONFIRM THAT I HAVE READ THE LETTER FROM MY HUSBAND TO MR. E. DRAGON, DATED JANUARY 18, 1971, ON THE SUBJECT OF SMA PAYMENTS AND AGREE WITH ALL STATEMENTS AND FACTS SET FORTH THEREIN INSOFAR AS THE EVENTS DESCRIBED ARE WITHIN MY KNOWLEDGE. SPECIFICALLY, I CONFIRM THAT IN OCTOBER OF 1968, I WOULD HAVE BEEN PREPARED TO GO WITH MY HUSBAND TO SAIGON IF THERE HAD BEEN ADEQUATE AND SAFE FACILITIES AVAILABLE THERE FOR ME AND OUR CHILDREN AND FOR THEIR EDUCATION."

WE HAVE INFORMALLY BEEN ADVISED THAT MR. AND MRS. DUNHAM CONTINUE TO LIVE TOGETHER AS HUSBAND AND WIFE.

THE IIS MEMORANDUM SUMMARY OF THE ENTIRE MATTER, DATED APRIL 7, 1971, WAS PREPARED AFTER, AND IN LIGHT OF, MR. DUNHAM'S LETTER TO AID. IN THIS SUMMARY, THE ONLY INDICATION OF ANY INVESTIGATION OF THE ISSUES RAISED BY MR. DUNHAM IS THE FOLLOWING UNSUPPORTED STATEMENT:

"FOR EXAMPLE, DUNHAM CLAIMS MRS. DUNHAM LEFT BOGOTA BECAUSE OF HER PHYSICAL AND MENTAL CONDITION, WHEREAS TO DATE THE INVESTIGATION AT SAIGON, WASHINGTON AND BOGOTA HAS FAILED TO DISCLOSE ANY EVIDENCE THAT MRS. DUNHAM WAS RECEIVING PSYCHIATRIC TREATMENT."

THERE IS NOTHING IN THE RECORD TO INDICATE WHAT ATTEMPTS, IF ANY, WERE MADE TO INVESTIGATE THE STATEMENTS MADE BY MRS. DUNHAM. THERE IS NOTHING IN THE RECORD TO INDICATE THAT EITHER MR. OR MRS. DUNHAM WAS ADVISED THAT MR. DUNHAM'S ELIGIBILITY FOR SMA WAS UNDER INVESTIGATION.

THE RIGHT TO SMA IS BASED ON 5 U.S.C. 5924, WHICH PROVIDED AT THE TIME COVERED BY THIS CASE, IN PERTINENT PART:

"THE FOLLOWING COST-OF-LIVING ALLOWANCES MAY BE GRANTED, WHEN APPLICABLE, TO AN EMPLOYEE IN A FOREIGN AREA:

"(3) A SEPARATE MAINTENANCE ALLOWANCE TO ASSIST AN EMPLOYEE WHO IS COMPELLED, BECAUSE OF DANGEROUS, NOTABLY UNHEALTHFUL, OR EXCESSIVELY ADVERSE LIVING CONDITIONS AT HIS POST OF ASSIGNMENT IN A FOREIGN AREA, OR FOR THE CONVENIENCE OF THE GOVERNMENT, TO MEET THE ADDITIONAL EXPENSE OF MAINTAINING, ELSEWHERE THAN AT THE POST, HIS WIFE OR HIS DEPENDENTS, OR BOTH."

THIS STATUTORY PROVISION IS IMPLEMENTED BY SECTION 260 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS). PARAGRAPH 262.31 PROVIDES THAT:

"A SEPARATE MAINTENANCE ALLOWANCE SHALL NOT BE GRANTED WHERE CONDITIONS IN 262.1 ARE NOT MET, INCLUDING (BUT NOT LIMITED TO) SITUATIONS WHERE THE SEPARATION IS FOR THE FOLLOWING OR OTHER PERSONAL REASONS:

"C. BREACH IN DOMESTIC RELATIONS BETWEEN EMPLOYEE AND SPOUSE; ***"

THIS EXCLUSION HAS BEEN CONSIDERED BY THIS OFFICE IN B-147034, SEPTEMBER 18, 1961, WHEREIN WE STATED:

"THE PHRASE 'BREACH IN DOMESTIC RELATIONS' DOES NOT HAVE SPECIFIC LEGAL CONNOTATIONS. WE DO NOT BELIEVE THAT IT MAY BE RESTRICTED TO DIVORCE OR LEGAL SEPARATION WITHIN THE MEANING AND INTENT OF THE REGULATIONS AS DISCUSSED ABOVE. ***"

WHETHER OR NOT THERE HAS BEEN A BREACH IN DOMESTIC RELATIONS IS ESSENTIALLY A QUESTION OF FACT, NOT OF LAW, AND MUST BE DECIDED ON A CASE- BY-CASE BASIS. AN ADMINISTRATIVE FINDING HAS BEEN MADE THAT A BREACH IN DOMESTIC RELATIONS EXISTED AT THE TIME MR. DUNHAM WAS FIRST ASSIGNED TO VIETNAM. WHILE THE RECORD REASONABLY MAY BE VIEWED AS ESTABLISHING THE FACT THAT A BREACH IN DOMESTIC RELATIONS IN FACT OCCURRED WE DO NOT CONSIDER THAT THE EVIDENCE IS SUFFICIENTLY CONCLUSIVE TO JUSTIFY THE ADMINISTRATIVE DETERMINATION THAT THE BREACH OCCURRED AS EARLY AS OCTOBER 19, 1968, WHEN MR. DUNHAM WAS ASSIGNED TO VIETNAM. IT IS REASONABLY CLEAR, HOWEVER, THAT SOME TIME BEFORE DECEMBER 22, 1969, WHEN MRS. DUNHAM'S ATTORNEY WROTE TO MR. DUNHAM ASKING MR. DUNHAM TO FILE FOR DIVORCE RELATIONS HAD BEEN BREACHED. THE FACTS OF RECORD WHICH ARE OF SIGNIFICANT ASSISTANCE IN DETERMINING WHEN THE BREACH OCCURRED ARE THOSE RELATED TO THE ITINERARIES OF MR. DUNHAM'S FAMILY VISITATION TRIPS. THE FIRST TRIP HE LEFT SAIGON ON APRIL 12, 1969, AND ARRIVED IN WASHINGTON, D.C., ON APRIL 17. HE REMAINED THERE UNTIL APRIL 24, WHEN HE LEFT, ARRIVING IN SAIGON ON APRIL 27, 1969. HE WAS AWAY FROM SAIGON FOR A TOTAL OF 15 DAYS, SPENDING 7 DAYS IN WASHINGTON, D.C., THE AREA WHERE HIS WIFE WAS RESIDING. THE REMAINDER OF THE TIME WAS CONSUMED BY TRAVEL. THE LENGTH OF TIME MR. DUNHAM SPENT IN WASHINGTON WHERE MRS. DUNHAM WAS RESIDING IS AN INDICATION THAT GOOD RELATIONS BETWEEN MR. AND MRS. DUNHAM EXISTED AT THAT TIME. HIS SECOND TRIP HOME BEGAN ON JULY 26, 1969, WHEN HE LEFT SAIGON. HE TRAVELED BY A ROUNDABOUT ROUTE BY AIR, SHIP AND AUTOMOBILE AND ARRIVED IN WASHINGTON, D.C., ON SEPTEMBER 4, 1969. HE LEFT WASHINGTON ON SEPTEMBER 19 AND RETURNED TO SAIGON ON SEPTEMBER 27, 1969. HIS TRIP WAS ABOUT 63 DAYS IN LENGTH, OF WHICH HE SPENT ONLY ABOUT 15 DAYS NEAR HIS WIFE. THIS CONDUCT SEEMS TO BE INCONSISTENT WITH A CONTINUING DOMESTIC RELATIONSHIP BETWEEN HUSBAND AND WIFE. WE NOTE ALSO A COMPLETE LACK OF EVIDENCE WHETHER MR. AND MRS. DUNHAM ACTUALLY LIVED TOGETHER AS MAN AND WIFE ON EITHER OF SUCH VISITATION TRIPS. ADMITTEDLY, WE CANNOT FIX THE PRECISE TIME WHEN THE BREACH IN DOMESTIC RELATIONS BETWEEN MR. AND MRS. DUNHAM OCCURRED. HOWEVER, IT APPEARS THAT THE FAMILY RELATIONSHIP HAD DETERIORATED TO A DEGREE THAT WOULD JUSTIFY A DETERMINATION THAT A BREACH IN DOMESTIC RELATIONSHIP HAD OCCURRED BY THE BEGINNING OF MR. DUNHAM'S SECOND FAMILY VISITATION TRIP, JULY 26, 1969, SINCE THERE IS NOTHING IN THE RECORD TO INDICATE THAT MR. DUNHAM SAW OR SPENT ANY TIME WITH MRS. DUNHAM OTHER THAN DURING THAT PERIOD WHEN HE WAS IN WASHINGTON AND EVEN WHEN IN WASHINGTON THERE IS NO INDICATION THAT THE TWO COHABITED AS MAN AND WIFE. THEREFORE, IN THE ABSENCE OF ANY MORE DEFINITIVE EVIDENCE, WE CONSIDER THAT MR. DUNHAM'S ENTITLEMENT TO SMA BASED ON A WIFE, SHOULD NOT HAVE BEEN TERMINATED BEFORE THE FIRST DAY OF HIS SECOND FAMILY VISITATION TRIP, JULY 26, 1969.

REGARDING THE AMOUNT OF ENTITLEMENT TO SMA, THE RECORD INDICATES THAT MR. DUNHAM PROTESTED THE FACT THAT HIS SON WAS NOT COUNTED IN THE CALCULATION OF HIS SMA BECAUSE HIS SON ATTENDED BOARDING SCHOOL. IT IS OUR UNDERSTANDING THAT THE AID POLICY IN THIS AREA WAS CLARIFIED IN 1971 TO PERMIT CHILDREN AWAY FROM POSTS IN VIETNAM ATTENDING SCHOOL TO BE INCLUDED IN SMA COMPUTATIONS EVEN IF THEY WERE NOT RESIDING WITH THEIR MOTHERS IN THE UNITED STATES. MOREOVER, SINCE A CLARIFICATION WAS INVOLVED, THE CHANGE WOULD BE APPLICABLE TO SITUATIONS PREVIOUSLY EXISTING WHICH MET THE TERMS OF THE CLARIFICATION. THUS, MR. DUNHAM WOULD BE ENTITLED TO AN INCREASED SMA ESPECIALLY SINCE HE RAISED THIS ISSUE FROM THE VERY BEGINNING.

EVEN THOUGH, AS DISCUSSED ABOVE, MR. DUNHAM WOULD NOT BE ENTITLED TO SMA ON ACCOUNT OF HIS WIFE, HE WOULD NEVERTHELESS BE ENTITLED TO SMA FOR TWO DEPENDENT CHILDREN. DURING THE ENTIRE TIME MR. DUNHAM WAS IN VIETNAM, THERE WAS NO AGREEMENT OR COURT DECREE MODIFYING THE STATUS OF THE CUSTODY OF THE DUNHAM CHILDREN. WHERE THERE IS A VALID MARRIAGE, AND THERE IS NO AGREEMENT OR COURT ORDER TO THE CONTRARY, BOTH PARENTS HAVE AN EQUAL RIGHT TO THE CUSTODY OF ANY MINOR CHILDREN OF THAT MARRIAGE. MOREOVER, THIS IS THE STATUS THAT IS PERPETUATED BY THE NEWLY POPULAR "JOINT CUSTODY" PROVISIONS OF DIVORCE DECREES, WHICH IS DISCUSSED IN OUR DECISION TO THE SECRETARY OF STATE, B-178114, MAY 25, 1973, PUBLISHED AT 52 COMP. GEN. 878. IN THAT CASE WE HELD THAT, IN A "JOINT CUSTODY" SITUATION IF THE SPOUSE NOT EMPLOYED BY THE DEPARTMENT OF STATE INDICATES BY AFFIDAVIT THAT SHE WOULD HAVE ALLOWED THE CHILDREN TO ACCOMPANY THE EMPLOYEE TO HIS POST IF REGULATIONS HAD PERMITTED, THEN THE EMPLOYEE WOULD BE ENTITLED TO RECEIVE SMA. THE REQUIRED AFFIDAVIT WAS NOT SUBMITTED HERE, PROBABLY BECAUSE THE ISSUE WAS NEVER RAISED. IN THIS CONNECTION WE NOTE THAT, EVEN THOUGH MRS. DUNHAM LEFT BOGOTA IN JULY 1967, THE MINOR DAUGHTER REMAINED WITH MR. DUNHAM UNTIL DECEMBER 1967 AND THE MINOR SON UNTIL JUNE 1968. ASSUME THAT MRS. DUNHAM WOULD HAVE FURNISHED SUCH AN AFFIDAVIT IF IT HAD BEEN REQUESTED. THEREFORE, MR. DUNHAM WOULD HAVE BEEN ENTITLED TO SMA FOR BOTH CHILDREN EVEN IF HE COULD NOT INCLUDE HIS WIFE.

THE OTHER PORTION OF THE BILL FOR COLLECTION RELATES TO ALLEGEDLY UNAUTHORIZED FAMILY VISITATION ALLOWANCES. THE RIGHT TO THIS ALLOWANCE IS CREATED BY 22 U.S.C. 1136(11), WHICH PROVIDES THAT THE SECRETARY OF STATE MAY PAY:

"(11) THE TRAVEL EXPENSES OF OFFICERS AND EMPLOYEES OF THE SERVICE FOR UP TO TWO ROUND TRIPS EACH YEAR FOR PURPOSES OF FAMILY VISITATION IN SITUATIONS WHERE THE FAMILY OF THE OFFICER OR EMPLOYEE IS PREVENTED BY OFFICIAL ORDER FROM ACCOMPANYING SUCH OFFICER OR EMPLOYEE TO, OR HAS BEEN ORDERED EVACUATED FROM, HIS ASSIGNED POST BECAUSE OF DANGER FROM HOSTILE ACTIVITY, EXCEPT THAT, WITH RESPECT TO ANY SUCH OFFICER OR EMPLOYEE WHOSE DEPENDENTS ARE LOCATED ABROAD, THE SECRETARY MAY AUTHORIZE SUCH ADDITIONAL TRIPS AS HE DEEMS APPROPRIATE NOT TO EXCEED THE EQUIVALENT COST OF TWO ROUND TRIPS OF LESS THAN FIRST CLASS TO THE DISTRICT OF COLUMBIA, AND THE TRAVEL EXPENSES OF OFFICERS OR EMPLOYEES STATIONED ABROAD (OR THEIR DEPENDENTS LOCATED ABROAD), FOR PURPOSES OF FAMILY VISITATION IN EMERGENCY SITUATIONS INVOLVING PERSONAL HARDSHIP: PROVIDED, THAT THE FACILITIES OF THE MILITARY AIRLIFT COMMAND SHALL BE UTILIZED WHEREVER POSSIBLE FOR TRAVEL AUTHORIZED UNDER THIS SECTION."

THE REGULATIONS IMPLEMENTING THIS PROVISION ARE FOUND IN SECTION 699, UNIFORM STATE/AID/USIA REGULATIONS, 3 FAM 699 ET SEQ., AND DO NOT CONTAIN THE "BREACH OF DOMESTIC RELATIONS" LIMITATION IMPOSED BY THE SMA REGULATIONS. FURTHER, THE LANGUAGE OF THE STATUTE IS BROAD ENOUGH TO ALLOW PAYMENT OF A FAMILY VISITATION ALLOWANCE TO MR. DUNHAM TO VISIT HIS CHILDREN, EVEN IF HE AND HIS WIFE WERE LEGALLY SEPARATED. THEREFORE, WE CANNOT SAY THAT THE PAYMENT OF THE FAMILY VISITATION ALLOWANCE WAS UNAUTHORIZED.

IN SUMMARY, MR. DUNHAM'S ELIGIBILITY FOR SMA WITH REGARD TO HIS WIFE, SHOULD NOT HAVE BEEN TERMINATED BEFORE JULY 26, 1969. FROM THE COMMENCEMENT OF HIS TOUR IN VIETNAM TO THAT DATE, HE SHOULD BE CREDITED WITH SMA FOR A WIFE AND TWO DEPENDENT CHILDREN. FROM JULY 26, 1969, TO THE END OF HIS TOUR IN NOVEMBER 1970, HE SHOULD RECEIVE SMA FOR TWO DEPENDENT CHILDREN. HIS ELIGIBILITY FOR FAMILY VISITATION TRAVEL ALLOWANCE CONTINUED FOR THE ENTIRE PERIOD OF HIS DUTY IN VIETNAM. MR. DUNHAM'S SMA SHOULD BE RECOMPUTED IN ACCORDANCE WITH THESE GUIDELINES, HIS INDEBTEDNESS FOR FAMILY VISITATION TRAVEL ALLOWANCE CANCELED, AND APPROPRIATE ADJUSTMENTS SHOULD BE MADE.