B-147034, SEP. 18, 1961

B-147034, SEP. 18, 1961

TO MR. FRANKLIN R. HELT:

WE REFER TO YOUR LETTER OF AUGUST 12, 1961, TO CONGRESSMAN JACK BROOKS, WHICH WAS REFERRED TO US FOR CONSIDERATION ON AUGUST 17, CONCERNING OUR DISALLOWANCE OF YOUR CLAIM FOR $2,356.28 REPRESENTING A SEPARATION ALLOWANCE (NOW REFERRED TO AS SEPARATE MAINTENANCE ALLOWANCE) INCIDENT TO YOUR SERVICE AS A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY IN KOREA FROM MAY 16, 1958, TO MAY 16, 1959.

THE DEPARTMENT PAID YOU A SEPARATION ALLOWANCE FROM JULY 15, 1956, TO MAY 16, 1959, UNDER THE PROVISIONS OF SECTION 260 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS), BUT COLLECTED BACK THE AMOUNT PAID FOR THE PERIOD MAY 16, 1958, TO MAY 16, 1959, UNDER PARAGRAPH 262.31 OF THAT SECTION, IN VIEW OF THE SUIT FOR DIVORCE INITIATED BY YOUR WIFE ON MAY 16, 1958.

THE RECORD SHOWS THAT YOU DEPARTED KOREA FOR HOME LEAVE IN THE UNITED STATES ON MARCH 15, 1958, ARRIVING AT YOUR HOME IN KENSINGTON, MARYLAND, ON APRIL 5 AND THAT YOU DEPARTED THAT PLACE FOR RETURN TO KOREA ON MAY 13. ON MAY 16 THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND, ORDERED YOU TO PAY TO HALLIE MILLER HELT, YOUR WIFE, $300 PER MONTH AS ALIMONY PENDENTE LITE, ACCOUNTING FROM APRIL 1, 1958, PENDING ACTION IN DIVORCE SUIT SHE HAD INSTITUTED. IT FURTHER APPEARS THAT YOU RETURNED TO THE UNITED STATES AND WERE RETIRED FOR DISABILITY ON NOVEMBER 4, 1959, AND THAT THE ACTION FOR DIVORCE WAS DISMISSED WITHOUT PREJUDICE ON APRIL 17, 1961.

A SEPARATION ALLOWANCE IS PAYABLE BY VIRTUE OF THE FACT THAT AN OVERSEAS EMPLOYEE IS COMPELLED TO MAINTAIN HIS FAMILY OUTSIDE THE COUNTRY WHERE HE IS ASSIGNED BECAUSE OF THE NATURE OF THE POST TO WHICH HE IS ASSIGNED OR BECAUSE THE SEPARATION FROM HIS FAMILY IS FOR THE CONVENIENCE OF THE GOVERNMENT. HENCE, PARAGRAPH 262.31 OF THE STANDARDIZED REGULATIONS PROHIBITS THE PAYMENT OF A SEPARATION ALLOWANCE TO AN EMPLOYEE OTHERWISE ELIGIBLE IF HE WOULD HAVE BEEN SEPARATED FROM HIS FAMILY FOR PERSONAL REASONS HAD HE NOT BEEN ASSIGNED TO A STATION AT WHICH AN ALLOWANCE MAY BE PAID. ONE OF THE PERSONAL REASONS SPECIFICALLY MENTIONED IN THAT PARAGRAPH IS A "BREACH IN DOMESTIC RELATIONS.'

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 REGULATION AS DISCUSSED ABOVE. THEREFORE, THE PAYMENT OF A SEPARATION ALLOWANCE TO AN EMPLOYEE WHO WOULD NOT HAVE LIVED WITH HIS SPOUSE EVEN THOUGH HE HAD BEEN STATIONED AT A POST TO WHICH HIS FAMILY COULD HAVE ACCOMPANIED HIM IS PRECLUDED. THE DETERMINATION THAT SUCH A SITUATION EXISTS IS THE RESPONSIBILITY OF THE HEAD OF THE AGENCY CONCERNED. STANDARDIZED REGULATIONS 262.1.

ALTHOUGH IT SEEMS THAT THE INITIATION OF A SUIT FOR DIVORCE AND THE GRANTING OF ALIMONY PENDENTE LITE IS NOT, IN ALL CASES, LEGALLY INCONSISTENT WITH THE MAINTENANCE OF ONE HOME BY THE PARTIES TO THE SUIT THE GRANT OF ALIMONY PENDENTE LITE IN SUCH A SITUATION MUST BE JUSTIFIED BY AN UNUSUAL SITUATION. SEE KORDICH V. KORDICH, 159 A.2D 274 (MARYLAND 1960); ALSO, FRANK V. FRANK, 113 A.2D 411 (MARYLAND 1955).

AS INDICATED ABOVE, THE DETERMINATION OF WHETHER THERE WAS A "BREACH IN DOMESTIC RELATIONS" IN YOUR CASE WAS A MATTER PRIMARILY FOR THE OFFICER IN THE DEPARTMENT OF THE ARMY HAVING AUTHORITY FROM THE SECRETARY TO MAKE SUCH DETERMINATIONS. WE ARE UNABLE, ON THE BASIS OF THE FACTS BEFORE US, TO HOLD THAT THE DETERMINATION THAT THERE WAS A "BREACH IN DOMESTIC RELATIONS" IN YOUR CASE BEGINNING MAY 16, 1958, WAS IN ERROR. THEREFORE, OUR SETTLEMENT OF AUGUST 8, 1961, MUST BE SUSTAINED AND YOUR CLAIM DISALLOWED.

REGARDING FURTHER ACTION WHICH YOU MAY TAKE, YOU ARE INFORMED THAT THE COURT OF CLAIMS HAS SOLE JURISDICTION OVER SUITS TO RECOVER FEES, SALARY, OR COMPENSATION OF OFFICERS OF THE GOVERNMENT. 28 U.S.C. 1346.