B-152945, APRIL 16, 1964, 43 COMP. GEN. 684

B-152945, APRIL 16, 1964, 43 COMP. GEN. 684

FAMILY ALLOWANCES - SEPARATION - TYPE 2 - GRADE ELIGIBILITY. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - SHIP DUTY - GRADE ELIGIBILITY AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO ATTAINS AN ELIGIBLE GRADE AND LENGTH OF SERVICE (E-4 WITH OVER 4 YEARS' SERVICE) FOR ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE PAYMENTS UNDER 37 U.S.C. 427 (B) (1), BUT WHO IS PRECLUDED UNDER PARAGRAPH 7000-1 OF THE JOINT TRAVEL REGULATIONS FROM HAVING HIS DEPENDENTS TRANSPORTED AT GOVERNMENT EXPENSE UNTIL HIS NEXT PERMANENT CHANGE OF STATION, MAY HAVE SUCH RESTRICTION ON THE MOVEMENT OF DEPENDENTS REGARDED AS NOT ARISING AT HIS OWN VOLITION AND, THEREFORE, THE MEMBER WOULD BECOME ENTITLED TO THE FAMILY SEPARATION ALLOWANCE PAYMENTS UNDER 37 U.S.C. 427 (B) (1) FROM THE DATE HE ATTAINS ELIGIBILITY IN THE PAY GRADE. ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHO ATTAIN AN ELIGIBLE PAY GRADE WHILE ON DUTY ON BOARD A SHIP AWAY FROM ITS HOME PORT FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS AND WHILE ON TEMPORARY DUTY AWAY FROM THEIR PERMANENT STATION FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS FOR WHICH A FAMILY SEPARATION ALLOWANCE PAYMENT IS AUTHORIZED UNDER 37 U.S.C. 427 (B) (2) AND (3) ARE PRECLUDED BY THE PLAIN LANGUAGE OF THE PROVISION FROM HAVING ANY PART OF THE CONTINUOUS 30-DAY DUTY PERIOD PRIOR TO ATTAINING THE ELIGIBLE PAY GRADE CONSIDERED IN COMPUTING THE 30-DAY SERVICE PERIOD, AND, THEREFORE, ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE PAYMENTS UNDER 37 U.S.C. 427 (B) (2) AND (3) MAY COMMENCE ON THE DATE AN ELIGIBLE PAY GRADE IS ATTAINED, AND ONLY WHEN THE QUALIFYING PERIODS CONTINUE FOR MORE THAN 30 DAYS FROM THAT DATE.

TO THE SECRETARY OF DEFENSE, APRIL 16, 1964:

REFERENCE IS MADE TO LETTER DATED NOVEMBER 18, 1963, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION AS TO WHEN ENTITLEMENT TO FAMILY SEPARATION ALLOWANCES PURSUANT TO THE PROVISIONS OF 37 U.S.C. 427 (B) ACCRUES UNDER THE CIRCUMSTANCES SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 331 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

THE QUESTION PRESENTED IS A AS FOLLOWS:

WHEN DOES ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B) COMMENCE IN THE FOLLOWING CASES (CLAUSES (1) (2) AND (3) AS APPLICABLE) WHEREIN AN ENLISTED MEMBER OTHERWISE ENTITLED TO THE ALLOWANCE ATTAINS AN ELIGIBLE PAY GRADE:

(A) WHILE HE IS SERVING AT A NONRESTRICTED PERMANENT STATION TO WHICH THE MOVEMENT OF HIS DEPENDENTS WOULD HAVE BEEN AUTHORIZED AT THE EXPENSE OF THE UNITED STATES UNDER SECTION 406 OF TITLE 37 AND JOINT TRAVEL REGULATIONS BUT FOR THE FACT THAT HE WAS NOT ENTITLED TO TRANSPORTATION FOR HIS DEPENDENTS INCIDENT TO HIS PERMANENT CHANGE OF STATION BECAUSE OF BEING IN AN INELIGIBLE PAY GRADE?

(B) WHILE ON DUTY ON BOARD A SHIP AWAY FROM ITS HOME PORT FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS AND HAVING BEEN ON DUTY ON BOARD FOR SUCH CONTINUOUS PERIOD?

(C)WHILE ON TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS?

SECTION 427/B), TITLE 37, U.S.C. PROVIDES AS FOLLOWS:

(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 WHO 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 30 DAYS IS ENTITLED TO THE ALLOWANCE EFFECTIVE AS OF THE FIRST DAY OF THAT PERIOD.

IN ITS DISCUSSION OF THE PROBLEM INVOLVED IN PART (A) OF THE QUESTION PRESENTED, THE MILITARY PAY AND ALLOWANCE COMMITTEE REFERS TO THE LIMITATION IN PARAGRAPH 7000-1 OF THE JOINT TRAVEL REGULATIONS, ISSUED UNDER AUTHORITY OF 37 U.S.C. 406, AGAINST ENTITLEMENT TO TRANSPORTATION FOR DEPENDENTS ON CHANGE OF STATION OF ENLISTED MEMBERS IN PAY GRADES E-4 WITH 4 YEARS' SERVICE OR LESS, E-3, E-2 AND E-1, AND POINTS OUT THAT THE MEMBER WHO DOES NOT ATTAIN THE GRADE OF E-4 WITH MORE THAN 4 YEARS' SERVICE UNTIL HE IS SERVING AT HIS NEW PERMANENT STATION IS NOT PERMITTED TRANSPORTATION OF HIS DEPENDENTS AT GOVERNMENT EXPENSE UNTIL HIS NEXT PERMANENT CHANGE OF STATION. THE VIEW IS EXPRESSED THAT ENTITLEMENT TO THE ALLOWANCE AUTHORIZED BY SECTION 427 (B) (1) ACCRUED UPON ATTAINMENT OF AN ELIGIBLE PAY GRADE IN SUCH CIRCUMSTANCES SINCE THE RESTRICTION AGAINST THE MOVEMENT OF DEPENDENTS CLEARLY DOES NOT ARISE AT THE VOLITION OF THE MEMBER. FOR THE REASONS INDICATED IN THE PAY AND ALLOWANCE COMMITTEE DISCUSSION WE AGREE THAT AN ENLISTED MEMBER OTHERWISE MEETING THE STATUTORY REQUIREMENTS WOULD BECOME ENTITLED TO THE FAMILY SEPARATION ALLOWANCE IN THE CIRCUMSTANCES INVOLVED IN PART (A) TO THE QUESTION, FROM THE DATE HE ATTAINS ELIGIBILITY IN PAY GRADE. COMPARE ANSWER TO QUESTION 2, B-153214, DATED FEBRUARY 12, 1964, 43 COMP. GEN. 553.

PARTS (B) AND (C) OF THE QUESTION DEAL WITH SITUATIONS OF MEMBERS ATTAINING AN ELIGIBLE PAY GRADE WHILE ON DUTY ON BOARD A SHIP AWAY FROM ITS HOME PORT FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS. AND WHILE ON TEMPORARY DUTY AWAY FROM THEIR PERMANENT STATION FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS. THE COMMITTEE SAYS THAT IS SECTION 427 (B) REQUIRES A QUALIFYING CONTINUOUS PERIOD OF DUTY OF MORE THAN 30 DAYS WHILE IN AN ELIGIBLE PAY GRADE THE MEMBER WOULD NOT BE ENTITLED TO THE ALLOWANCE UNLESS THE PERIOD OF DUTY EXTENDED BEYOND 30 DAYS FROM THE DATE OF ATTAINMENT OF THE ELIGIBLE GRADE. ON THE OTHER HAND, THE COMMITTEE SUGGESTS THAT THE STATUTE MIGHT BE CONSTRUED TO PERMIT THE INCLUSION OF A PART OF A CONTINUOUS PERIOD OF MORE THAN 30 DAYS DUTY ON BOARD A SHIP, OR ON TEMPORARY DUTY, WHICH WAS PERFORMED PRIOR TO ATTAINMENT OF AN ELIGIBLE PAY GRADE, IN WHICH CASE ENTITLEMENT COULD COMMENCE AT THE BEGINNING OF ANY PART OF A CONTINUOUS PERIOD OF DUTY, EVEN THOUGH THE MEMBER WAS NOT AT THAT TIME IN AN ELIGIBLE PAY GRADE.

WITH RESPECT TO PARTS (B) AND (C), THE LANGUAGE OF SECTION 427 (B) (2) AND (3) IS DEFINITE AND PERMITS THE CREDITING OF FAMILY SEPARATION ALLOWANCE ONLY TO A MEMBER IN AN ELIGIBLE PAY GRADE WHO COMPLETES A PERIOD OF CONTINUOUS ABSENCE OF MORE THAN 30 DAYS ON BOARD A SHIP AWAY FROM THE HOME PORT OF THE SHIP OR ON TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION. THUS BOTH AN ELIGIBLE PAY GRADE (E-4 WITH OVER 4 YEARS' SERVICE) AND A QUALIFYING CONTINUOUS PERIOD OF DUTY OF MORE THAN 30 DAYS IN THAT GRADE ARE CLEARLY REQUIRED TO AUTHORIZE PAYMENT OF THE FAMILY SEPARATION ALLOWANCE. SINCE THE STATUTE PROVIDES THAT PAYMENT OF THE ALLOWANCE UNDER CLAUSE (2) OR (3) IS EFFECTIVE AS OF THE FIRST DAY OF THE QUALIFYING PERIOD, IT IS READILY APPARENT THAT A CONCLUSION THAT THE REQUIRED PERIOD OF MORE THAN 30 DAYS WOULD COMMENCE WITH ENTRY UPON DUTY ABOARD SHIP OR AT THE TEMPORARY DUTY STATION UNDER THE CIRCUMSTANCES PRESENTED IN PARTS (B) AND (C) WOULD RESULT IN THE MEMBER BEING PAID THE BENEFITS OF THE STATUTE FOR A PERIOD HE WAS ACTUALLY IN AN INELIGIBLE PAY GRADE (E-4 WITH 4 YEARS' SERVICE OR LESS). IT IS A WELL SETTLED RULE OF STATUTORY CONSTRUCTION THAT IF THE LANGUAGE OF A STATUTE IS PLAIN AND FREE FROM AMBIGUITY, AND EXPRESSES A SINGLE, DEFINITE, AND SENSIBLE MEANING, THAT MEANING IS PRESUMED TO BE THE MEANING WHICH THE LEGISLATIVE BODY INTENDED TO CONVEY. 21 COMP. GEN. 510, 512.

SINCE THE PLAIN LANGUAGE OF THE STATUTE ITSELF PROHIBITS PAYMENT OF THE FAMILY SEPARATION ALLOWANCE TO MEMBERS IN PAY GRADE E-4 WITH 4 YEARS' SERVICE OR LESS, WE BELIEVE THERE IS NO BASIS ON WHICH SUCH SERVICE MAY BE CONSIDERED IN COMPUTING THE 30-DAY PERIOD REQUIRED BY CLAUSES (2) AND (3) OF 37 U.S.C. 427/B). SEE THE ANSWER TO QUESTION 27, IN OUR DECISION OF OCTOBER 9, 1963, B-131836, 43 COMP. GEN. 332.

THEREFORE, IN ANSWER TO PARTS (B) AND (C) TO THE PRESENTED QUESTION, THE PERIODS OF ENTITLEMENT WOULD COMMENCE ON THE DATE AN ELIGIBLE PAY GRADE IS ACQUIRED ONLY WHEN THE QUALIFYING PERIODS CONTINUE FOR MORE THAN 30 DAYS FROM THAT DATE.