B-153204, MARCH 16, 1964, 43 COMP. GEN. 596

B-153204: Mar 16, 1964

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EFFECT WHEN VISITS BY DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES TO THE PERMANENT DUTY STATION OF A MEMBER RECEIVING FAMILY SEPARATION ALLOWANCE PAYMENTS UNDER 37 U.S.C. 427/A) AND CLAUSE (1) OF 37 U.S.C. 427 (B) EXCEED 3 MONTHS (UNLESS A SHORTER PERIOD IS PRESCRIBED BY DEPARTMENTAL REGULATIONS) DUE TO ILLNESS OR OTHER EMERGENCY ARISING AFTER THE DEPENDENTS ARRIVE AT THE DUTY STATION. RETROACTIVE COLLECTION OF THE FAMILY SEPARATION ALLOWANCE PAYMENT TO THE DATE THE VISIT COMMENCED IS NOT REQUIRED BUT PAYMENTS SHOULD BE TERMINATED AT THE END OF 3 MONTHS. AT THE TIME DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES DEPART FROM THEIR RESIDENCE TO VISIT THE MEMBER AT HIS PERMANENT DUTY STATION IT IS CONTEMPLATED THAT THE VISIT WILL BE FOR A PERIOD LONGER THAN 3 MONTHS.

B-153204, MARCH 16, 1964, 43 COMP. GEN. 596

FAMILY ALLOWANCES - SEPARATION - TYPE 1 - DEPENDENT VISITS. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - DEPENDENT VISITS. FAMILY ALLOWANCES - SEPARATION - TYPE 1 - DEPENDENT VISITS. FAMILY ALLOWANCES - SEPARATION - TYPE 1 - DEPENDENT ACQUIRED AFTER ORDERS. FAMILY ALLOWANCES - SEPARATION TYPE 2 - DEPENDENT ACQUIRED AFTER ORDERS. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - COMPUTATION. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - COMPUTATION. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - COMPUTATION. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - TEMPORARY DUTY - UNIT OR GROUP ORDERS. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - HOSPITALIZATION, ETC., EFFECT. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - HOSPITALIZATION, ETC., EFFECT. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - TEMPORARY DUTY - HOSPITALIZATION, ETC., EFFECT WHEN VISITS BY DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES TO THE PERMANENT DUTY STATION OF A MEMBER RECEIVING FAMILY SEPARATION ALLOWANCE PAYMENTS UNDER 37 U.S.C. 427/A) AND CLAUSE (1) OF 37 U.S.C. 427 (B) EXCEED 3 MONTHS (UNLESS A SHORTER PERIOD IS PRESCRIBED BY DEPARTMENTAL REGULATIONS) DUE TO ILLNESS OR OTHER EMERGENCY ARISING AFTER THE DEPENDENTS ARRIVE AT THE DUTY STATION, THE VISIT MAY BE CONSIDERED A VISIT OF A "TEMPORARY NATURE" UNTIL THE END OF THE 3-MONTH PERIOD, AND, THEREFORE, RETROACTIVE COLLECTION OF THE FAMILY SEPARATION ALLOWANCE PAYMENT TO THE DATE THE VISIT COMMENCED IS NOT REQUIRED BUT PAYMENTS SHOULD BE TERMINATED AT THE END OF 3 MONTHS. IF, AT THE TIME DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES DEPART FROM THEIR RESIDENCE TO VISIT THE MEMBER AT HIS PERMANENT DUTY STATION IT IS CONTEMPLATED THAT THE VISIT WILL BE FOR A PERIOD LONGER THAN 3 MONTHS, THE VISIT IS NOT OF A TEMPORARY NATURE FOR CONTINUATION OF FAMILY SEPARATION ALLOWANCE PAYMENTS UNDER 37 U.S.C. 427/A) AND CLAUSE (1) OF 37 U.S.C. 427 (B) AND, THEREFORE, THE FAMILY SEPARATION ALLOWANCE PAYMENTS SHOULD BE STOPPED ON THE DATE THE DEPENDENTS ARRIVE AT THE MEMBER'S PERMANENT DUTY STATION. WHEN FAMILY SEPARATION ALLOWANCE PAYMENTS TO MEMBERS OF THE UNIFORMED SERVICES ARE STOPPED BECAUSE THE VISIT OF THE MEMBER'S DEPENDENTS EXTENDS BEYOND 3 MONTHS, AND LATER THE DEPENDENTS RETURN HOME, THE SAME CONDITIONS FOR PAYMENT OF THE FAMILY SEPARATION ALLOWANCES THEN EXIST AS ORIGINALLY EXISTED ON DEPARTURE OF THE MEMBER FOR A STATION TO WHICH TRANSPORTATION OF DEPENDENTS IS NOT AUTHORIZED, AND, THEREFORE, FAMILY SEPARATION ALLOWANCE PAYMENTS MAY BE MADE FROM AND INCLUDING THE DATE OF DEPARTURE OF THE MEMBER'S DEPENDENTS FROM THE PERMANENT DUTY STATION. A MEMBER OF THE UNIFORMED SERVICES WHO IS WITHOUT DEPENDENTS ON THE EFFECTIVE DATE OF HIS PERMANENT CHANGE OF STATION AND THEREFORE NOT ELIGIBLE FOR FAMILY SEPARATION ALLOWANCE PAYMENTS BUT WHO ACQUIRES A DEPENDENT AFTER REPORTING TO HIS NEW STATION AND THEN MEETS THE REQUIREMENTS FOR THE FAMILY SEPARATION ALLOWANCE AUTHORIZED UNDER 37 U.S.C. 427/A) IS ENTITLED TO SUCH FAMILY SEPARATION ALLOWANCE PAYMENT FROM THE DATE THE DEPENDENT IS ACQUIRED. A MEMBER OF THE UNIFORMED SERVICES WHO ACQUIRES A DEPENDENT AFTER REPORTING TO A NEW PERMANENT DUTY STATION AND NOT ONLY MEETS THE OTHER REQUIREMENTS FOR THE FAMILY SEPARATION ALLOWANCE AUTHORIZED IN 37 U.S.C. 427/B) (1) BUT MAINTAINS A RESIDENCE OR HOUSEHOLD AWAY FROM HIS STATION FOR HIS DEPENDENT WHICH HE LIKELY WOULD SHARE WITH THE DEPENDENT AS A COMMON RESIDENCE DURING LEAVE OR SUCH TIMES AS HIS DUTY ASSIGNMENT MIGHT PERMIT IS ENTITLED TO THE FAMILY SEPARATION ALLOWANCE AUTHORIZED IN 37 U.S.C. 427 (B) (1). SINCE FAMILY SEPARATION ALLOWANCES FOR MEMBERS OF THE UNIFORMED SERVICES UNDER 37 U.S.C. 427 (B) ARE AUTHORIZED AS "MONTHLY ALLOWANCES" THEY SHOULD BE COMPUTED ON THE BASIS OF A 30-DAY MONTH, THEREFORE, THE 31ST DAY OF THE MONTH SHOULD BE EXCLUDED AND FEBRUARY SHOULD BE TREATED AS IF IT ACTUALLY HAD 30 DAYS. IN COMPUTING THE FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B) (1) FOR A MEMBER OF THE UNIFORMED SERVICES WHO BECOMES ENTITLED TO THE ALLOWANCE DURING A MONTH, THE FAMILY SEPARATION ALLOWANCE SHOULD BE PRORATED ON THE BASIS OF A 30-DAY MONTH FOR THAT PORTION OF THE MONTH DURING WHICH ENTITLEMENT EXISTS. ALTHOUGH THE 31ST DAY OF A MONTH IS NOT COUNTED IN COMPUTING THE AMOUNT OF THE FAMILY SEPARATION ALLOWANCE AUTHORIZED TO MEMBERS OF THE UNIFORMED SERVICES UNDER 37 U.S.C. 427/B), IT IS TO BE COUNTED IN DETERMINING THE LENGTH OF TIME THE MEMBER IS ON DUTY FOR THE CONTINUOUS PERIOD OF DUTY OF MORE THAN 30 DAYS FOR ELIGIBILITY FOR THE FAMILY SEPARATION ALLOWANCE PRESCRIBED IN CLAUSES (2) AND (3) OF 37 U.S.C. 427/B), LIKEWISE THE 28TH OF FEBRUARY IS TO BE COUNTED AS ONLY 1 DAY FOR DUTY PURPOSES. FOR PURPOSES OF THE FAMILY SEPARATION ALLOWANCE AUTHORIZED UNDER 37 U.S.C. 427/B) (3) TO MEMBERS OF THE UNIFORMED SERVICES FOR TEMPORARY DUTY FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS, MEMBERS WHO ARE ASSIGNED TO SUCH TEMPORARY DUTY UNDER ORDERS AS A UNIT RATHER THAN UNDER INDIVIDUAL ORDERS MAY HAVE SUCH UNIT ASSIGNMENT ORDERS RECOGNIZED FOR FAMILY SEPARATION ALLOWANCE PAYMENTS, PROVIDED THAT THE ORDERS ARE SUFFICIENTLY DEFINITE, THAT THE MEMBERS OF THE UNIT CAN BE IDENTIFIED, AND WILL HAVE KNOWLEDGE OF THE DUTY REQUIRED AS MEMBERS OF THE UNIT, EVEN THOUGH THE TEMPORARY DUTY MIGHT BE A TYPE FOR WHICH PER DIEM WOULD NOT BE PAYABLE. A MEMBER OF THE UNIFORMED SERVICES WHO IS TRANSFERRED FROM A PERMANENT DUTY STATION OVERSEAS TO A HOSPITAL IN THE UNITED STATES AS A PATIENT FOR TREATMENT IS CONSIDERED TO HAVE BEEN GIVEN A PERMANENT CHANGE OF STATION AND, THEREFORE, SINCE SUCH A CHANGE OF STATION WOULD ENTITLE THE MEMBER TO TRANSPORTATION OF HIS DEPENDENTS TO THE HOSPITAL AT GOVERNMENT EXPENSE, THE FAMILY SEPARATION ALLOWANCE PRESCRIBED IN 37 U.S.C. 427/B) (1) WOULD NOT BE PAYABLE. A MEMBER OF THE UNIFORMED SERVICES WHO HAS HIS ASSIGNMENT AT A STATION IN THE UNITED STATES TERMINATED WHEN HE IS TRANSFERRED TO A HOSPITAL ON A PERMANENT BASIS FOR TREATMENT AS A PATIENT MAY HAVE THE HOSPITAL REGARDED AS A PERMANENT STATION FOR ENTITLEMENT TO THE FAMILY SEPARATION ALLOWANCE PRESCRIBED IN 37 U.S.C. 427/B) AND, THEREFORE, IF THE MEMBER OTHERWISE QUALIFIES FOR THE FAMILY SEPARATION ALLOWANCE AND THE MEMBER IS NOT ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS TO THE HOSPITAL BY REASON OF A DETERMINATION BY PROPER AUTHORITY THAT THE PERIOD OF HOSPITALIZATION IS NOT EXPECTED TO BE PROLONGED, THE MEMBER WOULD BE ENTITLED TO THE FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427/B) (1), PROVIDED THAT HIS DEPENDENTS DO NOT RESIDE NEAR THE HOSPITAL. A MEMBER OF THE UNIFORMED SERVICES WHO IS TRANSFERRED FROM A DUTY STATION IN THE UNITED STATES TO A HOSPITAL AS A PATIENT IN AN ATTACHED STATUS FOR A PERIOD IN EXCESS OF 30 DAYS MAY NOT HAVE THE TRANSFER REGARDED AS AN ASSIGNMENT FOR PERFORMANCE OF TEMPORARY DUTY TO QUALIFY FOR THE FAMILY SEPARATION ALLOWANCE FOR TEMPORARY DUTY FOR MORE THAN 30 DAYS PRESCRIBED IN 37 U.S.C. 427/B) (3).

TO THE SECRETARY OF DEFENSE, MARCH 16, 1964:

REFERENCE IS MADE TO LETTER OF DECEMBER 30, 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. 335 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: SEC. 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 A 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 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.

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

QUESTION 1.

A. WHEN DEPENDENTS VISIT A MEMBER AT HIS PERMANENT DUTY STATION FOR A PERIOD EXCEEDING THREE MONTHS, SHOULD THE ALLOWANCES AUTHORIZED UNDER 37 U.S.C. 427/A) AND CLAUSE (1) OF 37 U.S.C. 427 (B) BE STOPPED AT THE EXPIRATION OF THE THREE-MONTH PERIOD, OR RETROACTIVE TO THE DATE THE VISIT COMMENCED?

B. WHEN CREDIT FOR THESE ALLOWANCES IS STOPPED BECAUSE A SOCIAL VISIT HAS EXTENDED BEYOND THE THREE-MONTH PERIOD, MAY CREDIT BE RESUMED UPON TERMINATION OF THE VISIT?

COMMITTEE ACTION NO. 335 REFERS TO OUR DECISION OF OCTOBER 9, 1963, B- 131836, 43 COMP. GEN. 332, IN WHICH, IN ANSWER TO QUESTION 19, WE STATED:

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 THREE 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.

IF IT REASONABLY MAY BE CONCLUDED FROM THE FACTS THAT THE PRESENCE OF THE DEPENDENTS AT THE MEMBER'S STATION WAS FOR THE PURPOSE OF A BONA FIDE SOCIAL VISIT WHICH WOULD NOT EXCEED 3 MONTHS (UNLESS A SHORTER PERIOD IS PRESCRIBED BY DEPARTMENTAL REGULATIONS), BUT DUE TO ILLNESS OR OTHER EMERGENCY ARISING AFTER THEY ARRIVED AT THE MEMBER'S PERMANENT DUTY STATION IT WAS NECESSARY TO EXTEND THE VISIT FOR A LONGER PERIOD, RETROACTIVE COLLECTION OF THE FAMILY SEPARATION ALLOWANCES TO THE DATE THE VISIT COMMENCED IS NOT REQUIRED. IN SUCH A CASE, IT MAY BE CONSIDERED A VISIT OF A "TEMPORARY NATURE" UNTIL THE END OF THE 3 MONTHS' PERIOD AND PAYMENT STOPPED AT THAT TIME. IF, HOWEVER, AT THE TIME THE DEPENDENTS DEPART FROM THEIR RESIDENCE IT IS CONTEMPLATED THAT THEIR VISIT WILL BE FOR A PERIOD LONGER THAN 3 MONTHS THEN THE VISIT IS NOT OF A "TEMPORARY NATURE," AND THE ALLOWANCES SHOULD BE STOPPED ON THE DATE THE DEPENDENTS ARRIVE AT THE MEMBER'S PERMANENT DUTY STATION. QUESTION 1 (A) IS ANSWERED ACCORDINGLY.

IN ANSWER TO QUESTION 1 (B) WE AGREE WITH THE MILITARY PAY AND ALLOWANCE COMMITTEE THAT WHEN A BONA FIDE SOCIAL VISIT EXTENDS BEYOND 3 MONTHS, THE ALLOWANCES ARE STOPPED AND LATER THE DEPENDENTS RETURN HOME, THE SAME JUSTIFICATION THEN EXISTS FOR PAYMENT OF THE FAMILY SEPARATION ALLOWANCES AS ORIGINALLY EXISTED ON DEPARTURE OF THE MEMBER FOR A STATION TO WHICH TRANSPORTATION OF HIS DEPENDENTS IS NOT AUTHORIZED. ACCORDINGLY, IT IS OUR VIEW THAT PAYMENT OF SUCH ALLOWANCES SHOULD BE MADE, IF OTHERWISE PROPER, FROM AND INCLUDING THE DATE OF DEPARTURE OF THE MEMBER'S DEPENDENTS FROM HIS PERMANENT DUTY STATION.

QUESTION 2.

IS A MEMBER WITHOUT DEPENDENTS ON THE EFFECTIVE DATE OF HIS PERMANENT CHANGE OF STATION ENTITLED TO FAMILY SEPARATION ALLOWANCE UNDER SECTION 427 (A) OR 427 (B) (1) IF HE ACQUIRES A DEPENDENT SUBSEQUENT TO REPORTING TO HIS NEW STATION?

THE ALLOWANCES AUTHORIZED UNDER SECTION 427 (A) AND SECTION 427 (B) (1) ARE PAYABLE ONLY TO MEMBERS WITH DEPENDENTS AND ONLY IF THE MOVEMENT OF THE MEMBER'S DEPENDENTS TO OR NEAR HIS PERMANENT STATION IS NOT AUTHORIZED AT GOVERNMENT EXPENSE AND HIS DEPENDENTS DO NOT RESIDE AT OR NEAR HIS STATION. PARAGRAPH 7000 (10) OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT TRANSPORTATION OF A DEPENDENT AT GOVERNMENT EXPENSE IS NOT AUTHORIZED WHEN DEPENDENCY DOES NOT EXIST ON THE EFFECTIVE DATE OF THE ORDER DIRECTING A PERMANENT CHANGE OF STATION FOR THE MEMBER. IN SUCH A CASE, IF THE MEMBER MEETS THE OTHER REQUIREMENTS OF SECTION 427/A), HE WOULD BE ENTITLED TO THE FAMILY SEPARATION ALLOWANCE UNDER THAT SECTION EFFECTIVE THE DATE THE DEPENDENT IS ACQUIRED. THE MEMBER WOULD ALSO BE ENTITLED IN SUCH A CASE TO THE ALLOWANCE UNDER SECTION 427/B) (1) IF HE MEETS THE OTHER REQUIREMENTS OF THAT SECTION AND IF HE MAINTAINS A RESIDENCE OR HOUSEHOLD AWAY FROM HIS STATION FOR HIS DEPENDENT WHICH HE LIKELY WOULD SHARE WITH THE DEPENDENT AS A COMMON RESIDENCE DURING PERIODS OF LEAVE OR SUCH OTHER TIMES AS HIS DUTY ASSIGNMENT MIGHT PERMIT. SEE B 131836, NOVEMBER 22, 1963, 43 COMP. GEN. 444. QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE ON THE BASIS INDICATED.

QUESTION 3.

UNDER SECTION 427 (B) WHAT AMOUNT WOULD BE PAYABLE:

A. IF A MEMBER BECOMES ENTITLED UNDER CLAUSE (1) OF SECTION 427 (B) (IN) IN MONTH WHICH HAS 31 DAYS, OR IN THE MONTH OF FEBRUARY?

B. FOR PERIODS OF ENTITLEMENT UNDER CLAUSES (2) OR (3) AS FOLLOWS:

(1) 31 MARCH THROUGH 10 MAY?

(2) 25 FEBRUARY THROUGH 31 MARCH?

(3) 15 JANUARY THROUGH 1 MARCH?

SECTION 403/G) OF TITLE 37 OF THE U.S.C. PROVIDES THAT THE PRESIDENT MAY PRESCRIBE REGULATIONS GOVERNING PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS UNDER THAT SECTION. BY EXECUTIVE ORDER NO. 10204, JANUARY 16, 1951, THE PRESIDENT PRESCRIBED SUCH REGULATIONS AND IN PARAGRAPH 6 HE AUTHORIZED THE SEVERAL SERVICE SECRETARIES TO PRESCRIBE SUPPLEMENTARY REGULATIONS, WITH THE REQUIREMENT THAT THEY BE UNIFORM FOR ALL SERVICES TO THE EXTENT PRACTICABLE. THE REGULATIONS ISSUED BY THE SERVICES CONCERNED ARE EXEMPLIFIED BY ARMY REGULATIONS 37-104, CHAPTER 5, AND PROVIDE FOR COMPUTING BASIC ALLOWANCE FOR QUARTERS ON THE BASIS OF A 30-DAY MONTH THE SAME AS PAY IS COMPUTED PURSUANT TO 5 U.S.C. 84. SINCE THE FAMILY SEPARATION ALLOWANCES ARE AUTHORIZED AS "MONTHLY ALLOWANCES," THEY SHOULD BE COMPUTED ON THE SAME BASIS. THUS IN COMPUTING THE AMOUNT PAYABLE THE 31ST DAY OF ANY MONTH SHOULD BE EXCLUDED FROM THE COMPUTATION AND FEBRUARY SHOULD BE TREATED AS IF IT ACTUALLY HAD 30 DAYS. IF ENTITLEMENT COMMENCES DURING THE MONTH THE ALLOWANCE SHOULD BE PRORATED ON THE BASIS OF A 30 DAY MONTH FOR THAT PORTION OF THE MONTH DURING WHICH ENTITLEMENT EXISTS. THEREFORE IF ENTITLEMENT UNDER SECTION 427 (B) (1) SHOULD COMMENCE ON THE 11TH AND CONTINUE TO THE END OF THE MONTH THE MEMBER WOULD BE ENTITLED TO AN ALLOWANCE OF $20 WHETHER THE MONTH WAS JANUARY OR FEBRUARY. QUESTION 3 (A) IS ANSWERED ACCORDINGLY.

IN ANSWER TO QUESTION 3 (B) IT SHOULD BE OBSERVED THAT, WHILE THE 31ST DAY OF A MONTH IS NOT COUNTED IN COMPUTING THE ALLOWANCE PAYABLE UNDER SECTION 427 (B), IT IS TO BE COUNTED AND THE 28TH OF FEBRUARY IS TO BE COUNTED AS ONLY 1 DAY IN DETERMINING WHETHER A MEMBER HAS BEEN ON DUTY FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS AS PRESCRIBED IN CLAUSES (2) AND (3). IN ACCORDANCE WITH THE RULES SET FORTH ABOVE A MEMBER WHO IS ENTITLED TO AN ALLOWANCE UNDER CLAUSE (2) OR (3) FOR THE PERIOD MARCH 31 THROUGH MAY 10 WOULD RECEIVE NOTHING FOR MARCH, $30 FOR APRIL, AND $10 FOR MAY. FOR THE PERIOD FEBRUARY 25 THROUGH MARCH 31 HE WOULD RECEIVE $6 FOR FEBRUARY AND $30 FOR MARCH. FOR THE PERIOD JANUARY 15 THROUGH MARCH 1 HE WOULD RECEIVE $16 FOR JANUARY, $30 FOR FEBRUARY, AND $1 FOR MARCH.

QUESTION 4.

ARE MEMBERS OF A UNIT, OTHERWISE QUALIFIED FOR FAMILY SEPARATION ALLOWANCE UNDER SECTION 427/B) (3), ENTITLED TO THE ALLOWANCE WHEN THE UNIT IS ORDERED ON AN EXERCISE FOR A PERIOD IN EXCESS OF 30 DAYS?

THE MILITARY PAY AND ALLOWANCE COMMITTEE SAYS THE DOUBT AS TO ENTITLEMENT TO THE ALLOWANCE IN THIS INSTANCE IS BASED ON THE FACT THAT ORDERS ARE ISSUED DIRECTING THE MOVEMENT OF A UNIT RATHER THAN ORDERS PLACING AN INDIVIDUAL ON TEMPORARY DUTY. IN THE DECISION OF DECEMBER 9, 1954, 34 COMP. GEN. 284, IT WAS RECOGNIZED THAT A MEMBER OF A UNIT OR DETACHMENT, AWAY FROM THE PERMANENT STATION OF THE BASIC ORGANIZATION TO WHICH ATTACHED, UNDER TEMPORARY OR TEMPORARY ADDITIONAL DUTY ORDERS MAY BE CONSIDERED AS HAVING PERFORMED TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION.

PARAGRAPH 3001 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A COMPETENT TRAVEL ORDER IS A WRITTEN INSTRUMENT ISSUED BY PROPER AUTHORITY DIRECTING AN INDIVIDUAL OR GROUP OF INDIVIDUALS TO TRAVEL BETWEEN DESIGNATED POINTS. IT APPEARS THAT, GENERALLY, WHEN A GROUP OF INDIVIDUALS IS ORDERED TO PERFORM TEMPORARY DUTY EACH INDIVIDUAL IS NAMED IN THE ORDER OR IN AN ATTACHED ROSTER SO THAT THE MEMBERS CONCERNED WILL HAVE DEFINITE KNOWLEDGE OF THE DUTY ASSIGNMENT. IF, HOWEVER, A UNIT IS ORDERED ON AN EXERCISE OF SUCH A NATURE AS TO CONSTITUTE TEMPORARY DUTY AWAY FROM ITS PERMANENT STATION AND THE ORDERS ARE SUFFICIENTLY DEFINITE THAT THE MEMBERS OF THE UNIT CAN BE CLEARLY IDENTIFIED AND WILL HAVE KNOWLEDGE OF THE DUTY REQUIRED BY REASON OF BEING MEMBERS OF THE UNIT, THEN IT WOULD APPEAR THAT SUCH MEMBERS, OTHERWISE QUALIFIED, WHO ARE ON TEMPORARY DUTY AWAY FROM THEIR PERMANENT STATION UNDER SUCH ORDERS FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS ARE ENTITLED TO PAYMENT OF FAMILY SEPARATION ALLOWANCE UNDER CLAUSE (3) OF SECTION 427 (B) INCIDENT TO THE UNIT ASSIGNMENT. THIS WOULD BE SO EVEN THOUGH THE EXERCISE MIGHT BE A TYPE OF TEMPORARY DUTY FOR WHICH NO PER DIEM WOULD BE PAYABLE.

QUESTION 5.

(A) IF A MEMBER IS ASSIGNED AS A PATIENT TO A HOSPITAL, IS HE ENTITLED TO FAMILY SEPARATION ALLOWANCE UNDER SECTION 427 (B) (1/?

(B) IS A MEMBER WHO IS TRANSFERRED AS A PATIENT TO A HOSPITAL IN AN ATTACHED STATUS FOR A PERIOD IN EXCESS OF 30 DAYS ENTITLED TO FAMILY SEPARATION ALLOWANCE UNDER SECTION 427 (B) (3/?

THE MILITARY PAY AND ALLOWANCE COMMITTEE STATES IN ITS DISCUSSION THAT A MEMBER ASSIGNED TO A HOSPITAL WOULD HAVE NO OTHER PERMANENT DUTY STATION AND, CONSEQUENTLY, IT EXPRESSES THE VIEW THAT ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE UNDER SECTION 427 (B) (1) WOULD BE FOR DETERMINATION ON THE BASIS OF CONDITIONS EXISTING AT THE PLACE WHERE THE HOSPITAL IS LOCATED. WITH RESPECT TO ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE UNDER SECTION 427 (B) (3), THE COMMITTEE POINTS OUT THAT IN DECISION OF OCTOBER 9, 1963, B-131836, WE HELD THAT A MEMBER OTHERWISE ENTITLED TO THE ALLOWANCE UNDER THOSE PROVISIONS MAY CONTINUE TO RECEIVE THE ALLOWANCE DURING PERIODS OF HOSPITALIZATION. THEREFORE IT SAYS THAT IT WOULD APPEAR THAT IN ORDER FOR A MEMBER WHO IS TRANSFERRED TO A HOSPITAL IN AN ATTACHED STATUS TO QUALIFY FOR THE ALLOWANCE IT WOULD BE NECESSARY FOR HIM TO HAVE BEEN ON TEMPORARY DUTY AND ELIGIBLE FOR THE ALLOWANCE AT THE TIME OF HOSPITALIZATION. DOUBT IS EXPRESSED, HOWEVER, AS TO WHETHER THE PERIOD DURING WHICH THE MEMBER IS ATTACHED TO THE HOSPITAL MAY BE CONSIDERED A PERIOD OF TEMPORARY DUTY SO AS TO QUALIFY THE MEMBER FOR THE ALLOWANCE. AIR FORCE MANUAL 11-1 DEFINES "ASSIGN" AS THE PLACEMENT OF UNITS OR PERSONNEL IN AN ORGANIZATION WHERE SUCH PLACEMENT IS RELATIVELY PERMANENT AND/OR WHERE SUCH ORGANIZATION CONTROLS AND ADMINISTERS THE UNITS OR PERSONNEL FOR THE PRIMARY FUNCTION, OR GREATER PORTION OF THE FUNCTIONS, OF THE UNIT OR PERSONNEL. IT DEFINES "ATTACH" AS THE PLACEMENT OF UNITS OR PERSONNEL IN AN ORGANIZATION WHERE SUCH PLACEMENT IS RELATIVELY TEMPORARY. SUBJECT TO LIMITATIONS IMPOSED BY THE ATTACHMENT ORDER, THE COMMANDER OF THE RECEIVING ORGANIZATION EXERCISES CONTROL OVER THE ATTACHMENT THE SAME AS HE DOES OVER UNITS AND PERSONS ORGANIC TO HIS COMMAND. HOWEVER, IT IS STATED THAT RESPONSIBILITY FOR TRANSFER OF PERSONNEL IS NORMALLY RETAINED BY THE PARENT ORGANIZATION. SIMILAR DEFINITIONS ARE CONTAINED IN ARMY REGULATIONS 320-5. IT IS OUR UNDERSTANDING THAT QUESTION 5 WAS FORMULATED IN THE LIGHT OF THESE DEFINITIONS AND IT WILL BE CONSIDERED ON THAT BASIS.

IT LONG HAS BEEN CONSIDERED THAT A MEMBER WHO IS ON DUTY OUTSIDE THE UNITED STATES AND WHO IS DETACHED FROM HIS STATION AND TRANSFERRED TO A HOSPITAL IN THE UNITED STATES AS A PATIENT FOR TREATMENT IS CONSIDERED TO HAVE BEEN GIVEN A PERMANENT CHANGE OF STATION. SEE 4 COMP. GEN. 653 AND B -134227, DECEMBER 17, 1957. ON THAT BASIS HE IS ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS AT GOVERNMENT EXPENSE FROM HIS OVERSEAS STATION OR FROM A DESIGNATED PLACE, AS APPLICABLE, TO THE HOSPITAL. PARAGRAPH 7004-3, JOINT TRAVEL REGULATIONS. SINCE A MEMBER ASSIGNED TO A HOSPITAL UNDER THESE CIRCUMSTANCES IS ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS TO THE HOSPITAL, HE CLEARLY IS NOT ENTITLED TO FAMILY SEPARATION ALLOWANCE UNDER SECTION 427 (B) (1).

THE ASSIGNMENT OF A MEMBER FROM A STATION IN THE UNITED STATES TO A HOSPITAL FOR OBSERVATION AND TREATMENT HAS NOT BEEN REGARDED AS A PERMANENT CHANGE OF DUTY STATION SINCE THE MEMBER IS NOT ASSIGNED TO THE HOSPITAL FOR THE PERFORMANCE OF DUTY. ON THAT BASIS WE HAVE CONSISTENTLY HELD THAT A MEMBER IS NOT ENTITLED TO A DISLOCATION ALLOWANCE INCIDENT TO THE MOVEMENT OF HIS DEPENDENTS TO THE HOSPITAL TO WHICH HE IS ASSIGNED. -130298, APRIL 3, 1957; B-132713, SEPTEMBER 20, 1957; B-144900, MARCH 27, 1961.

PARAGRAPH 7004-2 OF THE JOINT TRAVEL REGULATIONS PROVIDES, HOWEVER, THAT A MEMBER WHO IS TRANSFERRED WITHIN THE UNITED STATES FROM EITHER A PERMANENT OR TEMPORARY DUTY STATION TO A HOSPITAL FOR OBSERVATION AND TREATMENT IS ENTITLED TO TRANSPORTATION OF DEPENDENTS,"AS FOR A PERMANENT CHANGE OF STATION," TO THE HOSPITAL. ENTITLEMENT TO SUCH TRANSPORTATION IS CONTINGENT UPON A CERTIFICATION BY THE COMMANDING OFFICER OF THE RECEIVING HOSPITAL THAT HE HAS EVALUATED THE CASE AND BELIEVES THAT THE PERIOD OF TREATMENT IN THAT HOSPITAL CAN BE EXPECTED TO BE PROLONGED. THE COMMANDING OFFICER ISSUES SUCH A CERTIFICATE THAT THE PERIOD OF HOSPITALIZATION IS EXPECTED TO BE PROLONGED, THE MEMBER CLEARLY WOULD NOT BE ENTITLED TO FAMILY SEPARATION ALLOWANCE UNDER SECTION 427 (B) (1), SINCE HE WOULD BE ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS TO THE HOSPITAL. AND, PERIOD OF TREATMENT MAY BE GIVEN PROMPTLY WHEN REQUESTED, IT IS OUR VIEW THAT UNTIL SUCH A CERTIFICATE HAS BEEN APPLIED FOR AND THE VIEW THAT UNTIL SUCH A CERTIFICATE HAS BEEN APPLIED FOR AND THE COMMANDING OFFICER HAS DETERMINED THAT THE PERIOD OF TREATMENT IS NOT EXPECTED TO BE PROLONGED THERE IS NO SOUND LEGAL BASIS TO CONCLUDE THAT THE MOVEMENT OF THE MEMBER'S DEPENDENTS TO THE HOSPITAL IS NOT AUTHORIZED AT GOVERNMENT EXPENSE. COMPARE B-152987, FEBRUARY 12, 1964, 43 COMP. GEN. 547.

WHILE AN ASSIGNMENT TO A HOSPITAL AS A PATIENT IS NOT PROPERLY TO BE REGARDED AS AN ASSIGNMENT TO DUTY, IF THE MEMBER'S ASSIGNMENT AT HIS OLD STATION IN THE UNITED STATES IS TERMINATED WHEN HE IS TRANSFERRED TO THE HOSPITAL AND HE IS ASSIGNED THERE ON A PERMANENT BASIS THE HOSPITAL WILL BE REGARDED AS HIS PERMANENT STATION FOR PURPOSES OF ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE UNDER SECTION 427 (B), THE HOSPITAL BEING THE ONLY STATION TO WHICH HE IS PERMANENTLY ASSIGNED. THEREFORE, IF HE OTHERWISE QUALIFIED AND IS NOT ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS TO THE HOSPITAL BY REASON OF A DETERMINATION BY PROPER AUTHORITY THAT THE PERIOD OF HOSPITALIZATION IS NOT EXPECTED TO BE PROLONGED, IT IS OUR VIEW THAT HE WOULD BE ENTITLED TO THE ALLOWANCE UNDER SECTION 427/B) (1) PROVIDED HIS DEPENDENTS DO NOT RESIDE NEAR THE HOSPITAL. QUESTION 5 (A) IS ANSWERED ACCORDINGLY.

WITH REGARD TO QUESTION 5 (B), AN ALLOWANCE UNDER SECTION 427 (B) (3) IS AUTHORIZED IF THE MEMBER "IS ON TEMPORARY DUTY" AWAY FROM HIS PERMANENT STATION FOR A PERIOD OF MORE THAN 30 DAYS, AND THE OTHER REQUIREMENTS ARE MET. A MEMBER WHO IS TRANSFERRED TO A HOSPITAL AS A PATIENT FOR OBSERVATION AND TREATMENT IS NOT TRANSFERRED THERE FOR THE PERFORMANCE OF DUTY. SINCE ENTITLEMENT TO THE ALLOWANCE IS PREDICTED ON A SEPARATION OF THE MEMBER AND HIS DEPENDENTS BY REASON OF A SPECIAL ASSIGNMENT FOR THE PERFORMANCE OF TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION, IT IS OUR VIEW THAT THE TRANSFER OF A MEMBER TO A HOSPITAL AS A PATIENT IN AN ATTACHED STATUS IS NOT THE EQUIVALENT OF AN ASSIGNMENT FOR THE PERFORMANCE OF TEMPORARY DUTY AND WOULD NOT QUALIFY HIM FOR THE ALLOWANCE. QUESTION 5 (B) IS ANSWERED IN THE NEGATIVE.