B-153984, SEPTEMBER 10, 1964, 44 COMP. GEN. 127

B-153984, SEPTEMBER 10, 1964, 44 COMP. GEN. 127

FAMILY ALLOWANCES - SEPARATION - TYPE 1 - MISSING, INTERNED, ETC., STATUS THE FAMILY SEPARATION ALLOWANCE AUTHORIZED BY 37 U.S.C. 427 (B) TO MEMBERS OF THE UNIFORMED SERVICES WHICH IS BASED IN PART ON ENTITLEMENT TO QUARTERS ALLOWANCE AND ON THE NECESSITY TO REIMBURSE THE MEMBERS FOR ADDED HOUSEHOLD EXPENSES RESULTING FROM SEPARATION OF THE MEMBER FROM HIS DEPENDENTS IS, FOR PURPOSES OF DETERMINING WHETHER IT IS AN ALLOWANCE PAYABLE DURING A MISSING STATUS, IN THE SAME CATEGORY AS THE BASIC ALLOWANCE FOR QUARTERS WHICH IS SPECIFICALLY AUTHORIZED TO BE PAID TO MEMBERS IN A MISSING STATUS RATHER THAN A TEMPORARY ALLOWANCE THAT IS REQUIRED TO BE EXCLUDED, AND, THEREFORE, EVEN THOUGH THE FAMILY SEPARATION ALLOWANCE IS NOT AN ALLOWANCE SPECIFICALLY MENTIONED UNDER SECTION 2 OF THE MISSING PERSONS ACT, 50 U.S.C. APP. 1002, IT MAY CONTINUE TO BE PAID TO MEMBERS IN A MISSING STATUS IF THEY WERE RECEIVING THE FAMILY SEPARATION ALLOWANCE WHEN THE MISSING STATUS BEGAN, AND PROVIDED THAT THERE IS NO CHANGE IN THE STATUS OF THE DEPENDENTS TO TERMINATE ENTITLEMENT.

TO MAJOR J. H. WEBB, DEPARTMENT OF THE AIR FORCE, SEPTEMBER 10, 1964:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 20, 1964, WITH ENCLOSURES, REQUESTING A DECISION BY THIS OFFICE AS TO THE PROPRIETY OF PAYMENT OF FAMILY SEPARATION ALLOWANCE ON BEHALF OF CAPTAIN THOMAS F. GORTON, 46014A (DECEASED), WHILE HE WAS IN A MISSING STATUS. YOUR REQUEST WAS APPROVED AS AIR FORCE REQUEST NO. DO-AF-762 BY THE DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCE COMMITTEE.

CAPTAIN GORTON IS REPORTED TO HAVE ENTERED A MISSING STATUS ON DECEMBER 6, 1963, WHILE SERVING ON ACTIVE DUTY IN VIETNAM. HIS ABSENCE WAS TERMINATED ON JANUARY 27, 1964, WHEN EVIDENCE WAS RECEIVED BY THE DEPARTMENT OF THE AIR FORCE THAT HE COULD NOT HAVE SURVIVED. IT WAS DETERMINED THAT HE DIED ON DECEMBER 6, 1963, AND THAT PROVISIONS OF THE MISSING PERSONS ACT, 50 U.S.C. APP. 1001-1015, WERE APPLICABLE AND, THEREFORE, THAT HIS DESIGNATED BENEFICIARY IS DUE PAY AND ALLOWANCES FOR 51 DAYS WHILE HE WAS CARRIED IN A STATUS OF MISSING.

IN YOUR LETTER IT IS STATED THAT CAPTAIN GORTON QUALIFIED FOR, AND WAS PAID, FAMILY SEPARATION ALLOWANCE FROM OCTOBER 1, 1963, UNDER CLAUSE (1) OF 37 U.S.C. 427 (B), WHICH PROVIDES, IN EFFECT, THAT SUCH ALLOWANCE IS PAYABLE WHEN TRANSPORTATION OF THE MEMBER'S DEPENDENTS TO HIS PERMANENT DUTY STATION OR A PLACE NEAR THAT STATION IS NOT AUTHORIZED AT GOVERNMENT EXPENSE, AND HIS DEPENDENTS DO NOT LIVE AT OR NEAR HIS PERMANENT STATION. ALSO, YOU SAY THAT PUBLIC LAW 85-217, APPROVED AUGUST 29, 1957, 71 STAT. 491, AMENDED AND MADE PERMANENT THE MISSING PERSONS ACT OF MARCH 7, 1942, AS AMENDED, AND THAT SECTION 2 OF THE ACT OF 1942, 50 U.S.C. APP. 1002 (1952 ED.), PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"ANY PERSON WHO IS IN ACTIVE SERVICE AND WHO IS OFFICIALLY DETERMINED TO BE ABSENT IN A STATUS OF MISSING . . . SHALL, FOR THE PERIOD HE IS OFFICIALLY CARRIED . . . IN ANY SUCH STATUS, BE ENTITLED TO RECEIVE OR TO HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE BEGINNING OF SUCH PERIOD OF ABSENCE . . .'

FURTHER, YOU SAY THAT THE LANGUAGE OF THE 1957 AMENDMENT IS MORE SPECIFIC AND THEREFORE MORE RESTRICTIVE, AND THAT SECTION 2 AS AMENDED BY THE 1957 ACT, 50 U.S.C. APP. 1002 (1958 ED.), NOW PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"ANY PERSON WHO IS IN THE ACTIVE SERVICE . . . AND WHO IS OFFICIALLY DETERMINED TO BE ABSENT IN A STATUS OF MISSING . . . SHALL, FOR THE PERIOD HE IS OFFICIALLY CARRIED . . . IN ANY SUCH STATUS, BE ENTITLED TO RECEIVE OR TO HAVE CREDITED TO HIS ACCOUNT THE SAME BASIC PAY, SPECIAL PAY, INCENTIVE PAY, BASIC ALLOWANCE FOR QUARTERS, BASIC ALLOWANCE FOR SUBSISTENCE, AND STATION PER DIEM ALLOWANCES FOR NOT TO EXCEED NINETY DAYS, TO WHICH HE WAS ENTITLED AT THE BEGINNING OF SUCH PERIOD OF ABSENCE

AS YOU INDICATE, ORIGINALLY THE LANGUAGE OF THE STATUTE WAS GENERAL AND PROVIDED THAT A MEMBER OFFICIALLY DETERMINED TO BE IN A MISSING STATUS WOULD BE ENTITLED TO RECEIVE OR TO HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE BEGINNING OF SUCH PERIOD OF ABSENCE. PUBLIC LAW 85-217, APPROVED AUGUST 29, 1957, CHANGED THE LANGUAGE OF THE STATUTE AND MADE IT MORE SPECIFIC AND RESTRICTIVE IN THAT IT EXPLICITLY SETS FORTH THE PARTICULAR PAY AND ALLOWANCES TO WHICH THE MEMBER SHALL BE ENTITLED DURING THE PERIOD OF ABSENCE.

IT APPEARS THAT YOUR DOUBT CONCERNING THE AUTHORITY TO CREDIT THE MEMBER'S ACCOUNT WITH FAMILY SEPARATION ALLOWANCE UNDER THE MISSING PERSONS ACT, AS AMENDED, IS BASED ON THE FACT THAT SUCH ALLOWANCE IS NOT SPECIFICALLY MENTIONED IN THE ACT, AND YOU PRESENT THE FOLLOWING QUESTIONS:

A. WHETHER CONTINUATION OF CREDIT FOR FAMILY SEPARATION ALLOWANCE MAY EXTEND BEYOND 6 DECEMBER 1963.

B. IF QUESTION A IS ANSWERED IN THE NEGATIVE, WOULD THE ANSWER BE THE SAME IF THE MEMBER HAD BEEN FOUND BY GOVERNING AUTHORITY TO HAVE DIED ON A DATE LATER THAN 6 DECEMBER 1963 UNDER THE PROVISIONS OF SECTION 9 OF THE MISSING PERSONS ACT, WHICH PROVIDES FOR A "PRESUMPTIVE" FINDING OF DEATH.

IN H.REPT.NO. 204, DATED MARCH 18, 1957, ON H.R. 5807, WHICH WAS ENACTED AS PUBLIC LAW 85-217, IT IS STATED THAT THE PURPOSE OF THE BILL WAS TO REVISE THE MISSING PERSONS ACT, 56 STAT. 143, AS AMENDED, 50 U.S.C. APP. 1001, ET SEQ., AND TO PROVIDE PERMANENT AUTHORITY FOR HEADS OF MILITARY OR OTHER GOVERNMENT DEPARTMENTS TO CONTINUE PAYMENT OF THE PAY AND ALLOWANCES OF MILITARY AND CIVILIAN PERSONNEL DURING PERIODS OF ABSENCE FROM THEIR POSTS OF DUTY WHILE IN A MISSING STATUS, TO INITIATE AND DISCONTINUE ALLOWANCES OF DEPENDENTS OF SUCH PERSONNEL, AND TO MAKE PRESUMPTIVE FINDINGS OF DEATH AND OTHER DETERMINATIONS UNDER APPROPRIATE CIRCUMSTANCES. ON PAGE 4 OF THE REPORT IT IS EXPLAINED HOW THE BILL DIFFERS FROM THE ORIGINAL DEPARTMENT PROPOSAL. IT IS STATED:

2. THE COMMITTEE BILL ALSO QUALIFIES THE TYPE OF PAY AND ALLOWANCES WHICH COULD BE RECEIVED UNDER ITS PROVISIONS. THE DEPARTMENT PROPOSAL WOULD HAVE AUTHORIZED THE PAYMENT OF TRAVEL PER DIEM FOR ANY PERSON WHO WAS IN A PER DIEM STATUS WHEN HE BECAME MISSING. THE COMMITTEE DID NOT FAVOR THIS TYPE OF PAYMENT AND CONSEQUENTLY SPELLED OUT IN THE COMMITTEE BILL THE TYPE OF PAY AND ALLOWANCES WHICH COULD BE PAID IN THE FUTURE.

THUS IT APPEARS FROM THE LEGISLATIVE HISTORY OF THE 1957 AMENDMENT THAT THE PURPOSE OF THE STATUTE WAS TO GIVE THE PROPER OFFICIALS OF THE GOVERNMENT PERMANENT AUTHORITY TO MAKE DETERMINATIONS THAT PERSONS ARE IN A MISSING OR OTHER SPECIFIED STATUS AND FURTHER TO CREDIT TO THEIR ACCOUNTS THE SAME PAY AND ALLOWANCES THEY WOULD HAVE RECEIVED WHILE PERFORMING ACTIVE DUTY, BUT NOT TEMPORARY ALLOWANCES SUCH AS A PER DIEM FOR TRAVEL EXPENSE. SEE 27 COMP. GEN. 205; COMPARE 37 COMP. GEN. 659. BASED ON THE FOREGOING IT WOULD APPEAR THAT UNDER THE ABOVE QUOTED PROVISIONS OF THE MISSING PERSONS ACT, AS AMENDED, THE PROPRIETY OF CREDITING FAMILY SEPARATION ALLOWANCE TO CAPTAIN GORTON'S PAY ACCOUNT WHILE IN A MISSING STATUS DEPENDS ON WHETHER FAMILY SEPARATION ALLOWANCE FALLS WITHIN THE CATEGORY OF ONE OF THE PAY AND ALLOWANCES CONTEMPLATED BY THE ACT.

SECTION 427 (B) OF TITLE 37, U.S. CODE, AS ADDED BY SECTION 11 OF THE UNIFORMED SERVICES PAY ACT OF 1963, PUBLIC LAW 88-132, APPROVED OCTOBER 2, 1963, PROVIDES FOR THE PAYMENT OF A FAMILY SEPARATION ALLOWANCE TO CERTAIN MEMBERS UNDER SPECIFIED CONDITIONS, IN PERTINENT PART, AS OLLOWS:

(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---.

THUS THE SECTION PROVIDES FOR THE PAYMENT OF A MONTHLY FAMILY SEPARATION ALLOWANCE OF $30 TO MEMBERS IN AN ELIGIBLE GRADE WHO ARE 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. 43 COMP. GEN. 332, B-131836, OCTOBER 9, 1963; 43 COMP. GEN. 444, B-131836, NOVEMBER 22, 1963; 43 COMP. GEN. 783, B -154233, JUNE 10, 1964.

SINCE THE BENEFITS AUTHORIZED IN SECTION 427 (B) ARE BASED IN PART ON ENTITLEMENT TO QUARTERS ALLOWANCE AND ARE TO REIMBURSE THE MEMBER FOR ADDED HOUSEHOLD EXPENSES, IT IS OUR VIEW THAT SUCH BENEFITS REASONABLY MAY BE REGARDED IN THE SAME CATEGORY, WITHIN THE CONTEMPLATION OF SECTION 2 OF THE MISSING PERSONS ACT, AS AMENDED, AS THE BASIC ALLOWANCE FOR QUARTERS. IN VIEW OF THE FOREGOING, AND SINCE IT APPEARS THAT UNDER THE MISSING PERSONS ACT, AS AMENDED, THE CONGRESS INTENDED ONLY TO EXCLUDE THE CREDITING OF TEMPORARY ALLOWANCES TO MEMBERS IN A MISSING STATUS, IT WOULD SEEM THAT A MEMBER WHO WAS ENTITLED TO FAMILY SEPARATION ALLOWANCE UNDER SECTION 427 (B) WHEN HIS MISSING STATUS BEGAN PROPERLY SHOULD CONTINUE TO HAVE CREDITED TO HIS ACCOUNT SUCH ALLOWANCE FOR THE PERIOD DURING WHICH HE WAS OFFICIALLY CARRIED OR DETERMINED TO BE IN A STATUS OF MISSING, ETC., PROVIDED THERE IS NO CHANGE IN THE STATUS OF THE DEPENDENTS WHICH WOULD TERMINATE ENTITLEMENT.

ACCORDINGLY QUESTION (A) IS ANSWERED IN THE AFFIRMATIVE AND NO ANSWER TO QUESTION (B) IS REQUIRED.

THE VOUCHER AND OTHER PAPERS SUBMITTED BY YOU ARE RETURNED, PAYMENT THEREON BEING AUTHORIZED, IF OTHERWISE CORRECT.