B-155012, OCTOBER 15, 1964, 44 COMP. GEN. 217

B-155012, OCTOBER 15, 1964, 44 COMP. GEN. 217

FAMILY ALLOWANCES - SEPARATION - RESIDENCE DISTANCE FROM STATION A MEMBER OF THE UNIFORMED SERVICES WHO WAS AUTHORIZED CONCURRENT TRAVEL AT GOVERNMENT EXPENSE FOR HIS DEPENDENT WIFE TO AN OVERSEAS LOCATION TO RESIDE WITH HER MOTHER AT A PLACE THAT WAS MORE THAN 50 MILES FROM THE MEMBER'S STATION UNTIL GOVERNMENT QUARTERS WERE AVAILABLE MAY NOT HAVE THE WIFE'S PLACE OF RESIDENCE AWAY FROM THE MEMBER'S STATION REGARDED AS DUE TO ANY MILITARY RESTRICTION ON HER TRAVEL FOR ENTITLEMENT TO A FAMILY SEPARATION ALLOWANCE PAYMENT AND, THEREFORE, THE SPECIFIC RESTRICTION IN 37 U.S.C. 427 (B) (1) AGAINST PAYMENT OF A FAMILY SEPARATION ALLOWANCE WHEN DEPENDENT TRAVEL TO THE OVERSEAS STATION IS AUTHORIZED AT GOVERNMENT EXPENSE PRECLUDES PAYMENT OF THE FAMILY SEPARATION ALLOWANCE TO THE MEMBER.

TO SERGEANT EARL WILLIAMS, OCTOBER 15, 1964:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 12, 1964, IN EFFECT REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED JULY 24, 1964, WHICH DISALLOWED YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE FOR THE PERIOD FROM OCTOBER 1, 1963, TO THE DATE OF THE SETTLEMENT.

BY LETTER AUTHORIZATION DATED JULY 25, 1963, HEADQUARTERS PRESIDIO OF SAN FRANCISCO, CALIFORNIA, YOUR DEPENDENT WIFE WAS AUTHORIZED CONCURRENT TRAVEL WITH YOU FROM SAN FRANCISCO, CALIFORNIA, TO LANDSTUHL, GERMANY, WITH PERMISSION FOR HER TO RESIDE WITH HER MOTHER IN KARLSRUHE, GERMANY, UNTIL GOVERNMENT OR OTHER QUARTERS WERE AVAILABLE AT YOUR DUTY STATION.

IN YOUR LETTER OF MAY 6, 1964, ACCOMPANYING YOUR CLAIM, YOU STATED THAT FROM THE TIME OF YOUR ARRIVAL IN GERMANY ON SEPTEMBER 14, 1963, YOUR WIFE HAD RESIDED AT KARLSRUHE, GERMANY, WITH HER MOTHER AND THAT YOU HAD LIVED IN THE BARRACKS AT LANDSTUHL, GERMANY. YOU STATED FURTHER THAT SINCE YOUR WIFE WAS LOCATED TOO FAR AWAY FROM YOUR STATION FOR YOU TO RETURN TO HER RESIDENCE EACH NIGHT YOU REQUESTED A PERMISSIVE REASSIGNMENT TO A DUTY STATION NEARER TO HER RESIDENCE. ACCORDINGLY, ON NOVEMBER 1, 1963, YOU SAID YOU WERE ASSIGNED YOUR PRESENT DUTY STATION AT MUENCHWEILER, GERMANY. HOWEVER, YOU CLAIMED THAT THIS STATION IS MORE THAN 50 MILES AWAY FROM YOUR WIFE'S RESIDENCE AND DID NOT PERMIT YOU TO RESIDE WITH HER ALTHOUGH YOU SAID YOU WERE ADVISED THAT THE DISTANCE WAS LESS THAN 50 MILES AND UNDER CURRENT REGULATIONS YOU WERE NOT ELIGIBLE FOR FAMILY SEPARATION ALLOWANCE.

BY SETTLEMENT DATED JULY 24, 1964, YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE WAS DISALLOWED FOR THE REASON THAT YOUR DEPENDENT WAS AUTHORIZED CONCURRENT TRAVEL TO YOUR DUTY STATION AND THE LOCATION OF YOUR DEPENDENT AT KARLSRUHE, GERMANY, WAS FOR PERSONAL REASONS. IN YOUR LETTER OF AUGUST 12, 1964, YOU STATE THAT EVEN THOUGH CONCURRENT TRAVEL WAS AUTHORIZED AND YOUR DEPENDENT DID RESIDE AT KARLSRUHE, GOVERNMENT OR OTHER QUARTERS WERE NOT AVAILABLE TO YOU AT YOUR DUTY STATION AND THE LOCATION OF YOUR DEPENDENT AT KARLSRUHE, GERMANY, WAS NOT FOR PERSONAL REASONS UNTIL YOU TURNED DOWN AN ASSIGNMENT TO GOVERNMENT QUARTERS ON MARCH 16, 1964. FOR THAT REASON YOU CONTEND THAT YOU ARE ENTITLED TO $30 PER MONTH FAMILY SEPARATION ALLOWANCE FROM OCTOBER 1, 1963, TO MARCH 16, 1964.

SECTION 427 (B) (1) OF TITLE 37, U.S.C. EFFECTIVE OCTOBER 1, 1963, 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;

PARAGRAPH 6C (4) AND (5), ARMY REGULATIONS 55-46, PROMULGATED PURSUANT TO THE AUTHORITY CONTAINED IN 37 U.S.C. 406, AND IN EFFECT DURING THE PERIOD UNDER CONSIDERATION, PROVIDES THAT THE OVERSEA COMMANDER WILL APPROVE CONCURRENT TRAVEL OF DEPENDENTS IN ALL INSTANCES WHERE THE DEPENDENTS CAN BE ACCOMMODATED IN THE OVERSEA AREA AT THE TIME THE SPONSOR (MEMBER) IS DUE TO ARRIVE IN THE AREA OF HIS ASSIGNMENT AND THAT THE SPONSOR MAY FURNISH THE NAME, RELATIONSHIP, AND ADDRESS ON THE LOCAL ECONOMY OF ANY RELATIVES TO PERMIT APPROVE OF CONCURRENT TRAVEL OF DEPENDENTS TO RESIDE WITH SUCH RELATIVES PENDING AVAILABILITY OF HOUSING ON THE LOCAL ECONOMY NEAR THE SPONSOR'S DUTY STATION.

SINCE CONCURRENT TRAVEL OF YOUR WIFE TO YOUR OVERSEAS DUTY STATION WAS AUTHORIZED AT GOVERNMENT EXPENSE UNDER THE PROVISIONS OF 37 U.S.C. 406, THE STATUTE CLEARLY PRECLUDES THE PAYMENT OF A FAMILY SEPARATION ALLOWANCE TO YOU IN THESE CIRCUMSTANCES. WHILE THE AUTHORIZATION FOR HER TRAVEL STATED THAT SHE WOULD RESIDE AT KARLSRUHE UNTIL GOVERNMENT OR OTHER QUARTERS BECAME AVAILABLE AT YOUR DUTY STATION, IT IS OBVIOUS FROM YOUR OWN STATEMENTS THAT SUCH PLACE OF RESIDENCE IN LIEU OF PRIVATE QUARTERS AT LANDSTUHL WAS DESIGNATED BY YOU AND DID NOT RESULT FROM ANY MILITARY RESTRICTION ON HER TRAVEL TO LANDSTUHL. THEREFORE, SINCE THE TRANSPORTATION OF YOUR WIFE TO THE AREA OF YOUR PERMANENT OVERSEAS STATION WAS NOT PROHIBITED, BUT ON THE CONTRARY WAS AUTHORIZED AT GOVERNMENT EXPENSE, YOU ARE NOT ENTITLED TO FAMILY SEPARATION ALLOWANCES FOR THE PERIOD SHE RESIDED WITH HER MOTHER PRIOR TO THE DATE THAT GOVERNMENT QUARTERS BECAME AVAILABLE. IN THAT CONNECTION, YOUR ATTENTION IS DIRECTED TO CHANGE NO. 12, DATED MARCH 24, 1964, TO ARMY REGULATIONS 55-46, WHICH ADDS PARAGRAPH 6N (1) (C), PROVIDING THAT WHEN A MEMBER ENTITLED TO TRANSPORTATION OF DEPENDENTS IS ASSIGNED TO A PERMANENT DUTY STATION OVERSEAS WHERE DEPENDENTS ARE PERMITTED, AND HE APPLIES FOR CONCURRENT TRAVEL OF DEPENDENTS WHICH IS APPROVED AND HIS DEPENDENTS DO TRAVEL WITH HIM, HE IS NOT ENTITLED TO FAMILY SEPARATION ALLOWANCE.