B-155066, DEC. 3, 1964, 44 COMP. GEN. 324

B-155066, DEC. 3, 1964, 44 COMP. GEN. 324

FAMILY ALLOWANCES - SEPARATION - TYPE 2 - SHIP DUTY - RETURN OF SHIP TO HOME PORT A COAST GUARD VESSEL WHICH, WHILE ON ORDERED PATROL DUTY AWAY FROM HOME RETURNED TO THE HOME PORT FOR LESS THAN 2 HOURS PRIOR TO THE EXPIRATION OF THE 30-DAY QUALIFYING PERIOD FOR ENTITLEMENT BY THE CREW MEMBERS TO FAMILY SEPARATION ALLOWANCE PAYMENTS UNDER 37 U.S.C. 427 (B) (2), MUST HAVE THE RETURN TO THE HOME PORT REGARDED AS INTERRUPTING THE VESSEL'S ABSENCE FROM THE HOME PORT, EVEN THOUGH THE RETURN WAS ONLY FOR A BRIEF TIME AND NONE OF THE CREW MEMBERS WAS GRANTED LIBERTY; THEREFORE, SINCE THE VESSEL RETURNED TO HOME PORT WITHIN 3 WEEKS OF THE DATE OF THE PATROL DUTY, THE VESSEL WAS NOT AWAY FROM ITS HOME PORT FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS AND PAYMENT OF THE FAMILY SEPARATION ALLOWANCE IS NOT AUTHORIZED.

TO R. H. MILLS, UNITED STATES COAST GUARD, DECEMBER 3, 1964:

FURTHER REFERENCE IS MADE TO FIRST INDORSEMENT DATED AUGUST 26, 1964, FROM THE COMMANDANT, U.S. COAST GUARD, FORWARDING HERE YOUR LETTER OF THE SAME DATE, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A FAMILY SEPARATION ALLOWANCE TO ROBERT C. JACOBSON, SK2, USCG, FOR THE PERIOD MARCH 13 TO APRIL 20, 1964, UNDER THE CIRCUMSTANCES DISCLOSED.

YOU STATE THAT THE USCGS STORIS (WAG-38), THE PERMANENT DUTY STATION OF MR. JACOBSON, DEPARTED KODIAK, ALASKA, THE HOME PORT OF THE VESSEL ON THE EVENING OF MARCH 13, 1964. YOU SAY THAT THE PATROL WAS SCHEDULED TO BE FROM MARCH 16 TO APRIL 18, 1964, BUT ON MARCH 27, 1964, WHILE IN THE BERING SEA, THE SHIP WAS ORDERED TO PRINCE PHILLIP SOUND AND LATER DIVERTED TO COOK INLET VIA KODIAK. YOU FURTHER STATE THAT THE STORIS ARRIVED AT KODIAK AT 1653 ON MARCH 31, 1964, AND DEPARTED AT 1832--- 1 HOUR AND 39 MINUTES LATER--- ON THE SAME DAY AFTER OFF-LOADING TO A HELICOPTER, SPARE PARTS AND AIR CREW MEMBERS BEFORE PROCEEDING TO COOK INLET. IT IS STATED THAT NO LIBERTY WAS GRANTED TO THE CREW MEMBERS, PRESUMABLY WHILE AT KODIAK, AND THE VESSEL RETURNED TO HER HOME PORT AT THE CONCLUSION OF HER ASSIGNED PATROL PERIOD ON APRIL 20, 1964. YOU SAY THAT THE MEMBERS OF THE STORIS WERE IN FACT SEPARATED FROM THEIR FAMILIES FOR A PERIOD OF 38 DAYS, BUT THAT DOUBT EXISTS REGARDING ENTITLEMENT SINCE THE VESSEL DID IN FACT RETURN TO ITS HOME PORT. WHILE NOT TOO SIGNIFICANT, IT IS STATED IN THE SITUATION REPORT DISCUSSED IN LETTER DATED APRIL 14, 1964, FROM THE COMMANDER, SEVENTEENTH COAST GUARD DISTRICT, ACCOMPANYING THE CLAIM, THAT THE VESSEL MADE AN UNSCHEDULED RETURN TO THE HOME PORT ON MARCH 29, 1964, AS OPPOSED TO MARCH 31, 1964, REPORTED ABOVE.

SECTION 427 (B) (2) OF TITLE 37, U.S. CODE, AUTHORIZES PAYMENT OF A FAMILY SEPARATION ALLOWANCE OF $30 A MONTH TO CERTAIN MEMBERS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS IF---

(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; * * *

CLAUSE (2) OF SECTION 427 (B) SPECIFICALLY REQUIRES THAT THE MEMBER BE ON DUTY ON BOARD A "SHIP AWAY FROM THE HOME PORT OF THE SHIP FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS.' IN ANSWER TO QUESTION 7 APPEARING ON PAGE 8 OF OUR DECISION OF OCTOBER 9, 1963, B-131836 (43 COMP. GEN. 332), WE SAID THAT THE MEMBER WOULD BE ENTITLED TO THE FAMILY SEPARATION ALLOWANCE DURING PERIODS OF TEMPORARY DUTY, SHORE PATROL DUTIES, OR HOSPITALIZATION ASHORE "WHILE THE SHIP REMAINS AWAY FROM ITS HOME PORT," AND WHILE HE IS ON AUTHORIZED LEAVE NOT IN EXCESS OF THAT FOR WHICH HE IS ENTITLED TO PAY AND ALLOWANCES UNDER THE PROVISIONS OF THE SECOND SENTENCE OF 37 U.S.C. 502 (A). IT WAS FURTHER STATED IN THAT DECISION, IN ANSWER TO QUESTION 8, THAT ENTITLEMENT TO THE ALLOWANCE WOULD TERMINATE IN THESE CIRCUMSTANCES WHEN THE VESSEL RETURNS TO ITS HOME PORT. IN ANSWER TO QUESTION C IN OUR DECISION OF MAY 26, 1964, B-131836 (43 COMP. GEN. 748), WE SAID THAT, GENERALLY, A MEMBER WHO IS ENTITLED TO A FAMILY SEPARATION ALLOWANCE BY REASON OF HIS ASSIGNMENT TO A VESSEL AWAY FROM ITS HOME PORT IS ENTITLED TO CONTINUE TO RECEIVE THE ALLOWANCE WHILE HE IS HOSPITALIZED AND "WHILE THE VESSEL REMAINS AWAY FROM THE HOME PORT.'

WITH RESPECT TO A PERIOD OF TEMPORARY DUTY OR HOSPITALIZATION OCCURRING BEFORE THE MEMBER COMPLETES THE QUALIFYING PERIOD OF MORE THAN 30 DAYS ABOARD THE VESSEL, THE CIRCUMSTANCES BEING SUCH THAT HE IS ABLE TO RESIDE WITH HIS DEPENDENTS, WE SAID, IN ANSWER TO QUESTION D OF THE DECISION OF MAY 26, 1964, THAT WE ARE OF THE OPINION THAT IF THE PERIOD THEY RESIDE TOGETHER IS FOR 30 DAYS OR LESS, IT MAY BE REGARDED AS IN THE NATURE OF A SOCIAL VISIT OF A TEMPORARY NATURE AND HE WOULD BE PERMITTED TO INCLUDE THE PERIOD OF TEMPORARY DUTY OR HOSPITALIZATION IN COMPUTING THE QUALIFYING PERIOD AND WOULD BECOME ENTITLED TO THE ALLOWANCE UPON COMPLETING SUCH PERIOD IF OTHER REQUIREMENTS ARE MET. AGAIN, HOWEVER, THE ANSWER WAS PREDICATED ON THE FACT THAT THE SHIP REMAINED "AWAY FROM THE HOME PORT * * * FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS.'

UNDER THE PLAIN LANGUAGE OF THE STATUTE, PAYMENT OF THE ALLOWANCE UNDER CLAUSE (2) IS NOT AUTHORIZED UNLESS THE SHIP REMAINS AWAY FROM ITS HOME PORT FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS. NO EXCEPTION TO THAT REQUIREMENT IS AUTHORIZED BY THE STATUTE FOR ANY REASON AND THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE LAW TO INDICATE THAT ANY EXCEPTION TO THAT REQUIREMENT WAS CONTEMPLATED BY CONGRESS. IN SUCH CIRCUMSTANCE WE MAY NOT READ ANY EXCEPTIONS INTO THE STATUTE. HENCE, THE RETURN OF A VESSEL TO ITS HOME PORT BEFORE THE EXPIRATION OF THE QUALIFYING PERIOD, NO MATTER HOW BRIEF ITS STAY, MUST BE VIEWED AS INTERRUPTING ITS ABSENCE FROM THE HOME PORT FOR PURPOSES OF THE STATUTE. SINCE THE C.G.S. STORIS RETURNED TO ITS HOME PORT WITHIN 3 WEEKS OF THE DATE IT DEPARTED FOR PATROL FROM THE HOME PORT, THE VESSEL WAS NOT AWAY FROM ITS HOME PORT FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS AND PAYMENT OF THE ALLOWANCE TO MR. JACOBSON AND OTHER MEMBERS OF THE CREW IN THE SAME CIRCUMSTANCES IS NOT AUTHORIZED. THE CLAIM AND SUPPORTING PAPERS WILL BE RETAINED HERE.