B-155183, NOVEMBER 24, 1964, 44 COMP. GEN. 307

B-155183, NOVEMBER 24, 1964, 44 COMP. GEN. 307

FAMILY ALLOWANCES - SEPARATION - TYPE 2 - RESERVE TRAINING, ETC., DUTY A NATIONAL GUARD OFFICER WHOSE DUTY ORDERS FOR MORE THAN 30 DAYS BUT LESS THAN 90 DAYS TRAINING DID NOT AUTHORIZE THE TRANSPORTATION OF HIS DEPENDENTS AT GOVERNMENT EXPENSE AND HIS DEPENDENTS ACCOMPANIED HIM TO HIS DUTY STATION REMAINING THERE FOR THE ENTIRE PERIOD OF HIS TRAINING IS NOT ENTITLED TO A FAMILY SEPARATION ALLOWANCE (TYPE 2), THE BENEFITS AUTHORIZED BY 37 U.S.C. 427 (B) BEING BASED ON THE ENFORCED SEPARATION OF A MEMBER OF THE UNIFORMED SERVICES FROM HIS FAMILY FOR AN EXTENDED PERIOD OF TIME, AND ON THE FACT THAT THE DEPENDENTS DO NOT RESIDE AT OR NEAR HIS DUTY STATION; THEREFORE, THE RESERVIST EXPERIENCING NO ENFORCED SEPARATION FROM HIS FAMILY, AND THE TEMPORARY RESIDENCE OF HIS DEPENDENTS AT HIS TRAINING STATION NOT BEING REGARDED AS A VISIT OF A TEMPORARY NATURE, HE MAY NOT BE PAID A FAMILY SEPARATION ALLOWANCE.

TO LIEUTENANT COLONEL R. E. O-BANNON, DEPARTMENT OF THE ARMY, NOVEMBER 24, 1964:

BY FIRST INDORSEMENT DATED SEPTEMBER 14, 1964, THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED HERE YOUR LETTER OF AUGUST 12, 1964, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF MAKING PAYMENT ON A VOUCHER STATED IN FAVOR OF MAJOR PETER TYANICH, O 999234, MONTANA NATIONAL GUARD, IN THE AMOUNT OF $67, REPRESENTING FAMILY SEPARATION ALLOWANCE FOR THE PERIOD JANUARY 17 TO MARCH 23, 1964, UNDER THE CIRCUMSTANCES DISCLOSED. THE REQUEST FOR A DECISION WAS ASSIGNED DO NO. A-801 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

BY PARAGRAPH 1, SPECIAL ORDERS NO. 7, DATED JANUARY 10, 1964, ISSUED BY THE STATE OF MONTANA, OFFICER OF THE ADJUTANT GENERAL, HELENA, MONTANA, MAJOR TYANICH, ASSIGNED TO STATION HEADQUARTERS AND HEADQUARTERS DETACHMENT, MONTANA ARMY NATIONAL GUARD, HELENA, MONTANA, WAS ORDERED TO ACTIVE DUTY FOR TRAINING AT THE NATIONAL GUARD BUREAU, WASHINGTON, D.C., FOR THE PERIOD JANUARY 20 TO MARCH 20, 1964, TO ASSIST WITH A SPECIAL PROJECT IN ARMY LOGISTICS DIVISION. THE ORDERS EXPRESSLY PROVIDED THAT TRANSPORTATION OF DEPENDENTS WAS NOT AUTHORIZED AT GOVERNMENT EXPENSE. SUPPORT OF HIS CLAIM FOR FAMILY SEPARATION ALLOWANCE (TYPE II), THERE IS ATTACHED TO THE VOUCHER A STATEMENT AND A CERTIFICATE EXECUTED BY THE OFFICER CERTIFYING THAT DURING THE PERIOD JANUARY 17 TO MARCH 23, 1964, HE MAINTAINED A PERMANENT RESIDENCE FOR HIS DEPENDENTS AT 1051 NORTH WARREN STREET,HELENA, MONTANA, NOTWITHSTANDING THE FACT HIS DEPENDENTS OCCUPIED A TEMPORARY RESIDENCE WITH HIM AT 1850 COLUMBIA PIKE, ARLINGTON, VIRGINIA, DURING THE PERIOD OF HIS ACTIVE DUTY FOR TRAINING.

IN EXPRESSING DOUBT IN THE MATTER, YOU REFER TO PARAGRAPH 5-174, ARMY REGULATIONS 37-104, AND TO OUR DECISION OF APRIL 2, 1964, B 153192, 43 COMP. GEN. 650, AND YOU SAY THAT WHILE NO DOUBT MAJOR TYANICH HAD ADDITIONAL EXPENSES OF MAINTAINING TWO HOUSEHOLDS, THESE EXPENSES WERE NOT CAUSED BY "ENFORCED SEPARATION" AS THE MEMBER RESIDED WITH HIS DEPENDENTS AT HIS ACTIVE DUTY STATION FOR THE ENTIRE PERIOD OF HIS ACTIVE DUTY FOR TRAINING. YOU ALSO EXPRESS DOUBT AS TO WHETHER THE VISIT MAY BE CONSIDERED AS A SOCIAL VISIT OF A TEMPORARY NATURE WHEN IT EXTENDS OVER THE ENTIRE PERIOD OF ACTIVE DUTY EVEN THOUGH IT IS LESS THAN 3 MONTHS' DURATION.

IN TRANSMITTING YOUR REQUEST FOR A DECISION, THE OFFICER OF THE CHIEF OF FINANCE EXPRESSES THE VIEW THAT, IN THE LIGHT OF THE PRINCIPLES SET FORTH IN OUR DECISIONS B-131836, OCTOBER 9, 1963, 43 COMP. GEN. 332,AND B- 153192, APRIL 2, 1964, THE DEPENDENTS WERE AT THE MEMBER'S DUTY STATION ON A SOCIAL VISIT OF A TEMPORARY NATURE AND, THEREFORE, ENTITLEMENT EXISTS FOR THE ENTIRE PERIOD OF ACTIVE DUTY FOR TRAINING.

SECTION 427 (B) (1) 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---

(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; * * *

IN ANSWER TO A QUESTION WHETHER UNDER THE ABOVE CLAUSE (1) A MEMBER IS ENTITLED TO A FAMILY SEPARATION ALLOWANCE FURING THE PERIOD NOT EXCEEDING 3 CONTINUOUS MONTHS WHEN HIS DEPENDENTS VISIT HIM AT OR NEAR HIS PERMANENT DUTY STATION, WE SAID IN DECISION OF OCTOBER 9, 1963, B 131836, 43 COMP. GEN. 332, IN ANSWER TO QUESTION 19, THAT:

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.

WHERE A MEMBER IS ON TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION, WE SAID, IN ANSWER TO QUESTION 20 IN THE SAME DECISION OF OCTOBER 9, 1963, THAT A RIGHT TO FAMILY SEPARATION ALLOWANCE UNDER CLAUSE (3) OF SECTION 427 (B) WOULD NOT ACCRUE TO A MEMBER WHOSE DEPENDENTS ARE WITH HIM AT HIS TEMPORARY DUTY STATION FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS. THESE CONCLUSIONS HAVE BEEN IMPLEMENTED BY PARAGRAPH 5-174, ARMY REGULATIONS 37-104. THE VISITING RULE ENUNCIATED IN THE ANSWER TO QUESTION 19 GENERALLY INVOLVED MEMBERS OF THE UNIFORMED SERVICES WHO ARE ON EXTENDED ACTIVE DUTY AT THEIR PERMANENT DUTY STATION.

IN OUR DECISION OF APRIL 2, 1964, B-153192, CITED IN YOUR SUBMISSION, WE SAID, IN ANSWER TO QUESTION 4, THAT IT IS OUR VIEW THAT A RESERVIST OF AN ELIGIBLE GRADE AND WITH DEPENDENTS WHO IS ORDERED TO ACTIVE DUTY FOR TRAINING FOR LESS THAN 1 YEAR OR TO ACTIVE DUTY FOR OTHER THAN TRAINING DUTY FOR LESS THAN 6 MONTHS, BUT FOR A PERIOD OF MORE THAN 30 DAYS, IS ENTITLED TO A FAMILY SEPARATION ALLOWANCE UNDER SECTION 427 (B) (1) IF HIS DEPENDENTS DO NOT RESIDE AT OR NEAR HIS STATION, SINCE THE MOVEMENT OF HIS DEPENDENTS TO HIS PERMANENT DUTY STATION IS NOT AUTHORIZED AT GOVERNMENT EXPENSE. SINCE QUESTION 4 RELATED TO A RESERVIST ORDERED TO ACTIVE DUTY FOR TRAINING FOR A PERIOD OF 45 DAYS AWAY FROM THE RESERVE UNIT TO WHICH HE WAS ATTACHED FOR DRILL PURPOSES AND HE HAD NO ACTIVE DUTY STATION OTHER THAN THE STATION TO WHICH HE WAS ORDERED FOR TRAINING DUTY, WE CONCLUDED THAT SINCE THE ASSIGNMENT WAS IN EXCESS OF 30 DAYS, THE TRAINING DUTY STATION SHOULD BE REGARDED AS THE MEMBER'S PERMANENT STATION FOR FAMILY SEPARATION ALLOWANCE PURPOSES AND THAT HE WAS ENTITLED TO THE ALLOWANCE UNDER CLAUSE (1) RATHER THAN CLAUSE (3) OF SECTION 427 (B) IF HE OTHERWISE QUALIFIED.

WHILE WE RECOGNIZED THAT RESERVISTS WHO OTHERWISE QUALIFY ARE ENTITLED TO A FAMILY SEPARATION ALLOWANCE ON SUBSTANTIALLY THE SAME BASIS AS OTHER MEMBERS OF THE UNIFORMED SERVICES, THERE IS NOTHING IN THE ABOVE-MENTIONED VISITING RULE SET OUT IN ANSWER TO QUESTION 19 OF DECISION OF OCTOBER 9, 1963, WHICH WOULD MAKE THAT RULE APPLICABLE TO RESERVISTS ORDERED TO ACTIVE DUTY FOR TRAINING FOR PERIODS OF DUTY OF MORE THAN 30 DAYS BUT LESS THAN 90 DAYS AND WHOSE DEPENDENTS SPEND THE ENTIRE PERIOD OF ACTIVE DUTY FOR TRAINING WITH THE MEMBER AT HIS TRAINING DUTY STATION. ON THE CONTRARY, THE LEGISLATIVE HISTORY OF SECTION 427 (B) SHOWS THAT THE RATIONALE OF THE ALLOWANCE IS THAT "ENFORCED SEPARATIONS" OF SERVICEMEN FROM THEIR FAMILIES CAUSE ADDED HOUSEHOLD AND FAMILY EXPENSES WHERE THE MEMBER IS ABSENT FOR ANY "EXTENDED PERIOD OF TIME.' (PAGE 25 OF S.REPT. NO. 387, TO ACCOMPANY H.R. 5555, WHICH WAS ENACTED AS PUBLIC LAW 88-132.) THE BENEFITS AUTHORIZED IN SECTION 427 (B) ARE BASED ON SEPARATION FROM THE FAMILY FOR AN "EXTENDED PERIOD OF TIME" AND CLAUSE (1) SPECIFICALLY REQUIRES THAT, AS A CONDITION PRECEDENT, THE MEMBER'S DEPENDENTS DO NOT RESIDEAT OR NEAR HIS DUTY STATION. IT IS OUR VIEW THAT WHERE, AS HERE, THE RESERVIST IS ORDERED TO ACTIVE DUTY FOR TRAINING FOR A PERIOD IN EXCESS OF 30 DAYS, AND HIS DEPENDENTS ACCOMPANY HIM TO HIS TRAINING DUTY STATION AND REMAIN THERE WITH HIM FOR THE ENTIRE PERIOD OF THAT DUTY, THER IS NO ENFORCED SEPARATION FROM HIS FAMILY AS CONTEMPLATED BY THE LAW, NOR MAY SUCH TEMPORARY RESIDENCE OF THE DEPENDENTS WITH THE MEMBER AT HIS DUTY STATION FOR THE ENTIRE PERIOD OF TRAINING DUTY BE REGARDED AS A VISIT OF A TEMPORARY NATURE WITH THE MEMBER. IN THESE CIRCUMSTANCES THERE IS NO BASIS TO CONCLUDE THAT THE MEMBER'S DEPENDENTS "DO NOT RESIDE AT OR NEAR" HIS STATION AND WE BELIEVE PAYMENT OF THE ALLOWANCE IS PRECLUDED BY THE TERMS OF THE STATUTE.

ACCORDINGLY, PAYMENT IS NOT AUTHORIZED AND THE VOUCHER WITH ENCLOSURES WILL BE RETAINED HERE.