B-155683, JAN. 28, 1965, 44 COMP. GEN. 434

B-155683: Jan 28, 1965

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FAMILY ALLOWANCES - SEPARATION - TYPE 2 - DEPENDENCY DETERMINATION WHEN A MEMBER OF THE UNIFORMED SERVICES IS TRANSFERRED TO A PERMANENT OVERSEAS DUTY STATION PRIOR TO APPROVAL OF A QUARTERS ALLOWANCE FOR HIS MOTHER. IN ACCORDANCE WITH PARAGRAPH 7000-9 OF THE JOINT TRAVEL REGULATIONS HER CONCURRENT TRAVEL AT GOVERNMENT EXPENSE IS NOT AUTHORIZED. THE MEMBER IS ENTITLED TO THE FAMILY SEPARATION ALLOWANCE PRESCRIBED BY 37 U.S.C. 427 (B) (1) FROM THE DATE OF APPROVAL OF THE QUARTERS ALLOWANCE THROUGH THE DAY PRIOR TO THE MOTHER'S ARRIVAL AT HIS NEW DUTY STATION IF THE DELAY IN THE DEPENDENCY DETERMINATION WAS CAUSED BY THE GOVERNMENT AND THE MEMBER MAINTAINED AND SHARED QUARTERS WITH HER PRIOR TO HIS TRANSFER WHICH ENFORCED THE SEPARATION.

B-155683, JAN. 28, 1965, 44 COMP. GEN. 434

FAMILY ALLOWANCES - SEPARATION - TYPE 2 - DEPENDENCY DETERMINATION WHEN A MEMBER OF THE UNIFORMED SERVICES IS TRANSFERRED TO A PERMANENT OVERSEAS DUTY STATION PRIOR TO APPROVAL OF A QUARTERS ALLOWANCE FOR HIS MOTHER, AND IN ACCORDANCE WITH PARAGRAPH 7000-9 OF THE JOINT TRAVEL REGULATIONS HER CONCURRENT TRAVEL AT GOVERNMENT EXPENSE IS NOT AUTHORIZED, UPON THE RETROACTIVE RECOGNITION OF DEPENDENCY AND APPROVAL OF THE ALLOWANCE, THE MEMBER IS ENTITLED TO THE FAMILY SEPARATION ALLOWANCE PRESCRIBED BY 37 U.S.C. 427 (B) (1) FROM THE DATE OF APPROVAL OF THE QUARTERS ALLOWANCE THROUGH THE DAY PRIOR TO THE MOTHER'S ARRIVAL AT HIS NEW DUTY STATION IF THE DELAY IN THE DEPENDENCY DETERMINATION WAS CAUSED BY THE GOVERNMENT AND THE MEMBER MAINTAINED AND SHARED QUARTERS WITH HER PRIOR TO HIS TRANSFER WHICH ENFORCED THE SEPARATION; HOWEVER, IF THE DELAY WAS CAUSED BY THE MEMBER, NO BASIS EXISTS FOR PAYMENT OF THE FAMILY SEPARATION ALLOWANCE, AS THE CONCURRENT TRAVEL OF THE MEMBER'S DEPENDENT WOULD HAVE BEEN AUTHORIZED.

TO J. WILSON, DEPARTMENT OF THE NAVY, JANUARY 28, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 22, 1964, REQUESTING A DECISION AS TO WHETHER FAMILY SEPARATION ALLOWANCE, TYPE II, IS PAYABLE IN THE CASE OF ALBERT F. MANOLOS, 719 38 83, RMC (SS), USN, UNDER THE CIRCUMSTANCES STATED IN YOUR LETTER. THE REQUEST WAS ASSIGNED SUBMISSION NO. DO-N-813, BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE CIRCUMSTANCES SHOWN ARE THAT ON JUNE 3, 1964, MANOLOS SUBMITTED FORM NAVPERS 668 TO THE NAVY FAMILY ALLOWANCE ACTIVITY FOR THE PURPOSE OF OBTAINING A BASIC ALLOWANCE FOR QUARTERS FOR HIS MOTHER. APPARENTLY, HE WAS SERVING ON THE U.S.S. SWORDFISH (SSN 579) AT THAT TIME. IT IS NOT SHOWN WHERE HIS MOTHER WAS RESIDING. BY ORDERS DATED JUNE 29, 1964, HE WAS DETACHED FROM THE SWORDFISH AND TRANSFERRED TO USTDC, TAIPEI, TAIWAN. FOLLOWING HIS ARRIVAL AT USTDC, TAIPEI, TAIWAN, ON SEPTEMBER 14, 1964, HE RECEIVED APPROVAL OF HIS REQUEST FOR BASIC ALLOWANCE FOR QUARTERS FOR HIS MOTHER RETROACTIVE TO MAY 1, 1964. SINCE MANOLOS' MOTHER WAS NOT RECOGNIZED AS HIS DEPENDENT WHEN HE TRAVELED TO TAIWAN SHE COULD NOT ACCOMPANY HIM. SUBSEQUENT TO HIS ARRIVAL IN TAIWAN HIS MOTHER'S TRAVEL WAS AUTHORIZED AND APPARENTLY WAS PERFORMED. UNDER THOSE CIRCUMSTANCES YOU EXPRESS THE BELIEF THAT MANOLOS IS ENTITLED TO FAMILY SEPARATION ALLOWANCE, TYPE II, THROUGH THE DATE OF THE ARRIVAL OF HIS DEPENDENT MOTHER IN TAIWAN.

SECTION 427 (B) (1) OF TITLE 37, U.S. CODE, AUTHORIZES PAYMENT OF A MONTHLY ALLOWANCE OF $30 TO CERTAIN MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO BASIC ALLOWANCE FOR QUARTERS 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; * * *.

WITH RESPECT TO PAYMENT OF THE FAMILY SEPARATION ALLOWANCE, PARAGRAPH 4G (2) (C), SECNAV INSTRUCTION 7220-46A, MARCH 27, 1964 (MADE APPLICABLE TO THE TYPE II ALLOWANCE BY PARAGRAPH 5A) PROVIDES AS FOLLOWS:

(C) A MEMBER WHO IS NOT AUTHORIZED CONCURRENT TRAVEL OF DEPENDENTS IS ENTITLED TO FSA THROUGH THE DAY PRIOR TO THE DATE THE DEPENDENTS ARRIVE AT THE OVERSEAS STATION OR UNTIL THE END OF 60 DAYS FROM AND INCLUDING THE DATE OF APPROVAL BY THE APPROPRIATE COMMANDER FOR THE ENTRY OF DEPENDENTS, WHICHEVER IS EARLIER. IF THE DEPENDENTS ARE NOT FURNISHED TRANSPORTATION TO THE OVERSEAS STATION WITHIN 60 DAYS FROM THE DATE OF SUCH APPROVAL, FSA MAY CONTINUE UNTIL THE DEPENDENTS ARRIVE ONLY IF THERE IS A POSITIVE SHOWING THAT THE ADDITIONAL DELAY WAS CAUSED BY THE GOVERNMENT.

SECTION 406 OF TITLE 37, U.S. CODE, PROVIDES IN EFFECT THAT A MEMBER OF THE UNIFORMED SERVICES WHO IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENTS, REIMBURSEMENT THEREFOR OR A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION, SUBJECT TO SUCH CONDITIONS AND LIMITATIONS, FOR SUCH GRADES AND RATINGS, AND TO AND FROM SUCH PLACES AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED. THE CONDITIONS AND LIMITATIONS ARE SET FORTH IN CHAPTER 7 OF THE JOINT TRAVEL REGULATIONS. PARAGRAPH 7000 OF THE REGULATIONS PROVIDES, GENERALLY, THAT MEMBERS ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON PERMANENT CHANGE OF STATION. HOWEVER, PARAGRAPH 7000-9 SPECIFICALLY PROVIDES THAT SUCH TRANSPORTATION IS NOT AUTHORIZED WHEN DEPENDENCY DOES NOT EXIST ON THE EFFECTIVE DATE OF THE ORDERS DIRECTING THE PERMANENT CHANGE OF STATION.

IN THE PRESENT CASE, IT IS APPARENT THAT THE MEMBER'S MOTHER WAS NOT AUTHORIZED CONCURRENT TRAVEL TO HIS STATION UNDER SECTION 406 AT THE TIME OF HIS TRAVEL FOR THE REASON THAT A DETERMINATION OF DEPENDENCY HADNOT BEEN MADE ON THE EFFECTIVE DATE OF HIS ORDERS. AFTER HIS ARRIVAL AT TAIWAN, HOWEVER, THE PAYMENT OF BAQ WAS APPROVED RETROACTIVELY TO MAY 1, 1964, ON THE BASIS OF THE MOTHER'S DEPENDENCY. THE RECORD SUBMITTED, HOWEVER, DOES NOT SHOW WHETHER THE DELAY IN APPROVING DEPENDENCY WAS BECAUSE THE MEMBER HAD NOT FURNISHED SUFFICIENT EVIDENCE WITH THE APPLICATION FILED ON JUNE 3, 1964, OR FOR OTHER REASONS FOR WHICH HE WAS RESPONSIBLE, OR WHETHER THE DELAY WAS CAUSED BY THE GOVERNMENT. IF THE MEMBER CAUSED THE DELAY THERE WOULD APPEAR TO BE NO BASIS FOR PAYMENT OF THE TYPE II FAMILY SEPARATION ALLOWANCE SINCE CONCURRENT TRAVEL APPARENTLY WOULD HAVE BEEN AUTHORIZED. IF, HOWEVER, THE DELAY WAS CAUSED BY THE GOVERNMENT AND THE MEMBER WAS MAINTAINING QUARTERS TO BE SHARED WITH HIS MOTHER PRIOR TO HIS TRANSFER, IT WOULD APPEAR THAT AN ENFORCED SEPARATION RESULTED FROM THE TRANSFER AND, IF PROPER IN OTHER RESPECTS, THE ALLOWANCE SHOULD BE PAID THROUGH THE DAY PRIOR TO THE DATE OF ARRIVAL OF THE DEPENDENT MOTHER IN TAIWAN. CF. B-152987, FEBRUARY 12,1964, 43 COMP. GEN. 547, LAST SENTENCE (COPY ENCLOSED).

AS WE HAVE INDICATED, THE RECORD SUBMITTED DOES NOT CONTAIN SUFFICIENT INFORMATION FOR US TO MAKE A DETERMINATION OF THE MEMBER'S ENTITLEMENT TO THE FAMILY SEPARATION ALLOWANCE. AFTER OBTAINING THE NECESSARY INFORMATION, HOWEVER, A DETERMINATION OF ENTITLEMENT MAY BE MADE BY YOU ON THE BASIS SET FORTH ABOVE OR, IF THE MATTER IS NOT FREE FROM DOUBT, IT MAY AGAIN BE SUBMITTED HERE FOR DECISION. IF IT SHOULD BE DETERMINED THAT MANOLOS IS ENTITLED TO THE ALLOWANCE, THE PAYMENT SHOULD BE SUPPORTED BY A SHOWING OF THE FACTS ON WHICH THE DETERMINATION IS PREDICATED.