B-156105, MAR. 22, 1965, 44 COMP. GEN. 572

B-156105: Mar 22, 1965

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BECAUSE THE MEMBER'S FORMER WIFE WAS AWARDED SOLE CUSTODY OF THE CHILD. WHO IS ASSIGNED TO A PERMANENT DUTY STATION WHERE ADEQUATE QUARTERS ARE UNAVAILABLE AND WHICH IS LOCATED APPROXIMATELY 20 MILES FROM HIS DEPENDENT CHILD'S PERMANENT RESIDENCE. MAY NOT HAVE HIS DEPENDENT REGARDED AS LIVING AWAY FROM HIS PERMANENT STATION WITHIN THE MEANING OF 37 U.S.C. 427 (A) TO ENTITLE HIM TO THE SEPARATION ALLOWANCE PROVIDED THEREIN. SHE WAS AWARDED COMPLETE CUSTODY OF THEIR SON AND THE MEMBER WAS ORDERED TO PAY FOR HIS CHILD'S SUPPORT UNTIL THE CHILD BECOMES OF AGE. IMMEDIATELY AFTER THE DIVORCE WAS GRANTED YOU SAY THAT HIS FORMER WIFE MOVED WITH HER CHILD TO LONDON. SERGEANT HODGES WAS ASSIGNED ON A PERMANENT CHANGE OF STATION TO THE 7500TH AIR BASE GROUP.

B-156105, MAR. 22, 1965, 44 COMP. GEN. 572

FAMILY ALLOWANCES - SEPARATION - TYPE 1 - DEPENDENT IN OTHER THAN MEMBER'S CUSTODY A MEMBER OF THE UNIFORMED SERVICES SEPARATED FROM HIS DEPENDENT SON, NOT BY REASON OF HIS DUTY ASSIGNMENT, BUT BECAUSE THE MEMBER'S FORMER WIFE WAS AWARDED SOLE CUSTODY OF THE CHILD, WHO IS ASSIGNED TO A PERMANENT DUTY STATION WHERE ADEQUATE QUARTERS ARE UNAVAILABLE AND WHICH IS LOCATED APPROXIMATELY 20 MILES FROM HIS DEPENDENT CHILD'S PERMANENT RESIDENCE, MAY NOT HAVE HIS DEPENDENT REGARDED AS LIVING AWAY FROM HIS PERMANENT STATION WITHIN THE MEANING OF 37 U.S.C. 427 (A) TO ENTITLE HIM TO THE SEPARATION ALLOWANCE PROVIDED THEREIN.

TO MAJOR M. WAGNER, DEPARTMENT OF THE AIR FORCE, MARCH 22, 1965:

YOUR LETTER OF JANUARY 6, 1965, FORWARDED HERE BY LETTER OF FEBRUARY 9, 1965, FROM THE DIRECTORATE OF ACCOUNTING AND FINANCE, HEADQUARTERS, UNITED STATES AIR FORCE, REQUESTS AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT TO STAFF SERGEANT WILLIAM C. HODGES, UNITED STATES AIR FORCE, OF FAMILY SEPARATION ALLOWANCE (FSA-1) UNDER THE CIRCUMSTANCES DISCLOSED. THE REQUEST HAS BEEN ASSIGNED CONTROL NO. DO AF-828, BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

IN YOUR LETTER YOU STATE THAT IN JANUARY 1961 THE WIFE OF SERGEANT HODGES FILED FOR A DIVORCE. SHE WAS AWARDED COMPLETE CUSTODY OF THEIR SON AND THE MEMBER WAS ORDERED TO PAY FOR HIS CHILD'S SUPPORT UNTIL THE CHILD BECOMES OF AGE. IMMEDIATELY AFTER THE DIVORCE WAS GRANTED YOU SAY THAT HIS FORMER WIFE MOVED WITH HER CHILD TO LONDON, ENGLAND. YOU STATE FURTHER THAT BY ORDERS DATED JANUARY 15, 1963, AS SUPPLEMENTED BY ORDERS DATED MARCH 29, 1963, SERGEANT HODGES WAS ASSIGNED ON A PERMANENT CHANGE OF STATION TO THE 7500TH AIR BASE GROUP, SOUTH RUISLIP AIR STATION, MIDDLESEX, ENGLAND, REPORTING ON APRIL 1, 1963, AND THAT HIS STATION IS APPROXIMATELY 20 MILES FROM LONDON, ENGLAND, WHERE HIS FORMER WIFE AND CHILD STILL LIVE. INASMUCH AS GOVERNMENT QUARTERS OR HOUSING FACILITIES ADEQUATE FOR A MEMBER WITHOUT DEPENDENTS WERE NOT AVAILABLE FOR HIM AT HIS STATION, SERGEANT HODGES HAS FILED A CLAIM FOR FAMILY SEPARATION ALLOWANCE COMMENCING OCTOBER 1, 1073, UNDER THE PROVISIONS OF 37 U.S.C. 427 (A). YOU SAY THAT THE SHORT DISTANCE BETWEEN THE MEMBER'S DUTY STATION AND THE PERMANENT ADDRESS OF HIS FORMER WIFE AND CHILD GIVES RISE TO DOUBT AS TO THE VALIDITY OF THE PROPOSED PAYMENT IN VIEW OF THE ANSWER TO QUESTION 26 IN OUR DECISION DATED OCTOBER 9, 1963, 43 COMP. GEN. 332 AT PAGE 353.

SECTION 427 (A), TITLE 37, OF THE U.S.C. AS ADDED BY SECTION 11 OF THE UNIFORMED SERVICES PAY ACT OF 1963, PUBLIC LAW 88-132, APPROVED OCTOBER 2, 1963, PROVIDES AS FOLLOWS:

SEC. 427. FAMILY SEPARATION ALLOWANCE.

(A) IN ADDITION TO ANY ALLOWANCE OR PER DIEM TO WHICH HE OTHERWISE MAY BE ENTILED UNDER THIS TITLE, A MEMBER OF A UNIFORMED SERVICE WITH DEPENDENTS WHO IS ON PERMANENT DUTY OUTSIDE OF THE UNITED STATES, OR IN ALASKA, IS ENTITLED TO A MONTHLY ALLOWANCE EQUAL TO THE BASIC ALLOWANCE FOR QUARTERS PAYABLE TO A MEMBER WITHOUT DEPENDENTS IN THE SAME PAY GRADE 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; AND

(2) QUARTERS OF THE UNITED STATES OR A HOUSING FACILITY UNDER THE JURISDICTION OF A UNIFORMED SERVICE ARE NOT AVAILABLE FOR ASSIGNMENT TO HIM.

IN 43 COMP. GEN. 332 AT PAGE 338, WE STATED THAT ACCORDING TO THE LEGISLATIVE HISTORY OF THE ABOVE FAMILY SEPARATION ALLOWANCE PROVISION, THE PURPOSE OF THAT ALLOWANCE IS TO COMPENSATE THE MEMBER FOR THE ADDITIONAL EXPENSE HE MUST INCUR BY REASON OF HAVING TO PROCURE AND MAINTAIN QUARTERS FOR HIMSELF OVERSEAS OR IN ALASKA IN ADDITION TO THE QUARTERS HE NECESSARILY MAINTAINS ELSEWHERE FOR HIS DEPENDENTS. HOWEVER, WE POINTED OUT THAT THE PAYMENT OF A MONTHLY ALLOWANCE EQUAL TO THE BASIC ALLOWANCE FOR QUARTERS PAYABLE TO A MEMBER WITHOUT DEPENDENTS IN THE SAME PAY GRADE IS AUTHORIZED ONLY IN INSTANCES WHERE (1) THE MEMBER IS ON PERMANENT DUTY OUTSIDE OF THE UNITED STATES OR IN ALASKA, (2) HIS DEPENDENTS ARE NOT AUTHORIZED TRANSPORTATION UNDER 37 U.S.C. 406 TO OR NEAR HIS DUTY STATION, (3) HIS DEPENDENTS DO NOT RESIDE AT OR NEAR HIS DUTY STATION, AND (4) THERE ARE NO PUBLIC QUARTERS OR HOUSING AVAILABLE FOR ASSIGNMENT TO HIM.

AS INDICATED IN YOUR LETTER, WE HELD IN OUR DECISION OF OCTOBER 9, 1963, IN ANSWER TO QUESTION 26, THAT DEPENDENTS MAY BE CONSIDERED AS NOT RESIDING AT OR NEAR THE MEMBER'S DUTY STATION WITHIN THE MEANING OF 37 U.S.C. 427 (A), IF THEY DO NOT LIVE WITHIN A REASONABLE DAILY COMMUTING DISTANCE OF HIS DUTY STATION, A ONE-WAY DISTANCE OF 50 MILES BEING CONSIDERED AS THE MAXIMUM DISTANCE FOR THIS PURPOSE EXCEPT WHERE THE MEMBER ACTUALLY COMMUTES A GREATER DISTANCE DAILY. OBVIOUSLY, THE RESTRICTION ON PAYMENT OF THE ALLOWANCE IF TRANSPORTATION OF THE DEPENDENTS TO THE MEMBERS DUTY STATION IS AUTHORIZED AT GOVERNMENT EXPENSE, OR IF THEY RESIDE AT OR NEAR HIS DUTY STATION, IS IMPOSED FOR THE REASON THAT IN THESE CIRCUMSTANCES THE MEMBER IS NOT REQUIRED, BECAUSE OF HIS DUTY ASSIGNMENT, TO MAINTAIN QUARTERS FOR HIS DEPENDENTS AND ADDITIONAL QUARTERS FOR HIMSELF. THE RESTRICTION IS IMPOSED BY THE PLAIN LANGUAGE OF THE STATUTE AND THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE LAW TO INDICATE THAT ANY EXCEPTION TO THE RESTRICTION WAS CONTEMPLATED BY THE CONGRESS BECAUSE OF PERSONAL CIRCUMSTANCES WHICH MIGHT PREVENT THE MEMBER AND HIS DEPENDENTS FROM RESIDING TOGETHER. COMPARE OUR DECISION OF DECEMBER 3, 1964, B-155066 (44 COMP. GEN. 324), COPY ENCLOSED.

IN THIS CASE, THE DISTANCE BETWEEN THE MEMBER'S DUTY STATION AND THE PERMANENT RESIDENCE OF HIS DEPENDENT CHILD, WHO IS LIVING WITH THE MEMBER'S FORMER WIFE, IS APPROXIMATELY 20 MILES AND IT IS OUR VIEW THAT THE DEPENDENT IS TO BE REGARDED AS RESIDING NEAR THE MEMBER'S DUTY STATION WITHIN THE MEANING OF 37 U.S.C. 427 (A). WHILE SERGEANT HODGES AND HIS SON ARE NOT PERMITTED TO RESIDE TOGETHER, THE SEPARATION IS NOT BY REASON OF THE DUTY ASSIGNMENT BUT IS BECAUSE THE MOTHER HAS BEEN AWARDED CUSTODY OF THE CHILD.

ACCORDINGLY, PAYMENT IS NOT AUTHORIZED ON THE MILITARY PAY ORDER WHICH IS BEING RETAINED HERE TOGETHER WITH THE SUPPORTING PAPERS.