B-156772, JUL. 20, 1965, 45 COMP. GEN. 36

B-156772, JUL. 20, 1965, 45 COMP. GEN. 36

FAMILY ALLOWANCES - DEPENDENTS - ALIEN EXCLUDED FROM MEMBER'S STATION, ETC. A NAVY MEMBER ELECTING TO SERVE ON AN "ALL OTHERS" TOUR OF DUTY THEREBY WAIVING DEPENDENT TRAVEL AND SHIPMENT OF HOUSEHOLD GOODS TO AN OVERSEAS STATION UNDER PERMANENT CHANGE-OF-STATION ORDERS, UPON TRANSFER FROM ONE VESSEL TO ANOTHER, BOTH VESSELS LOCATED IN HAWAII, IS NOT ENTITLED TO THE FAMILY SEPARATION ALLOWANCE PROVIDED BY 37 U.S.C. 427 (B) (1) FOR MEMBERS ASSIGNED TO A RESTRICTED STATION, EVEN THOUGH QUALIFYING PURSUANT TO DEPARTMENTAL REGULATION NOTWITHSTANDING HIS MOTHER, FOR WHOM HE PROVIDES A CLASS "D" ALLOTMENT, IS A PHILIPPINE NATIONAL EXCLUDED UNDER THE IMMIGRATION LAWS FROM HAWAII, IN VIEW OF THE FACT THAT THE MEMBER NOT SHARING A COMMON HOUSEHOLD WITH HIS MOTHER -- A CONDITION FOR ENTITLEMENT UNDER SECTION 427 (B) (1) OR 427 (B) (2/ -- DOES NOT SATISFY THE RATIONALE OF SECTION 427 (B) TO THE EFFECT THAT THE ALLOWANCE IS INTENDED TO REIMBURSE A MEMBER OF THE UNIFORMED SERVICES FOR THE ADDITIONAL HOUSEHOLD EXPENSES THAT ARISE FROM AN "ENFORCED SEPARATION.'

TO R. H. MILLS, TREASURY DEPARTMENT, JULY 20, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 10, 1965, SERIAL 963, REQUESTING A DECISION AS TO WHETHER FAMILY SEPARATION ALLOWANCE IS PAYABLE IN THE CASE OF JOSE P. ANDRION (316-623), SD3, USCG, IN THE CIRCUMSTANCES SHOWN.

THE RECORD SHOWS THAT THE MEMBER REPORTED ABOARD THE USCGC KUKUI (WAK- 186) ON JANUARY 18, 1963, AND ON APRIL 1, 1964, ELECTED TO SERVE ON AN "ALL OTHERS" TOUR IN ACCORDANCE WITH COMMANDANT INSTRUCTION 7220.6A, DATED APRIL 1, 1964, THEREBY WAIVING DEPENDENT TRAVEL AND SHIPMENT OF HOUSEHOLD GOODS TO THE OVERSEAS STATION IN CONNECTION WITH THE PERMANENT CHANGE OF STATION. ON JULY 27, 1964, HEWAS TRANSFERRED TO THE USCGC WINNEBAGO (WPG- 40). IT APPEARS THAT BOTH VESSELS ARE LOCATED AT HONOLULU, HAWAII. IT IS STATED THAT THE MEMBER HAS A DEPENDENT MOTHER LIVING IN THE PHILIPPINES WHERE "HER HOME" IS LOCATED; THAT HE IS SUPPORTING HER BY MEANS OF A CLASS "D" ALLOTMENT; THAT THERE IS A MILITARY RESTRICTION IN HIS BASIC ORDERS BY REASON OF HIS SELECTION OF THE "ALL OTHERS" TOUR, AND THAT IMMIGRATION LAWS PREVENT HER ENTRY INTO HAWAII IN THAT THERE IS NO PHILIPPINE QUOTA. IT APPEARS THAT THE MEMBER HAS NOT RESIDED WITH HIS MOTHER SINCE APRIL 4, 1955, EXCEPT WHILE ON LEAVE AND THAT HE HAS VISITED WITH HER ONLY FOUR TIMES IN THE PAST 8 YEARS. IT IS FURTHER STATED THAT THE MEMBER WAS CREDITED WITH FSA-R, TYPE II, FOR THE PERIOD OCTOBER 1, 1963, THROUGH NOVEMBER 15, 1964, EXCLUSIVE OF THE PERIOD NOVEMBER 25, 1963, THROUGH MARCH 13, 1964, WHEN HE WAS CREDITED WITH FSA-S.

YOU ASK WHETHER THE PAYMENTS PREVIOUSLY MADE WERE CORRECT AND REQUEST A DECISION AS TO THE PROPRIETY OF CREDITING FSA-R BEGINNING NOVEMBER 16, 1964. IN THE EVENT IT IS DETERMINED THAT NO ENTITLEMENT EXISTS TO FSA-R AS FOR A MEMBER ASSIGNED TO A RESTRICTED STATION (37 U.S.C. 427 (B) (1), YOU FURTHER ASK WHETHER FSA'S MAY BE CREDITED FOR DUTY ABOARD A SHIP (37 U.S.C. 427 (B) (2) (. YOUR DOUBT AS TO THE MEMBER'S ENTITLEMENT TO EITHER ALLOWANCE IS STATED TO ARISE FROM THE FACT THAT HIS DEPENDENT IS AN ALIEN WHO WOULD NOT BE PERMITTED TO ESTABLISH A RESIDENCE AT THE MEMBER'S DUTY STATION OR THE HOME PORT OF THE VESSEL.

SECTION 427 (B), TITLE 37, U.S.C. PROVIDES IN PERTINENT PART, 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;

(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; * * *. THE LEGISLATIVE HISTORY OF SECTION 427 (B) SHOWS THAT THE RATIONALE OF THE ALLOWANCE IS THAT "ENFORCED SEPARATION" OF SERVICEMEN FROM THEIR FAMILIES CAUSE ADDED HOUSEHOLD AND FAMILY EXPENSES WHERE THE MEMBER IS ABSENT FOR ANY SUBSTANTIAL PERIOD OF TIME. (PAGE 25 OF S.REPT. NO. 387, TO ACCOMPANY H.R. 5555, WHICH WAS ENACTED AS PUBLIC LAW 88-132.)

IN DECISION B-153214 OF FEBRUARY 12, 1964, 43 COMP. GEN. 553, IT WAS HELD THAT CLAUSE (1) OF THE QUOTED PROVISIONS RELATES TO INSTANCES WHERE THE SEPARATION IS OCCASIONED BY A RESTRICTION ON THE RIGHT OF DEPENDENTS TO TRAVEL TO A PERMANENT STATION AT GOVERNMENT EXPENSE; THAT CLAUSE (2) RELATES TO THE SPECIAL CLASS OF MEMBERS ASSIGNED TO VESSELS WHO ARE SEPARATED FROM THEIR DEPENDENTS BY OPERATIONAL SERVICE REQUIREMENTS, AND THAT FOR THE PURPOSE OF CLAUSE (1) THE TERM ,PERMANENT STATION" IS TO BE CONSTRUED AS HAVING REFERENCE TO EITHER THE HOME PORT, HOME YARD, OR OTHER SHORE ESTABLISHMENT, DEPENDING UPON WHERE THE SHIP IS LOCATED. IN THE PRESENT CASE, THE MEMBER'S PERMANENT STATION IS SHOWN AS HONOLULU, HAWAII, AND IT HAS BEEN INFORMALLY ASCERTAINED THAT THIS IS THE HOME PORT OF BOTH VESSELS.

IN DECISION B-131836 OF OCTOBER 9, 1963, 43 COMP. GEN. 332, THERE WAS CONSIDERED (QUESTION 17) WHETHER A MEMBER WITH A DEPENDENT NOT ELIGIBLE UNDER IMMIGRATION LAWS FOR ENTRY INTO THE UNITED STATES PRIOR TO THE TIME HE REPORTS TO HIS NEW PERMANENT DUTY STATION WITHIN THE UNITED STATES, MAY BE REGARDED AS HAVING A DEPENDENT WHO IS NOT AUTHORIZED TO MOVE TO HIS PERMANENT STATION OR A PLACE NEAR THAT STATION AT THE EXPENSE OF THE UNITED STATES UNDER 37 U.S.C. 406 WITHIN THE MEANING OF CLAUSE (1) OF 37 U.S.C. 427 (B). IN THAT DECISION IT WAS HELD:

IN THE SITUATION PRESENTED IN QUESTION 17, THE DEPENDENT OF THE MEMBER MAY NOT BE ELIGIBLE UNDER IMMIGRATION LAWS BECAUSE OF CONTAGIOUS DISEASE, OR, IN THE CASE OF CERTAIN ALIEN DEPENDENTS, BEING POLITICALLY OR SOCIALLY UNDESIRABLE. IF UNDER DEPARTMENTAL REGULATIONS THE DEPENDENT IS NOT AUTHORIZED TRANSPORTATION AT GOVERNMENT EXPENSE IN SUCH CIRCUMSTANCES WE BELIEVE THE MEMBER WOULD BE ENTITLED TO FAMILY SEPARATION ALLOWANCE. THE ABSENCE OF SOME SUCH MILITARY RESTRICTION UPON ENTITLEMENT TO DEPENDENT TRANSPORTATION, HOWEVER, IT IS OUR VIEW THAT THE ALLOWANCE WOULD NOT BE PAYABLE. QUESTION 17 IS ANSWERED ACCORDINGLY.

WHILE THAT CONCLUSION RELATED TO A CASE INVOLVING ENTRY OF DEPENDENTS INTO THE UNITED STATES WHICH, UNDER PARAGRAPH M1150-16 OF THE JOINT TRAVEL REGULATIONS, IS LIMITED TO THE 48 CONTIGUOUS STATES FOR TRAVEL AND TRANSPORTATION PURPOSES, THERE WOULD APPEAR TO BE NO REASON WHY IT SHOULD NOT APPLY TO ENTRY OF DEPENDENTS INTO HAWAII.

THE PURPOSE OF SECTION 427 (B), HOWEVER, IS TO REIMBURSE THE MEMBER FOR THE ADDITIONAL HOUSEHOLD EXPENSES THAT ARISE BY REASON OF HIS BEING AWAY FROM HIS DEPENDENTS FOR A SUBSTANTIAL PERIOD OF TIME INCIDENT TO HIS DUTY ASSIGNMENT AND, IN THE LIGHT OF THAT PURPOSE, THE SECTION HAS BEEN VIEWED AS APPLYING ONLY IN THOSE INSTANCES WHERE THE MEMBER'S DEPENDENTS OCCUPY A COMMON HOUSEHOLD WITH HIM. SEE THE ANSWERS TO QUESTIONS 23 AND 24 IN THE DECISION OF OCTOBER 9, 1963. WE HAVE INDICATED IN THAT RESPECT THAT WE WILL NOT QUESTION PAYMENTS MADE UNDER SECTION 427 (B) THAT ARE OTHERWISE PROPER IF, DURING THE PERIOD FOR WHICH THE ALLOWANCE IS PAID, THE MEMBER MAINTAINS A RESIDENCE OR HOUSEHOLD FOR HIS DEPENDENTS WHICH HE LIKELY WOULD SHARE WITH THEM AS A COMMON RESIDENCE DURING PERIODS OF LEAVE OR AT SUCH OTHER TIMES AS HIS DUTY ASSIGNMENT MIGHT PERMIT, WHETHER OR NOT IT IS LOCATED AT THE HOME PORTOR STATION FROM WHICH HE PROCEEDED TO THE DUTY ASSIGNMENT INVOLVED. SEE 43 COMP. GEN. 444. WE FIND NOTHING IN THE LAW OR ITS LEGISLATIVE HISTORY, HOWEVER, WHICH INDICATES THAT THE ALLOWANCE IS TO BE PAID IN THE CASE OF "DEPENDENTS" WHO MAINTAIN THEIR OWN HOME INDEPENDENTLY OF ANY LIABILITY OR RESPONSIBILITY ON THE PART OF THE MEMBER, SIMPLY BECAUSE HE MAY VISIT SUCH DEPENDENTS IN THEIR HOME ON OCCASION.

IT APPEARS THAT A MEMBER OF THE COAST GUARD SERVING ON AN OVERSEAS "ALL OTHERS" TOUR IS RESTRICTED BY DEPARTMENTAL REGULATION AS TO DEPENDENTS' TRAVEL AND BY REASON OF THAT RESTRICTION COULD IN PROPER CASES QUALIFY UNDER SECTION 427 (B) (1) FOR THE FAMILY SEPARATION ALLOWANCE EVEN THOUGH OTHER CIRCUMSTANCES, SUCH AS THE IMMIGRATION LAW REQUIREMENTS SUGGESTED, MIGHT OTHERWISE RESTRICT THE DEPENDENTS' MOVEMENTS (SEE B-155802, FEBRUARY 8, 1965, 44 COMP. GEN. 469). AS INDICATED ABOVE, HOWEVER, ENTITLEMENT TO THE ALLOWANCE NECESSARILY IS CONTINGENT UPON THE FURTHER SHOWING THAT THE MEMBER MAINTAINS A RESIDENCE FOR THE USE OF HIS DEPENDENTS AND AVAILABLE FOR HIS USE JOINTLY WITH THEM WHEN CIRCUMSTANCES PERMIT. ENTITLEMENT TO THE ALLOWANCE UNDER SECTION 427 (B) (2) LIKEWISE IS DEPENDENT UPON THE EXISTENCE OF SUCH A COMMON RESIDENCE.

WHILE THE RECORD INDICATES THAT ANDRION PROVIDED FOR HIS DEPENDENT IN THE FORM OF AN ALLOTMENT, THERE IS NO EVIDENCE THAT HE HAS MAINTAINED A HOUSEHOLD FOR HER WHICH HE SHARED WHEN THE OPPORTUNITY PRESENTED ITSELF AT ANY TIME DURING THE PERIODS IN QUESTION. IN THE ABSENCE OF EVIDENCE TO THAT EFFECT NO AUTHORITY EXISTS FOR THE PAYMENT TO HIM OF THE FAMILY SEPARATION ALLOWANCE UNDER SECTION 427 (B). SINCE, HOWEVER, THE "ALL OTHERS" TOUR INSTRUCTION OF THE COAST GUARD VIEWED IN THE LIGHT OF OUR ANSWER TO QUESTION 17 IN THE DECISION OF OCTOBER 9, 1963, COULD BE CONSIDERED AS AFFORDING SOME BASIS FOR THE PAYMENTS PREVIOUSLY MADE IN THIS CASE, THEY NEED NOT BE RECOVERED.