B-156863, JUL. 12, 1965

B-156863: Jul 12, 1965

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JAGC: REFERENCE IS MADE TO YOUR LETTER OF MAY 15. WHICH IS LOCATED APPROXIMATELY 26 MILES FROM YOUR DUTY STATION. COMMUTING TO SEOUL ON A DAILY BASIS IS IMPRACTICABLE. CONTRIBUTING TO THIS IS THE FACT THAT YOU ARE NOT PERMITTED TO OWN A MOTOR VEHICLE IN KOREA AND THAT YOU ARE PROHIBITED FROM DRIVING A MILITARY VEHICLE. YOU ALSO INDICATE THAT MEMBERS OF YOUR DIVISION WERE PROHIBITED FROM RESIDING WITH THEIR SPOUSES IN KOREA. IN VIEW THEREOF YOU CONTEND THAT YOUR DUTY STATION IS NOT WITHIN A REASONABLE COMMUTING DISTANCE FROM YOUR WIFE'S RESIDENCE. PROVIDES THAT A DISTANCE OF 50 MILES ONE WAY FROM THE DUTY STATION WILL BE CONSIDERED AS A REASONABLE DAILY COMMUTING DISTANCE EXCEPT WHERE THE MEMBER ACTUALLY COMMUTES A GREATER DISTANCE.

B-156863, JUL. 12, 1965

TO LIEUTENANT COLONEL CLAYTON B. TASKER, JAGC:

REFERENCE IS MADE TO YOUR LETTER OF MAY 15, 1965, REQUESTING RECONSIDERATION OF SETTLEMENT DATED APRIL 28, 1965, WHICH DISALLOWED YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE FOR THE PERIOD FROM SEPTEMBER 3, 1964, TO JANUARY 6, 1965.

IN YOUR CLAIM, YOU STATE THAT YOUR WIFE RESIDES IN SEOUL, KOREA, WHICH IS LOCATED APPROXIMATELY 26 MILES FROM YOUR DUTY STATION, CAMP CASEY, KOREA, BUT BECAUSE OF THE ROAD CONDITIONS, LACK OF TRANSPORTATION, AND DIVISION REGULATIONS, COMMUTING TO SEOUL ON A DAILY BASIS IS IMPRACTICABLE. CONTRIBUTING TO THIS IS THE FACT THAT YOU ARE NOT PERMITTED TO OWN A MOTOR VEHICLE IN KOREA AND THAT YOU ARE PROHIBITED FROM DRIVING A MILITARY VEHICLE, LEAVING ONLY MILITARY VEHICLES OR TAXIS FOR COMMUTING. YOU ALSO INDICATE THAT MEMBERS OF YOUR DIVISION WERE PROHIBITED FROM RESIDING WITH THEIR SPOUSES IN KOREA. THE BUS SCHEDULE YOU TRANSMITTED WITH YOUR CLAIM SHOWS THAT THE EARLIEST BUS LEAVING SEOUL DOES NOT ARRIVE AT CAMP CASEY IN TIME FOR YOU TO REPORT AS REQUIRED AT 0800, OR 0730 DURING THE SUMMER PERIOD. YOU STATE THAT YOU MUST TAKE A CAB FROM THE BUS STOP TO YOUR WIFE'S RESIDENCE, WHICH ADDS 15 MINUTES TO YOUR TRAVEL TIME. YOU STATE FURTHER THAT OTHER THAN SPENDING SATURDAY NIGHTS AT YOUR WIFE'S RESIDENCE YOU DO NOT COMMUTE REGULARLY TO SEOUL, AND IN VIEW THEREOF YOU CONTEND THAT YOUR DUTY STATION IS NOT WITHIN A REASONABLE COMMUTING DISTANCE FROM YOUR WIFE'S RESIDENCE, DESPITE THE FACT THAT PARAGRAPH 5-173, ARMY REGULATIONS 37-104, DATED APRIL 27, 1964, PROVIDES THAT A DISTANCE OF 50 MILES ONE WAY FROM THE DUTY STATION WILL BE CONSIDERED AS A REASONABLE DAILY COMMUTING DISTANCE EXCEPT WHERE THE MEMBER ACTUALLY COMMUTES A GREATER DISTANCE.

SECTION 427 (B) (1) OF TITLE 37, U.S. CODE, AS ADDED BY SECTION 11 OF THE UNIFORMED SERVICES PAY ACT OF 1963, PUBLIC LAW 88-132, 77 STAT. 217, 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; * * *"

ALTHOUGH YOU INDICATE THAT MEMBERS OF YOUR DIVISION WERE PROHIBITED FROM RESIDING WITH THEIR SPOUSES IN KOREA, A COPY OF THIS RESTRICTION WAS NOT FURNISHED WITH YOUR CLAIM. FURTHERMORE, THERE IS NO RECORD OF ANY ADMINISTRATIVE RESTRICTION ON THE LOCATION OF YOUR DEPENDENT'S HOUSEHOLD IN THE IMMEDIATE VICINITY OF YOUR DUTY STATION, NOR WAS THERE ANY INDICATION THAT THE CLOSEST YOUR DEPENDENTS COULD LOCATE TO YOUR STATION WAS IN SEOUL. HOWEVER, EVEN IF NO CLOSER LOCATION WAS POSSIBLE, YOU DID INDICATE THAT YOU SPENT WEEK ENDS AT YOUR WIFE'S RESIDENCE IN SEOUL.

THE LEGISLATIVE HISTORY OF SECTION 427 (B) OF TITLE 37, U.S. CODE, SHOWS THAT THE RATIONALE OF THE ALLOWANCE WAS TO COMPENSATE A MEMBER FOR THE EXTRA HOUSEHOLD EXPENSES AT THE PLACE WHERE HIS DEPENDENTS RESIDE RESULTING FROM AN ENFORCED SEPARATION FROM HIS DEPENDENTS FOR AN EXTENDED PERIOD OF TIME. (SEE PAGE 25 OF SENATE REPORT NO. 387, TO ACCOMPANY H.R. 5555, WHICH WAS ENACTED AS PUBLIC LAW 88-132.) IN B 131836, DATED MAY 26, 1964, 43 COMP. GEN. 748, WE HELD THAT THE SITUATION OF A MEMBER ASSIGNED TO AN ISOLATED STATION, EVEN THOUGH WITHIN A DISTANCE OF 50 MILES OF HIS DEPENDENTS' RESIDENCE, AND NOT ABLE TO COMMUTE TO HIS DEPENDENTS' RESIDENCE FOR A CONTINUOUS PERIOD NOT EXCEEDING 21 DAYS, BUT ABLE TO SPEND UP TO 7 DAYS WITH HIS FAMILY FOLLOWING SUCH CONTINUOUS PERIOD, WAS NOT CONSIDERED TO BE AN ENFORCED SEPARATION FOR AN EXTENDED PERIOD OF TIME WITHIN THE CONTEMPLATION OF SECTION 427 (B), SO AS TO ENTITLE THE MEMBER TO A FAMILY SEPARATION ALLOWANCE.

YOUR DEPENDENT UNQUESTIONABLY RESIDED IN THE VICINITY OF YOUR DUTY STATION AND SINCE IT IS INDICATED THAT YOU WERE ABLE TO BE WITH HER ON SATURDAYS AND SUNDAYS OF EACH WEEK, IT WOULD APPEAR THAT THERE SIMILARLY WAS NOT AN ENFORCED SEPARATION FROM YOUR FAMILY FOR AN EXTENDED PERIOD OF TIME DURING THE PERIOD COVERED BY YOUR CLAIM SO AS TO ENTITLE YOU TO A FAMILY SEPARATION ALLOWANCE UNDER THE PROVISIONS OF 37 U.S.C. 427 (B) (1). ACCORDINGLY, THE SETTLEMENT OF APRIL 28, 1965, IS SUSTAINED.

IN ACCORDANCE WITH YOUR REQUEST, WE ARE ENCLOSING COPIES OF ENCLOSURES 2 TO 5 YOU FORWARDED WITH YOUR CLAIM. HOWEVER, THE OTHER PAPERS SUBMITTED INCIDENT TO YOUR CLAIM AND ON WHICH THE ACTION TAKEN BY THIS OFFICE WAS BASED HAVE BECOME A PART OF THE PERMANENT RECORD OF OUR OFFICE AND THEREFORE MAY NOT BE RETURNED. 8 GAO MANUAL 2010.10.