B-157119, AUG. 17, 1965

B-157119, AUG. 17, 1965

TO MASTER SERGEANT PARKER M. WILBER, RA:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 14, 1965, REQUESTING 1HDR XXXXX00001-002 AFLITEDATA68261-000 RECONSIDERATION OF SETTLEMENT DATED MAY 27, 1965, WHICH DISALLOWED YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE, TYPE 1, WHILE ON DUTY IN HAWAII DURING THE PERIOD OCTOBER 1, 1963, TO AUGUST 1, 1964.

IN YOUR CLAIM DATED MARCH 1, 1965, YOU REQUESTED THAT YOU BE REIMBURSED A REASONABLE AMOUNT OF MONEY FOR THE EXPENSE OF ADDITIONAL QUARTERS YOU HAD TO MAINTAIN FROM THE BEGINNING OF OCTOBER 1963 TO THE BEGINNING OF AUGUST 1964. YOU STATED THAT YOU ARRIVED AT YOUR PRESENT DUTY STATION AS AN UNACCOMPANIED MARRIED MAN ON SEPTEMBER 27, 1963, AND WERE NOT FURNISHED GOVERNMENT QUARTERS BECAUSE OF THE NATURE OF YOUR ASSIGNMENT. YOUR WIFE HAD REMAINED IN CALIFORNIA BECAUSE YOU HAD ELECTED AN "ALL OTHERS" TOUR OF DUTY, AND YOU WERE REQUIRED TO PAY FOR THE COST OF TWO SEPARATE QUARTERS. YOU STATED FURTHER THAT IN FEBRUARY 1964 YOUR WIFE JOINED YOU IN HAWAII AND YOU WERE SUBSEQUENTLY ADVISED THAT IF SHE REMAINED THERE IN EXCESS OF 3 CONSECUTIVE MONTHS, YOU WOULD BE RECOGNIZED AS SERVING AN ACCOMPANIED TOUR, WHICH WOULD REQUIRE YOU TO SERVE ADDITIONAL TIME IN HAWAII. YOU STATED FURTHER THAT YOUR REQUEST FOR AN EXTENSION OF TIME WAS APPROVED AND THAT YOUR WIFE DEPARTED HAWAII PRIOR TO THE COMPLETION OF THE EXTENSION. AFTER YOUR WIFE'S DEPARTURE YOU REQUESTED FAMILY SEPARATION ALLOWANCE, TYPE 1, WHICH REQUEST WAS RETURNED WITH THE NOTATION THAT SUCH ALLOWANCE WAS NOT PAYABLE TO PERSONNEL SERVING IN HAWAII, CITING PARAGRAPH 5-171A (1), ARMY REGULATIONS 37-104. YOU STATED FINALLY THAT COMMENCING AUGUST 1, 1964, YOU WERE FURNISHED GOVERNMENT QUARTERS.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED MAY 27, 1965, FOR THE REASON THAT APPLICABLE REGULATIONS PROVIDE THAT FAMILY SEPARATION ALLOWANCE, TYPE 1, IS NOT PAYABLE TO MEMBERS PERMANENTLY ASSIGNED TO DUTY STATIONS IN HAWAII. IN YOUR LETTER OF JUNE 14, 1965, YOU STATED YOU DID NOT PREDICATE YOUR CLAIM ON THE PREMISE THAT SUCH ALLOWANCE WAS AUTHORIZED IN HAWAII, BUT THAT BASICALLY IT WAS A "REQUEST FOR A REASONABLE AMOUNT OF MONEY" TO DEFRAY THE EXPENSE OF ADDITIONAL QUARTERS YOU WERE REQUIRED TO MAINTAIN BY VIRTUE OF YOUR ASSIGNMENT DURING THE PERIOD OF YOUR CLAIM.

IT HAS BEEN ADMINISTRATIVELY REPORTED THAT BECAUSE OF THE NATURE OF YOUR DUTY ASSIGNMENT YOU WERE REQUIRED TO RESIDE OFF-POST RATHER THAN IN ENLISTED BILLETS, BUT THAT EFFECTIVE AUGUST 1964, YOU WERE ALLOWED TO MOVE ON POST. SINCE YOU WERE NOT ASSIGNED GOVERNMENT QUARTERS ADEQUATE FOR YOURSELF AND YOUR DEPENDENTS DURING THE PERIOD COVERED BY YOUR CLAIM, YOU WERE ENTITLED TO AND RECEIVED A BASIC ALLOWANCE OF $114.90 PER MONTH FOR QUARTERS AS PRESCRIBED IN SECTION 403 OF TITLE 37, U.S.C. FOR A MEMBER OF YOUR PAY GRADE WITH DEPENDENTS. NO PROVISION IS MADE FOR AN INCREASE OF SUCH BASIC ALLOWANCE IN CIRCUMSTANCES WHERE THE MEMBER IS REQUIRED FOR ANY REASON TO MAINTAIN SEPARATE RESIDENCES FOR HIMSELF AND HIS DEPENDENTS.

IN RECOGNITION OF A NEED IN CERTAIN CIRCUMSTANCES FOR ADDITIONAL ASSISTANCE TO MEMBERS SEPARATED FROM THEIR DEPENDENTS BY REASON OF THEIR DUTY ASSIGNMENT, SECTION 427 (A) OF TITLE 37, U.S.C. AS ADDED BY SECTION 11 OF THE UNIFORMED SERVICES PAY ACT OF 1963, DATED OCTOBER 2, 1963, PUBLIC LAW 88-132, 77 STAT. 217, PROVIDES AS FOLLOWS:

"SEC. 427. FAMILY SEPARATION ALLOWANCE

"/A) IN ADDITION TO ANY ALLOWANCE OR PER DIEM TO WHICH HE OTHERWISE MAY BE ENTITLED 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.'

SECTION 427 (B) OF TITLE 37, PROVIDES IN PERTINENT PART THAT IN ADDITION TO ANY ALLOWANCE OR PER DIEM TO WHICH A MEMBER MAY BE ENTITLED UNDER THAT TITLE, INCLUDING SUBSECTION (A) QUOTED ABOVE, A MEMBER WITH DEPENDENTS WHO IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS IS ENTITLED TO A MONETARY 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; " * * *

IN THE HEARINGS (NO. 6) ON H.R. 3006, 88TH CONGRESS, (PAGES 1745 47), WHICH WAS SUPERSEDED BY H.R. 5555, LATER ENACTED AS PUBLIC LAW 80 132, THE MEMBERS OF SUBCOMMITTEE NO. 1, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, 88TH CONGRESS, CONSIDERED THE PROVISION AUTHORIZING FAMILY SEPARATION ALLOWANCE WHICH PROVIDED ENTITLEMENT FOR DUTY PERFORMED OUTSIDE THE UNITED STATES, OR IN HAWAII OR ALASKA, AND THEY VOTED TO STRIKE OUT REFERENCE TO HAWAII IN THAT PROVISION. ACCORDINGLY, YOU WILL NOTE THAT SECTION 427 (A) OF TITLE 37, U.S.C. PROVIDES ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE ONLY TO MEMBERS ON DUTY OUTSIDE THE UNITED STATES OR IN ALASKA, BUT DOES NOT PROVIDE FOR SUCH ENTITLEMENT TO MEMBERS SERVING ON DUTY IN HAWAII. IN VIEW OF THAT LIMITATION, ARMY REGULATIONS 37-104 (PARAGRAPH 10381A) PROVIDES THAT TYPE I FAMILY SEPARATION ALLOWANCE "IS NOT PAYABLE TO MEMBERS PERMANENTLY ASSIGNED TO DUTY STATIONS IN HAWAII.' SECTION 427 (B) OF TITLE 37 CONTAINS NO TERRITORIAL LIMITATION AS TO ENTITLEMENT AND ACCORDINGLY, A MEMBER ON DUTY IN HAWAII WOULD NOT BE ENTITLED TO FAMILY SEPARATION ALLOWANCE UNDER SECTION 427 (A) (TYPE I), BUT IF OTHERWISE QUALIFIED, HE WOULD BE ENTITLED TO FAMILY SEPARATION ALLOWANCE (TYPE II) AT $30 PER MONTH, UNDER THE PROVISIONS OF SECTION 427 (B) OF TITLE 37, UNITED STATES CODE.

THE RECORD SHOWS THAT IN ADDITION TO THE BASIC ALLOWANCE FOR QUARTERS, COMMENCING OCTOBER 1, 1963, AND CONTINUING THROUGH THE PERIOD OF YOUR CLAIM, YOU WERE IN RECEIPT OF FAMILY SEPARATION ALLOWANCE, TYPE 2, UNDER THE PROVISIONS OF 37 U.S.C. 427 (B) (1). ALSO COMMENCING OCTOBER 6, 1963, YOU RECEIVED A STATION HOUSING ALLOWANCE AS FOR A MEMBER WITHOUT DEPENDENTS AND A BASIC ALLOWANCE FOR SUBSISTENCE. WE KNOW OF NO STATUTORY AUTHORITY UNDER WHICH FURTHER REIMBURSEMENT MAY BE MADE FOR THE EXPENSE OF ADDITIONAL QUARTERS YOU HAD TO MAINTAIN DURING THE PERIOD OF YOUR CLAIM AND ACCORDINGLY, THE SETTLEMENT DATED MAY 27, 1965, IS SUSTAINED.