B-157449, OCT. 8, 1965

B-157449: Oct 8, 1965

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TO MASTER SERGEANT ONIE OLIVER: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 5. YOU WERE ORDERED TO REPORT ON DECEMBER 4. YOU STATE THAT AFTER YOUR ARRIVAL AT ABERDEEN YOU WERE DIVORCED FROM YOUR WIFE AND ON DECEMBER 22. WHO WAS IN THE UNITED STATES ON A VISITOR'S VISA. HAVE ESTABLISHED RESIDENCES AT THOSE PLACES. 37 U.S.C. 427/B) AUTHORIZES PAYMENT OF A FAMILY SEPARATION ALLOWANCE OF $30 A MONTH TO CERTAIN MEMBERS 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.

B-157449, OCT. 8, 1965

TO MASTER SERGEANT ONIE OLIVER:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 5, 1965, REQUESTING RECONSIDERATION OF SETTLEMENT DATED JUNE 7, 1965, WHICH DISALLOWED YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE UNDER THE PROVISIONS OF 37 U.S.C. 427/B).

BY ORDERS DATED NOVEMBER 6, 1964, HEADQUARTERS, U.S. ARMY TRAINING CENTER, INFANTRY, FORT DIX, NEW JERSEY, YOU WERE ORDERED TO REPORT ON DECEMBER 4, 1964, IN A TDPFO (TEMPORARY DUTY PENDING FURTHER ORDERS) STATUS, AT ABERDEEN PROVING GROUND, MARYLAND, FOR TEMPORARY DUTY TO ATTEND A COURSE OF INSTRUCTION. YOU STATE THAT AFTER YOUR ARRIVAL AT ABERDEEN YOU WERE DIVORCED FROM YOUR WIFE AND ON DECEMBER 22, 1964, YOU MARRIED YOUR PRESENT WIFE, A GERMAN NATIONAL, WHO WAS IN THE UNITED STATES ON A VISITOR'S VISA. YOU FURTHER STATE THAT ON JANUARY 2, 1965, SHE RETURNED TO GERMANY IN ORDER TO OBTAIN (1) THE PROPER VISA FOR HERSELF; (2) THE NECESSARY IDENTIFICATION PAPERS AND A PASSPORT FOR HER SON AND (3) TO WAIT UNTIL YOU RECEIVED PERMANENT CHANGE OF STATION ORDERS ASSIGNING YOU TO A PERMANENT DUTY STATION. YOU ALSO SAY THAT YOU AND YOUR WIFE OWN HOMES IN JACKSONVILLE, FLORIDA, AND PULLACH, GERMANY, AND HAVE ESTABLISHED RESIDENCES AT THOSE PLACES.

37 U.S.C. 427/B) AUTHORIZES PAYMENT OF A FAMILY SEPARATION ALLOWANCE OF $30 A MONTH TO CERTAIN MEMBERS 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; * * *"

"/3) HE IS ON TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS AND HIS DEPENDENTS DO NOT RESIDE AT OR NEAR HIS TEMPORARY DUTY STATION.'

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

THUS, THE BENEFITS AUTHORIZED IN SECTION 427/B) ARE BASED ON "ENFORCED SEPARATIONS" OF SERVICEMEN FROM THEIR FAMILIES AND CLAUSES (1) AND (3) SPECIFICALLY REQUIRE THAT, AS A CONDITION PRECEDENT, THE MEMBER'S DEPENDENTS DO NOT RESIDE AT OR NEAR HIS PERMANENT OR TEMPORARY DUTY STATION. SEE, GENERALLY, B-155183, NOVEMBER 24, 1964, 44 COMP. GEN. 307, COPY ENCLOSED.

SINCE YOUR WIFE RESIDED WITH YOU AT YOUR TEMPORARY DUTY STATION AT ABERDEEN, MARYLAND, AND SINCE HER RETURN TO GERMANY WAS FOR PERSONAL REASONS (TO COMPLY WITH IMMIGRATION LAWS) AND NOT THE RESULT OF A MILITARY ORDER, THERE IS NO ENFORCED SEPARATION WITHIN THE CONTEMPLATION OF THE STATUTE. WE ARE NOT AWARE OF ANY ARMY REGULATION WHICH WOULD PRECLUDE YOUR WIFE FROM RESIDING WITH YOU AT YOUR DUTY STATION AT ABERDEEN BECAUSE OF A RESTRICTION IN THE IMMIGRATION LAWS. COMPAIR B-156772, JULY 20, 1965, 45 COMP. GEN. , COPY ENCLOSED.

ACCORDINGLY, SINCE YOU DID NOT MEET THE REQUIREMENTS OF SECTION 427/B), PAYMENT OF FAMILY SEPARATION ALLOWANCE UNDER THAT SECTION IS NOT AUTHORIZED. THE SETTLEMENT OF JUNE 7, 1965, IS ..END :