B-157456, SEP. 23, 1965

B-157456, SEP. 23, 1965

TO MR. WILLIAM E. PRIOR:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 6, 1965, REQUESTING REVIEW OF THE SETTLEMENT OF JULY 30, 1965, WHICH DISALLOWED YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE FOR THE PERIOD OCTOBER 16, 1964, TO JANUARY 8, 1965, WHILE A PATIENT AT MARTIN ARMY HOSPITAL, FORT BENNING, GEORGIA.

BY PARAGRAPH 1, SPECIAL ORDERS NO. 149, DATED OCTOBER 2, 1964, YOU WERE TRANSFERRED FROM AN OVERSEAS STATION TO MARTIN ARMY HOSPITAL, FORT BENNING, GEORGIA, ARRIVING THERE ON OCTOBER 16, 1964, AS A PERMANENT CHANGE OF STATION. BY PARAGRAPH 1, SPECIAL ORDERS NO. 4, DATED JANUARY 8, 1965, HAVING APPEARED BEFORE A PHYSICAL EVALUATION BOARD, AT YOUR REQUEST YOU WERE ORDERED TO YOUR HOME, DALEVILLE, ALABAMA, TO AWAIT DISPOSITION. BY PARAGRAPH 172, SPECIAL ORDERS NO. 39, DATED FEBRUARY 9, 1965, YOU WERE RETIRED FOR PHYSICAL DISABILITY.

THE FAMILY SEPARATION ALLOWANCE WHICH YOU WERE RECEIVING AT YOUR OVERSEAS STATION WAS PAID THROUGH OCTOBER 15, 1964. YOUR CLAIM FOR CONTINUATION OF THE ALLOWANCE WHILE YOU WERE IN MARTIN ARMY HOSPITAL, OCTOBER 16, 1964, TO JANUARY 8, 1965, WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASON STATED THEREIN. IN YOUR PRESENT LETTER YOU EXPRESS THE BELIEF THAT YOUR CLAIM SHOULD BE ALLOWED FOR THE REASON THAT DURING YOUR ASSIGNMENT TO THE HOSPITAL YOU WERE BEING MEDICALLY EVALUATED FOR RETIREMENT, THAT IT WOULD HAVE BEEN IMPOSSIBLE FOR YOUR FAMILY TO JOIN YOU AND THAT IN YOUR CAPACITY AS PATIENT YOU WERE NOT ALLOWED TIME TO OBTAIN A RESIDENCE FOR THEM. THUS, YOU CONTEND THERE WAS A CONTINUANCE OF FAMILY SEPARATION OF A NATURE WHICH SHOULD PERMIT CONTINUANCE OF THE FAMILY SEPARATION ALLOWANCE.

UNDER CLAUSE (1) OF SUBSECTION 427 (B), TITLE 37, U.S.C. THE FAMILY SEPARATION ALLOWANCE MAY BE PAID TO A MEMBER IF 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 THAT TITLE AND HIS DEPENDENTS DO NOT RESIDE AT OR NEAR THAT STATION. THIS CLAUSE RELATES TO INSTANCES WHERE THE SEPARATION IS OCCASIONED BY A RESTRICTION ON THE RIGHT OF THE DEPENDENTS TO TRAVEL TO A PERMANENT STATION AT GOVERNMENT EXPENSE. IN CONFORMITY WITH THAT PROVISION OF LAW PARAGRAPH 5-172 (CHANGE 84), ARMY REGULATIONS 37-104, PROVIDES FOR PAYMENT OF FAMILY SEPARATION ALLOWANCE TO A MEMBER OTHERWISE ENTITLED IF THE MOVEMENT OF HIS DEPENDENTS TO HIS PERMANENT DUTY STATION OR A PLACE NEAR THAT STATION IS NOT AUTHORIZED AT THE EXPENSE OF THE UNITED STATES AND THE DEPENDENTS DO NOT RESIDE AT OR NEAR THAT STATION. PARAGRAPH M7004-3 OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO 37 U.S.C. 406, PROVIDES THAT A MEMBER ON ACTIVE DUTY OUTSIDE THE UNITED STATES TRANSFERRED TO A HOSPITAL IN THE UNITED STATES FOR OBSERVATION AND TREATMENT IS ENTITLED TO TRANSPORTATION OF DEPENDENTS FROM THE OVERSEAS STATION OR A DESIGNATED PLACE, AS APPLICABLE, TO THE HOSPITAL TO WHICH HE IS TRANSFERRED FOR OBSERVATION AND TREATMENT. THUS, UPON YOUR ASSIGNMENT TO MARTIN ARMY HOSPITAL, FORT BENNING, GEORGIA, TRAVEL OF YOUR DEPENDENTS TO THAT STATION WAS NOT RESTRICTED. THEREFORE, THERE IS NO BASIS UNDER THE LAW OR REGULATIONS FOR CONTINUATION OF THE FAMILY SEPARATION ALLOWANCE EVEN THOUGH YOU WERE A PATIENT AND DID NOT HAVE AN OPPORTUNITY TO LOCATE A RESIDENCE FOR YOUR FAMILY.

SINCE THERE IS NO BASIS FOR PAYMENT OF THE FAMILY SEPARATION ALLOWANCE DURING THE PERIOD COVERED BY YOUR CLAIM, THE SETTLEMENT OF JULY 30, 1965, WAS CORRECT AND IS SUSTAINED.