B-158533, APR. 12, 1966, 45 COMP. GEN. 633

B-158533: Apr 12, 1966

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FAMILY ALLOWANCES - SEPARATION - TYPE 2 - TEMPORARY DUTY - MISSING STATUS A MEMBER OF THE UNIFORMED SERVICES ON A TEMPORARY DUTY ASSIGNMENT WHO IS MISSING PRIOR TO COMPLETING THE 30-DAY QUALIFYING PERIOD PRESCRIBED BY 37 U.S.C. 427 (B) (3) FOR ENTITLEMENT TO PAYMENT OF A MONTHLY FAMILY SEPARATION ALLOWANCE. MAY NEVERTHELESS HAVE THE ALLOWANCE CREDITED TO HIS PAY ACCOUNT FOR THE PERIOD HE IS OFFICIALLY DETERMINED TO BE IN A MISSING STATUS ON THE BASIS THAT THE FAMILY SEPARATION ALLOWANCE IS AN ADDITIONAL QUARTERS ALLOWANCE. - AND THAT THE QUALIFYING PERIOD FOR ENTITLEMENT TO A FAMILY SEPARATION ALLOWANCE WAS COMPLETED AFTER THE MEMBER ENTERED INTO A MISSING STATUS. WHILE THE TEMPORARY DUTY STATUS OF THE MEMBER APPEARS TO HAVE BEEN TERMINATED BY HIS MISSING STATUS.

B-158533, APR. 12, 1966, 45 COMP. GEN. 633

FAMILY ALLOWANCES - SEPARATION - TYPE 2 - TEMPORARY DUTY - MISSING STATUS A MEMBER OF THE UNIFORMED SERVICES ON A TEMPORARY DUTY ASSIGNMENT WHO IS MISSING PRIOR TO COMPLETING THE 30-DAY QUALIFYING PERIOD PRESCRIBED BY 37 U.S.C. 427 (B) (3) FOR ENTITLEMENT TO PAYMENT OF A MONTHLY FAMILY SEPARATION ALLOWANCE, TYPE II, MAY NEVERTHELESS HAVE THE ALLOWANCE CREDITED TO HIS PAY ACCOUNT FOR THE PERIOD HE IS OFFICIALLY DETERMINED TO BE IN A MISSING STATUS ON THE BASIS THAT THE FAMILY SEPARATION ALLOWANCE IS AN ADDITIONAL QUARTERS ALLOWANCE--- AN ALLOWANCE AUTHORIZED FOR CONTINUATION IN SECTION 2 OF THE MISSING PERSONS ACT--- AND THAT THE QUALIFYING PERIOD FOR ENTITLEMENT TO A FAMILY SEPARATION ALLOWANCE WAS COMPLETED AFTER THE MEMBER ENTERED INTO A MISSING STATUS, AND WHILE THE TEMPORARY DUTY STATUS OF THE MEMBER APPEARS TO HAVE BEEN TERMINATED BY HIS MISSING STATUS, THE SEPARATION FROM HIS FAMILY IS NONETHELESS AN ENFORCED SEPARATION RESULTING FROM MILITARY REQUIREMENTS, AND THE MEMBER QUALIFYING FOR THE FAMILY SEPARATION ALLOWANCE, TYPE II, CONTINUATION OF THE ALLOWANCE IS REQUIRED BY THE MISSING PERSONS ACT, UNLESS A CHANGE IN THE STATUS OF DEPENDENTS TERMINATES ENTITLEMENTS.

TO THE SECRETARY OF DEFENSE, APRIL 12, 1966:

FURTHER REFERENCE IS MADE TO LETTER DATED FEBRUARY 12, 1966, WITH ENCLOSURES FROM THE ASSISTANT SECRETARY OF DEFENSE, REQUESTING A DECISION ON QUESTIONS INVOLVING CREDITING OF FAMILY SEPARATION ALLOWANCE, TYPE II (TDY) UNDER 37 U.S.C. 427 (B) (3), TO THE PAY ACCOUNT OF A MEMBER OF THE UNIFORMED SERVICES DURING THE PERIOD HE IS IN A MISSING STATUS.

THE SPECIFIC QUESTIONS UPON WHICH DECISION IS REQUESTED ARE SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 372 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE. THE QUESTIONS ARE AS FOLLOWS:

IT IS PROPER THAT A MEMBER'S PAY ACCOUNT BE CREDITED WITH FSA-II (TDY) FOR A PERIOD DURING WHICH HE IS IN A MISSING STATUS WHEN THE TEMPORARY DUTY PERIOD OF MORE THAN 30 DAYS REQUIRED TO QUALIFY FOR THE ALLOWANCE IS COMPLETED AFTER HE ENTERS THE MISSING STATUS?

IF THE ANSWER TO THE ABOVE QUESTION IS IN THE AFFIRMATIVE, WHEN MUST CREDIT FOR FSA-II (TDY) BE TERMINATED UNDER THESE CONDITIONS?

IT IS STATED IN THE COMMITTEE ACTION THAT DECISIONS OF THIS OFFICE (44 COMP. GEN. 127 AND 44 COMP. GEN. 657) HAVE ESTABLISHED THAT, AS OPPOSED TO "TEMPORARY ALLOWANCES" INTENDED BY CONGRESS TO BE EXCLUDED FROM THE PAY OF A MISSING SERVICEMAN, FAMILY SEPARATION ALLOWANCE IS DIRECTLY RELATED TO THE BASIC ALLOWANCE FOR QUARTERS AND MAY BE CONSIDERED TO BE IN THE SAME "PERMANENT" CATEGORY, AND, THEREFORE, IT WAS DETERMINED THAT IT MAY BE CONTINUED DURING A MISSING STATUS PROVIDED CIRCUMSTANCES ARISING AFTER THE MISSING STATUS STARTS DO NOT TERMINATE THE RIGHT TO THE ALLOWANCE. ALSO CITED WAS DECISION OF NOVEMBER 11, 1943, 23 COMP. GEN. 360, IN WHICH WE HELD THAT A MEMBER WAS ENTITLED TO HAVE CREDITED TO HIS ACCOUNT QUARTERS AND SUBSISTENCE ALLOWANCES DURING A PERIOD WHILE IN A MISSING OR PRISONER STATUS IF HE WAS ENTITLED TO SUCH ALLOWANCES AT THE BEGINNING OF THE ABSENCE.

SET FORTH IN THE COMMITTEE ACTION AS A CASE IN POINT, IS THAT OF AN OFFICER ON DUTY AT YOKOTA AIR BASE, JAPAN, WHO WAS ASSIGNED TO TEMPORARY DUTY BY REPEAT TRAVEL ORDERS AUTHORIZING A MAXIMUM OF SIX ROUND TRIPS AND 60 DAYS' TEMPORARY DUTY DURING THE PERIOD JUNE 15 TO AUGUST 30, 1965. THE ORIGINAL ORDERS WERE AMENDED ON AUGUST 23, 1965, TO EXTEND THE PERIOD OF TEMPORARY DUTY TO 75 DAYS. ADDITIONAL ORDERS EXTENDING THE TEMPORARY DUTY PERIOD BEYOND AUGUST 30, 1965, WERE NOT ISSUED. THE MEMBER DEPARTED ON HIS LAST TRIP ON AUGUST 9, 1965, WAS DOWNED BY HOSTILE FIRE ON SEPTEMBER 2, 1965, AND IS NOW MISSING IN ACTION. THE MEMBER HAD THUS COMPLETED 24 DAYS OF CONTINUOUS TEMPORARY DUTY BEFORE ENTERING A MISSING STATUS.

IN THE COMMITTEE ACTION IT IS STATED THAT SUPPORT FOR THE CREDITING OF FSA-II (TDY) UNDER THESE CIRCUMSTANCES IS FOUND IN THE WORDS OF THE MISSING PERSONS ACT WHICH AUTHORIZES THE PAYMENT OF PAY AND CERTAIN ALLOWANCES TO WHICH THE MEMBER WAS ENTITLED AT THE BEGINNING OF THE PERIOD OF ABSENCE "MAY BECOME ENTITLED TO THEREAFTER.' ALSO, IT IS STATED THAT ANOTHER POINT FAVORING CREDITABILITY IS THAT ONCE A CONTINUOUS TEMPORARY DUTY PERIOD OF 30 DAYS IS COMPLETED, ENTITLEMENT TO FSA-II UNDER 37 U.S.C. 427 (B) IS "EFFECTIVE AS OF THE FIRST DAY OF THAT PERIOD.' IN SPITE OF THESE FACTORS, HOWEVER, IT IS SAID THAT A DOUBT STILL EXISTS WHETHER IT IS PROPER, IN COMPUTING THE TEMPORARY DUTY PERIOD OF MORE THAN 30 DAYS, TO INCLUDE A PART OF THE PERIOD DURING WHICH THE MEMBER IS MISSING.

SECTION 427 (B) OF TITLE 37, U.S. CODE, PROVIDES 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; OR

(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.

A MEMBER WHO BECOMES ENTITLED TO AN ALLOWANCE UNDER THIS SUBSECTION BY VIRTUE OF DUTY DESCRIBED IN CLAUSE (2) OR (3) FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS IS ENTITLED TO THE ALLOWANCE EFFECTIVE AS OF THE FIRST DAY OF THAT PERIOD * * *

SECTION 2 OF THE MISSING PERSONS ACT, AS AMENDED, 50 U.S.C. APP. 1002 (A) PROVIDES THAT A MEMBER ABSENT FROM DUTY IN A MISSING STATUS WILL BE ENTITLED WHILE SO ABSENT "TO RECEIVE OR HAVE CREDITED TO HIS ACCOUNT THE SAME BASIC PAY, SPECIAL PAY, INCENTIVE PAY, BASIC ALLOWANCE FOR QUARTERS, BASIC ALLOWANCE FOR SUBSISTENCE, AND STATION PER DIEM ALLOWANCES FOR NOT TO EXCEED 90 DAYS, TO WHICH HE WAS ENTITLED AT THE BEGINNING OF SUCH PERIOD OF ABSENCE, OR MAY BECOME ENTITLED THEREAFTER * * *.'

THE LEGISLATIVE HISTORY OF THE MISSING PERSONS ACT SHOWS THAT THE BASIC CONCEPT OF THE ACT AS ORIGINALLY ENACTED WAS TO PROVIDE FOR THE DEPENDENTS OF MEMBERS WHO ARE MISSING BY CONTINUING THEIR PAY OR CREDITING TO THEIR ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH THEY WERE ENTITLED AT THE BEGINNING OF SUCH PERIOD OF ABSENCE OR MAY BECOME ENTITLED THEREAFTER. THIS CONNECTION THE WORDS "OR MAY BECOME ENTITLED THEREAFTER" MAY REASONABLY BE INTERPRETED TO MEAN THE PAY AND AUTHORIZED ALLOWANCES WHICH WOULD HAVE ACCRUED IN THE FUTURE OR IN THE NORMAL SEQUENCE OF EVENTS IF THE MEMBER HAD NOT ENTERED A MISSING STATUS. COMPARE HANSEN V. HENDERSON, 56 N.W.2D 59, 69. IN VIEW OF THIS IT IS REASONABLE TO CONCLUDE THAT WITH RESPECT TO THE ENUMERATED ITEMS OF PAY AND ALLOWANCES MENTIONED IN SECTION 2 OF THE MISSING PERSONS ACT, AS AMENDED, THE ACT CONTEMPLATES THAT WHILE A MEMBER IS IN A MISSING STATUS HE WILL BE REGARDED AS IF HE WERE CONTINUING IN AN ACTIVE DUTY STATUS AND ENTITLED TO BE CREDITED WITH SUCH ITEMS OF PAY AND ALLOWANCES IF OTHERWISE PROPER.

THE CITED DECISIONS (44 COMP. GEN. 127 AND 657) CONCERNING FAMILY SEPARATION ALLOWANCE RELATED TO PAYMENTS UNDER SECTION 427 (A) AND 427 (B) (1) INCIDENT TO PERMANENT DUTY ASSIGNMENTS. PAYMENTS UNDER SECTION 427 (B) (3) INCIDENT TO TEMPORARY DUTY ASSIGNMENTS WERE NOT CONSIDERED IN THOSE DECISIONS. IT WAS POINTED OUT IN THE DECISIONS THAT SECTION 2 OF THE MISSING PERSONS ACT AS AMENDED BY PUBLIC LAW 85 217 APPROVED AUGUST 29, 1957, 50 U.S.C. APP. 1002 NOTE, NOW ENUMERATES THE ITEMS OF PAY AND ALLOWANCES AUTHORIZED TO BE CREDITED TO A MEMBER'S ACCOUNT WHILE IN A MISSING OR OTHER STATUS WITHIN THE CONTEMPLATION OF THE ACT. AS THERE STATED, IN SPELLING OUT THE TYPES OF PAY AND ALLOWANCES WHICH COULD BE CREDITED, IT APPEARED TO HAVE BEEN THE LEGISLATIVE INTENT THAT THERE WOULD NOT BE CREDITED TEMPORARY ALLOWANCES SUCH AS A PER DIEM FOR TRAVEL EXPENSES. OF COURSE, FAMILY SEPARATION ALLOWANCES WERE NOT ENUMERATED IN THE 1957 AMENDMENT SINCE THEY HAD NOT BEEN AUTHORIZED AT THAT TIME. THE BASIS THAT THESE ALLOWANCES ARE AUTHORIZED TO COMPENSATE A MEMBER FOR THE ADDITIONAL HOUSEHOLD EXPENSES RESULTING FROM HIS ENFORCED SEPARATION FROM HIS DEPENDENTS FOR AN EXTENDED PERIOD BY REASON OF HIS DUTY ASSIGNMENT, WE CONSIDERED THAT, IN EFFECT, SUCH AN ALLOWANCE IS AN ADDITIONAL QUARTERS ALLOWANCE, ONE OF THE ALLOWANCES ENUMERATED IN THE 1957 AMENDMENT.

SECTION 427 (B), CLAUSE 3 OF TITLE 37, U.S. CODE, AUTHORIZES PAYMENT OF A FAMILY SEPARATION ALLOWANCE OF $30 A MONTH TO A MEMBER ENTITLED TO BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS AND IN AN ELIGIBLE GRADE, WHEN 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.

WHILE SUCH ALLOWANCES ACCRUES INCIDENT TO THE MEMBER'S TEMPORARY DUTY ASSIGNMENT, IT--- UNLIKE TRAVEL PER DIEM--- IS NOT TO REIMBURSE HIM FOR THE ADDITIONAL EXPENSES HE INCURS WHILE PERFORMING SUCH TEMPORARY DUTY, BUT IS TO PROVIDE PARTIAL COMPENSATION FOR THE ADDED HOUSEHOLD EXPENSES INCURRED AT THE PLACE WHERE HIS DEPENDENTS RESIDE AND WHICH RESULT FROM HIS ENFORCED SEPARATION FROM THEM FOR A SUBSTANTIAL PERIOD. THESE EXPENSES WOULD ACCRUE AND CONTINUE THE SAME WHETHER THE MEMBER WAS ON A PERMANENT DUTY ASSIGNMENT OR A TEMPORARY DUTY ASSIGNMENT AT THE TIME HE ENTERED A MISSING STATUS. THUS, THE REASON FOR NOT PAYING TRAVEL PER DIEM WHILE THE MEMBER IS IN A MISSING STATUS DOES NOT APPEAR TO BE APPLICABLE TO FAMILY SEPARATION ALLOWANCE INCIDENT TO TEMPORARY DUTY.

THE SAME 30-DAY QUALIFYING PERIOD REQUIRED IN CLAUSE (3) IS ALSO PRESCRIBED IN 37 U.S.C. 427 (B) (2) INCIDENT TO DUTY ON BOARD A VESSEL. WE CONSIDERED THIS PROVISION IN OUR DECISION OF MAY 26, 1964, TO THE SECRETARY OF THE TREASURY, 43 COMP. GEN. 748. QUESTION (D) PRESENTED THE SITUATION OF A COAST GUARD MEMBER WHO IS GRANTED LEAVE BEFORE COMPLETING THE REQUIRED PERIOD OF DUTY OF MORE THAN 30 DAYS ON BOARD A SHIP AWAY FROM ITS HOME PORT. WE ANSWERED THE QUESTION BY SAYING THAT WHILE CLAUSE (2) PROVIDES THAT THE MEMBER BE ON DUTY ON BOARD A SHIP AWAY FROM ITS HOME PORT FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS IN ORDER TO BE ENTITLED TO THE FAMILY SEPARATION ALLOWANCE, SINCE THE LEAVE LAW, 37 U.S.C. 502 (A), PROVIDES THAT A MEMBER WHILE ON AUTHORIZED LEAVE IS ENTITLED TO THE SAME PAY AND ALLOWANCES AS IF HE WERE NOT ON LEAVE, IT IS OUR VIEW THAT A MEMBER SERVING ON DUTY ON BOARD A VESSEL AWAY FROM ITS HOME PORT WHO IS GRANTED LEAVE BEFORE COMPLETING THE REQUIRED PERIOD OF MORE THAN 30 DAYS WOULD BE ENTITLED TO INCLUDE THE PERIOD OF LEAVE IN COMPUTING THE QUALIFYING PERIOD.

IN THESE CIRCUMSTANCES AND SINCE AS STATED IN THE COMMITTEE ACTION WE HAVE HELD THAT FAMILY SEPARATION ALLOWANCE MAY BE REGARDED IN THE SAME CATEGORY AS THE BASIC ALLOWANCE FOR QUARTERS WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 2 OF THE MISSING PERSONS ACT IT WOULD APPEAR THAT, LIKE THE MEMBER WHO ENTERS A LEAVE STATUS BEFORE COMPLETING THE 30-DAY QUALIFYING PERIOD REQUIRED IN CLAUSE (2), A MEMBER WHO ENTERS A MISSING STATUS BEFORE COMPLETING THE SAME 30-DAY QUALIFYING PERIOD REQUIRED IN CLAUSE (3), WOULD BE ENTITLED TO INCLUDE A PART OF THE PERIOD DURING WHICH HE IS MISSING IN ORDER TO QUALIFY FOR THE ALLOWANCE IN OTHERWISE PROPER CASES.

THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

WITH RESPECT TO THE QUESTION AS TO WHEN ENTITLEMENT TO FSA-II (TDY) SHOULD BE TERMINATED UNDER THESE CONDITIONS, IT MAY BE NOTED THAT WHILE THE TEMPORARY DUTY STATUS WOULD APPEAR TO BE TERMINATED BY THE MISSING STATUS, THE MEMBER REMAINS SEPARATED FROM HIS DEPENDENTS AND THE SEPARATION IS NONETHELESS AN ENFORCED SEPARATION RESULTING FROM MILITARY REQUIREMENTS. SINCE WE HAVE CONCLUDED IN THE CASE IN POINT, THAT THE MEMBER MET THE 30-DAY QUALIFYING PERIOD REQUIREMENT AND THAT A RIGHT TO FAMILY SEPARATION ALLOWANCE UNDER CLAUSE (3) ACCRUED TO HIM, IT APPEARS THAT CONTINUATION OF THE ALLOWANCE IS REQUIRED BY THE SPECIFIC PROVISIONS OF THE MISSING PERSONS ACT FOR THE PERIOD THAT IS IS OFFICIALLY DETERMINED TO BE IN A STATUS WITHIN THE SCOPE OF THAT ACT, PROVIDED THERE IS NO CHANGE IN THE STATUS OF THE DEPENDENTS WHICH WOULD TERMINATE ENTITLEMENT. 44 COMP. GEN. 657, 660.