B-159321, JULY 20, 1966, 46 COMP. GEN. 57

B-159321, JULY 20, 1966, 46 COMP. GEN. 57

PAY - PROMOTIONS - TEMPORARY - SAVED PAY - ITEMS FOR INCLUSION OR EXCLUSION. A MEMBER OF THE NAVY OR MARINE CORPS WHO AT THE TIME HE IS TEMPORARILY APPOINTED A COMMISSIONED OFFICER UNDER 10 U.S.C. 5596 IS RECEIVING THE $30 MONTHLY FAMILY SEPARATION ALLOWANCE PRESCRIBED BY 37 U.S.C. 427/B) (2) OR (3) IS ENTITLED TO HAVE THE ALLOWANCE INCLUDED IN THE COMPUTATION OF HIS SAVED PAY DURING ANY SUBSEQUENT PERIOD OF ENFORCED SEPARATION FROM HIS FAMILY, THE PURPOSE OF SECTION 5596 BEING TO PREVENT ANY REDUCTION IN PAY AND ALLOWANCES BECAUSE A MEMBER IS TEMPORARILY APPOINTED A COMMISSIONED OFFICER. FAMILY ALLOWANCES - SEPARATION - ELIGIBILITY BASIS - CHANGE - SAVED PAY EFFECT. A CHANGE IN THE BASIS OF ELIGIBILITY FOR THE FAMILY SEPARATION ALLOWANCE PRESCRIBED BY 37 U.S.C. 427/B), WITHOUT ANY BREAK IN CONTINUITY, FROM CLAUSE (2), DUTY ON BOARD A SHIP AWAY FROM HOME PORT FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS, TO CLAUSE (3) DUTY--- TEMPORARY DUTY AWAY FROM A PERMANENT STATION FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS WHERE A MEMBER'S DEPENDENTS DO NOT RESIDE AT OR NEAR THE TEMPORARY DUTY STATION---HAS NO AFFECT UPON THE STATUS OF A MEMBER'S ENFORCED SEPARATION FROM HIS FAMILY AND THE FAMILY SEPARATION ALLOWANCE CONTINUES TO BE AN ITEM PROPERLY FOR INCLUSION IN THE COMPUTATION OF THE SAVED PAY OF A NAVY OR MARINE MEMBER TEMPORARILY APPOINTED A COMMISSIONED OFFICER. FAMILY ALLOWANCES - SEPARATION - TYPE 2 - TEMPORARY DUTY - AFTER RETURN OF SHIP TO HOME PORT. WHEN THE VESSEL ON WHICH A MEMBER OF THE NAVY OR MARINE CORPS TEMPORARILY APPOINTED A COMMISSIONED OFFICER IS SERVING RETURNS TO HOME PORT, ENTITLEMENT TO THE FAMILY SEPARATION ALLOWANCE PRESCRIBED BY 37 U.S.C. 427/B) (2) TERMINATES AND IT IS NO LONGER FOR INCLUSION IN THE COMPUTATION OF SAVED PAY UNDER 10 U.S.C. 5596. HOWEVER, UPON BEING ORDERED FROM THE HOME PORT TO TEMPORARY ADDITIONAL DUTY, A NEW ENTITLEMENT TO THE ALLOWANCE ARISES, ASSUMING THE CONDITIONS OF CLAUSE (3) ARE MET AND THE MEMBER WAS ENTITLED TO THE ALLOWANCE BECAUSE OF HIS ENFORCED SEPARATION FROM HIS FAMILY AT THE TIME OF HIS TEMPORARY APPOINTMENT, AND THE FAMILY SEPARATION ALLOWANCE IS FOR INCLUSION IN THE COMPUTATION OF SAVED PAY FOR THE PERIOD OF ENTITLEMENT.

TO THE SECRETARY OF DEFENSE, JULY 20, 1966:

FURTHER REFERENCE IS MADE TO LETTER DATED MAY 28, 1966, AND ENCLOSURE, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION WHETHER A MEMBER OF THE NAVY OR MARINE CORPS, WHO IS TEMPORARILY APPOINTED A COMMISSIONED OFFICER UNDER 10 U.S.C. 5596, IS ENTITLED TO INCLUDE FAMILY SEPARATION ALLOWANCE IN THE COMPUTATION OF HIS SAVED PAY AND ALLOWANCES UNDER THE CIRCUMSTANCES SET FORTH IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 376.

THE QUESTIONS SET FORTH IN COMMITTEE ACTION NO. 376 ARE AS FOLLOWS:

1. A MEMBER IS TEMPORARILY APPOINTED UNDER THE AUTHORITY OF 10 U.S.C. 5596 AND IS RECEIVING THE SAVED PAY OF HIS PERMANENT GRADE, AN ITEM OF WHICH IS FAMILY SEPARATION ALLOWANCE UNDER THE PROVISIONS OF CLAUSE (2) OF 37 U.S.C. 427/B). IF HE IS ORDERED TO TEMPORARY ADDITIONAL DUTY UNDER CIRCUMSTANCES WHICH WOULD CHANGE HIS ELIGIBILITY FOR FAMILY SEPARATION ALLOWANCE UNDER CLAUSE (2) TO ELIGIBILITY UNDER CLAUSE (3) WITHOUT ANY BREAK IN CONTINUITY, MAY FAMILY SEPARATION ALLOWANCE UNDER CLAUSE (3) BE CONSIDERED AS AN ITEM OF SAVED PAY?

2. WOULD IT MAKE ANY DIFFERENCE IF, AFTER HIS TEMPORARY APPOINTMENT AND WHILE FAMILY SEPARATION ALLOWANCE UNDER THE PROVISIONS OF CLAUSE (2) OF 37 U.S.C. 427/B) WAS BEING CONSIDERED AS AN ITEM OF SAVED PAY, THE SHIP RETURNED TO ITS HOME PORT AND HE LATER ENTERED UPON THE PERFORMANCE OF TEMPORARY ADDITIONAL DUTY, SO THAT AN INTERVAL OF DAYS OR WEEKS RESULTS BEFORE ELIGIBILITY UNDER CLAUSE (3) COULD COMMENCE?

UNDER THE PROVISIONS OF 10 U.S.C. 5596/F) A PERSON RECEIVING A TEMPORARY APPOINTMENT UNDER THAT SECTION MAY NOT SUFFER ANY REDUCTION IN THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED BECAUSE OF HIS PERMANENT STATUS AT THE TIME OF HIS TEMPORARY APPOINTMENT, OR ANY REDUCTION IN THE PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED UNDER A PRIOR TEMPORARY APPOINTMENT IN A LOWER GRADE. IN ITS DISCUSSION OF THE QUESTIONS PRESENTED THE COMMITTEE SAYS THAT FAMILY SEPARATION ALLOWANCES UNDER THE PROVISIONS OF 37 U.S.C. 427/B) MUST BE CONSIDERED AS PART OF THE TOTAL PAY AND ALLOWANCES IN COMPUTING ENTITLEMENT TO SAVED PAY, CITING 44 COMP. GEN. 121. THE COMMITTEE EXPRESSES THE VIEW, THEREFORE, THAT IN THE CASE CONTEMPLATED BY QUESTION 1, THE MEMBER WOULD BE ENTITLED TO HAVE CONSIDERED THE AMOUNT OF THE CLAUSE (2) ALLOWANCE AS PART OF THE TOTAL PAY AND ALLOWANCES IN COMPUTING HIS ENTITLEMENT TO SAVED PAY SO LONG AS THE SHIP REMAINED AWAY FROM ITS HOME PORT AND HE REMAINED ATTACHED THERETO. IT IS SAID, HOWEVER, THAT DOUBT AS TO ENTITLEMENT ARISES IF, WHILE THE SHIP IS AWAY FROM ITS HOME PORT AND THE MEMBER IS STILL ATTACHED TO THE SHIP, HE IMMEDIATELY ENTERS UPON THE PERFORMANCE OF TEMPORARY ADDITIONAL DUTY ASHORE AND THE CONDITIONS OF ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE CHANGE IMMEDIATELY FROM CLAUSE (2) TO CLAUSE (3). THE COMMITTEE POINTS OUT IN THAT CONNECTION THAT IN 23 COMP. GEN. 21, IT WAS STATED ON PAGE 23, "MOREOVER, WHILE THE PREVIOUS PAY AND ALLOWANCES OF A PERSON TEMPORARILY APPOINTED TO A HIGHER GRADE ARE SAVED FROM REDUCTION DUE TO THE TEMPORARY APPOINTMENT, THEY ARE NOT SAVED FROM REDUCTION DUE TO OTHER CHANGES IN THE CONDITIONS AFFECTING SUCH PAY AND ALLOWANCES", AND ON PAGE 24 IT WAS ATED,"NOR WOULD FOREIGN SERVICE OR SEA PAY BE SAVED AFTER RETURN TO THE UNITED STATES BECAUSE SUCH REDUCTION WOULD NOT BE CAUSED BY THE TEMPORARY APPOINTMENT BUT TO BEING TRANSFERRED TO A LOCATION WHERE SUCH ADDITIONAL PAY WAS NOT PAYABLE;,

THE COMMITTEE FURTHER COMMENTS THAT IN THE SITUATION CONTEMPLATED UNDER QUESTION 2, THE RETURN OF THE SHIP TO ITS HOME PORT PRIOR TO ENTERING UPON THE PERFORMANCE OF TEMPORARY ADDITIONAL DUTY WOULD TERMINATE ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE UNDER CLAUSE (2) OF SUBSECTION (B) AND WOULD RESULT IN SOME INTERVAL OF TIME, A MATTER OF DAYS OR WEEKS, BEFORE ELIGIBILITY FOR ENTITLEMENT UNDER CLAUSE (3) COULD COMMENCE.

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 THIRTY DAYS IS ENTITLED TO THE ALLOWANCE EFFECTIVE AS OF THE FIRST DAY OF THAT PERIOD.

THE AMOUNT OF THE FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B) (2) AND (3) IS THE SAME REGARDLESS OF THE MEMBER'S PAY GRADE, AND THE ALLOWANCE IS PAYABLE WHILE THE CONDITIONS IMPOSED BY EITHER CLAUSE (1) (2) OR (3) ARE MET.

IN DECISION OF SEPTEMBER 2, 1964, 44 COMP. GEN. 121, SUPRA, WE HELD THAT FAMILY SEPARATION ALLOWANCES UNDER THE PROVISIONS OF 37 U.S.C. 427/A) AND (B) MUST BE CONSIDERED AS PART OF THE TOTAL PAY AND ALLOWANCES IN COMPUTING ENTITLEMENT TO SAVED PAY FOR THE PURPOSE OF THE SAVINGS PROVISIONS OF 10 U.S.C. 5596/F), SO LONG AS ENTITLEMENT TO THE ALLOWANCE REMAINS UNBROKEN. WHILE IT WAS EMPHASIZED IN THE DECISION THAT, AS IN THE CASE OF THE FOREIGN SERVICE OR SEA DUTY PAY CONSIDERED IN 23 COMP. GEN. 21, ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE DOES NOT EXIST UNLESS THE CONDITIONS IMPOSED BY 37 U.S.C. 427/A) AND (B) ARE MET AND THAT IT IS NOT AN ITEM OF PAY AND ALLOWANCES WHICH IS CONTINUED BY THE SAVED PAY PROVISIONS WHEN ELIGIBILITY THEREFOR OTHERWISE CEASES, THE DECISION LEFT UNANSWERED THE QUESTION WHETHER FAMILY SEPARATION ALLOWANCE ACCRUING UNDER DIFFERENT CONDITIONS MAY BE VIEWED AS AN ITEM OF PAY AND ALLOWANCES TO WHICH A MEMBER WAS ENTITLED BECAUSE OF HIS PERMANENT STATUS AT THE TIME OF HIS TEMPORARY APPOINTMENT, WITHIN THE CONTEMPLATION OF 10U.S.C. 5596/F). THE FAMILY SEPARATION ALLOWANCE, HOWEVER, IS PREDICATED ON AN ENFORCED SEPARATION FROM THE MEMBER'S FAMILY AND, IF THE PURPOSE OF SECTION 5596 OF PREVENTING ANY REDUCTION IN PAY AND ALLOWANCES BECAUSE OF THE TEMPORARY APPOINTMENT IS TO BE GIVEN FULL EFFECT IN SUCH CASES, WE BELIEVE THAT, IF THE $30 PER MONTH FAMILY SEPARATION ALLOWANCE WAS PAYABLE TO A MEMBER UNDER EITHER OF THE CLAUSES ENUMERATED IN 37 U.S.C. 427/B), HE IS ENTITLED TO HAVE SUCH ALLOWANCE INCLUDED IN ANY SUBSEQUENT COMPUTATION OF HIS SAVED PAY DURING ANY SUBSEQUENT PERIOD OF ENFORCED SEPARATION FROM HIS FAMILY ENTITLING HIM TO THE ALLOWANCE UNDER ANY OF THESE CLAUSES.

THUS, WITH REFERENCE TO QUESTION 1, SINCE THE CHANGE IN THE BASIS FOR ELIGIBILITY FOR THE FAMILY SEPARATION ALLOWANCE FROM CLAUSE (2) TO CLAUSE (3) OF 37 U.S.C. 427/B) WOULD HAVE NO EFFECT UPON THE MEMBER'S STATUS OF ENFORCED SEPARATION FROM HIS FAMILY, IT IS OUR VIEW THAT THE FAMILY SEPARATION ALLOWANCE WOULD CONTINUE TO BE AN ITEM PROPERLY FOR INCLUSION IN THE COMPUTATION OF SAVED PAY. QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

AS TO QUESTION 2, THE RETURN OF THE VESSEL TO THE HOME PORT WOULD TERMINATE ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE UNDER CLAUSE (2) OF 37 U.S.C. 427/B) AND IT WOULD NO LONGER BE FOR INCLUSION IN THE COMPUTATION OF SAVED PAY UNDER 10 U.S.C. 5596. HOWEVER, UPON BEING ORDERED FROM THE HOME PORT TO TEMPORARY ADDITIONAL DUTY A NEW ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE WOULD ARISE, ASSUMING THE CONDITIONS OF CLAUSE (3) ARE MET AND, SINCE THE MEMBER WAS ENTITLED TO THE ALLOWANCE BECAUSE OF HIS ENFORCED SEPARATION FROM HIS FAMILY AT THE TIME OF HIS TEMPORARY APPOINTMENT, THE ALLOWANCE WOULD BE FOR INCLUSION IN THE COMPUTATION OF HIS SAVED PAY FOR THE PERIOD OF ENTITLEMENT. QUESTION 2 IS ANSWERED ACCORDINGLY.