B-160389, JAN. 18, 1967

B-160389: Jan 18, 1967

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WYNN: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 31. WHICH DISALLOWED YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE FOR THE PERIOD YOU WERE ON DUTY OVERSEAS AS AN ENLISTED MAN IN THE ARMY. YOU WERE TRANSFERRED FROM FORT BRAGG. YOU WERE RELIEVED FROM 21ST REPLACEMENT BATTALION. IT APPEARS THAT CONCURRENT TRAVEL OF YOUR DEPENDENTS TO YOUR OVERSEAS STATION WOULD HAVE BEEN AUTHORIZED UPON YOUR APPLICATION. APPARENTLY THIS WAS AN ORAL STATEMENT AND NO WRITTEN ELECTION WAS MADE. YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASONS STATED THEREIN. IN YOUR PRESENT LETTER YOU STATE THAT YOUR CLAIM WAS APPROVED BY THE FINANCE CENTER. WHILE ADMINISTRATIVE RECOMMENDATIONS FOR PAYMENT OF CLAIMS REFERRED HERE FOR SETTLEMENT ARE NOT BINDING UPON THIS OFFICE.

B-160389, JAN. 18, 1967

TO MR. HEYWOOD R. WYNN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 31, 1966, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF OCTOBER 7, 1966, WHICH DISALLOWED YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE FOR THE PERIOD YOU WERE ON DUTY OVERSEAS AS AN ENLISTED MAN IN THE ARMY. THERE HAS ALSO BEEN RECEIVED BY REFERENCE YOUR LETTER ADDRESSED TO THE FINANCE CENTER, U.S. ARMY.

BY PARAGRAPH 56, SPECIAL ORDERS NO. 115, DATED MAY 14, 1965, YOU WERE TRANSFERRED FROM FORT BRAGG, NORTH CAROLINA, TO DUTY OVERSEAS AS A PERMANENT CHANGE OF STATION. BY PARAGRAPH 29, SPECIAL ORDERS NO. 99, JUNE 22, 1965, YOU WERE RELIEVED FROM 21ST REPLACEMENT BATTALION, APO, U.S. FORCES 09069, AND ASSIGNED TO YOUR PERMANENT STATION, APO, U.S. FORCES 09165. YOU ARRIVED AT YOUR PERMANENT OVERSEAS STATION ON JUNE 25, 1965, AND DEPARTED TO RETURN TO THE UNITED STATES ON JUNE 26, 1966.

IT APPEARS THAT CONCURRENT TRAVEL OF YOUR DEPENDENTS TO YOUR OVERSEAS STATION WOULD HAVE BEEN AUTHORIZED UPON YOUR APPLICATION. HOWEVER, YOU DID NOT APPLY FOR SUCH TRANSPORTATION PRIOR TO YOUR DEPARTURE FROM THE UNITED STATES ON JUNE 15, 1965, NOR DID YOU EXECUTE AN ELECTION TO SERVE EITHER THE "WITH DEPENDENTS" TOUR OR THE "ALL OTHERS" TOUR PRIOR TO YOUR DEPARTURE FROM THE UNITED STATES. BY LETTER OF SEPTEMBER 4, 1965, SEVERAL MONTHS AFTER YOUR ARRIVAL OVERSEAS, YOU STATED THAT YOU TOLD PERSONNEL IN THE UNITED STATES THAT YOU DID NOT WANT CONCURRENT TRAVEL OF YOUR DEPENDENTS. APPARENTLY THIS WAS AN ORAL STATEMENT AND NO WRITTEN ELECTION WAS MADE. ALSO, IN YOUR LETTER YOU ASKED WHETHER YOU COULD BE PAID FAMILY SEPARATION ALLOWANCE WHILE IN GERMANY.

ON NOVEMBER 3, 1965, YOU EXECUTED AN APPLICATION FOR THE "ALL OTHERS" TOUR. ON JUNE 24, 1966, TWO DAYS BEFORE YOUR RETURN TO THE UNITED STATES, YOU EXECUTED AN APPLICATION FOR FAMILY SEPARATION ALLOWANCE, TYPE II. YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASONS STATED THEREIN. IN YOUR PRESENT LETTER YOU STATE THAT YOUR CLAIM WAS APPROVED BY THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, AND YOU EVIDENTLY REGARD THIS AS A REASON FOR PAYMENT.

WHILE ADMINISTRATIVE RECOMMENDATIONS FOR PAYMENT OF CLAIMS REFERRED HERE FOR SETTLEMENT ARE NOT BINDING UPON THIS OFFICE, THE RECORD SHOWS THAT THE FINANCE CENTER IN TRANSMITTING YOUR CLAIM HERE BY LETTER OF AUGUST 9, 1966, STATED THAT "APPROVAL FOR PAYMENT HAS NOT BEEN MADE BY THIS HEADQUARTERS.'

THE PERTINENT STATUTE, 37 U.S.C. 427 (B), PROVIDES FOR PAYMENT OF A FAMILY SEPARATION ALLOWANCE, DESIGNATED BY THE SERVICES AS TYPE II, TO CERTAIN MEMBERS UNDER SPECIFIED CIRCUMSTANCES INCLUDING WHEN "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. THE LEGISLATIVE HISTORY OF SECTION 427 (B) SHOWS THAT THE RATIONALE OF THE ALLOWANCE IS THAT "ENFORCED SEPARATION" OF SERVICEMEN FROM THEIR FAMILIES CAUSES ADDED HOUSEHOLD AND FAMILY EXPENSES WHERE THE MEMBER IS ABSENT FOR ANY SUBSTANTIAL PERIOD OF TIME.

SECTION 406 OF TITLE 37, U.S. CODE, PROVIDES IN EFFECT THAT A MEMBER OF THE UNIFORMED SERVICES WHO IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENTS, REIMBURSEMENT THEREFOR OR A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION, SUBJECT TO SUCH CONDITIONS AND LIMITATIONS, FOR SUCH GRADES AND RATINGS, AND TO AND FROM SUCH PLACES AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED. THE CONDITIONS AND LIMITATIONS ARE SET FORTH IN CHAPTER 7 OF THE JOINT TRAVEL REGULATIONS.

THE RECORD DOES NOT SHOW THAT YOUR DEPENDENTS WERE NOT PERMITTED TO JOINT YOU IN GERMANY AND THAT TRANSPORTATION WAS DENIED UNDER SECTION 406 OF TITLE 37 U.S.C. THUS, THERE WAS NO ENFORCED SEPARATION.

PARAGRAPH 15C OF ARMY REGULATIONS 55-46 PROVIDES THAT MEMBERS ASSIGNED TO AN AREA WHERE APPLICATION FOR CONCURRENT TRAVEL IS AUTHORIZED WILL BE REQUIRED TO ELECT TO SERVE EITHER THE ,WITH DEPENDENTS" TOUR OR THE "ALL OTHERS" TOUR PRIOR TO DEPARTURE FROM THE CONTINENTAL UNITED STATES. WHERE THE MEMBER DOES NOT MAKE SUCH AN ELECTION PRIOR TO HIS DEPARTURE FROM THE UNITED STATES, HE WILL, INSOFAR AS ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE IS CONCERNED, BE CONSIDERED AS SERVING THE "WITH DEPENDENTS" TOUR.

SINCE THERE IS NO RECORD THAT YOU MADE THE REQUIRED ELECTION PRIOR TO YOUR DEPARTURE FROM THE UNITED STATES, IT MUST BE CONSIDERED THAT YOU WERE SERVING THE "WITH DEPENDENTS" TOUR SO FAR AS FAMILY SEPARATION ALLOWANCE IS CONCERNED. WHILE IT APPEARS THAT AFTER YOU HAD BEEN OVERSEAS FOR SEVERAL MONTHS IN A "WITH DEPENDENTS" STATUS YOU ENDEAVORED TO SELECT THE "ALL OTHERS" TOUR, NO ACTION WAS TAKEN ON YOUR LETTER OF SEPTEMBER 4, 1965, OR THE APPLICATION OF NOVEMBER 3, 1965, TO CHANGE YOUR STATUS. LONG HAS BEEN ESTABLISHED THAT IN THE ABSENCE OF A STATUTE SO PROVIDING, THE GOVERNMENT IS NOT RESPONSIBLE FOR ACTS OF OMISSION OF DUTY ON THE PART OF ITS OFFICERS AND EMPLOYEES. ROBERTSON V. SICHEL, 127 U.S. 507, 515. THEREFORE, THE FAILURE TO ACT ON YOUR REQUEST DID NOT CREATE AN ENTITLEMENT TO THE FAMILY SEPARATION ALLOWANCE.

PARAGRAPH 10383B (5) (B), ARMY REGULATIONS 37-104, PROVIDES THAT A MEMBER WHOSE DEPENDENTS DO NOT TRAVEL CONCURRENTLY TO HIS OVERSEAS STATION MAY REELECT, PRIOR TO THEIR DEPARTURE FROM THE UNITED STATES, TO SERVE THE "ALL OTHERS" TOUR. THE REELECTION MUST BE IN WRITING AND IF THE MEMBER IS NOT RECEIVING FAMILY ALLOWANCE, ENTITLEMENT TO THE ALLOWANCE WILL EXIST ONLY AFTER THE DATE THE REELECTION IS APPROVED BY HEADQUARTERS, DEPARTMENT OF THE ARMY, AS IN THE BEST INTEREST OF THE SERVICE. SINCE IN YOUR CASE THE REELECTION WAS NOT APPROVED WHILE YOU WERE OVERSEAS, YOU CONTINUED TO SERVE IN A STATUS IN WHICH YOUR DEPENDENTS WERE NOT PRECLUDED FROM BEING WITH YOU AT YOUR PERMANENT STATION AND NO ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE, TYPE II EXISTS. THEREFORE, THE SETTLEMENT OF OCTOBER 7, 1966, IS SUSTAINED.

IT IS NOTED, HOWEVER, THAT YOU NOW SAY YOU HAVE NOT RECEIVED PER DIEM PAYMENTS FOR THREE MONTHS' TEMPORARY DUTY, MARCH 1 THROUGH JUNE 1, 1966, AT TAUNUS DISTRICT STOCKADE, APO 09757, U.S. FORCES. THAT CLAIM WILL BE DEVELOPED BY OUR CLAIMS DIVISION TO DETERMINE YOUR ENTITLEMENT.

WHILE YOUR DEPENDENTS WERE NOT AT YOUR PERMANENT STATION, 37 U.S.C. 427 (1) (3) AUTHORIZES PAYMENT OF A FAMILY SEPARATION ALLOWANCE WITHOUT OTHER LIMITATIONS WHEN A MEMBER 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. CONSEQUENTLY, IN CONNECTION WITH YOUR CLAIM FOR PER DIEM FOR TEMPORARY DUTY AWAY FROM YOUR PERMANENT STATION CONSIDERATION WILL ALSO BE GIVEN TO YOUR ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE FOR THE TEMPORARY DUTY PERIOD AND YOU WILL BE ADVISED IN DUE COURSE OF THE ACTION TAKEN.