B-161301, JULY 21, 1967, 47 COMP. GEN. 67

B-161301: Jul 21, 1967

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BECAUSE FOR APPLICATION IS THE RULE THAT THE FAMILY SEPARATION ALLOWANCE PRESCRIBED BY 37 U.S.C. 427 (B) (2) FOR A MEMBER ASSIGNED TO A SHIP IS FOR SUSPENSION WHEN HE RESIDES WITH HIS DEPENDENTS WHILE PERFORMING TEMPORARY DUTY IN EXCESS OF 30 DAYS. 1967: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 5. SERGEANT KEEN WAS AUTHORIZED TO PROCEED FROM HIS STATION IN THE FAR EAST TO THE UNITED STATES ON EMERGENCY LEAVE FOR A PERIOD OF ABOUT 30 DAYS AND TO RETURN TO HIS PERMANENT DUTY STATION UPON COMPLETION OF SUCH LEAVE. HIS LEAVE ADDRESS IS SHOWN IN THOSE ORDERS AS RICHMOND. WHILE SERGEANT KEEN WAS ON LEAVE. WERE MODIFIED BY MESSAGE DATED DECEMBER 2. THOSE ORDERS WERE FURTHER MODIFIED BY MESSAGE DATED FEBRUARY 22.

B-161301, JULY 21, 1967, 47 COMP. GEN. 67

FAMILY ALLOWANCES - SEPARATION - TYPE 2 - TEMPORARY DUTY - COMMON RESIDENCE OCCUPANCY WHILE ON LEAVE CONTINUED THE FACT THAT AN ENLISTED MEMBER OF THE UNITED STATES MARINE CORPS CONTINUED TO RECEIVE PAYMENT OF A FAMILY SEPARATION ALLOWANCE WHILE ON 30 DAYS EMERGENCY LEAVE FROM HIS PERMANENT OVERSEAS DUTY STATION DOES NOT ENTITLE HIM TO THE CONTINUATION OF THE ALLOWANCE WHILE ON A 3-MONTH TEMPORARY DUTY ASSIGNMENT FOLLOWING THE LEAVE PERIOD AT AN ACTIVITY WITHIN 34 MILES OF HIS RESIDENCE DURING WHICH PERIOD HE OCCUPIED A COMMON HOUSEHOLD WITH HIS WIFE, BECAUSE FOR APPLICATION IS THE RULE THAT THE FAMILY SEPARATION ALLOWANCE PRESCRIBED BY 37 U.S.C. 427 (B) (2) FOR A MEMBER ASSIGNED TO A SHIP IS FOR SUSPENSION WHEN HE RESIDES WITH HIS DEPENDENTS WHILE PERFORMING TEMPORARY DUTY IN EXCESS OF 30 DAYS.

TO LIEUTENANT COLONEL JOHN A. RAPP, UNITED STATES MARINE CORPS, JULY 21, 1967:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 5, 1967, AND ENCLOSURES, FORWARDED HERE BY LETTER OF HEADQUARTERS UNITED STATES MARINE CORPS, WASHINGTON, D.C., DATED APRIL 17, 1967, IN WHICH YOU REQUEST AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF FAMILY SEPARATION ALLOWANCE UNDER CLAUSE (1) OF 37 U.S.C. 427 (B) TO STAFF SERGEANT CALVIN W. KEEN, 1837250, U.S. MARINE CORPS, FOR THE PERIOD DECEMBER 6, 1966, THROUGH MARCH 5, 1967.

BY ORDERS DATED NOVEMBER 5, 1966, HEADQUARTERS BATTALION, 3RD MARINE DIVISION (REIN) FMF, FPO, SAN FRANCISCO 96602, SERGEANT KEEN WAS AUTHORIZED TO PROCEED FROM HIS STATION IN THE FAR EAST TO THE UNITED STATES ON EMERGENCY LEAVE FOR A PERIOD OF ABOUT 30 DAYS AND TO RETURN TO HIS PERMANENT DUTY STATION UPON COMPLETION OF SUCH LEAVE. HIS LEAVE ADDRESS IS SHOWN IN THOSE ORDERS AS RICHMOND, MISSOURI, LOCATED APPROXIMATELY 34 MILES NORTHEAST OF KANSAS CITY, MISSOURI. WHILE SERGEANT KEEN WAS ON LEAVE, HIS ORDERS OF NOVEMBER 5, 1966, WERE MODIFIED BY MESSAGE DATED DECEMBER 2, 1966, AUTHORIZING THE PERFORMANCE OF 3 MONTHS' TEMPORARY DUTY AT THE MARINE CORPS RESERVE DATA SERVICES CENTER, KANSAS CITY, MISSOURI. THOSE ORDERS WERE FURTHER MODIFIED BY MESSAGE DATED FEBRUARY 22, 1967, CHANGING HIS PERMANENT DUTY STATION TO CAMP PENDLETON, CALIFORNIA, EFFECTIVE MARCH 5, 1967.

IT IS STATED IN YOUR LETTER THAT DURING THE PERIOD OF HIS LEAVE (NOVEMBER 7 TO DECEMBER 5, 1966) AND TEMPORARY ADDITIONAL DUTY AT THE MARINE CORPS RESERVE DATA SERVICES CENTER (DECEMBER 6, 1966, TO MARCH 5, 1967), SERGEANT KEEN RESIDED WITH HIS WIFE AT THEIR COMMON HOUSEHOLD LOCATED IN RICHMOND, MISSOURI, AND THAT HE COMMUTED DAILY BETWEEN HIS RESIDENCE IN THAT CITY AND THE CENTER DURING THE PERIOD OF HIS TEMPORARY ADDITIONAL DUTY. IT IS FURTHER STATED THAT WHILE ON DUTY AT HIS PERMANENT STATION OVERSEAS HE WAS ENTITLED TO A FAMILY SEPARATION ALLOWANCE AND THAT PAYMENT WAS CONTINUED FOR THE PERIOD OF LEAVE FROM NOVEMBER 7 TO DECEMBER 5, 1966, UNDER THE AUTHORITY OF OUR DECISION OF MAY 26, 1964, 43 COMP. GEN. 748.

YOU REFER TO OUR DECISION OF OCTOBER 9, 1963, 43 COMP. GEN. 332, ANSWER TO QUESTION 19 (PAGE 348) IN WHICH WE SAID IN EFFECT THAT A MEMBER WOULD NOT BE DEPRIVED OF THE FAMILY SEPARATION ALLOWANCE WHERE THE REGULATIONS PRESCRIBE A MAXIMUM PERIOD OF 3 MONTHS DURING WHICH HIS DEPENDENTS MAY VISIT HIM AT OR NEAR HIS PERMANENT DUTY STATION AND YOU CITE IN THIS CONNECTION OUR DECISION OF MARCH 16, 1964, 43 COMP. GEN. 596. ALSO, YOU MENTION OUR DECISIONS OF JANUARY 30, 1964, 43 COMP. GEN. 527, AND MAY 26, 1964, SUPRA, AS BARRING PAYMENT OF THE ALLOWANCE IN A SITUATION WHERE THE MEMBER RESIDES WITH HIS DEPENDENTS FOR A PERIOD OF 30 DAYS OR MORE IN A NON-LEAVE STATUS WHILE ON TEMPORARY DUTY OR ASSIGNED TO DUTY ABOARD A VESSEL AWAY FROM ITS HOME PORT AND, IN THEORY, DOES NOT INCUR THE ADDITIONAL EXPENSES, SUCH AS HOME AND CAR MAINTENANCE AND INCREASED CHILD CARE COSTS THAT ARISE BY REASON OF HIS BEING AWAY FROM HIS DEPENDENTS FOR AN EXTENDED PERIOD OF TIME. ADDITIONALLY, YOU SAY THAT SERGEANT KEEN WAS IN A FULL PAY STATUS WHILE ON AUTHORIZED LEAVE AND ON TEMPORARY ADDITIONAL DUTY. ACCORDINGLY, YOU EXPRESS THE VIEW THAT IF ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE CONTINUES DURING THE PERIOD A MEMBER VISITS HIS DEPENDENTS WHILE IN A NON-EXCESS LEAVE STATUS ON THE BASIS THAT HE IS ENTITLED TO PAY AND ALLOWANCES FOR PERIODS OF NON-EXCESS LEAVE, RATHER THAN WHETHER HE INCURS THE ADDITIONAL EXPENSES FOR WHICH THE ALLOWANCE IS INTENDED TO COVER, ENTITLEMENT LOGICALLY WOULD CONTINUE DURING THE PERIOD SERGEANT KEEN WAS ON TEMPORARY ADDITIONAL DUTY IN A FULL PAY STATUS.

SUBSECTION 427 (B) (1) OF TITLE 37, U.S. CODE, AUTHORIZES PAYMENT OF A FAMILY SEPARATION ALLOWANCE OF $30 A MONTH TO CERTAIN MEMBERS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS 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.'

IN ANSWERING QUESTION 7 IN OUR DECISION OF OCTOBER 9, 1963, 43 COMP. GEN. 332, 343, WE QUOTED THE SECOND SENTENCE OF 37 U.S.C. 502 (A) WHICH IS AS FOLLOWS:

"* * * A MEMBER WHO IS ABSENT WITH LEAVE FOR ANY OTHER REASON FOR NOT LONGER THAN THE LEAVE AUTHORIZED BY THAT SECTION (10 U.S.C. 701) IS ENTITLED TO THE SAME PAY AND ALLOWANCES TO WHICH HE WOULD BE ENTITLED IF HE WERE NOT ON LEAVE, AND TO ANY ADDITIONAL ALLOWANCES OTHERWISE PROVIDED BY LAW FOR MEMBERS ON LEAVE.'

IN VIEW OF THOSE PROVISIONS WE CONCLUDED THAT ENTITLEMENT TO THE ALLOWANCE UNDER CLAUSE (2) WOULD CONTINUE DURING THE PERIOD A MEMBER IS ON AUTHORIZED LEAVE FROM THE SHIP TO WHICH ASSIGNED, NOT IN EXCESS OF THAT FOR WHICH HE IS ENTITLED TO PAY AND ALLOWANCES UNDER THAT SENTENCE, PROVIDED THE SHIP DOES NOT RETURN TO ITS HOME PORT DURING SUCH PERIOD. ANSWER TO QUESTION 13, A SIMILAR CONCLUSION WAS REACHED UNDER CLAUSE (3) WITH RESPECT TO LEAVE DURING A TEMPORARY DUTY ASSIGNMENT. SEE ALSO OUR ANSWER TO QUESTION "C" IN OUR DECISION OF MAY 26, 1964, 43 COMP. GEN. 748, IN WHICH WE SAID THAT IN VIEW OF THE LEAVE PROVISIONS OF SECTION 502 (A), A MEMBER SERVING ABOARD A SHIP AND OTHERWISE ENTITLED TO FAMILY SEPARATION ALLOWANCE UNDER CLAUSE (2) WOULD CONTINUE TO BE ENTITLED TO THE ALLOWANCE WHILE ON AUTHORIZED LEAVE EVEN THOUGH HE RETURNS TO THE HOME PORT OR THE PLACE WHERE HIS DEPENDENTS RESIDE. A SIMILAR RULE IS FOR APPLICATION UNDER CLAUSE (1) IN THE CASE OF A MEMBER WHO RETURNS ON AUTHORIZED LEAVE FROM A RESTRICTED STATION TO THE PLACE WHERE HIS DEPENDENTS RESIDE.

WHILE THE ABOVE CONCLUSIONS WITH RESPECT TO THE APPLICATION OF THE LEAVE LAWS IN CONNECTION WITH THE PAYMENT OF FAMILY SEPARATION ALLOWANCES MAY SEEM MORE LIBERAL THAN SOME OF OUR OTHER DECISIONS WHICH YOU CITE CONSTRUING THE LEAVE LAWS IN CONNECTION WITH OTHER PAY LAWS, WE ARE OF THE OPINION THAT SUCH CONCLUSIONS ARE JUSTIFIED UNDER THE STATUTORY PROVISIONS INVOLVED, ESPECIALLY IN VIEW OF THE BENEFICIAL NATURE OF THE LEGISLATION AUTHORIZING FAMILY SEPARATION ALLOWANCES. IF THE MEMBER IS NOT IN A LEAVE STATUS, HOWEVER, HE, OF COURSE, IS NOT ENTITLED TO THE BENEFIT OF THE LEAVE LAWS IN DETERMINING HIS ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE.

SINCE SERGEANT KEEN'S LEAVE STATUS TERMINATED ON DECEMBER 5, 1966, THE FACT THAT HE WAS ENTITLED UNDER OUR DECISIONS TO FAMILY SEPARATION ALLOWANCE DURING THE PERIOD OF LEAVE AFFORDS NO BASIS TO CONTINUE PAYMENT OF THE ALLOWANCE DURING THE PERIOD OF TEMPORARY ADDITIONAL DUTY WHEN HE RESIDED WITH HIS WIFE. IN OUR DECISION OF JANUARY 30, 1964, 43 COMP. GEN. 527, WE CONSIDERED THE CASE OF A MEMBER ASSIGNED TO A SHIP WHICH MOVED FROM ITS HOME PORT TO A LOCATION WHICH PERMITTED HIM TO RESIDE WITH HIS DEPENDENTS WHILE THE VESSEL REMAINED AT SUCH LOCATION. WE CONCLUDED THAT A MEMBER IS NOT ENTITLED TO FAMILY SEPARATION ALLOWANCE UNDER CLAUSE (2) DURING PERIODS (EXCLUSIVE OF ANY MERE VISIT OF 30 DAYS OR LESS) WHEN, NOTWITHSTANDING HIS ASSIGNMENT ABOARD A VESSEL AWAY FROM ITS HOME PORT, HE IS NOT ACTUALLY SEPARATED FROM HIS DEPENDENTS, BUT LIVES WITH THEM ON SUBSTANTIALLY THE SAME BASIS THAT HE WOULD IF HE WERE ASSIGNED ASHORE AT THE LOCATION OF HIS SHIP. AND, IN LINE WITH THAT CONCLUSION, WE HELD IN OUR DECISION OF MAY 26, 1964, 43 COMP. GEN. 748, THAT IF A MEMBER OTHERWISE ENTITLED TO A FAMILY SEPARATION ALLOWANCE BY REASON OF HIS ASSIGNMENT TO A SHIP IS ASSIGNED ON TEMPORARY DUTY FOR A PERIOD OF MORE THAN 30 DAYS AT A LOCATION WHICH PERMITS HIM TO RESIDE WITH HIS DEPENDENTS DURING SUCH ASSIGNMENT, HIS ENTITLEMENT TO THE ALLOWANCE WOULD BE SUSPENDED DURING THAT PERIOD. THE SAME RULE IS FOR APPLICATION IN THE CASE OF SERGEANT KEEN AND, THEREFORE, PAYMENT OF THE ALLOWANCE IS NOT AUTHORIZED FOR THE PERIOD OF TEMPORARY ADDITIONAL DUTY INVOLVED.