B-162528, NOV. 3, 1967

B-162528: Nov 3, 1967

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GOODSELL: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 1. YOU WERE REASSIGNED FROM FORT GORDON. YOU WERE REASSIGNED FROM THE 1542 HEADQUARTERS YONGSAN DISTRICT COMMAND. YOUR REQUEST TO RESIDE OFF-POST FROM THIS ASSIGNMENT WAS APPROVED SUBJECT TO CERTAIN CONDITIONS INCLUDING THE CONDITIONS THAT YOU WOULD OCCUPY A BILLET IN THE IMMEDIATE VICINITY OF THE HEADQUARTERS. TRAVELING AT PERSONEL EXPENSE SINCE GOVERNMENT TRANSPORTATION WAS NOT AUTHORIZED. WHERE YOU WERE ASSIGNED ON SEPTEMBER 13. WAS "SOME 20 MILES NORTH OF SEOUL AND ABOUT ONE (1) HOUR'S DRIVING TIME.'. ON THE BASIS THAT NO ARBITRARY WORLD-WIDE DEFINITION IS POSSIBLE. YOU CONTEND THAT IT IS CONTRADICTORY FOR THE ARMY NOT TO RECOGNIZE YOUR DEPENDENTS AS COMMAND SPONSORED AT YOUR OVERSEAS STATION AND THEN CONSIDER THEM AS PRESENT IN THE AREA OF YOUR DUTY STATION SO AS TO REFUSE TO PAY THE FAMILY SEPARATION ALLOWANCE TO YOU.

B-162528, NOV. 3, 1967

ARMED SERVICES - FAMILY SEPARATION ALLOWANCES DECISION TO ARMY OFFICER CONCERNING APPEAL OF DISALLOWANCE OF CLAIM FOR FAMILY SEPARATION ALLOWANCES. OFFICER WHO OCCUPIED A BILLET IN SEOUL, KOREA, FROM MONDAY THROUGH FRIDAY, AND LIVED WITH HIS FAMILY 20 MILES DISTANT OVER WEEK ENDS MUST BE REGARDED AS HAVING HIS FAMILY RESIDE NEAR HIS DUTY STATION AND THEREFORE THE FACT THAT THE MEMBER DOES NOT RESIDE WITH HIS FAMILY FOR SHORT PERIODS DOES NOT ENTITLE HIM TO FAMILY SEPARATION ALLOWANCE. THE TASKER CASE, CT. CL. NO. 357-65, JAN. 20, 1967, DOES NOT PROVIDE ANY BASIS FOR ALLOWANCE.

TO COLONEL VINCENT F. GOODSELL:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 1, 1967, REQUESTING REVIEW OF SETTLEMENT DATED AUGUST 21, 1967, WHICH DISALLOWED YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE FOR THE PERIOD FROM SEPTEMBER 13, 1965, TO THE PRESENT.

BY SPECIAL ORDERS 101 DATED APRIL 15, 1965, AS AMENDED, YOU WERE REASSIGNED FROM FORT GORDON, GEORGIA, TO THE 176TH REPLACEMENT COMPANY, 38TH REPLACEMENT BATTALION (P-8), APO SAN FRANCISCO 96220, AND DIRECTED TO BE AVAILABLE JUNE 15, 1965, SO YOU COULD ARRIVE AT YOUR OVERSEAS DESTINATION IN KOREA NOT LATER THAN JUNE 20, 1965. BY SPECIAL ORDERS 208 DATED SEPTEMBER 7, 1965, YOU WERE REASSIGNED FROM THE 1542 HEADQUARTERS YONGSAN DISTRICT COMMAND, APO, U.S. FORCES 96301, TO THE 71ST ORDNANCE GROUP (CSBP), APO, U.S. FORCES 96358 (REDESIGNATED AS THE 21ST DIRECT SUPPORT GROUP ON JANUARY 1, 1966), AND DIRECTED TO REPORT SEPTEMBER 13, 1965.

YOUR REQUEST TO RESIDE OFF-POST FROM THIS ASSIGNMENT WAS APPROVED SUBJECT TO CERTAIN CONDITIONS INCLUDING THE CONDITIONS THAT YOU WOULD OCCUPY A BILLET IN THE IMMEDIATE VICINITY OF THE HEADQUARTERS, 21ST DIRECT SUPPORT GROUP, REGULARLY DURING THE PERIOD MONDAY THROUGH FRIDAY OF EACH WEEK, AND THAT AFTER ATTENDING SOCIAL FUNCTIONS OR MEETINGS IN THE SEOUL AREA IN CONNECTION WITH YOUR OFFICIAL DUTIES AND ON THE EVENINGS OF SATURDAY AND SUNDAY OF EACH WEEK, YOU COULD RESIDE AT THE DESIGNATED SEOUL RESIDENCE WHEN YOUR DUTIES SO PERMITTED.

IN YOUR CLAIM DATED MAY 12, 1967 (DD FORM 827), YOU SAY THAT YOUR DEPENDENTS, TRAVELING AT PERSONEL EXPENSE SINCE GOVERNMENT TRANSPORTATION WAS NOT AUTHORIZED, DEPARTED FROM NEW YORK, AND JOINED YOU AT SEOUL,KOREA, ON AUGUST 8, 1965. YOU ALSO SAY IN YOUR CLAIM THAT HEADQUARTERS, 21ST DIRECT SUPPORT GROUP, LOCATED AT CAMP RED CLOUD, WHERE YOU WERE ASSIGNED ON SEPTEMBER 13, 1965, WAS "SOME 20 MILES NORTH OF SEOUL AND ABOUT ONE (1) HOUR'S DRIVING TIME.' IN YOUR LETTER OF SEPTEMBER 1, 1967, TO OUR OFFICE, YOU SAY THAT A RECENT RULING OF THE U.S. COURT OF CLAIMS SET ASIDE THE 50- MILE DISTANCE FACTOR STATED IN OUR SETTLEMENT OF AUGUST 21, 1967, ON THE BASIS THAT NO ARBITRARY WORLD-WIDE DEFINITION IS POSSIBLE, AND YOU CONTEND THAT IT IS CONTRADICTORY FOR THE ARMY NOT TO RECOGNIZE YOUR DEPENDENTS AS COMMAND SPONSORED AT YOUR OVERSEAS STATION AND THEN CONSIDER THEM AS PRESENT IN THE AREA OF YOUR DUTY STATION SO AS TO REFUSE TO PAY THE FAMILY SEPARATION ALLOWANCE TO YOU. YOU REQUEST REVIEW OF YOUR CLAIM FOR THE REASON THAT OUR SETTLEMENT OF AUGUST 21, 1967, DOES NOT INDICATE THAT CONSIDERATION HAD BEEN GIVEN TO THE FACT THAT YOU WERE DIRECTED TO MAINTAIN A SEPARATE RESIDENCE IN THE VICINITY OF CAMP RED CLOUD.

SUBSECTION 427 (B), TITLE 37, U.S.C. PROVIDES IN PERTINENT PART AS FOLLOWS:

"/B) EXCEPT IN TIME OF WAR OR 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 OF $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 * * *" THUS, THE BENEFITS AUTHORIZED IN SECTION 427 (B) ARE BASED ON ENFORCED SEPARATIONS OF SERVICEMEN FROM THEIR FAMILIES AND CLAUSE (1) SPECIFICALLY REQUIRES THAT, AS A CONDITION PRECEDENT, THE MEMBER'S DEPENDENTS DO NOT RESIDE AT OR NEAR HIS PERMANENT DUTY STATION.

IN THE CASE OF CLAYTON B. TASKER V. UNITED STATES, CT. CL. NO. 357 65, DECIDED JANUARY 20, 1967, TO WHICH YOU APPARENTLY REFER IN YOUR LETTER OF SEPTEMBER 1, 1967, THE COURT OF CLAIMS CONCLUDED, ON THE BASIS OF THE PLAINTIFF'S SHOWING THAT THE TRAVEL TIME BETWEEN HIS RESIDENCE IN SEOUL, KOREA, AND HIS DUTY STATION, CAMP CASEY, KOREA, A DISTANCE OF 26 MILES, WAS FROM 2 TO 2-1/2 HOURS, THAT HIS DEPENDENT WAS NOT RESIDING "AT OR NEAR" HIS DUTY STATION FOR THE PURPOSES OF THE FAMILY SEPARATION ALLOWANCE AUTHORIZED BY 37 U.S.C. 427 (B). WHILE WE ARE NOT IN COMPLETE ACCORD WITH THE COURT'S CONCLUSION IN THIS CASE, YOUR CASE IS DIFFERENT SINCE YOU SAY YOUR DUTY STATION IS SOME 20 MILES AWAY BUT ONLY ABOUT ONE HOUR'S DRIVING TIME FROM SEOUL WHERE YOUR DEPENDENTS ARE RESIDING.

ARMY REGULATION 37-104, PARAGRAPH 10382C, PROVIDED AT THE TIME OF YOUR TRANSFER TO KOREA THAT DEPENDENTS ARE TO BE CONSIDERED AS LIVING AT OR NEAR THE MEMBER'S DUTY STATION IF THEY LIVE WITHIN REASONABLE COMMUTING DISTANCE OF THAT STATION. IT FURTHER PROVIDES THAT "A ONE WAY DISTANCE OF 50 MILES IS THE MAXIMUM FOR THIS PURPOSE EXCEPT WHEN THE MEMBER ACTUALLY COMMUTES A GREATER DISTANCE DAILY.'

IT WILL BE NOTED THAT THE REGULATION DOES NOT PROVIDE THAT IN ALL CIRCUMSTANCES DEPENDENTS LIVING WITHIN A DISTANCE OF 50 MILES OF THE MEMBER'S STATION ARE TO BE REGARDED AS LIVING "AT OR NEAR" HIS STATION. THE 50-MILE DISTANCE IS ONLY A MAXIMUM LIMITATION IN DETERMINING WHAT IS A REASONABLE COMMUTING DISTANCE UNLESS THE MEMBER ACTUALLY COMMUTES A GREATER DISTANCE TO THE PLACE WHERE HIS DEPENDENTS RESIDE. WE HAVE RECOGNIZED THAT A MEMBER WAS ENTITLED TO FAMILY SEPARATION ALLOWANCE WHILE STATIONED ON AN ISLAND FROM WHICH THERE WAS ONLY INFREQUENT TRANSPORTATION AVAILABLE TO THE MAINLAND WHERE HIS DEPENDENTS RESIDED EVEN THOUGH THE DISTANCE INVOLVED WAS LESS THAN 50 MILES. SEE OUR DECISION OF APRIL 21, 1965, B-156112, 44 COMP. GEN. 638, COPY ENCLOSED.

IN THE TASKER CASE, THE COURT POINTED OUT THAT THE TERM "AT OR NEAR" DEPENDS ON THE CIRCUMSTANCES IN THE PARTICULAR CASE. IN THAT CASE, THE TRAVEL TIME FROM THE MEMBER'S STATION TO THE PLACE WHERE HIS WIFE RESIDED WAS FROM 2 TO 2-1/2 HOURS--- A CONSIDERABLY LONGER PERIOD THAN IS USUALLY REQUIRED TO TRAVEL A DISTANCE OF 50 MILES UNDER FAVORABLE TRAVEL CONDITIONS. IN THESE CIRCUMSTANCES, THE COURT DID NOT REGARD THE DEPENDENTS AS RESIDING NEAR HIS STATION. IN YOUR CASE, HOWEVER, YOU SAY THE DISTANCE INVOLVED IS ABOUT 20 MILES AND REQUIRES ABOUT ONE HOUR'S DRIVING TIME. SUCH TIME IS CERTAINLY NOT MORE THAN IS USUALLY REQUIRED TO COMMUTE A DISTANCE OF 50 MILES UNDER NORMAL CONDITIONS AND IN THESE CIRCUMSTANCES WE ARE OF THE OPINION THAT YOUR DEPENDENTS ARE TO BE CONSIDERED AS RESIDING NEAR YOUR DUTY STATION. CONSEQUENTLY, IT IS OUR VIEW THAT THE TASKER DECISION DOES NOT PROVIDE ANY BASIS TO ALLOW YOUR CLAIM.

LIKEWISE, WE ARE OF THE OPINION THAT THE FACT THAT YOU ARE REQUIRED TO OCCUPY A BILLET IN THE IMMEDIATE VICINITY OF YOUR STATION, MONDAY THROUGH FRIDAY OF EACH WEEK, AND CAN REGULARLY RESIDE WITH YOUR DEPENDENTS ONLY ON WEEKENDS DOES NOT PROVIDE ANY BASIS TO PAY YOU THE ALLOWANCE. THE LEGISLATIVE HISTORY OF SECTION 427 (B) SHOWS THAT THE RATIONALE OF THE PROVISION IS THAT ENFORCED SEPARATIONS OF SERVICEMEN FROM THEIR FAMILIES CAUSE ADDED HOUSEHOLD EXPENSES WHERE THE MEMBER IS ABSENT FOR AN EXTENDED PERIOD OF TIME. PAYMENT OF THE ALLOWANCE WAS AUTHORIZED TO PARTIALLY COMPENSATE THE MEMBER FOR SUCH EXTRA EXPENSE.

CLAUSES (2) AND (3) OF SECTION 427 (B) WHICH AUTHORIZE THE ALLOWANCE FOR DUTY ON BOARD A SHIP AWAY FROM ITS HOME PORT OR FOR TEMPORARY DUTY AWAY FROM A PERMANENT DUTY STATION SPECIFICALLY PROVIDE THAT THE MEMBER BE ON SUCH DUTY AND SEPARATED FROM HIS FAMILY FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS BEFORE ENTITLEMENT EXISTS. WHILE SUCH RESTRICTION IS NOT INCORPORATED IN CLAUSE (1), IT IS FURTHER EVIDENCE OF THE LEGISLATIVE INTENT THAT ENTITLEMENT TO THE ALLOWANCE WOULD ARISE ONLY INCIDENT TO AN EXTENDED SEPARATION FROM THE MEMBER'S DEPENDENTS. THEREFORE, IT IS OUR VIEW THAT IN CIRCUMSTANCES WHERE THE MEMBER'S DEPENDENTS RESIDE NEAR HIS DUTY STATION THE FACT THAT HIS DUTY ASSIGNMENT MAY NOT PERMIT HIM TO RESIDE WITH THEM FOR SHORT PERIODS DOES NOT PROVIDE A LEGAL BASIS TO PAY HIM THE FAMILY SEPARATION ALLOWANCE. SEE OUR DECISION OF MAY 26, 1964, B- 131836, 43 COMP. GEN. 748, A COPY OF WHICH ALSO IS ENCLOSED.

ACCORDINGLY, THE SETTLEMENT OF AUGUST 21, 1967, DISALLOWING YOUR CLAIM WAS CORRECT AND IS SUSTAINED.

WITH REGARD TO YOUR REQUEST THAT YOUR CLAIM AND ALL ASSOCIATED PAPERS BE RETURNED TO YOU, THERE ARE RETURNED HEREWITH COPIES OF YOUR ORDERS AND THE APPROVAL TO RESIDE WITH YOUR DEPENDENTS ON THE WEEKENDS. IT WILL BE NECESSARY TO RETAIN THE OTHER DOCUMENTS PERTAINING TO YOUR CLAIM SINCE THEY CONSTITUTE A PART OF THE RECORD ON WHICH THE SETTLEMENT DISALLOWING YOUR CLAIM WAS BASED, WHICH ACTION IS FINAL AND CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. TITLE 1, SECTION 13.1, AND TITLE 8, SECTION 4, OF THE GAO POLICY AND PROCEDURES MANUAL.