B-163771, JUNE 27, 1968, 47 COMP. GEN. 788

B-163771, JUNE 27, 1968, 47 COMP. GEN. 788

FAMILY ALLOWANCES - SEPARATION - TYPE 2 - COMMON RESIDENCE - MANAGEMENT AND CONTROL BY MEMBER A MEMBER OF THE UNIFORMED SERVICES WHO WHILE SERVING ABOARD A SHIP THAT IS AWAY FROM HOME PORT IS IN RECEIPT OF THE TEMPORARY LODGING ALLOWANCE PROVIDED BY PARAGRAPH M4303 OF THE JOINT TRAVEL REGULATIONS, WHICH IS INTENDED TO PARTIALLY REIMBURSE HIM FOR HOUSING HIS FAMILY IN HOTEL OR HOTEL-LIKE ACCOMMODATIONS OVERSEAS PENDING COMPLETION OF ARRANGEMENTS FOR LIVING QUARTERS, IS NOT ENTITLED TO THE CONCURRENT PAYMENT OF THE TYPE 2 FAMILY SEPARATION ALLOWANCE AUTHORIZED UNDER 37 U.S.C. 427 (B) (2) FOR SHIP DUTY AND UNDER SUBPARAGRAPH (3) FOR TEMPORARY DUTY. THE MEMBER NOT SEPARATED FROM A HOUSEHOLD SUBJECT TO HIS MANAGEMENT AND CONTROL CANNOT INCUR THE ADDITIONAL EXPENSES CONTEMPLATED BY SECTION 427 (B) BY REASON OF "ENFORCED SEPARATION" AND, THEREFORE, HE IS NOT ELIGIBLE FOR TYPE 2 FAMILY SEPARATION ALLOWANCE. STATION ALLOWANCES - MILITARY PERSONNEL - TEMPORARY LODGINGS - CONCURRENT PAYMENT OF FAMILY SEPARATION ALLOWANCE UPON THE TERMINATION OF THE ASSIGNMENT OF GOVERNMENT QUARTERS AT A PERMANENT STATION OVERSEAS DUE TO THE CLOSING OF A MILITARY INSTALLATION, A MEMBER OF THE UNIFORMED SERVICES IN RECEIPT OF FAMILY SEPARATION ALLOWANCE, TYPE 1, UNDER 37 U.S.C. 427 (A) MAY IN ADDITION FOR THE PERIOD PRIOR TO DEPARTURE TO HIS NEW STATION BE PAID A TEMPORARY LODGING ALLOWANCE IN 10-DAY INCREMENTS UNDER PARAGRAPH M4303. THE ALLOWANCES DO NOT DUPLICATE EACH OTHER, THE TYPE 1 FAMILY SEPARATION ALLOWANCE IS IN SUBSTANCE THE MEMBER'S BASIC ALLOWANCE FOR QUARTERS INTENDED TO COVER THE COST OF PERMANENT QUARTERS, WHEREAS THE TEMPORARY LODGING ALLOWANCE IS A PER DIEM SUPPLEMENTING THE BASIC ALLOWANCE FOR QUARTERS TO COMPENSATE HIM FOR THE ADDITIONAL EXPENSE OF MAINTAINING SEPARATE QUARTERS FOR HIMSELF.

TO THE SECRETARY OF DEFENSE, JUNE 27, 1968:

REFERENCE IS MADE TO LETTER OF MARCH 6, 1968, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION WHETHER A MEMBER IS ENTITLED TO CONCURRENT PAYMENT OF FAMILY SEPARATION ALLOWANCE (TYPE II) UNDER 37 U.S.C. 427 (B) (2) AND (3), AND TEMPORARY LODGING ALLOWANCE WHEN HE OTHERWISE MEETS THE CONDITIONS ENTITLING HIM TO BOTH ALLOWANCES. FURTHER INFORMAL REQUEST WAS MADE FOR A DETERMINATION AS TO WHETHER IT IS PROPER TO PAY TEMPORARY LODGING ALLOWANCE TO MEMBERS WHO ARE IN RECEIPT OF FAMILY SEPARATION ALLOWANCE (TYPE I), UNDER THE CIRCUMSTANCES SET FORTH IN THAT REQUEST.

THE CIRCUMSTANCES PERTAINING TO THE FIRST REQUEST ARE SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 148, BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE. THE COMMITTEE PRESENTS THE FOLLOWING QUESTION:

CAN A MEMBER BE ENTITLED TO CONCURRENT PAYMENTS OF FAMILY SEPARATION ALLOWANCE TYPE II (SHIP OR TEMPORARY DUTY) AND TEMPORARY LODGING ALLOWANCE?

THE COMMITTEE STATES THAT IN ORDER TO SUBSTANTIATE PAYMENT OF FAMILY SEPARATION ALLOWANCE (SHIP OR TEMPORARY DUTY), A MEMBER MUST SIGN AND SUBMIT DD FORM 1561, A "STATEMENT TO SUBSTANTIATE PAYMENT OF FAMILY SEPARATION ALLOWANCE.' IT STATED FURTHER THAT WHEN A MEMBER SIGNS THIS FORM, HE IS CERTIFYING THAT HE IS MAINTAINING A RESIDENCE FOR HIS DEPENDENTS.

AN EXAMPLE CITED AS INVOLVING THE PROBLEM PRESENTED IS THAT OF A MEMBER ASSIGNED TO DUTY AND SERVING ABOARD A SHIP (EITHER TEMPORARY OR PERMANENT) WHICH IS AWAY FROM ITS HOME PORT, YOKOSUKA, JAPAN. THE MEMBER AND HIS DEPENDENTS HAVE ONLY RECENTLY ARRIVED IN YOKOSUKA AND NO GOVERNMENT QUARTERS ARE AVAILABLE. HE IS THEREFORE ENTITLED TO REIMBURSEMENT FOR ACCOMMODATIONS, AS AUTHORIZED BY PARAGRAPH M4303 OF THE JOINT TRAVEL REGULATIONS, IF HE MUST OBTAIN THE SAME PENDING ASSIGNMENT OF GOVERNMENT QUARTERS OR PENDING COMPLETION OF ARRANGEMENTS FOR OTHER PERMANENT LIVING ARRANGEMENTS.

THE COMMITTEE INDICATES THAT UNDER APPLICABLE REGULATIONS THERE WOULD BE NO LEGAL OBJECTION TO CONCURRENT ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS AND THE TEMPORARY LODGING ALLOWANCE. HOWEVER, IT EXPRESSES DOUBT AS TO THE MEMBER'S ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE, TYPE II, IN ADDITION TO TEMPORARY LODGING ALLOWANCE WHERE THE MEMBER IS NOT MAINTAINING ANY OTHER RESIDENCE FOR HIS DEPENDENTS, IN VIEW OF THE PURPOSE OF THE TEMPORARY LODGING ALLOWANCE AS A PARTIAL REIMBURSEMENT FOR HOUSING EXPENSES.

FURTHER, IT CITES OUR DECISION OF FEBRUARY 9, 1968, 47 COMP. GEN. 431, IN WHICH WE HELD THAT PAYMENT OF THE FAMILY SEPARATION ALLOWANCE IS CONTEMPLATED ONLY IN CIRCUMSTANCES WHERE THE MEMBER IS MAINTAINING A HOUSEHOLD FOR HIS DEPENDENTS, SUBJECT TO HIS MANAGEMENT AND CONTROL, AND WITH ATTENDING LIABILITY AND RESPONSIBILITY FOR ITS UPKEEP, CIRCUMSTANCES NOT EXISTING IF THE DEPENDENTS RESIDE AS GUESTS OR VISITORS WITH RELATIVES OR FRIENDS, OR WHERE SECONDARY DEPENDENTS SUCH AS PARENTS ARE LIVING IN AN INDEPENDENT HOUSEHOLD NOT SUBJECT TO THE MEMBER'S MANAGEMENT AND CONTROL.

IT WAS SAID IN THAT DECISION THAT THERE WAS NOTHING IN OUR DECISIONS OR THE LEGISLATIVE HISTORY OF SECTION 427 (B) TO JUSTIFY THE VIEW THAT A CERTIFICATE BY A MEMBER THAT HE IS MAINTAINING A RESIDENCE FOR HIS DEPENDENTS MAY BE BROADLY INTERPRETED TO MEAN THAT REGARDLESS OF THE ARRANGEMENTS MADE BY THE MEMBER FOR THE MAINTENANCE OF HIS FAMILY DURING HIS ABSENCE ABOARD A SHIP, HE IS CONSIDERED AS MEETING IN FULL THE HEAD OF THE HOUSEHOLD RESIDENCE REQUIREMENTS.

THE COMMITTEE CONSIDERS THE SITUATION PRESENTED HERE AS SOMEWHAT SIMILAR TO THAT CONSIDERED IN THE DECISION CITED ABOVE, IN THAT THE PAYMENT TO A MEMBER OF A TEMPORARY LODGING ALLOWANCE ON ACCOUNT OF DEPENDENTS OCCUPYING HOTEL ACCOMMODATIONS WOULD HAVE SOME EFFECT TO MINIMIZE THE NORMAL DUTIES AND RESPONSIBILITIES OF THE MEMBER AS THE HEAD OF A HOUSEHOLD SIMILAR TO THAT IN WHICH DEPENDENTS OCCUPY THE DWELLING OF A PARENT.

IN THE INFORMAL REQUEST, A DETERMINATION IS REQUESTED AS TO WHETHER IT IS PROPER TO PAY TEMPORARY LODGING ALLOWANCE TO A MEMBER WHO IS IN RECEIPT OF FAMILY SEPARATION ALLOWANCE, TYPE I, BECAUSE HE IS ON DUTY AT A MILITARY INSTALLATION WHICH HAS BEEN CLOSED, AND HE IS REQUIRED TO TERMINATE QUARTERS FURNISHED BY THE GOVERNMENT, PENDING DEPARTURE TO A NEW DUTY STATION. IT WAS STATED FURTHER THAT THERE ARE NO GOVERNMENT QUARTERS AVAILABLE IN THE AREA AND AN AUTHORIZATION HAS BEEN RECEIVED TO PAY MEMBERS TEMPORARY LODGING ALLOWANCE IN 10DAY INCREMENTS.

THE PERTINENT PROVISIONS OF PARAGRAPH M4303, JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO 37 U.S.C. 405, AUTHORIZE TEMPORARY LODGING ALLOWANCES AT THE RATES PRESCRIBED, FOR THE PURPOSE OF PARTIALLY REIMBURSING A MEMBER FOR THE MORE THAN NORMAL EXPENSES INCURRED UPON ARRIVAL AT A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES. THIS ALLOWANCE IS AUTHORIZED FOR PERIODS NOT TO EXCEED THE MAXIMUM NUMBER OF DAYS PRESCRIBED THEREIN, WHEN GOVERNMENT QUARTERS ARE NOT FURNISHED TO THE MEMBER, HIS DEPENDENTS, OR THE MEMBER AND HIS DEPENDENTS, IF WITH DEPENDENTS, AND THE MEMBER IS REQUIRED TO SECURE HOTEL OR HOTEL-LIKE ACCOMMODATIONS AND USE PUBLIC RESTAURANTS AT PERSONAL EXPENSE. THE ALLOWANCE CONTINUES PENDING ASSIGNMENT OF GOVERNMENT QUARTERS OR COMPLETION OF ARRANGEMENTS FOR OTHER PERMANENT LIVING ACCOMMODATIONS. SIMILAR ALLOWANCE IS AUTHORIZED NOT TO EXCEED THE MAXIMUM PERIOD PRESCRIBED, AFTER TERMINATION OF ASSIGNMENT OF QUARTERS OR THE SURRENDER OF OTHER LIVING ACCOMMODATIONS IMMEDIATELY PRIOR TO DEPARTURE ON PERMANENT CHANGE OF STATION FROM A STATION OUTSIDE THE UNITED STATES.

IN ADDITION TO ANY OTHER ALLOWANCES OR PER DIEM TO WHICH HE MAY OTHERWISE BE ENTITLED, A MEMBER WITH DEPENDENTS ON DUTY OUTSIDE THE UNITED STATES IS ENTITLED UNDER SECTION 427 (A) OF TITLE 37, U.S.C. TO AN ALLOWANCE EQUAL TO THE BASIC ALLOWANCE FOR QUARTERS PAYABLE TO A MEMBER OF EQUAL PAY GRADE WITHOUT DEPENDENTS, IF HIS DEPENDENTS ARE NOT AUTHORIZED TRANSPORTATION AT GOVERNMENT EXPENSE TO HIS OVERSEAS STATION, THEY DO NOT RESIDE AT OR NEAR THAT STATION, AND THERE ARE NO GOVERNMENT QUARTERS OR OTHER FACILITIES UNDER MILITARY JURISDICTION AVAILABLE FOR ASSIGNMENT TO HIM. SECTION 427 (B) PROVIDES, IN PERTINENT PART, THAT IN ADDITION TO OTHER ALLOWANCES OR PER DIEM OTHERWISE DUE, INCLUDING THAT AUTHORIZED IN SUBSECTION (A), A MEMBER WHO IS IN PAY GRADE ABOVE E-4, WITH 4 YEARS' SERVICE OR LESS, AND WHO IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS, IS ENTITLED TO A MONTHLY ALLOWANCE EQUAL TO $30, IF:

(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.

THE PURPOSE OF THE ALLOWANCE AUTHORIZED BY SECTION 427 (A) IS TO COMPENSATE A MEMBER FOR THE ADDITIONAL EXPENSE HE MUST INCUR BY REASON OF HAVING TO PROCURE AND MAINTAIN QUARTERS FOR HIMSELF OVERSEAS OR IN ALASKA IN ADDITION TO THE QUARTERS HE NECESSARILY MAINTAINS ELSEWHERE FOR HIS DEPENDENTS. SEE 44 COMP. GEN. 572. THE RATIONALE OF THE ALLOWANCE IN SECTION 427 (B) IS TO REIMBURSE THE MEMBER FOR THE ADDITIONAL EXPENSES INCURRED BY HIS DEPENDENTS DUE TO THE "ENFORCED SEPARATION" FROM THE SERVICEMAN WHILE HE IS ABSENT FROM HIS HOUSEHOLD FOR ANY SUBSTANTIAL PERIOD OF TIME. AS STATED IN OUR DECISION DATED FEBRUARY 9, 1968, 47 COMP. GEN. 431, THE LEGISLATIVE HISTORY OF SECTION 427 (B) SHOWS ITS INTENT WAS TO "OFFSET, IN A MODEST WAY, THE ADDITIONAL EXPENSES OF PLUMBERS, ELECTRICIANS, CARPENTERS, AND GENERAL HANDYMEN WHICH THE FAMILY BUDGET MUST BEAR WHEN THE HUSBAND IS ABSENT.'

IN THE QUESTION RAISED BY THE COMMITTEE, THE MEMBER IS ENTITLED TO TEMPORARY LODGING ALLOWANCE DURING THE PERIOD HE WAS ON BOARD THE VESSEL AWAY FROM ITS HOME PORT FOR A PERIOD OF OVER 30 CONSECUTIVE DAYS, ONLY BY REASON OF HIS DEPENDENTS BEING TEMPORARILY REQUIRED TO STAY AT HOTEL OR HOTEL-LIKE ACCOMMODATIONS NEAR HIS HOME PORT OVERSEAS. DURING THIS TEMPORARY TRANSIENT PERIOD, THE MEMBER IS NOT MAINTAINING A PERMANENT-TYPE RESIDENCE FOR HIS DEPENDENTS SUBJECT TO HIS MANAGEMENT AND CONTROL AND INVOLVING THE LIABILITY AND RESPONSIBILITY FOR ITS PHYSICAL REPAIR AND UPKEEP WITHIN THE CONTEMPLATION OF THE PROVISIONS OF 37 U.S.C. 427 (B). THOSE FUNCTIONS REST WITH THE MANAGEMENT OF THE HOTEL OR HOTEL-LIKE FACILITY. ACCORDINGLY, IT IS OUR CONCLUSION THAT IN VIEW OF THE INTENT OR PURPOSE OF THE PROVISIONS OF SECTION 427 (B) OF TITLE 37, UNITED STATES CODE, A MEMBER WHO IS IN RECEIPT OF TEMPORARY LODGING ALLOWANCE DURING THE PERIOD HE IS PERFORMING THE DUTY SPECIFIED IN ITEMS (2) OR (3) OF THAT SECTION, AND NOT OTHERWISE MAINTAINING A RESIDENCE FOR HIS DEPENDENTS, WOULD NOT BE ELIGIBLE DURING THAT PERIOD FOR FAMILY SEPARATION ALLOWANCE TYPE II (SHIP OR TEMPORARY DUTY). YOUR QUESTION IS ANSWERED ACCORDINGLY.

THE QUESTION RAISED IN THE INFORMAL REQUEST PERTAINS TO THE ENTITLEMENT TO THE TEMPORARY LODGING ALLOWANCE OF A MEMBER WHO IS IN RECEIPT OF FAMILY SEPARATION ALLOWANCE (TYPE I), AUTHORIZED UNDER THE PROVISIONS OF 37 U.S.C. 427 (A). IT IS PRESUMED THAT HE MET ALL THE REQUIREMENTS FOR FAMILY SEPARATION ALLOWANCE, TYPE I, UPON THE TERMINATION OF THE ASSIGNMENT OF GOVERNMENT QUARTERS AT HIS PERMANENT STATION OVERSEAS DUE TO THE CLOSING OF THE INSTALLATION.

THE FAMILY SEPARATION ALLOWANCE (TYPE I) IS, IN SUBSTANCE THE MEMBER'S BASIC ALLOWANCE FOR QUARTERS. IT IS INTENDED TO COVER THE COST OF PERMANENT RENTAL OF QUARTERS. THE TEMPORARY LODGING ALLOWANCE IS A PER DIEM WHICH SUPPLEMENTS THE BASIC ALLOWANCE FOR QUARTERS TO COVER, IN PART, THE INCREASED COSTS OF TEMPORARY QUARTERS IN HOTELS, ETC. THE ALLOWANCES DO NOT DUPLICATE EACH OTHER.

IN SUCH CIRCUMSTANCES AND SINCE THE PAYMENT OF FAMILY SEPARATION ALLOWANCE, TYPE I, IS AUTHORIZED IN ADDITION TO ANY ALLOWANCE OR PER DIEM TO WHICH A MEMBER MAY OTHERWISE BE ENTITLED, THERE WOULD APPEAR TO BE NO BASIS FOR OBJECTION TO THE CONCURRENT PAYMENT OF FAMILY SEPARATION ALLOWANCE (TYPE I) AND TEMPORARY LODGING ALLOWANCE IN 10 DAY INCREMENTS, IF HE OTHERWISE QUALIFIES FOR SUCH ALLOWANCE UNDER THE PROVISIONS OF PARAGRAPH M4303, JOINT TRAVEL REGULATIONS.