B-165122, JAN. 31, 1969

B-165122, JAN. 31, 1969

TO ENSIGN H. TRABACK:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 20, 1968, FILE REFERENCE AR9/HT:DN 7200, FORWARDED HERE BY SECOND ENDORSEMENT DATED OCTOBER 18, 1968, OF THE COMPTROLLER OF THE NAVY, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF CREDITING THE PAY ACCOUNTS OF VARIOUS MEMBERS SERVING UNDER THE COMMAND OF THE U.S.S. DELTA (AR-9) WITH FAMILY SEPARATION ALLOWANCE (FSA-S) FOR THE PERIOD JULY 28 THROUGH AUGUST 6, 1968. THIS REQUEST HAS BEEN ASSIGNED SUBMISSION NO. DO-N 1023, BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN YOUR LETTER YOU SAY THAT THE U.S.S. DELTA (AR-9) DEPARTED FROM ALAMEDA, CALIFORNIA, ITS HOME PORT, ON MAY 13, 1968, EN ROUTE TO LONG BEACH, CALIFORNIA, TO PROVIDE FLEET REPAIR SERVICES, VIA SAN DIEGO, CALIFORNIA, FOR UNDERWAY TRAINING. YOU FURTHER SAY THAT ON JUNE 12, 1968, ELIGIBLE MEMBERS ABOARD THAT VESSEL BECAME ENTITLED TO AND FILED FOR FAMILY SEPARATION ALLOWANCE (FSA-S) UNDER THE PROVISIONS OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, TABLE 3-3-5, RULE 5. THAT RULE SPECIFIES THAT AN ELIGIBLE MEMBER'S ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE (FSA-II) COMMENCES ON THE DATE THE SHIP ON WHICH HE IS ABOARD DEPARTS FROM HOME PORT AND HE REMAINS IN THIS STATUS CONTINUOUSLY FOR MORE THAN 30 DAYS.

YOU SAY, ADDITIONALLY, THAT ON JULY 27, 1968, THE DELTA DEPARTED LONG BEACH EN ROUTE TO SEATTLE, WASHINGTON, FOR PARTICIPATION WITH THE SEA FAIR FLEET, VIA ALAMEDA, TO EMBARK COMMANDER SERVICE SQUADRON SEVEN AND STAFF, ARRIVING IN ALAMEDA AT 1331 ON JULY 28, 1968, AND DEPARTING AT 1750 THE SAME DAY. IT IS INDICATED THAT THE DELTA RETURNED TO ALAMEDA ON AUGUST 7, 1968.

IT IS FURTHER INDICATED THAT ON ADVICE FROM THE NAVY FINANCE OFFICE, LONG BEACH, CALIFORNIA, YOU TERMINATED THE FAMILY SEPARATION ALLOWANCE (FSA-S) CREDIT IN THE INVOLVED MEMBERS' PAY ACCOUNTS ON JULY 27, 1968. IN VIEW OF THAT ACTION, YOU REQUEST OUR DECISION AS TO WHETHER THE DELTA'S RETURN TO AND DEPARTURE FROM ALAMEDA ON JULY 28, 1968, CONSTITUTED A RETURN TO THE HOME PORT UNDER THE PROVISIONS OF TABLE 3 3-6, RULE 8, OF THE ABOVE- MENTIONED MANUAL, TERMINATING ENTITLEMENT, OR DID THE ALLOWANCE CONTINUE TO ACCRUE UNTIL DELTA'S RETURN TO ALAMEDA ON AUGUST 7, 1968. RULE 8 SPECIFIES THAT AN ELIGIBLE MEMBER'S ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE (FSA-II) WHEN HE IS ON BOARD A SHIP AWAY FROM ITS HOME PORT CONTINUES THROUGH THE DAY BEFORE THE SHIP RETURNS TO HOME PORT OR DATE OF DETACHMENT FROM THE SHIP, WHICHEVER IS EARLIER.

SECTION 427 (B) (2) 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 --

"/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; * * *"

IN 1964 THE UNITED STATES COAST GUARD REQUESTED OUR DECISION AS TO THE ENTITLEMENT OF A MEMBER TO FAMILY SEPARATION ALLOWANCE IN A CASE WHERE THE VESSEL CONCERNED DEPARTED FROM KODIAK, ALASKA, ITS HOME PORT, ON THE EVENING OF MARCH 13, 1964, FOR PATROL DUTIES SCHEDULED FOR THE PERIOD MARCH 16 TO APRIL 18, 1964, BUT PURSUANT TO SUBSEQUENTLY ISSUED ORDERS IT RETURNED TO KODIAK AT 1653 ON MARCH 31, 1964. AFTER OFF-LOADING A HELICOPTER, SPARE PARTS AND AIR CREW MEMBERS IT DEPARTED FROM KODIAK AT 1832 -- 1 HOUR AND 39 MINUTES LATER -- ON THE SAME DAY. NO LIBERTY WAS GRANTED TO CREW MEMBERS BEFORE THE VESSEL PROCEEDED ON ITS NEW MISSION AND PRIOR TO ITS RETURN TO KODIAK ON APRIL 20, 1964, THE MEMBERS BEING IN FACT SEPARATED FROM THEIR FAMILIES FOR A PERIOD OF 38 DAYS.

IN DECISION OF DECEMBER 3, 1964, 44 COMP. GEN. 324, WE POINTED OUT THAT UNDER THE PLAIN LANGUAGE OF THE STATUTE, PAYMENT OF THE ALLOWANCE UNDER CLAUSE (2) IS NOT AUTHORIZED UNLESS THE SHIP REMAINS AWAY FROM ITS HOME PORT FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS. WE STATED THAT NO EXCEPTION TO THAT REQUIREMENT IS AUTHORIZED BY THE STATUTE FOR ANY REASON AND THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE LAW TO INDICATE THAT ANY EXCEPTION TO THAT REQUIREMENT WAS CONTEMPLATED BY CONGRESS. THEREFORE WE SAID THAT THE RETURN OF A VESSEL TO ITS HOME PORT BEFORE THE EXPIRATION OF THE QUALIFYING PERIOD, NO MATTER HOW BRIEF ITS STAY, MUST BE VIEWED AS INTERRUPTING ITS ABSENCE FROM THE HOME PORT FOR PURPOSES OF THE STATUTE.

ACCORDINGLY, WE CONCLUDED THAT SINCE THE VESSEL RETURNED TO ITS HOME PORT WITHIN 3 WEEKS OF THE DATE IT DEPARTED THEREFROM, PAYMENT OF THE FAMILY SEPARATION ALLOWANCE TO THE MEMBER INVOLVED AND OTHER MEMBERS OF THE CREW WAS NOT AUTHORIZED.

THE CONCLUSION IN THE DECISION OF DECEMBER 3, 1964, IS FOR EQUAL APPLICATION IN THE CIRCUMSTANCES PERTAINING TO DELTA'S RETURN TO ALAMEDA ON JULY 28, 1968, THE RETURN OPERATING TO TERMINATE ENTITLEMENT UNDER SECTION 427 (B) (2) OF THE STATUTE. UNDER THE GOVERNING LAW AND IMPLEMENTING REGULATIONS (RULE 8, MENTIONED ABOVE), THE ENTITLEMENT OF THE VARIOUS MEMBERS UNDER THE COMMAND OF THE DELTA TO THE ALLOWANCE WHICH COMMENCED ON JUNE 12, 1968, MUST BE VIEWED AS HAVING TERMINATED ON JULY 27, 1968, THE DAY PRECEDING THE DATE THE DELTA RETURNED TO ALAMEDA, ITS HOME PORT, EVEN THOUGH IT REMAINED IN THAT PORT ONLY FOR A FEW HOURS BEFORE DEPARTING ON ITS MISSION. ACCORDINGLY, NO AUTHORITY EXISTS FOR CREDITING THE PAY ACCOUNTS OF THE MEMBERS INVOLVED WITH FAMILY SEPARATION ALLOWANCE SUBSEQUENT TO JULY 27, 1968.