B-172405, AUG 23, 1971, 51 COMP GEN 116

B-172405: Aug 23, 1971

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IS ALSO A MEMBER OF THE SERVICE ON ACTIVE DUTY IS NOT ENTITLED TO THE FAMILY SEPARATION ALLOWANCE (FSA-II) PROVIDED BY 37 U.S.C. 427(B) BECAUSE. NOTWITHSTANDING THE ELIMINATION FROM THE SECTION PURSUANT TO PUBLIC LAW 91-533 OF THE QUALIFYING LANGUAGE FOR ENTITLEMENT TO FSA-II OF THE PHRASE "WHO IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS. IS ALSO ENTITLED TO ACTIVE PAY IS FOR APPLICATION IN DETERMINING ENTITLEMENT TO THE FAMILY SEPARATION ALLOWANCE. A MEMBER OF THE UNIFORMED SERVICES (WITH NO OTHER DEPENDENTS) IS ENTITLED TO A FAMILY SEPARATION ALLOWANCE (FSA-II) ON ACCOUNT OF A SPOUSE WHO IS A FEMALE MEMBER ON ACTIVE DUTY. OR E-4 (4 YEARS' OR LESS SERVICE)) WHO IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS IS ENTITLED TO A MONTHLY ALLOWANCE EQUAL TO $30 IF *** .

B-172405, AUG 23, 1971, 51 COMP GEN 116

FAMILY ALLOWANCES - SEPARATION - TYPE 2 - WIFE ALSO MEMBER OF UNIFORMED SERVICES A MEMBER OF THE UNIFORMED SERVICES WITH NO DEPENDENTS, AS HIS WIFE, HIS ONLY DEPENDENT, IS ALSO A MEMBER OF THE SERVICE ON ACTIVE DUTY IS NOT ENTITLED TO THE FAMILY SEPARATION ALLOWANCE (FSA-II) PROVIDED BY 37 U.S.C. 427(B) BECAUSE, NOTWITHSTANDING THE ELIMINATION FROM THE SECTION PURSUANT TO PUBLIC LAW 91-533 OF THE QUALIFYING LANGUAGE FOR ENTITLEMENT TO FSA-II OF THE PHRASE "WHO IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS," THE PROHIBITION IN 37 U.S.C. 420 AGAINST INCREASING A MEMBER'S ALLOWANCE ON ACCOUNT OF A DEPENDENT ENTITLED TO BASIC PAY UNDER 37 U.S.C. 204 PRECLUDES PAYMENT OF THE FSA-II, SINCE IN VIEW OF THE SIMILARITY OF THE FAMILY SEPARATION ALLOWANCE TO THE BASIC ALLOWANCE FOR QUARTERS, THE RULES DENYING INCREASED QUARTERS ALLOWANCE TO A MEMBER WHOSE SPOUSE, HIS SOLE DEPENDENT, IS ALSO ENTITLED TO ACTIVE PAY IS FOR APPLICATION IN DETERMINING ENTITLEMENT TO THE FAMILY SEPARATION ALLOWANCE.

TO THE SECRETARY OF DEFENSE, AUGUST 23, 1971:

BY LETTER DATED MARCH 25, 1971, WITH ENCLOSURE, THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTED A DECISION AS TO WHETHER UNDER 37 U.S.C. 427(B), AS AMENDED BY PUBLIC LAW 91-533, APPROVED DECEMBER 7, 1970, 84 STAT. 1392, A MEMBER OF THE UNIFORMED SERVICES (WITH NO OTHER DEPENDENTS) IS ENTITLED TO A FAMILY SEPARATION ALLOWANCE (FSA-II) ON ACCOUNT OF A SPOUSE WHO IS A FEMALE MEMBER ON ACTIVE DUTY.

SECTION 427(B) OF TITLE 37, U.S. CODE, PRIOR TO AMENDMENT PROVIDED, IN PERTINENT PART, AS FOLLOWS:

EXCEPT IN TIME OF WAR OR OF 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 EQUAL TO $30 IF *** .

THAT PROVISION OF LAW WAS AMENDED BY PUBLIC LAW 91-533 BY STRIKING OUT THE WORDS "WHO IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS."

ALSO FOR CONSIDERATION IN THIS CASE IS 37 U.S.C. 420 WHICH PROVIDES AS FOLLOWS:

A MEMBER OF A UNIFORMED SERVICE MAY NOT BE PAID AN INCREASED ALLOWANCE UNDER THIS CHAPTER, ON ACCOUNT OF A DEPENDENT, FOR ANY PERIOD DURING WHICH THAT DEPENDENT IS ENTITLED TO BASIC PAY UNDER SECTION 204 OF THIS TITLE.

IT IS STATED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 450 THAT PRIOR TO THE AMENDMENT OF 37 U.S.C. 427(B) IT WAS DETERMINED THAT A MEMBER OF A UNIFORMED SERVICE IN A QUALIFYING GRADE AND WHOSE SOLE DEPENDENT IS A FEMALE MEMBER ON ACTIVE DUTY WAS NOT ENTITLED TO THE FAMILY SEPARATION ALLOWANCE (FSA-II) BECAUSE HE DID NOT MEET THE REQUIREMENT OF BEING "ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS" AS PRESCRIBED IN THAT PROVISION OF LAW. IT IS STATED FURTHER WHILE THIS REQUIREMENT WAS ELIMINATED BY PUBLIC LAW 91 533 WHICH AMENDED 37 U.S.C. 427(B) BY STRIKING OUT THE WORDS "WHO IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS" THERE REMAINS A QUESTION AS TO WHETHER THE PROVISIONS OF 37 U.S.C. 420 CAN BE INTERPRETED TO PRECLUDE THE PAYMENT OF THE ALLOWANCE TO SUCH A MEMBER. IN THIS CONNECTION, THE QUESTION WAS RAISED AS TO WHETHER THE PROVISIONS OF 37 U.S.C. 420 APPLY SPECIFICALLY TO THE INCREASED ALLOWANCE FOR QUARTERS FOR DEPENDENTS PROVIDED IN 37 U.S.C. 403(A) OR TO ALL ALLOWANCES LISTED UNDER CHAPTER 7 OF TITLE 37, UNITED STATES CODE.

PRIOR TO THE AMENDMENT OF 37 U.S.C. 427(B) A MEMBER OF A UNIFORMED SERVICE OTHERWISE ELIGIBLE TO RECEIVE THE FAMILY SEPARATION ALLOWANCE COULD NOT RECEIVE SUCH ALLOWANCE FOR ANY PERIOD HIS DEPENDENT OCCUPIED GOVERNMENT QUARTERS. DURING SUCH PERIOD THE MEMBER WAS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITH A DEPENDENT AND, THEREFORE, HE WAS PRECLUDED BY THE SPECIFIC REQUIREMENTS OF 37 U.S.C. 427(B) FROM RECEIVING THE FAMILY SEPARATION ALLOWANCE AUTHORIZED BY THAT SECTION. COMP. GEN. 783 (1964).

IN THE REPORT OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, H. REPT. NO. 91-663, 91ST CONGRESS, 1ST SESS. (1969), P. 1, TO ACCOMPANY H. R. 386 WHICH LATER BECAME PUBLIC LAW 91-533, IT IS STATED AS FOLLOWS:

THE PURPOSE OF H. R. 386 IS TO EXTEND THE PAYMENT OF A FAMILY SEPARATION ALLOWANCE ($30 A MONTH) TO A MEMBER OF A UNIFORMED SERVICE WHOSE DEPENDENTS OCCUPY GOVERNMENT QUARTERS, AND WHO IS OTHERWISE ENTITLED TO A FAMILY SEPARATION ALLOWANCE.

WE FIND NOTHING IN THE ABOVE REPORT OR THE LEGISLATIVE HEARINGS ON THE BILL TO SHOW THAT BY THE PROPOSED AMENDMENT OF THE THEN EXISTING LAW THE CONGRESS INTENDED TO AUTHORIZE THE PAYMENT OF THE ALLOWANCE UNDER SECTION 427(B) TO A MEMBER WHOSE SOLE DEPENDENT IS A MEMBER OF A UNIFORMED SERVICE AND RECEIVING ACTIVE DUTY PAY. UNDER SECTION 427(B) PRIOR TO ITS AMENDMENT SUCH MEMBER WAS NOT ENTITLED TO THE FAMILY SEPARATION ALLOWANCE REGARDLESS OF WHETHER HIS DEPENDENT RESIDED IN GOVERNMENT QUARTERS OR OFF BASE SINCE HE WAS NOT ENTITLED TO A QUARTERS ALLOWANCE ON ACCOUNT OF THE DEPENDENT. WE BELIEVE THAT THE AMENDMENT WOULD HAVE CONTAINED APPROPRIATE WORDING SPECIFICALLY PROVIDING FOR PAYMENT OF THE ALLOWANCE ON ACCOUNT OF A DEPENDENT ENTITLED TO ACTIVE DUTY PAY IF THAT HAD BEEN THE INTENTION.

SECTION 420 OF TITLE 37, U.S.C. STEMS FROM A PROVISO IN THE DEFINITION OF A DEPENDENT IN SECTION 102(G) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, WHICH PROVIDED THAT FOR THE PURPOSES OF THAT ACT -

*** NO MEMBER CLAIMING A DEPENDENT AS DEFINED IN THIS SUBSECTION MAY BE PAID INCREASED ALLOWANCES ON ACCOUNT OF SUCH DEPENDENT FOR ANY PERIOD DURING WHICH SUCH DEPENDENT IS ENTITLED TO RECEIVE BASIC PAY FOR THE PERFORMANCE OF DUTY AS DEFINED IN SECTION 201(E) OF THIS ACT.

SUCH PROVISION HAS BEEN HELD APPLICABLE TO THE PAYMENT OF QUARTERS ALLOWANCE SO AS TO DENY A MALE MEMBER AN INCREASED QUARTERS ALLOWANCE ON ACCOUNT OF HIS WIFE, HIS SOLE DEPENDENT, WHO WAS ALSO ENTITLED TO ACTIVE DUTY PAY. 41 COMP. GEN. 334 (1961).

WHILE THE MOST FREQUENT APPLICATION OF THE RESTRICTION IN THE DEFINITION OF DEPENDENT IN THE 1949 ACT PERHAPS HAS BEEN, WITH RESPECT TO ENTITLEMENT TO A QUARTERS ALLOWANCE, THE DEFINITION WAS NOT SO RESTRICTED BY ITS LANGUAGE BUT WAS STATED TO APPLY GENERALLY TO THE PAYMENT OF INCREASED ALLOWANCES AUTHORIZED BY THAT ACT.

LIKEWISE, THE CODIFICATION OF SUCH RESTRICTION CONTAINED IN SECTION 420 IS NOT LIMITED TO THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS UNDER SECTION 403, BUT RELATES TO "AN INCREASED ALLOWANCE UNDER THIS CHAPTER" (CHAPTER 7 - ALLOWANCES).

IN THIS CONNECTION, PARAGRAPH M4308, VOL. I, JOINT TRAVEL REGULATIONS, SPECIFICALLY APPLIES SUCH RESTRICTION, IN ACCORDANCE WITH 38 COMP. GEN. 568 (1959), IN DETERMINING ENTITLEMENT TO OVERSEAS STATION ALLOWANCES UNDER CHAPTER 4, PART G, OF THOSE REGULATIONS WHEN A HUSBAND AND WIFE ARE BOTH MEMBERS ON ACTIVE DUTY.

IT HAS BEEN OUR VIEW THAT FAMILY SEPARATION ALLOWANCES UNDER SECTION 427(A), AS WELL AS UNDER 427(B), ARE, IN EFFECT, ADDITIONAL QUARTERS ALLOWANCES AUTHORIZED UNDER SPECIFIED CONDITIONS AND, THEREFORE, IN SIMILAR CIRCUMSTANCES WE HAVE BEEN GUIDED BY THE RULES APPLICABLE TO PAYMENT OF BASIC ALLOWANCE FOR QUARTERS IN DETERMINING ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE. SEE, FOR EXAMPLE, 43 COMP. GEN. 332 (1963), ANSWERS TO QUESTIONS 1, 15, 19, 25 AND 26; 44 COMP. GEN. 434 (1965); ID. 638 (1965); 47 COMP. GEN. 355 (1968); ID. 788 (1968).

THEREFORE, IN VIEW OF THE SIMILARITY OF FAMILY SEPARATION ALLOWANCE UNDER SECTION 427(B) TO BASIC ALLOWANCE FOR QUARTERS, WE ARE OF THE OPINION THAT THE PROVISIONS OF SECTION 420 ARE APPLICABLE TO THAT ALLOWANCE ALSO, AND THAT A MEMBER IS NOT ENTITLED TO AN ALLOWANCE UNDER SECTION 427(B) IF HIS ONLY DEPENDENT IS HIS WIFE WHO IS ALSO ENTITLED TO ACTIVE DUTY PAY.

IT DOES NOT APPEAR NECESSARY AT THIS TIME TO CONSIDER THE SPECIFIC APPLICABILITY OF SECTION 420 TO OTHER ALLOWANCES AUTHORIZED IN CHAPTER 7 OF TITLE 37, UNITED STATES CODE.