B-175333, MAY 15, 1972

B-175333, MAY 15, 1972

MILITARY PERSONNEL - FAMILY SEPARATION ALLOWANCE - ENTITLEMENT CONCERNING THE ENTITLEMENT OF MICHAEL J. COUTURIER, DK2, USN, TO FAMILY SEPARATION ALLOWANCE UNDER THE PROVISIONS OF 37 U.S.C. 427(B) WHILE SERVING AT THE CONSTRUCTION BATTALION CENTER, BIEN HOA, VIETNAM. SINCE CLAIMANT'S STATION IS RESTRICTED, IN SPITE OF THE FACT THAT HIS WIFE'S RESIDENCE IN SAIGON IS LESS THAN 50 MILES AWAY, HE MAY BE CONSIDERED SEPARATED WITHIN THE MEANING OF PARAGRAPH 30304A(1). DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, FOR PURPOSES OF ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE. ACCORDINGLY, THE VOUCHER MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.

TO U.S. NAVAL CONSTRUCTION BATTALION MAINTENANCE UNIT 302:

WE REFER FURTHER TO YOUR LETTER DATED OCTOBER 14, 1971, WITH ATTACHMENTS, FORWARDED HERE BY ENDORSEMENT OF THE DIRECTOR, NAVY MILITARY PAY SYSTEM (DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE NUMBER DO-N- 1147), IN WHICH YOU REQUEST AN ADVANCE DECISION AS TO THE ELIGIBILITY OF MICHAEL J. COUTURIER, DK2, USN, TO RECEIVE FAMILY SEPARATION ALLOWANCE, TYPE II.

WHILE SERVING AT THE CONSTRUCTION BATTALION CENTER, BIEN HOA, REPUBLIC OF VIETNAM, PETTY OFFICER COUTURIER (PAY GRADE E-5) MARRIED A VIETNAMESE NATIONAL, MISS LUONG THI VAN, ON JULY 30, 1971. THEREAFTER, THE MEMBER CONTINUED TO RESIDE AT BIEN HOA, A RESTRICTED STATION, AND HIS WIFE LIVED IN THE CITY OF SAIGON WHICH IS APPROXIMATELY 35 MILES FROM HER HUSBAND'S STATION. YOU INDICATE THAT LOCAL MILITARY REGULATIONS PROHIBIT THE MEMBER FROM RESIDING WITH OR NEAR HIS WIFE.

THE MEMBER HAS MADE APPLICATION FOR FAMILY SEPARATION ALLOWANCE (FSA), TYPE II (RESTRICTED STATION), EFFECTIVE THE DATE OF HIS MARRIAGE. HOWEVER, YOU ARE DOUBTFUL AS TO THE LEGALITY OF CREDITING HIS PAY ACCOUNT WITH SUCH ALLOWANCE IN VIEW OF THE PROVISIONS OF PARAGRAPH 30304, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL (DODPM).

SECTION 427(B) OF TITLE 37, U.S. CODE, AS AMENDED BY PUB. L. 91-533, DECEMBER 7, 1970, PROVIDES 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)) IS ENTITLED TO A MONTHLY ALLOWANCE EQUAL TO $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; *** "

IN ACCORD WITH THIS SECTION, PAR. 30304A(1), DODPM, INDICATES THAT IN ADDITION TO MEETING ALL GENERAL REQUIREMENTS FOR THE ALLOWANCE, A MEMBER NOT ABOARD SHIP OR ON TEMPORARY OR TEMPORARY ADDITIONAL DUTY MUST MEET THE CONDITIONS THAT THE TRANSPORTATION OF HIS DEPENDENTS IS NOT AUTHORIZED AT GOVERNMENT EXPENSE TO HIS STATION AND HIS DEPENDENTS DO NOT LIVE AT OR NEAR HIS PERMANENT DUTY STATION.

PAR. 30313, DODPM, PROVIDES IN PERTINENT PART, AS FOLLOWS:

"FSA DOES NOT ACCRUE TO A MEMBER IF ALL OF HIS DEPENDENTS RESIDE AT OR NEAR HIS DUTY STATION. *** CONSIDER DEPENDENTS AS RESIDING NEAR A DUTY STATION IF THEY LIVE WITHIN A REASONABLE COMMUTING DISTANCE OF THAT STATION, WHETHER OR NOT THE MEMBER COMMUTES DAILY. A DISTANCE OF 50 MILES, ONE WAY, IS NORMALLY CONSIDERED TO BE WITHIN REASONABLE COMMUTING DISTANCE OF A STATION; HOWEVER, THE 50-MILE RULE IS NOT INFLEXIBLE. UNUSUAL CONDITIONS MAY PERMIT A DETERMINATION THAT DEPENDENTS DO NOT LIVE WITHIN A REASONABLE COMMUTING DISTANCE EVEN THOUGH THE DISTANCE INVOLVED IS LESS THAN 50 MILES ONE WAY. *** "

INSTRUCTION 1050.4B, JUNE 7, 1971, U.S. NAVAL FORCES, VIETNAM, AND NAVAL ADVISORY GROUP, MILITARY ASSISTANCE COMMAND, VIETNAM, PROVIDES THAT LEAVE OR LIBERTY TO SAIGON/CHOLON/TAN SON NHUT WILL NOT BE AUTHORIZED FOR PERSONNEL ASSIGNED TO UNITS OUTSIDE THAT AREA (PAR. 3A (6)), AND THAT OVERNIGHT LIBERTY WILL NOT BE GRANTED (PAR. 4B). INSTRUCTION 5401.1, SEPTEMBER 1, 1971, CONSTRUCTION BATTALION CENTER, BIEN HOA, PROVIDES THAT LIBERTY OTHER THAN IN THE BIEN HOA MILITARY COMPLEX IS NOT AUTHORIZED EXCEPT IN SPECIAL SITUATIONS TO BE PROMULGATED BY THE COMMAND (PAR. C.1).

IN 44 COMP. GEN. 638 (1965) THE MEMBER WAS ASSIGNED TO A RESTRICTED STATION IN ALASKA WHICH WAS LESS THAN 50 MILES FROM HIS DEPENDENTS' RESIDENCE; HOWEVER, THE STATION'S LOCATION PRECLUDED DAILY COMMUTATION, AND THE MEMBER NORMALLY WAS GRANTED A THREE-DAY PASS NO OFTENER THAN ONCE A MONTH. SINCE THE TIME THE MEMBER WAS ABLE TO SPEND WITH HIS FAMILY APPEARED TO BE SUBSTANTIALLY THE SAME AS IF THEY RESIDED IN THE GENERAL AREA BUT MORE THAN 50 MILES FROM THE STATION, WE CONCLUDED THAT THERE WAS IN FACT AN ENFORCED SEPARATION BY REASON OF THE MEMBER'S DUTY ASSIGNMENT. THEREFORE, ALLOWANCE WAS AUTHORIZED AS THE DEPENDENTS WERE NOT REGARDED AS RESIDING NEAR THE MEMBER'S DUTY STATION WITHIN THE CONTEMPLATION OF THE RESTRICTION IN 37 U.S.C. 427(B). SEE ALSO DECISION B-165259, OCTOBER 1, 1968, COPY ENCLOSED, IN WHICH WE AUTHORIZED ALLOWANCES FOR AN ARMY MEMBER STATIONED IN KOREA, WHOSE DEPENDENTS RESIDED 33 MILES AWAY AND WHERE HE DID NOT COMMUTE BECAUSE OF THE UNUSUAL AMOUNT OF TIME REQUIRED FOR TRAVEL TO THEIR RESIDENCE.

IN THE PRESENT CASE, BY VIRTUE OF MILITARY REGULATIONS PETTY OFFICER COUTURIER IS AUTHORIZED LIBERTY ONLY IN THE BIEN HOA MILITARY COMPLEX. OVERNIGHT LIBERTY MAY BE GRANTED, AND HE IS FORBIDDEN ENTRY INTO THE SAIGON AREA FOR LEAVE OR LIBERTY PURPOSES. SINCE HIS STATION IS RESTRICTED, AND HIS WIFE LIVES IN SAIGON, THE RESULT IS THE ENFORCED SEPARATION OF THE MEMBER FROM HIS WIFE DESPITE THE FACT THAT THEY RESIDE LESS THAN 50 MILES FROM EACH OTHER. UNDER THESE UNUSUAL CONDITIONS WE DO NOT CONSIDER THAT THE MEMBER'S WIFE RESIDES AT OR NEAR HIS DUTY STATION WITHIN THE CONTEMPLATION OF THE REGULATIONS SO AS TO BAR THE ALLOWANCE IN QUESTION.

CONSEQUENTLY, PAYMENT OF FAMILY SEPARATION ALLOWANCE, TYPE II, TO MICHAEL J. COUTURIER, DK2, USN, IS AUTHORIZED IF OTHERWISE CORRECT.

THE STATEMENT TO SUBSTANTIATE PAYMENT OF THE ALLOWANCE AND SUPPORTING PAPERS ARE RETURNED HEREWITH.