B-178915, MAR 8, 1974

B-178915, MAR 8, 1974

PRIOR DISALLOWANCE OF MEMBER'S CLAIM FOR FAMILY SEPARATION ALLOWANCE, TYPE ONE, IS AFFIRMED AS SEPARATION FROM CHILDREN IN CUSTODY OF DIVORCED WIFE AS PROVIDED IN DIVORCE DECREE DOES NOT RESULT FROM MILITARY ORDERS, NOTWITHSTANDING FACT THAT MEMBER'S TOUR OF DUTY WAS CHANGED FROM "WITH DEPENDENTS" TO "ALL OTHERS". SEE B-161781, AUGUST 9, 1967, AND 49 COMP. GEN. 867 (1970).

TO SGT 1/C RODNEY L.J. GAGNON:

YOUR LETTER DATED FEBRUARY 13, 1973, REQUESTED RECONSIDERATION OF OUR TRANSPORTATION AND CLAIMS DIVISION SETTLEMENT OF JANUARY 17, 1973, IN WHICH YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE (FSA), TYPE I, FOR THE PERIOD OCTOBER 1, 1970, TO THE PRESENT WAS DISALLOWED.

THE RECORD SHOWS THAT ON MAY 14, 1970, YOU WERE ASSIGNED TO BANGKOK, THAILAND, EFFECTIVE OCTOBER 1, 1970. THE ORDERS STATED THAT DEPENDENT TRAVEL WAS AUTHORIZED EVEN THOUGH YOU HAD BEEN DIVORCED SINCE DECEMBER 1966. ON NOVEMBER 26, 1971, YOU REQUESTED THAT YOUR RECORDS BE AMENDED TO READ "ALL OTHERS TOUR" AND THIS REQUEST WAS GRANTED ON JANUARY 20, 1972, WITH THE NOTATION THAT ENTITLEMENT TO FSA COULD NOT BE MADE RETROACTIVE TO THE DATE OF THE APPROVAL OF YOUR REQUEST. YOU HAVE STATED THAT A FSA-I PAYMENT WAS MADE TO YOU IN FEBRUARY 1972, FOR THE PERIOD DECEMBER 8, 1971, THROUGH FEBRUARY 28, 1972, BUT THAT IT WAS COLLECTED FROM YOU IN MARCH 1972, BECAUSE OF CHANGES IN THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL WHICH REFLECTED PRIOR DECISIONS OF THIS OFFICE. THE SETTLEMENT OF JANUARY 17, 1973, UPHELD THIS ACTION.

IN YOUR LETTER YOU SAY, AMONG OTHER THINGS, THAT DIVORCED MEMBERS SHOULD RECEIVE FSA-I IN VIEW OF THE FINANCIAL BURDENS IMPOSED BY HIGH ALIMONY PAYMENTS, AND YOU THEREFORE REQUEST THAT SUCH PAYMENTS BE AUTHORIZED.

SECTION 427(A) OF TITLE 37, U.S.C. AUTHORIZES THE PAYMENT OF A FAMILY SEPARATION ALLOWANCE TO A MEMBER WITH DEPENDENTS WHO IS ON PERMANENT DUTY OUTSIDE OF THE UNITED STATES OR IN ALASKA 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; AND

"(2) QUARTERS OF THE UNITED STATES OR A HOUSING FACILITY UNDER THE JURISDICTION OF A UNIFORMED SERVICE ARE NOT AVAILABLE FOR ASSIGNMENT TO HIM."

IN DECISION B-161781, AUGUST 9, 1967, WE SAID AS FOLLOWS:

"THE LEGISLATIVE HISTORY PERTAINING TO FAMILY SEPARATION ALLOWANCE DISCLOSES THAT THE PURPOSE OF THE ALLOWANCE AUTHORIZED BY SECTION 427(A), TITLE 37 U.S.C., IS TO COMPENSATE A MEMBER FOR THE EXPENSE OF PROCURING PUBLIC QUARTERS FOR HIMSELF DURING PERIODS OF ENFORCED SEPARATION FROM HIS DEPENDENTS, WHERE GOVERNMENT QUARTERS ARE NOT AVAILABLE FOR ASSIGNMENT TO HIM AT HIS OVERSEAS STATION. ALTHOUGH IT IS NOT NECESSARY THAT A MEMBER AND HIS DEPENDENTS RESIDE TOGETHER IMMEDIATELY PRIOR TO HIS TRANSFER OVERSEAS IN ORDER TO QUALIFY FOR SUCH ALLOWANCE, IT IS OUR VIEW THAT THE ALLOWANCE IS NOT AUTHORIZED IF THE FAMILY SEPARATION DOES NOT RESULT FROM MILITARY ORDERS. A FAMILY SEPARATION WHICH IS THE RESULT OF A DIVORCE DECREE WHICH GRANTS CUSTODY OF A MEMBER'S MINOR CHILDREN TO HIS DIVORCED WIFE, DOES NOT MEET THE REQUIREMENT THAT THE MEMBER IS SEPARATED FROM HIS DEPENDENTS AS A RESULT OF MILITARY ORDERS. SEE 43 COMP. GEN. 332-350; 44 ID. 572 574."

SEE ALSO 49 COMP. GEN. 867, (1970).

IN THE PRESENT CASE, THE RECORD SHOWS THAT YOU WERE DIVORCED FROM YOUR WIFE IN DECEMBER 1966, AND THAT YOUR FORMER WIFE WAS GRANTED CUSTODY OF YOUR CHILDREN. CONSEQUENTLY, YOUR SEPARATION FROM YOUR DEPENDENTS IS DUE TO THE JUDICIAL DECREE AND NOT DUE TO MILITARY ORDERS. THEREFORE, YOU ARE NOT ENTITLED TO THE BENEFITS PROVIDED UNDER 37 U.S.C. 427(A).

ACCORDINGLY, THE PRIOR DENIAL OF YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE, TYPE I, IS AFFIRMED.