B-197730.OM, OCT 30, 1980

B-197730.OM, OCT 30, 1980

SUBJECT: LIEUTENANT COLONEL ROBERT B. HILL, USA - B-197730-O.M.

ASSOCIATE DIRECTOR, FGMSD - CLAIMS GROUP (ROOM 5858):

RETURNED HEREWITH IS CLAIM FILE Z-2813128, PERTAINING TO AN APPEAL BY LIEUTENANT COLONEL ROBERT B. HILL, USA, FROM YOUR DETERMINATION WHICH DENIED HIS CLAIM FOR AMOUNTS COLLECTED FROM HIS PAY ACCOUNT FOR OVERSEAS STATION ALLOWANCES AND FAMILY SEPARATION ALLOWANCES DURING CERTAIN PERIODS IN 1976 AND 1977 WHILE HE WAS SERVING AN UNACCOMPANIED TOUR OF DUTY IN KOREA.

LIEUTENANT COLONEL ROBERT B. HILL, THEN A MAJOR IN THE U.S. ARMY MEDICAL CORPS, WAS ASSIGNED TO KOREA BY SPECIAL ORDER 103 DATED MAY 28, 1976, WITH A REPORTING DATE OF AUGUST 5, 1976. HE DEPARTED KOREA ON JULY 30, 1977. HIS LAST DUTY ASSIGNMENT BEFORE BEING ASSIGNED TO KOREA WAS TRIPLER ARMY HOSPITAL, HAWAII. THE ASSIGNMENT TO KOREA WAS A RESTRICTED (UNACCOMPANIED) TOUR. THAT IS, HE WAS NOT AUTHORIZED TO BRING HIS DEPENDENT TO KOREA WITH HIM UNDER ARMY SPONSORSHIP. WHILE IN KOREA HE WAS NOT PROVIDED WITH GOVERNMENT HOUSING. HE INDICATES THAT SOME OF HIS MEALS WERE PURCHASED AT THE HOSPITAL WHILE HE WAS ON DUTY. HE ALSO INDICATES THAT WHILE IN HAWAII HE PURCHASED A HOME LOCATED AT 654 KAIEMI STREET, KAILUA, HAWAII (ISLAND OF OAHU), WHICH WAS NOT SOLD UNTIL SEPTEMBER 1977. COLONEL HILL ASSERTS THAT WHILE HE WAS IN KOREA A HOUSEHOLD WAS MAINTAINED AT THAT ADDRESS.

COLONEL HILL STATES THAT HIS WIFE TRAVELED WITH HIM TO KOREA ON AUGUST 5, 1976, BUT RETURNED TO THE HOME IN HAWAII ON SEPTEMBER 10, 1976, AND SHE SUBSEQUENTLY MADE SEVERAL OTHER TRIPS TO KOREA AS DETAILED IN HIS STATEMENT DATED SEPTEMBER 1, 1978.

THE DATES WHEN MRS. HILL WAS IN KOREA AND THE LENGTH OF STAY, AS PROVIDED BY COLONEL HILL, ARE AS FOLLOWS:

AUGUST 5, 1976 - SEPTEMBER 10, 1976 35 DAYS DECEMBER 20, 1976 - JANUARY 5, 1977 16 DAYS JANUARY 25, 1977 - FEBRUARY 4, 1977 10 DAYS MARCH 3, 1977 - MARCH 21, 1977 18 DAYS APRIL 8, 1977 - MAY 16, 1977 38 DAYS JUNE 3, 1977 - JUNE 28, 1977 25 DAYS

COLONEL HILL ALSO STATES THAT FOLLOWING THE FIRST THREE TRIPS MRS. HILL RETURNED TO THE RESIDENCE IN HAWAII. FROM MARCH 3, 1977, UNTIL JUNE 28, 1977, A TOTAL OF 117 DAYS, MRS. HILL REMAINED IN THE ORIENT WITHOUT RETURNING TO THE RESIDENCE IN HAWAII UNTIL THE LAST OF JUNE 1977, ALTHOUGH ONLY PORTIONS OF THAT TIME WAS SPENT IN KOREA.

BY DD FORM 139, DATED JULY 11, 1977, THE ARMY FINANCE AND ACCOUNTING OFFICE, KOREA, ORDERED COLONEL HILL'S PAY RECORD TO BE CHARGED A TOTAL OF $2,680.29. THE ONLY EXPLANATION GIVEN ON THAT FORM WAS THAT THE SERVICE MEMBER WAS NOT AUTHORIZED FAMILY SEPARATION ALLOWANCE, TYPES I AND II (FSA I AND FSA II) AND HOUSING AND COST-OF-LIVING ALLOWANCES (HOLA AND COLA) THROUGH THE PERIOD MARCH 3 TO JUNE 30, 1977, AND THAT HE WAS NOT AUTHORIZED FSA II, HOLA AND COLA THROUGH THE PERIOD AUGUST 5 TO SEPTEMBER 10, 1976.

APPARENTLY, THE COLLECTION ACTION WAS TAKEN AS A RESULT OF A RECOMMENDATION BY THE ADJUTANT, ARMY MEDICAL COMMAND, KOREA, IN A LETTER TO THE FINANCE AND ACCOUNTING OFFICE DATED JUNE 14, 1977. IN THAT LETTER THE ADJUTANT STATED THAT THE MEMBER'S WIFE HAD BEEN RESIDING WITH HIM IN KOREA FOR MOST OF THE TIME HE HAD BEEN ASSIGNED TO THAT COMMAND. THEREFORE, IT WAS RECOMMENDED THAT REVIEW AND ACTION, IF APPROPRIATE, BE TAKEN CONCERNING THE MEMBER'S RECEIPT OF STATION ALLOWANCES AND FAMILY SEPARATION ALLOWANCES. IT WAS NOTED THAT THE MEMBER CLAIMED THE ALLOWANCES ON THE BASIS THAT HE CONTINUED TO MAINTAIN A HOUSEHOLD IN HAWAII.

COLONEL HILL APPARENTLY MADE APPLICATION FOR "ARREARS OF PAY," (DD FORM 827) TO RECLAIM THE AMOUNT COLLECTED FROM HIM. HIS FIRST CLAIM WAS LOST. HIS SECOND CLAIM, MADE IN SEPTEMBER 1978, WAS FORWARDED TO THE CLAIMS DIVISION BY THE ARMY WITH A STATEMENT THAT THEY HAD BEEN UNABLE TO OBTAIN JUSTIFICATION FOR THE COLLECTION. IN A SETTLEMENT DATED SEPTEMBER 20, 1979, HIS CLAIM WAS DENIED ON THE BASIS THAT THERE WAS NOT SUFFICIENT FACTUAL INFORMATION AVAILABLE TO ESTABLISH CLEARLY THAT THE AMOUNT CLAIMED WAS INCORRECTLY COLLECTED FROM HIM.

COPIES OF THE LEAVE AND EARNINGS STATEMENTS (LES) FOR THE PERIOD AUGUST 1976 THROUGH SEPTEMBER 1977 FOR THE MEMBER HAVE BEEN OBTAINED FROM THE ARMY FINANCE AND ACCOUNTING CENTER. THESE STATEMENTS REFLECT THAT THE OVERSEAS STATION ALLOWANCES (HOLA AND COLA) AND FSA I AND II WERE PAID DURING THE PERIOD HE WAS IN KOREA. ALSO OBTAINED FROM THE ARMY IS A COPY OF THE ADJUTANT'S LETTER DATED JUNE 14, 1977, MENTIONED ABOVE, CONCERNING THE POSSIBLE IRREGULARITIES IN HIS PAY BECAUSE OF THE PRESENCE OF HIS WIFE IN KOREA AND RECOMMENDING A REVIEW OF THE MATTER. THERE IS NOTHING AVAILABLE TO INDICATE THAT ANY REVIEW OR INVESTIGATION WAS CONDUCTED. INQUIRIES MADE OF THE ARMY INSPECTOR GENERAL (IG) AND THE CRIMINAL INVESTIGATIVE DIVISION (CID) FAILED TO ESTABLISH THAT ANY INVESTIGATION WAS EVER MADE.

OVERSEAS STATION ALLOWANCES

SECTION 405 OF TITLE 37 OF THE U.S.C. (1976) PROVIDES THAT, WITHOUT REGARD TO THE MONETARY LIMITATIONS OF THAT TITLE, SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT OF PER DIEM, CONSIDERING ALL ELEMENTS OF THE COST OF LIVING TO MEMBERS OF THE UNIFORMED SERVICES UNDER THEIR JURISDICTION AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES, TO SUCH A MEMBER WHO IS ON DUTY OUTSIDE THE UNITED STATES, OR IN HAWAII, OR ALASKA, WHETHER OR NOT HE IS IN A TRAVEL STATUS, EXCEPT THAT DEPENDENTS MAY NOT BE CONSIDERED IN DETERMINING THE PER DIEM ALLOWANCE FOR A MEMBER IN A TRAVEL STATUS. THE HOUSING ALLOWANCE AND COST-OF-LIVING ALLOWANCE PORTIONS OF THE PER DIEM MAY BE PRESCRIBED INDEPENDENTLY OF EACH OTHER AND WITHOUT REGARD TO THE ELEMENTS OF COST OF LIVING USED IN COMPUTING EACH OTHER.

REGULATIONS ISSUED PURSUANT TO 37 U.S.C. SEC. 405 ARE CONTAINED IN PART G, VOLUME 1 OF THE JOINT TRAVEL REGULATIONS (1 JTR), PARAGRAPH M4301-1 OF WHICH PROVIDES THAT HOUSING AND COST-OF-LIVING ALLOWANCES ARE AUTHORIZED FOR THE PURPOSE OF DEFRAYING THE AVERAGE EXCESS COSTS EXPERIENCED BY MEMBERS ON PERMANENT DUTY AT PLACES OUTSIDE THE UNITED STATES AND ARE IN ADDITION TO BASIC ALLOWANCE FOR QUARTERS AND SUBSISTENCE.

UNDER THE PROVISIONS OF PARAGRAPH M4301-3G(1), 1 JTR, MEMBERS WITH ELIGIBLE DEPENDENTS LOCATED OUTSIDE THE UNITED STATES ARE ENTITLED TO COLA, NOTWITHSTANDING THE AVAILABILITY OF A GOVERNMENT MESS TO THE MEMBER AT HIS PERMANENT STATION, WITH EXCEPTIONS RELATING TO ABSENCES INVOLVING RETURN TO THE UNITED STATES FOR PERIODS IN EXCESS OF 30 CONSECUTIVE DAYS. UNDER THE PROVISIONS OF PARAGRAPH M4301-3G(2) HOLA IS PAYABLE TO A MEMBER WITH ELIGIBLE DEPENDENTS LOCATED OUTSIDE THE UNITED STATES AT ALL TIMES EXCEPT WHEN GOVERNMENT QUARTERS ARE ASSIGNED TO, OR OCCUPIED JOINTLY BY THE MEMBER AND HIS DEPENDENTS. SEE 45 COMP.GEN. 245 (1965).

ALSO, PARAGRAPH M4300-3, 1 JTR, PROVIDES IN PERTINENT PART THAT TEMPORARY ABSENCES OF DEPENDENTS FROM THE MEMBER'S RESIDENCE WILL NOT AFFECT THE PAYMENT OF HOUSING AND COST-OF-LIVING ALLOWANCES PROVIDED THE MEMBER CONTINUES TO MAINTAIN FAMILY-TYPE QUARTERS DURING THE ABSENCE OF HIS DEPENDENTS. SEE 50 COMP.GEN. 386 (1970).

PARAGRAPH M4305-2A, 1 JTR, PROVIDES THAT A MEMBER ON DUTY OUTSIDE THE UNITED STATES WHOSE DEPENDENTS ARE RESIDING IN THE VICINITY OF HIS PERMANENT DUTY STATION AT THE TIME ORDERS ARE ISSUED REASSIGNING HIM TO A RESTRICTED AREA MAY RECEIVE STATION ALLOWANCES FOR HIS OLD DUTY STATION IN THE SAME MANNER AS IF THE MEMBER WERE PRESENT THEREAT FOR DUTY. SEE 43 COMP.GEN. 525 (1964) AND COMPARE 49 COMP.GEN. 548 (1970).

IN THE PRESENT CASE, UNDER 1 JTR, PARAGRAPH M4305-2, THE MEMBER WAS ENTITLED TO RECEIVE HOLA AND COLA FOR HIS DEPENDENT SPOUSE RESIDING AT HIS OLD DUTY STATION IN HAWAII WHEN HE RECEIVED PERMANENT-CHANGE-OF STATION (PCS) ORDERS FOR A RESTRICTED (UNACCOMPANIED) TOUR OF DUTY IN KOREA. THE ISSUE PRESENTED IS WHETHER HER ABSENCES FROM THE HAWAII RESIDENCE WERE SUFFICIENT TO TERMINATE THOSE ALLOWANCES.

IT WOULD APPEAR FROM THE FACTS PRESENTED THAT COLONEL HILL WAS ENTITLED TO HOLA FOR HIS DEPENDENT THE ENTIRE TIME THAT HE WAS IN KOREA SINCE HIS DEPENDENT WAS LOCATED OUTSIDE THE CONTERMINOUS UNITED STATES (HAWAII) AT ALL TIMES AND GOVERNMENT QUARTERS WERE NOT ASSIGNED TO OR OCCUPIED JOINTLY BY HIM AND HIS DEPENDENT. FURTHER, HE STATES THAT HE CONTINUED TO MAINTAIN A RESIDENCE IN HAWAII FOR HIS WIFE DURING HER ABSENCES FROM HAWAII, AND THE ARMY HAS NOT PRESENTED ANY EVIDENCE TO REBUT THAT STATEMENT OR EVEN TO IMPLY THAT IT IS NOT CORRECT.

WITH REGARD TO COLA, THE REGULATIONS SET A TIME LIMIT ON ABSENCES ONLY INVOLVING RETURN TO THE CONTINENTAL UNITED STATES FOR PERIODS IN EXCESS OF 30 DAYS. SINCE THERE IS NO INDICATION THAT MRS. HILL MADE ANY VISITS TO THE UNITED STATES DURING HER HUSBAND'S TOUR IN KOREA, THERE APPEARS TO HAVE BEEN NO BASIS TO TERMINATE THE COLA.

FAMILY SEPARATION ALLOWANCE

SECTION 427(A), TITLE 37, U.S.C. (1976), PROVIDES FOR THE PAYMENT OF A MONTHLY ALLOWANCE EQUAL TO THE BASIC ALLOWANCE FOR QUARTERS PAYABLE TO A MEMBER WITHOUT DEPENDENTS IN THE SAME PAY GRADE IN INSTANCES WHERE (1) THE MEMBER IS ON PERMANENT DUTY OUTSIDE OF THE UNITED STATES OR IN ALASKA, (2) HIS DEPENDENTS ARE NOT AUTHORIZED TRANSPORTATION UNDER 37 U.S.C. SEC. 406 TO OR NEAR HIS DUTY STATION, (3) HIS DEPENDENTS DO NOT RESIDE AT OR NEAR HIS DUTY STATION, AND (4) THERE ARE NO PUBLIC QUARTERS OR HOUSING AVAILABLE FOR ASSIGNMENT TO HIM. THIS ALLOWANCE IS COMMONLY REFERRED TO AS FAMILY SEPARATION ALLOWANCE, TYPE I (FSA I).

SECTION 427(B), TITLE 37, U.S.C. (1976), PROVIDES FOR THE PAYMENT OF A MONTHLY FAMILY SEPARATION ALLOWANCE OF $30 TO CERTAIN MEMBERS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS ON BEHALF OF DEPENDENTS WHERE THE MEMBERS ARE ON DUTY UNDER SPECIFIED CONDITIONS RESULTING IN SEPARATION FROM THEIR DEPENDENTS. THIS ALLOWANCE IS COMMONLY REFERRED TO AS FAMILY SEPARATION ALLOWANCE, TYPE II (FSA II).

WE STATED IN 43 COMP.GEN. 332 (1963) THAT THE PURPOSE OF THE ALLOWANCE AUTHORIZED BY SECTION 427(A) (FSA I) IS TO COMPENSATE THE MEMBER FOR THE ADDITIONAL EXPENSES 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. THE PURPOSE OF THE ALLOWANCE AUTHORIZED BY SECTION 427(B) (FSA II) WAS STATED TO BE TO COMPENSATE A MEMBER FOR THE ADDED HOUSEHOLD EXPENSES INCURRED, AT THE PLACE WHERE HIS DEPENDENTS RESIDE, AS A RESULT OF THE SEPARATION OF THE MEMBER FROM HIS DEPENDENTS FOR A SUBSTANTIAL PERIOD OF TIME. THE RATIONALE FOR THE ALLOWANCE IS THAT ENFORCED SEPARATIONS OF SERVICEMEN FROM THEIR FAMILIES CAUSE ADDED HOUSEHOLD EXPENSES WHERE THE MEMBER IS ABSENT FOR ANY EXTENDED PERIOD OF TIME. THIS CONDITION RESULTS IN AN INEQUITY AS COMPARED TO THOSE MEMBERS WHOSE DEPENDENTS ARE AUTHORIZED TO ACCOMPANY THEM. THE EXTRA EXPENSES INCLUDE SUCH MATTERS AS HOME AND AUTOMOBILE MAINTENANCE.

ALSO IN 43 COMP.GEN. 332, 348-349, WE DETERMINED THAT AN OTHERWISE PROPER PAYMENT OF FAMILY SEPARATION ALLOWANCES COULD BE MADE TO A MEMBER UNDER 37 U.S.C. SEC. 427(A) AND CLAUSE (1) OF 37 U.S.C. SEC. 427(B) DURING A PERIOD NOT EXCEEDING 3 CONTINUOUS MONTHS HIS DEPENDENTS VISIT HIM AT OR NEAR HIS PERMANENT DUTY STATION. ALSO, IF HE WAS MAINTAINING A RESIDENCE FOR HIS DEPENDENT AT THE TIME OF HIS DEPARTURE AND HE CONTINUES TO MAINTAIN SUCH RESIDENCE, THE TEMPORARY PHYSICAL ABSENCE OF THE DEPENDENT FOR A SHORT PERIOD OF NOT EXCEEDING 3 MONTHS WOULD NOT PRECLUDE PAYMENT UNDER SECTION 427(B) IF OTHERWISE PROPER.

THUS, IN THE PRESENT CASE IT WOULD APPEAR THAT COLONEL HILL WAS ENTITLED TO THE ALLOWANCE AUTHORIZED IN SECTION 427(A) AND CLAUSE (1) OF SECTION 427(B) DURING HIS ENTIRE ASSIGNMENT IN KOREA SINCE HE MAINTAINED A SEPARATE RESIDENCE FOR HIS DEPENDENT IN HAWAII AND GOVERNMENT HOUSING WAS NOT AVAILABLE TO HIM IN KOREA. FURTHER, SINCE THE PRESENCE OF THE WIFE IN KOREA DID NOT EXCEED 39 DAYS AT ANY ONE TIME, WELL WITHIN THE 3-MONTH LIMIT, AND THERE IS NO SHOWING THAT HER PRESENCE WAS MORE THAN A SOCIAL VISIT OF A TEMPORARY NATURE, HE DID NOT LOSE HIS RIGHT TO CONTINUE TO RECEIVE FSA TYPE I AND TYPE II. 47 COMP.GEN. 355 (1968), 45 ID. 205 (1965), 44 ID. 307 (1964), 43 ID. 596 (1964), AND 43 COMP.GEN. 332, SUPRA.

CONCLUSION

THIS CASE IS DISTINGUISHABLE FROM THOSE DECISIONS IN WHICH WE HAVE HELD THAT WHERE GOVERNMENT RECORDS RELATING TO THE CLAIM HAVE BEEN DESTROYED AND THERE IS NO DOCUMENTATION AVAILABLE WHICH WOULD PROVE OR DISPROVE THE CLAIM, THE CLAIM MUST BE DENIED. IN MOST OF THOSE CASES, THE CLAIMANT SOUGHT TO ESTABLISH A CLAIM AGAINST THE GOVERNMENT FOR SOME ENTITLEMENT OR BENEFIT HE CONTENDED WAS OWED TO HIM. OFTEN, THE CLAIMS WERE FOR PERIODS OF TIMES PAST OF SUFFICIENT DURATION THAT THE RECORDS TO PROVE OR DISPROVE THE CLAIM HAD BEEN DESTROYED UNDER STATUTORY AUTHORITY FOR DISPOSAL OF RECORDS OR WERE DESTROYED BY A KNOWN FIRE OR OTHER NATURAL DISASTER. THE PRESENT CASE THE GOVERNMENT HAS MADE A CLAIM AGAINST THE MEMBER AND COLLECTION WAS ACCOMPLISHED BY AUTOMATIC DEDUCTIONS FROM HIS PAY ACCOUNT APPARENTLY WITHOUT A FULL EXPLANATION AS TO THE REASON FOR THE COLLECTION. ALTHOUGH THE COLLECTION ACTION TAKEN BY THE ARMY BEGAN 3 YEARS AGO WITH COLLECTION COMPLETED JUST 2 YEARS AGO, THE ARMY HAS BEEN UNABLE TO LOCATE ANY SUBSTANTIAL EVIDENCE TO SHOW THAT THE PAYMENTS WHICH APPEAR TO HAVE BEEN PROPER, AS DISCUSSED ABOVE, WERE IMPROPER. WHILE THE FACTS IN THIS CASE ARE NOT CONCLUSIVE, THERE IS SUFFICIENT INFORMATION IN THE FILE TO ESTABLISH THAT THE DUTY BEING PERFORMED BY COLONEL HILL AT THE TIME IN QUESTION PLACED HIM IN A POSITION TO QUALIFY FOR ALL OF THE ALLOWANCES IN QUESTION. WITH THE AID OF COLONEL HILL'S LEAVE AND EARNINGS STATEMENTS FOR THE PERIOD, COPIES OF HIS ORDERS, AND HIS EXPLANATION OF THE TRAVEL AND LOCATION OF HIS DEPENDENT WIFE DURING HIS TOUR OF DUTY IN KOREA, IT IS OUR VIEW THAT A PRIMA FACIE CASE HAS BEEN ESTABLISHED BY THE MEMBER FOR ENTITLEMENTS TO THESE ALLOWANCES. MERE SUSPICION OF POSSIBLE PAY IRREGULARITIES WAS NOT, IN OUR VIEW, SUFFICIENT AUTHORITY TO TERMINATE THESE ALLOWANCES. IN THE ABSENCE OF ANY SHOWING BY THE ARMY OF THE BASIS UPON WHICH A DETERMINATION WAS MADE THAT THE ALLOWANCES WERE NOT AUTHORIZED, WE HAVE CONCLUDED THAT COLONEL HILL WAS ENTITLED TO ALL OF THE OVERSEAS STATION ALLOWANCES AND FAMILY SEPARATION ALLOWANCES FOR THE PERIOD AUGUST 5 TO SEPTEMBER 10, 1976, AND FROM MARCH 3 TO JUNE 28, 1977.

ACCORDINGLY, ON THE BASIS OF THE RECORD BEFORE US WE CONCLUDE THAT THE COLLECTION ACTION TAKEN BY THE ARMY AGAINST COLONEL HILL'S PAY ACCOUNT WAS IN ERROR. THE SUM OF $2,680.29, IF OTHERWISE CORRECT, SHOULD BE REFUNDED.