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B-157586, APRIL 24, 1968, 47 COMP. GEN. 583

B-157586 Apr 24, 1968
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FAMILY ALLOWANCES - SEPARATION - TYPE 2 - COMMON RESIDENCE - MANAGEMENT AND CONTROL OF MEMBER THE COMMON RESIDENCE RULE FOR DETERMINING ENTITLEMENT TO THE $30 MONTHLY FAMILY SEPARATION ALLOWANCE AUTHORIZED BY 37 U.S.C. 427 (B) APPEARING TO HAVE BEEN THE BASIC CONSIDERATION OF CONGRESS IN AUTHORIZING THE ALLOWANCE. EVEN THOUGH A SHOWING OF ACTUAL EXPENSES IS NOT REQUIRED. HOLDING THE ALLOWANCE IS NOT PAYABLE DURING PERIODS OF INVOLUNTARY SEPARATION OF A MEMBER OF THE UNIFORMED SERVICES FROM HIS FAMILY IF HIS PRIMARY DEPENDENTS ARE LIVING IN A RESIDENCE THAT IS NOT SUBJECT TO HIS MANAGEMENT AND CONTROL AND FOR WHICH HE IS NOT RESPONSIBLE. IS SUSTAINED AND SHOULD BE IMPLEMENTED IF CONGRESS FAILS TO AUTHORIZE SUCH PAYMENTS PRIOR TO THE ADJOURNMENT OF THE SECOND SESSION OF THE 90TH CONGRESS.

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B-157586, APRIL 24, 1968, 47 COMP. GEN. 583

FAMILY ALLOWANCES - SEPARATION - TYPE 2 - COMMON RESIDENCE - MANAGEMENT AND CONTROL OF MEMBER THE COMMON RESIDENCE RULE FOR DETERMINING ENTITLEMENT TO THE $30 MONTHLY FAMILY SEPARATION ALLOWANCE AUTHORIZED BY 37 U.S.C. 427 (B) APPEARING TO HAVE BEEN THE BASIC CONSIDERATION OF CONGRESS IN AUTHORIZING THE ALLOWANCE, EVEN THOUGH A SHOWING OF ACTUAL EXPENSES IS NOT REQUIRED, 47 COMP. GEN. 431, HOLDING THE ALLOWANCE IS NOT PAYABLE DURING PERIODS OF INVOLUNTARY SEPARATION OF A MEMBER OF THE UNIFORMED SERVICES FROM HIS FAMILY IF HIS PRIMARY DEPENDENTS ARE LIVING IN A RESIDENCE THAT IS NOT SUBJECT TO HIS MANAGEMENT AND CONTROL AND FOR WHICH HE IS NOT RESPONSIBLE, IS SUSTAINED AND SHOULD BE IMPLEMENTED IF CONGRESS FAILS TO AUTHORIZE SUCH PAYMENTS PRIOR TO THE ADJOURNMENT OF THE SECOND SESSION OF THE 90TH CONGRESS. QUESTIONS THAT ARISE CONCERNING SECTION 427, WHICH CANNOT BE RESOLVED UNDER DECISIONS OF THE COMPTROLLER GENERAL MAY BE SUBMITTED.

TO THE SECRETARY OF DEFENSE, APRIL 24, 1968:

REFERENCE IS MADE TO LETTER OF MARCH 28, 1968, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING (1) RECONSIDERATION OF DECISION OF FEBRUARY 9, 1968, 47 COMP. GEN. 431, TO THE SECRETARY OF THE NAVY, HOLDING CERTAIN FAMILY SEPARATION ALLOWANCE PAYMENTS TO BE ILLEGAL, AND (2) IF SUCH DECISION MUST BE SUSTAINED, THAT WE PERMIT THE ILLEGAL PAYMENTS TO CONTINUE TO BE MADE UNTIL THE MATTER IS SUBMITTED TO AND CONSIDERED BY THE CONGRESS. THE REQUEST WAS ASSIGNED COMMITTEE ACTION NO. 414 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN THE DECISION OF FEBRUARY 9, 1968, WE ADVISED THE SECRETARY THAT THE FAMILY SEPARATION ALLOWANCE OF $30 PER MONTH AUTHORIZED BY 37 U.S.C. 427 (B) IS NOT PAYABLE DURING PERIODS OF INVOLUNTARY SEPARATION OF A MEMBER OF THE UNIFORMED SERVICES FROM HIS FAMILY IF HIS PRIMARY DEPENDENTS--- WIFE OR CHILD--- ARE LIVING IN A RESIDENCE NOT SUBJECT TO THE MEMBER'S MANAGEMENT AND CONTROL AND FOR WHICH HE HAS NO RESPONSIBILITY.

THE ASSISTANT SECRETARY STATES THAT THE LAW (37 U.S.C. 427 (B) ( RELATING TO THE PAYMENT OF FAMILY SEPARATION ALLOWANCE OF $30 PER MONTH, AUTHORIZES THE PAYMENT OF SUCH ALLOWANCE TO A MEMBER WITH DEPENDENTS, IN ADDITION TO ANY OTHER ALLOWANCE 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; (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; OR (3) HE IS ON TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS AND HIS DEPENDENTS DO NOT RESIDE AT OR NEAR HIS TEMPORARY DUTY STATION. THEREFORE, HE CONCLUDES THAT:

THE CONGRESS CLEARLY ENUNCIATED IN THE LAW THE SPECIFIC CONDITIONS UNDER WHICH IT INTENDED THAT SUCH ALLOWANCE WOULD BE PAID, AND IF THE CONGRESS HAD INTENDED TO IMPOSE A FOURTH CONDITION--- (4) IF THE PRIMARY DEPENDENT IS LIVING IN A RESIDENCE SUBJECT TO THE MEMBER'S MANAGEMENT AND CONTROL. ---IT SEEMS REASONABLE TO US TO ASSUME THAT SPECIFIC LANGUAGE WOULD HAVE BEEN INCLUDED IN THE BILL TO REFLECT SUCH INTENTION.

THE ASSISTANT SECRETARY FURTHER SAYS THAT WHILE THE DECISION OF FEBRUARY 9, 1968, QUOTES TESTIMONY OF THE SECRETARY OF THE NAVY TO THE EFFECT THAT THE $30 PER MONTH ALLOWANCE WILL OFFSET, IN A MODEST WAY, "THE ADDITIONAL EXPENSES OF PLUMBERS, ELECTRICIANS, CARPENTERS, AND GENERAL HANDYMEN WHICH THE FAMILY BUDGET MUST BEAR WHEN THE HUSBAND IS ABSENT," NEITHER THE LAW NOR OUR DECISION REQUIRES A SHOWING THAT SUCH EXPENSES WERE ACTUALLY INCURRED IMMEDIATELY PRIOR TO, OR AFTER, THE MEMBER IS SEPARATED FROM HIS FAMILY. THEREFORE, HE CONCLUDES IT IS DIFFICULT TO COMPLETELY RATIONALIZE THE REQUIREMENT THAT THE DEPENDENT MUST LIVE IN A RESIDENCE SUBJECT TO THE MEMBER'S MANAGEMENT AND CONTROL TO ENTITLE THE MEMBER TO THE ALLOWANCE.

IN ADDITION, HE STATES THAT MANY MEMBERS RESIDE IN APARTMENT HOUSES WHERE THE ADDITIONAL ITEMS OF EXPENSE REFERRED TO BY THE SECRETARY OF THE NAVY ARE THE RESPONSIBILITY OF THE LANDLORD. THEREFORE, HE CONTENDS THAT THE FACT THAT NONE OF THESE ADDITIONAL EXPENSES ARE INCURRED BY THE DEPENDENTS SHOULD NOT OPERATE TO DENY ENTITLEMENT TO THE $30 PER MONTH ALLOWANCE. ALSO, HE SAYS WHERE THE WIFE OF A MEMBER SHARES AN APARTMENT WITH THE WIFE OF ANOTHER MEMBER IT WOULD BE DIFFICULT TO ESTABLISH A COMMON RESIDENCE SUBJECT TO THE CONTROL OF ONE OF THE MEMBERS.

THE STATUTORY PROVISIONS FOR FAMILY SEPARATION ALLOWANCE, 37 U.S.C. 427, WERE ADDED BY PUBLIC LAW 88-132, APPROVED ON OCTOBER 2, 1963. PRIOR TO THE APPROVAL OF THE ACT, THE DEPARTMENT OF DEFENSE (IN MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 328) CONSIDERED 27 QUESTIONS AS TO THE APPLICATION OF THE PROPOSED ACT. THESE QUESTIONS WERE PRESENTED TO US FOR DECISION BY LETTER DATED SEPTEMBER 26, 1963, FROM THE ASSISTANT SECRETARY OF DEFENSE.

NOTWITHSTANDING THE PRESENT SUGGESTION THAT ENTITLEMENT TO THE $30 ALLOWANCE SHOULD BE DETERMINED ON THE BARE LANGUAGE OF SECTION 427 (B) WITHOUT RESORT TO THE LEGISLATIVE HISTORY TO FIND THE PURPOSE OF THE CONGRESS IN ENACTING THAT SECTION, THE DEPARTMENT ITSELF, IN 1963, POINTED TO THE LEGISLATIVE HISTORY OF SECTION 427 (B) TO SHOW THAT THE PURPOSE OF THIS ALLOWANCE IS TO COMPENSATE MEMBERS FOR THE EXTRA EXPENSES INCURRED AS A RESULT OF BEING AWAY FROM THEIR DEPENDENTS FOR AN EXTENDED PERIOD OF TIME. IN COMMITTEE ACTION NO. 328 THE LEGISLATIVE HISTORY WAS QUOTED TO SHOW THAT "THE EXTRA EXPENSES INCLUDE SUCH MATTERS AS HOME AND AUTOMOBILE MAINTENANCE AND INCREASED CHILD CARE COSTS.' AND, THE COMMITTEE REFERRED EXTENSIVELY TO THE RATIONALE OF THE SECTION AS DISCLOSED BY THE LEGISLATIVE HISTORY TO JUSTIFY ITS VIEWS AS TO THE ANSWERS THAT SHOULD BE GIVEN TO THE QUESTIONS PRESENTED.

IN OUR DECISION OF OCTOBER 9, 1963, 43 COMP. GEN. 332, IN RESPONSE TO THAT REQUEST WE AGREED WITH THE COMMITTEE AS TO THE PURPOSE OF SECTION 427 (B) AS SHOWN BY THE LEGISLATIVE HISTORY, AND POINTED OUT THAT SINCE SECTIONS 427 (A) AND 427 (B) (1) PROVIDE FOR PAYMENT OF TWO SEPARATE ALLOWANCES TO A MEMBER FOR THE SAME SERVICE THERE WAS AMPLE JUSTIFICATION FOR EXAMINING THE LEGISLATIVE HISTORY TO DETERMINE THE CONGRESSIONAL INTENT AND PURPOSE IN ENACTING SUCH UNUSUAL AND SEEMINGLY AMBIGUOUS PROVISIONS. SEE PAGES 350-351 OF THAT DECISION. FOR THE REASONS THERE STATED WE ARE OF THE OPINION THAT IT IS PROPER TO EXAMINE THE LEGISLATIVE HISTORY OF SECTION 427 IN CONSTRUING ITS PROVISIONS.

ALSO, IN THIS REGARD, AS THE ASSISTANT SECRETARY POINTS OUT, WE HAVE RENDERED A NUMBER OF DECISIONS AT THE REQUEST OF THE DEPARTMENT OF DEFENSE ON THE SUBJECT OF THE FAMILY SEPARATION ALLOWANCE. THE CONCLUSIONS REACHED IN THOSE DECISIONS WERE BASED LARGELY ON THE INTENT OF CONGRESS AS REFLECTED IN THE LEGISLATIVE HISTORY AND, INSOFAR AS WE ARE AWARE, OUR RESORT TO THE LEGISLATIVE HISTORY TO DETERMINE THE INTENT OF CONGRESS IN PROVIDING FOR PAYMENT OF THE FAMILY SEPARATION ALLOWANCES HAS NOT HERETOFORE BEEN QUESTIONED. WITHOUT THE AID OF THE LEGISLATIVE HISTORY OF THE VARIOUS LAWS INVOLVED IT IS DOUBTFUL THAT SOME OF THOSE CONCLUSIONS COULD HAVE BEEN REACHED UNDER THE LITERAL LANGUAGE OF THE STATUTES. SEE, FOR EXAMPLE, DECISION OF APRIL 12, 1966, 45 COMP. GEN. 633, APPROVING, IN OTHERWISE PROPER CASES, CREDIT OF THE $30 FAMILY SEPARATION ALLOWANCE FOR MEMBERS IN A MISSING STATUS.

MOREOVER, THE LANGUAGE OF THE STATUTE LENDS SUPPORT TO THE VIEW THAT THE ALLOWANCE IS PAYABLE ONLY WHERE THE MEMBER IS RESPONSIBLE FOR THE EXPENSES OF MAINTAINING A HOUSEHOLD FOR HIS DEPENDENTS. IT PLAINLY PRECLUDES PAYMENT OF THE ALLOWANCE IN THE CASE OF MEMBERS WHOSE DEPENDENTS OCCUPY PUBLIC QUARTERS, APPARENTLY BECAUSE MAINTENANCE COSTS IN SUCH CASES ARE THE RESPONSIBILITY OF THE GOVERNMENT.

IN THE DECISION OF OCTOBER 9, 1963, WE FURTHER SAID THAT, GENERALLY, A MEMBER WOULD NOT BE ENTITLED TO THE ALLOWANCE UNLESS HE AND HIS DEPENDENTS WERE RESIDING TOGETHER IMMEDIATELY PRECEDING THE DUTY INVOLVED AND THE SEPARATION RESULTS FROM SUCH ASSIGNMENT. IN COMMITTEE ACTION NO. 329, THE DEPARTMENT DID NOT QUESTION THE COMMON HOUSEHOLD RULE ENUNCIATED IN THAT DECISION AS A BASIS FOR DETERMINING ENTITLEMENT TO THE $30 MONTHLY FAMILY SEPARATION ALLOWANCE, BUT QUESTIONED OUR CONCLUSION THAT PAYMENT UNDER SECTION 427 (B) WAS NOT AUTHORIZED UNLESS THE MEMBER AND HIS DEPENDENTS WERE RESIDING TOGETHER IMMEDIATELY PRECEDING THE DUTY ASSIGNMENT RESULTING IN THEIR SEPARATION. THIS CONCLUSION WAS MODIFIED IN DECISION OF NOVEMBER 22, 1963, 43 COMP. GEN. 444, BUT NO CHANGE WAS MADE WITH RESPECT TO THE REQUIREMENT THAT THE MEMBER MAINTAIN A COMMON RESIDENCE FOR HIS DEPENDENTS WHICH HE COULD SHARE WITH THEM WHEN CIRCUMSTANCES MIGHT PERMIT. THE SAME PRINCIPLE WAS FURTHER APPLIED IN SUBSEQUENT DECISIONS CITED IN THE DECISION OF FEBRUARY 9, 1968. THUS, THAT DECISION WAS AN AFFIRMATION OF PRIOR SIMILAR DECISIONS.

NO DOUBT CONGRESS WAS AWARE THAT SOME DEPENDENTS WOULD RESIDE IN APARTMENTS AND THAT THE HOUSEHOLD EXPENSES RESULTING FROM THE MEMBER'S ABSENCE WILL VARY IN DIFFERENT CIRCUMSTANCES. IT SEEMS CLEAR, HOWEVER, THAT THE EXPENSE INCIDENT TO THE MEMBER'S MAINTAINING A HOUSEHOLD FOR HIS DEPENDENTS WAS A BASIC CONSIDERATION IN AUTHORIZING THE ALLOWANCE EVEN THOUGH A SHOWING OF ACTUAL EXPENSES IS NOT REQUIRED. WE BELIEVE THAT IF OUR DECISIONS ARE PROPERLY IMPLEMENTED AND APPLIED THEY WILL GENERALLY PROVIDE A BASIS TO RESOLVE QUESTIONS THAT ARISE IN THE ADMINISTRATION OF THE SECTION. AND, IF QUESTIONS ARISE THAT CANNOT BE RESOLVED UNDER THOSE DECISIONS, THEY, OF COURSE, MAY BE SUBMITTED HERE FOR DECISION.

SINCE IT IS OUR OPINION THAT THE DECISION OF FEBRUARY 9, 1968, ACCORDS WITH THE PURPOSE AND INTENT OF THE STATUTE AND REPRESENTS A PROPER INTERPRETATION AND APPLICATION OF THE LAW, IT IS SUSTAINED. WE WILL NOT INSIST ON IMMEDIATE DISCONTINUANCE OF THE PAYMENTS IN QUESTION, HOWEVER, IN VIEW OF THE REPRESENTATIONS AND ARGUMENTS MADE IN THE ASSISTANT SECRETARY'S LETTER AND HIS REQUEST THAT WE PERMIT THE SERVICES TO CONTINUE SUCH PAYMENTS "UNTIL THE MATTER IS SUBMITTED TO AND CONSIDERED BY THE CONGRESS.'

STEPS SHOULD BE TAKEN TO IMPLEMENT THE DECISION OF FEBRUARY 9 IMMEDIATELY UPON ADJOURNMENT OF THIS SECOND SESSION OF THE 90TH CONGRESS UNLESS, PRIOR TO SUCH ADJOURNMENT, LEGISLATION SHALL HAVE BEEN ENACTED TO AUTHORIZE SUCH PAYMENTS.

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