B-161781, AUG 9, 1967

B-161781, AUG 9, 1967

PRECIS-UNAVAILABLE

CAPTAIN B. E. THORNTON, USAF:

ACCOUNTING AND FINANCE OFFICER

THROUGH: DIRECTORATE OF ACCOUNTING

AND FINANCE

HEADQUARTERS, UNITED STATES AIR FORCE

REFERENCE IS MADE TO YOUR LETTER OF JUNE 8, 1967, REQUESTING A DECISION AS TO THE PROPRIETY OF PAYING TECHNICAL SERGEANT GRADY C. PADGETT, USAF, FAMILY SEPARATION ALLOWANCE (FSA-1) AS SHOWN ON THE MILITARY PAY ORDER DATED JANUARY 31, 1966, UNDER THE CIRCUMSTANCES DISCLOSED.

PURSUANT TO PERMANENT CHANGE OF STATION ORDERS DATED OCTOBER 17, 1965, SERGEANT PADGETT WAS TRANSFERRED TO CAMP NEW AMSTERDAM, THE NETHERLANDS. WHILE THIS MOVEMENT APPARENTLY INVOLVED A TRANSFER FROM ONE OVERSEAS STATION TO ANOTHER, IT IS NOT SHOWN THAT EITHER OF THOSE STATIONS WAS A RESTRICTED STATION FOR PURPOSES OF TRANSPORTATION OF DEPENDENTS. NOVEMBER 29, 1965, HE OBTAINED LEGAL CUSTODY OF HIS DEPENDENT DAUGHTER FROM HIS FORMER WIFE AND INCIDENT TO LETTER ORDER DATED DECEMBER 17, 1965, HIS DAUGHTER TRAVELED TO HIS DUTY STATION, WITH GOVERNMENT FURNISHED TRANSPORTATION FOR THE TRANSOCEANIC TRAVEL, ARRIVING JANUARY 27, 1966.

THE MEMBER'S CLAIMS FOR TRANSPORTATION ALLOWANCE FOR HIS DAUGHTER'S TRAVEL AND FOR DISLOCATION ALLOWANCE WERE ADMINISTRATIVELY DENIED. THE DISLOCATION ALLOWANCE WAS DENIED FOR THE REASON THAT HE DID NOT HAVE A HOUSEHOLD ON EFFECTIVE DATE OF ORDERS AND TRANSPORTATION ALLOWANCE FOR HIS DAUGHTER'S TRAVEL WAS DENIED SINCE HE ATTAINED ELIGIBILITY FOR HER TRAVEL SUBSEQUENT TO THE EFFECTIVE DATE OF HIS ORDERS, CITING PARAGRAPH M7006, JOINT TRAVEL REGULATIONS AND DECISION OF OUR OFFICE, B-63842, DATED MARCH 21, 1956. THE RECORD SHOWS FURTHER THAT COLLECTION OF THE COST TO THE GOVERNMENT FOR DEPENDENT'S TRANSOCEANIC TRAVEL WAS SUBSEQUENTLY EFFECTED FROM SERGEANT PADGETT.

IN YOUR LETTER, YOU STATE THAT SERGEANT PADGETT APPLIED FOR FAMILY SEPARATION ALLOWANCE, TYPE I, FOR THE PERIOD FROM OCTOBER 17, 1965, THROUGH JANUARY 25, 1966, DURING WHICH PERIOD HE WAS AT HIS OVERSEAS STATION WITHOUT HIS DEPENDENT DAUGHTER. YOU NOTE THAT THE MEMBER WAS ON PERMANENT DUTY OUTSIDE THE UNITED STATES; THAT HIS DEPENDENTS WERE NOT AUTHORIZED TRANSPORTATION TO OR NEAR HIS DUTY STATION AT GOVERNMENT EXPENSE; THAT HIS DEPENDENTS DID NOT RESIDE AT OR NEAR HIS DUTY STATION, AND THAT THERE WERE NO PUBLIC QUARTERS AVAILABLE FOR HIS OCCUPANCY DURING THAT PERIOD. YOU THEREFORE REQUEST OUR DETERMINATION AS TO WHETHER SERGEANT PADGETT IS AUTHORIZED FAMILY SEPARATION ALLOWANCE, TYPE I, FROM OCTOBER 17, 1965, THROUGH JANUARY 25, 1966, AND IF NOT, WHETHER HE IS ELIGIBLE FOR SUCH ALLOWANCE FROM NOVEMBER 29, 1965, THROUGH JANUARY 25, 1966.

SECTION 427(A), TITLE 37, U.S.C. PROVIDES AS FOLLOWS:

"SEC. 427. FAMILY SEPARATION ALLOWANCE.

"(A) IN ADDITION TO ANY ALLOWANCE OR PER DIEM TO WHICH HE OTHERWISE MAY BE ENTITLED UNDER THIS TITLE, A MEMBER OF A UNIFORMED SERVICE WITH DEPENDENTS WHO IS ON PERMANENT DUTY OUTSIDE OF THE UNITED STATES, OR IN ALASKA, IS ENTITLED TO A MONTHLY ALLOWANCE EQUAL TO THE BASIC ALLOWANCE FOR QUARTERS PAYABLE TO A MEMBER WITHOUT DEPENDENTS IN THE SAME PAY GRADE 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."

SECTION 406 OF TITLE 37, U.S.C. PROVIDES IN PERTINENT PART, THAT WHEN A MEMBER IS ORDERED TO MAKE A CHANGE OF PERMANENT STATION, HE IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENTS, TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION IN KIND, SUBJECT TO SUCH CONDITIONS AND LIMITATIONS, GRADES, RANKS, AND RATINGS, AND TO AND FROM SUCH PLACES AS PRESCRIBED BY THE SECRETARIES CONCERNED. SECTION 401 OF TITLE 37 DEFINES A "DEPENDENT" AS INCLUDING AT ALL TIMES A MEMBER'S UNMARRIED LEGITIMATE CHILD WHO IS UNDER 21 YEARS OF AGE. SERGEANT PADGETT'S DAUGHTER COMES SQUARELY WITHIN THAT DEFINITION, EVEN THOUGH HER CUSTODY HAD BEEN AWARDED TO THE MOTHER; AND, APPARENTLY, SINCE HE WAS CONTRIBUTING TO HER SUPPORT, HER DEPENDENCY STATUS WAS RECOGNIZED AND HE WAS AUTHORIZED A BASIC ALLOWANCE FOR QUARTERS ON THE BASIS OF HER DEPENDENCY. THIS STATUS EXISTED ON THE EFFECTIVE DATE OF HIS ORDERS.

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.

SINCE, INSOFAR AS THE RECORD SHOWS, THERE WAS NO MILITARY RESTRICTION ON THE TRAVEL OF DEPENDENTS TO THE MEMBER'S OVERSEAS DUTY STATION AND THE SEPARATION IN THIS CASE RESULTED SOLELY FROM THE CUSTODY AWARD TO THE MOTHER, SERGEANT PADGETT IS NOT ENTITLED TO FAMILY SEPARATION ALLOWANCE, TYPE I, UNDER THE PROVISIONS OF 37 U.S.C. 427(A).

YOUR QUESTION IS ANSWERED ACCORDINGLY AND THE MILITARY PAY ORDER IS BEING RETAINED IN OUR FILE.

ALTHOUGH YOU EXPRESS THE VIEW THAT SERGEANT PADGETT'S DEPENDENT WAS NOT AUTHORIZED TRANSPORTATION TO OR NEAR HIS OVERSEAS DUTY STATION SHE WAS, AS INDICATED ABOVE, HIS DEPENDENT ON THE EFFECTIVE DATE OF HIS ORDERS. UNDER THE PROVISIONS OF 37 U.S.C. 406 AND PERTINENT JOINT TRAVEL REGULATIONS, THEREFORE, HE WAS ENTITLED TO HER TRANSPORTATION AT GOVERNMENT EXPENSE TO HIS OVERSEAS DUTY STATION UNLESS HER TRAVEL IS TO BE VIEWED AS BEING NOT RELATED TO HIS ORDERED PERMANENT CHANGE OF STATION, AS WAS THE CASE IN DECISION OF MARCH 21, 1956, B-63842, CITED AS THE BASIS FOR YOUR VIEW. THAT DECISION INVOLVED AN ORDERED CHANGE OF STATION TO A RESTRICTED AREA WITHOUT TRAVEL TO A DESIGNATED PLACE AND A DELAY OF MORE THAN TWO YEARS AFTER REASSIGNMENT TO A NONRESTRICTED STATION BEFORE ANY TRAVEL WAS PERFORMED, CIRCUMSTANCES REQUIRING A CONCLUSION THAT THE TRAVEL WAS NOT RELATED TO THE MEMBER'S ORDERED PERMANENT CHANGE OF STATION.

IN THE CIRCUMSTANCES OF THIS CASE, THE TRAVEL OF SERGEANT PADGETT'S DAUGHTER REASONABLY MAY BE VIEWED AS INCIDENT TO HIS ORDERED PERMANENT CHANGE OF STATION TO CAMP NEW AMSTERDAM AND ACTION SHOULD BE TAKEN TO CREDIT HIS ACCOUNT WITH THE TRAVEL AND TRANSPORTATION ALLOWANCES PROPERLY PAYABLE FOR THE TRAVEL PERFORMED. DISLOCATION ALLOWANCE IS NOT PAYABLE, HOWEVER, SINCE THERE WAS NO RELOCATION OF A HOUSEHOLD INCIDENT TO HIS PERMANENT CHANGE OF STATION.