B-157586, OCT. 5, 1965, 45 COMP. GEN. 170

B-157586, OCT. 5, 1965, 45 COMP. GEN. 170

FAMILY ALLOWANCES - SEPARATION - TYPE 2 - COMMON RESIDENCE AN ENLISTED MEMBER OF THE UNIFORMED SERVICES WHO BY MEANS OF AN ALLOTMENT OF PAY ON BEHALF OF HIS DEPENDENT MOTHER WHICH ENABLES HER TO MAINTAIN A HOME THAT HE SOMETIMES SHARES IS NOT CONSIDERED TO BE MAINTAINING THE HOME AS HIS RESIDENCE FOR ENTITLEMENT TO TYPE 2 FAMILY SEPARATION ALLOWANCE PROVIDED UNDER 37 U.S.C. 427 (B).

TO MAJOR W. B. GATRELL, DEPARTMENT OF THE ARMY, OCTOBER 5, 1965:

BY NINTH INDORSEMENT DATED AUGUST 26, 1965, THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF JANUARY 5, 1965, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER FAMILY SEPARATION ALLOWANCE IS PAYABLE TO VICTOR R. FLORES, SPECIALIST FOURTH CLASS, REGULAR ARMY, FOR THE PERIOD COMMENCING SEPTEMBER 21, 1964, UNDER THE CIRCUMSTANCES DISCLOSED. THE REQUEST FOR A DECISION WAS ASSIGNED DO NO. A -867, BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT A MILITARY PAY VOUCHER COVERING PAYMENT OF FAMILY SEPARATION ALLOWANCE (TYPE II) TO VICTOR A. FLORES, ON BEHALF OF HIS DEPENDENT MOTHER, WHO IS RESIDING IN LIMA, PERU, HAS BEEN PRESENTED TO YOU FOR PAYMENT. YOU STATE FURTHER THAT SPECIALIST FLORES WAS ORDERED TO HIS PRESENT OVERSEAS STATION FROM FORT AMADOR, CANAL ZONE, IN MARCH 1964, AT WHICH TIME HIS GRADE WAS E-3. HE WAS PROMOTED TO HIS PRESENT GRADE (SPECIALIST E-4) EFFECTIVE MAY 18, 1964, AND COMPLETED 4 YEARS FOR PAY PURPOSES ON SEPTEMBER 20, 1964. THE DEPENDENCY OF HIS MOTHER WAS ESTABLISHED EFFECTIVE FEBRUARY 28, 1961, AND THE ENLISTED MEMBER HAS BEEN CONTRIBUTING TO HER SUPPORT BY MEANS OF CLASS AND ALLOTMENT PAYMENTS. YOU EXPRESS DOUBT AS TO THE PROPRIETY OF PAYING THE VOUCHER BECAUSE OF UNCERTAINTY AS TO WHETHER THE MEMBER IS MAINTAINING A "COMMON HOUSEHOLD" AS SET OUT IN 43 COMP. GEN. 444. IF THE VOUCHER IS DETERMINED TO BE PAYABLE YOU REQUEST FURTHER ADVICE IN VIEW OF THE FACT THAT PARAGRAPH 7000 -11, JOINT TRAVEL REGULATIONS, PRECLUDES TRANSPORTATION AT GOVERNMENT EXPENSE FOR DEPENDENT PARENTS WHO DO NOT ACTUALLY RESIDE IN THE HOUSEHOLD OF THE SERVICE MEMBER, WHETHER FAMILY SEPARATION ALLOWANCE TYPE II, WOULD CONTINUE TO ACCRUE TO THE MEMBER ON BEHALF OF HIS DEPENDENT MOTHER IF HE SHOULD CHOOSE NEVER TO MOVE HER TO HIS DUTY STATION TO QUALIFY FOR FUTURE TRANSPORTATION AT GOVERNMENT EXPENSE. ALSO, WHETHER SUCH ALLOWANCE WOULD CONTINUE TO ACCRUE ON BEHALF OF HIS MOTHER IF HE WERE TO BECOME MARRIED, RESIDE WITH HIS WIFE IN THE VICINITY OF HIS DUTY STATION, AND CONTINUE TO BE ENTITLED TO THE BASIC ALLOWANCE FOR QUARTERS BY REASON OF NOT OCCUPYING GOVERNMENT QUARTERS.

IN TRANSMITTING YOUR REQUEST FOR A DECISION, THE OFFICE OF THE CHIEF OF FINANCE STATES THAT THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE BELIEVES THAT ADDITIONAL GUIDANCE IS NECESSARY AS TO THE EVIDENCE REQUIRED TO SUBSTANTIATE A DETERMINATION THAT A MEMBER MEETS THE COMMON RESIDENCE CRITERIA SET OUT IN 43 COMP. GEN. 444. REFERENCE IS MADE TO OUR DECISION IN 45 COMP. GEN. 36, INVOLVING A SOMEWHAT SIMILAR CASE, WHEREIN WE STATED IN EFFECT THAT IN THE ABSENCE OF EVIDENCE THAT THE MEMBER HAS MAINTAINED A HOUSEHOLD FOR HIS DEPENDENT WHICH HE SHARED WHEN THE OPPORTUNITY PRESENTED ITSELF AT ANY TIME DURING PERIODS OF LEAVE OR AT SUCH OTHER TIMES AS HIS DUTY ASSIGNMENT MIGHT PERMIT, WHETHER OR NOT IT IS LOCATED AT THE HOME PORT OR STATION FROM WHICH HE PROCEEDED TO THE DUTY ASSIGNMENT INVOLVED, NO AUTHORITY EXISTED FOR THE PAYMENT OF FAMILY SEPARATION ALLOWANCE UNDER SECTION 427 (B). ALSO, ADVICE WAS REQUESTED AS TO WHETHER THE CERTIFICATION MADE BY SPECIALIST FLORES CONSTITUTED SUFFICIENT EVIDENCE FOR DETERMINING WHETHER THE MEMBER MAINTAINED A COMMON RESIDENCE, AND, IF NOT, WHAT EVIDENCE WOULD BE REQUIRED IN THIS AND SIMILAR CASES.

SECTION 427 (B) TITLE 37, U.S.C. PROVIDES IN PERTINENT PART, AS FOLLOWS:

(B) EXCEPT IN TIME OF WAR OR OF NATIONAL EMERGENCY HEREAFTER DECLARED BY CONGRESS, AND IN ADDITION OF 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) WHO IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS 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; * * *

THE LEGISLATIVE HISTORY OF SECTION 427 (B) SHOWS THAT THE RATIONAL OF THE ALLOWANCE WAS THAT ,ENFORCED SEPARATIONS" OF SERVICEMEN FROM THEIR FAMILIES DUE TO MILITARY REQUIREMENT CAUSED ADDED HOUSEHOLD AND FAMILY EXPENSES WHEN THE MEMBERS ARE ABSENT FOR ANY SUBSTANTIAL PERIODS OF TIME (SEE PAGES 25 AND 26 OF S.REPT. NO. 387, TO ACCOMPANY H.R. 5555, WHICH WAS ENACTED AS PUBLIC LAW 88-132). IN 43 COMP. GEN. 332, AT PAGE 351, WE STATED THAT THE ALLOWANCE WAS PREDICATED ON A SEPARATION OF THE MEMBER FROM HIS DEPENDENTS BY REASON OF HIS MILITARY ASSIGNMENT, AND WAS DESIGNED TO REIMBURSE HIM FOR THE ADDITIONAL EXPENSES THAT ARISE WHERE HIS DEPENDENTS RESIDE BY REASON OF HIS SEPARATION FROM THEM, AND THAT A MEMBER WOULD NOT BE ENTITLED TO AN ALLOWANCE UNDER SECTION 427 (B) UNLESS HE AND HIS DEPENDENTS WERE RESIDING TOGETHER IMMEDIATELY PRECEDING THE DUTY INVOLVED AND THE SEPARATION RESULTS FROM HIS DUTY ASSIGNMENT. BASICALLY, THEREFORE, THE MEMBER MUST BE MAINTAINING A RESIDENCE OR HOUSEHOLD FOR THE USE OF HIMSELF AND DEPENDENTS. HIS ABSENCE THEREFROM, EVEN FOR PROTRACTED PERIODS, HAS BEEN RECOGNIZED AS NOT DEFEATING HIS RIGHT TO THE ALLOWANCE IN CIRCUMSTANCES WHERE IT IS SHOWN THAT HE LIKELY WOULD REJOIN HIS DEPENDENTS THERE DURING PERIODS OF LEAVE AND AT SUCH OTHER TIMES AS HIS DUTY ASSIGNMENT MIGHT PERMIT. 43 COMP. GEN. 444. IT MUST BE HIS HOUSEHOLD, HOWEVER, SUBJECT TO HIS MANAGEMENT AND CONTROL, WITH THE ATTENDING LIABILITIES AND RESPONSIBILITIES THEREOF RESTING WITH HIM. COMP. GEN. 36. IT IS NOT SUFFICIENT THAT HE MERELY ALLOT FUNDS TO HIS DEPENDENT TO ENABLE HER TO PROVIDE HERSELF WITH A RESIDENCE THAT HE MIGHT, IF CIRCUMSTANCE SHOULD ARISE, VISIT AND TEMPORARILY SHARE, FOR IN THAT EVENT IT COULD HARDLY BE SAID THAT HIS ABSENCE THEREFROM IN THE PERFORMANCE OF HIS DUTIES WOULD GIVE RISE TO THE ADDITIONAL EXPENSES CONTEMPLATED BY THE STATUTE.

THE EVIDENCE IN THIS CASE, CONSISTS OF A STATEMENT BY THE MEMBER THAT IMMEDIATELY PRIOR TO DEPARTURE FROM LAST PERMANENT STATION (CANAL ZONE), HE HAD MAINTAINED A RESIDENCE OR HOUSEHOLD FOR HIS DEPENDENTS AT LIMA, PERU, WHICH HE "COULD AND/OR DID SHARE WITH THEM AS A COMMON RESIDENCE DURING PERIODS OF LEAVE OR SUCH OTHER TIMES AS MY DUTY ASSIGNMENT WOULD PERMIT," TOGETHER WITH A SHOWING THAT HE WAS SUPPORTING HIS MOTHER BY AN ALLOTMENT SUFFICIENT TO PAY FOR HER RENT, FOOD AND CLOTHING AND OTHER EXPENSES. THE HOME MUST BE THE MEMBER'S AND NOT THE DEPENDENT'S AND IN THE ABSENCE OF EVIDENCE THAT THE MEMBER IS MAINTAINING THE HOME AS HIS RESIDENCE AND ASSUMING THE LIABILITIES AND RESPONSIBILITIES THEREOF RATHER THAN ENABLING HIS MOTHER BY MEANS OF AN ALLOTMENT TO MAINTAIN A HOME FOR HERSELF NO AUTHORITY EXISTS FOR THE PAYMENT TO THE MEMBER OF THE FAMILY SEPARATION ALLOWANCE UNDER SECTION 427 (B) OF TITLE 37, UNITED STATES CODE. ACCORDINGLY, PAYMENT OF THE VOUCHER, WHICH IS RETAINED HERE, IS NOT AUTHORIZED.