B-157586, NOV. 6, 1970

B-157586, NOV. 6, 1970

FAMILY SEPARATION ALLOWANCE, TYPE II - MANAGEMENT OF HOUSEHOLD DECISION THAT FIRST SERGEANT GEORGE A. WILLINGHAM FLEET MARINE CORPS RESERVE, IS ENTITLED TO FAMILY SEPARATION ALLOWANCE, WHERE WIFE LIVES IN HOUSE UNDER MULTIPLE-OWNERSHIP WITH BROTHER & SISTER. WHERE MARINE CORPS MEMBER ASSUME ONE-THIRD OF ALL EXPENSES, TAXES AND LIABILITIES IN A HOUSE OWNED BY HIS WIFE AND HER BROTHER AND SISTER WITH WHOM THEY SHARE THE HOME, HE AS HEAD OF HOUSEHOLD WOULD BE RESPONSIBLE FOR WIFE'S SHARE OF EXPENSES AND THE MANAGEMENT AND CONTROL OF HOUSEHOLD SO THAT ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE MAY BE AUTHORIZED, EVEN THOUGH HE, THE MEMBER HAS NO PROPRIETARY INTEREST IN THE HOUSE AND THE MATTER IS NOT FREE FROM DOUBT.

TO LIEUTENANT COLONEL C.R. WINDER:

BY LETTER DATED SEPTEMBER 10, 1970, THE COMMANDANT OF THE MARINE CORPS TRANSMITTED YOUR LETTER OF AUGUST 19, 1970, REQUESTING A DECISION AS TO THE ENTITLEMENT OF FIRST SERGEANT GEORGE A. WILLINGHAM, FLEET MARINE CORPS RESERVE, TO A FAMILY SEPARATION ALLOWANCE OF $30 PER MONTH IN THE CIRCUMSTANCES PRESENTED. THE REQUEST HAS BEEN ASSIGNED CONTROL NO. DO-MC- 1095 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

YOU SUBMITTED A STATEMENT BY SERGEANT WILLINGHAM TO SUBSTANTIATE PAYMENT OF FAMILY SEPARATION ALLOWANCE (TYPE II). THE STATEMENT SHOWS THAT HIS WIFE LIVES IN A HOUSE IN ATLANTA, GEORGIA, WHICH IS SHARED WITH A BROTHER AND A SISTER; THAT EACH OWNS ONE-THIRD OF THE HOUSE, AND THE MEMBER SAYS HE ASSUMES ONE-THIRD OF ALL EXPENSES, TAXES, AND OTHER LIABILITIES AND RESPONSIBILITIES THEREOF. YOU INDICATE THAT THE MEMBER WOULD LIKELY RESIDE AT THAT LOCATION DURING PERIODS OF LEAVE OR SUCH OTHER TIMES AS HIS DUTY ASSIGNMENT MIGHT PERMIT. HOWEVER, YOU EXPRESS DOUBT AS TO WHETHER THE CIRCUMSTANCES DESCRIBED MAY BE CONSIDERED AS HAVING MET THE "MANAGEMENT AND CONTROL" REQUIREMENTS EXPRESSED IN 47 COMP. GEN. 431 (1968), SO AS TO ENTITLE THE MEMBER TO THE FAMILY SEPARATION ALLOWANCE CLAIMED.

IT APPEARS FROM SERGEANT WILLINGHAM'S STATEMENT OF APRIL 20, 1970, THAT AT THAT TIME HIS PERMANENT DUTY STATION WAS AT EL TORO, CALIFORNIA, AND THAT ON AUGUST 1, 1969, HE DEPARTED FROM ALBANY, GEORGIA, ON A PERMANENT CHANGE OF STATION TO CAMP BUTLER, OKINAWA, TO WHICH STATION TRANSPORTATION OF HIS DEPENDENTS AT GOVERNMENT EXPENSE WAS NOT AUTHORIZED.

SECTION 427(B), TITLE 37, U.S.C. PROVIDES FOR THE PAYMENT OF A MONTHLY FAMILY SEPARATION ALLOWANCE IN THE AMOUNT OF $30 TO CERTAIN MEMBERS OF THE UNIFORMED SERVICES 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.

WE HAVE CONSISTENTLY HELD THAT WE WILL NOT QUESTION PAYMENTS UNDER SECTION 427(B), TITLE 37, U.S.C. THAT ARE OTHERWISE PROPER WHERE A MEMBER IS MAINTAINING A RESIDENCE OR HOUSEHOLD AT WHICH HIS DEPENDENTS ARE LIVING AND WHICH HE LIKELY WOULD SHARE WITH THEM AS HIS OWN HOUSEHOLD SUBJECT TO HIS MANAGEMENT AND CONTROL, DURING SUCH TIMES AS HIS DUTY ASSIGNMENT MIGHT PERMIT. 43 COMP. GEN. 444 (1963); 46 ID. 148 (1966); 47 ID. 583 (1968); AND 48 ID. 525 (1969).

WE HELD IN 47 COMP. GEN. 431 (1968) THAT FAMILY SEPARATION ALLOWANCES ARE NOT PAYABLE TO A MEMBER OF THE UNIFORMED SERVICES WHOSE DEPENDENTS ARE LIVING IN A HOUSEHOLD MAINTAINED BY ANOTHER PERSON DURING WHICH PERIOD THE MEMBER MAINTAINS NO HOUSEHOLD FOR HIS DEPENDENT, SUBJECT TO HIS MANAGEMENT AND CONTROL. IN 46 COMP. GEN. 148, WE SAID THAT WHERE THE RECORD ESTABLISHES THAT THE MEMBER AND HIS DEPENDENTS COMPRIZED A FAMILY OF WHICH HE IS THE HEAD AND THAT HE MAINTAINS THE FAMILY RESIDENCE, PAYMENT OF FAMILY SEPARATION ALLOWANCE IS NOT PRECLUDED UNDER OUR DECISIONS EVEN THOUGH THE MEMBER HAS NO PROPRIETARY INTEREST IN THE RESIDENCE.

SERGEANT WILLINGHAM HAS NO PROPRIETARY INTEREST IN THE HOUSE IN WHICH HIS WIFE RESIDES, BUT SINCE SHE OWNS A ONE-THIRD INTEREST IN THE HOUSE HE, AS HEAD OF HIS HOUSEHOLD, WOULD SEEM TO BE RESPONSIBLE FOR HIS WIFE'S SHARE OF THE HOUSEHOLD EXPENSES AND ENTITLED TO SHARE IN THE MANAGEMENT AND CONTROL OF THE HOUSEHOLD. IN THESE CIRCUMSTANCES, WHILE THE MATTER IS NOT FREE FROM DOUBT, IT IS CONCLUDED THAT SERGEANT WILLINGHAM IS ENTITLED TO THE FAMILY SEPARATION ALLOWANCE AUTHORIZED UNDER THE PROVISIONS OF SECTION 427(B), FOR THE PERIOD FOR WHICH HE WAS OTHERWISE ENTITLED.

THE MEMBER'S STATEMENT TO SUBSTANTIATE PAYMENT OF FAMILY SEPARATION ALLOWANCE (TYPE II) IS RETURNED.