B-168661, MARCH 9, 1970, 49 COMP. GEN. 548

B-168661, MARCH 9, 1970, 49 COMP. GEN. 548

STATION ALLOWANCES -- MILITARY PERSONNEL -- EXCESS LIVING COSTS OUTSIDE UNITED STATES, ETC. -- DEPENDENTS MILITARY DEPENDENT STATUS A MEMBER OF THE UNIFORMED SERVICES WHO INCIDENT TO A PERMANENT CHANGE OF STATION TO A RESTRICTED AREA OVERSEAS TO WHICH HIS DEPENDENTS ARE NOT AUTHORIZED TO ACCOMPANY HIM, ELECTS TO MOVE HIS DEPENDENTS FROM HIS OLD DUTY STATION IN THE UNITED STATES (U.S.) TO A DESIGNATED PLACE IN ALASKA, HAWAII, PUERTO RICO, OR ANY TERRITORY OR POSSESSION OF THE U.S. -IN FACT TO ANY PLACE OUTSIDE THE U.S.--MAY NOT BE PAID STATION ALLOWANCES-- TEMPORARY LODGING, HOUSING, AND COST-OF-LIVING ALLOWANCES- AS THE DEPENDENTS MOVE OVERSEAS WOULD BE A PERSONAL CHOICE, SEPARATE AND APART FROM THE MEMBER'S OVERSEAS DUTY. THE DEPENDENTS WHILE RESIDING OVERSEAS WOULD NOT BE IN A MILITARY DEPENDENT STATUS AND, THEREFORE, THE INCREASED LIVING COSTS INCURRED BY THE MEMBER WOULD NOT BE WITHIN THE CONTEMPLATION OF 37 U.S.C. 405 FOR REIMBURSEMENT PURPOSES.

TO THE SECRETARY OF THE AIR FORCE, MARCH 9, 1970:

FURTHER REFERENCE IS MADE TO LETTER DATED DECEMBER 16, 1969, FROM THE ACTING ASSISTANT SECRETARY OF THE AIR FORCE (MANPOWER AND RESERVE AFFAIRS) REQUESTING A DECISION WHETHER THE JOINT TRAVEL REGULATIONS, VOLUME I, MAY BE AMENDED TO AUTHORIZE THE PAYMENT OF STATION ALLOWANCES (TEMPORARY LODGING ALLOWANCES, HOUSING ALLOWANCES AND COST-OF-LIVING ALLOWANCES) IN THE CASE OF A MEMBER WHOSE DEPENDENTS MAKE AN AUTHORIZED MOVE FROM A PLACE IN THE UNITED STATES, AS DEFINED IN PARAGRAPH M1150 16 OF THE REGULATION, TO A DESIGNATED PLACE IN ALASKA, HAWAII, PUERTO RICO, OR A TERRITORY OR POSSESSION OF THE UNITED STATES UPON HIS PERMANENT CHANGE OF STATION FROM A DUTY STATION IN THE UNITED STATES TO A RESTRICTED AREA AS DEFINED IN PARAGRAPH M1150-17 OF THE REGULATIONS. THE REQUEST WAS ASSIGNED CONTROL NO. 69-52 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IN HIS LETTER THE ACTING ASSISTANT SECRETARY SAYS THAT PARAGRAPH M4305 OF THE JOINT TRAVEL REGULATIONS HAS LONG PROVIDED FOR THE PAYMENT OF STATION ALLOWANCES IN SIMILAR CASES WHERE THE MEMBER'S FORMER PERMANENT DUTY STATION IS LOCATED OUTSIDE THE ORIGINAL 48 UNITED STATES AND THE DISTRICT OF COLUMBIA ON THE PREMISE THAT THE MEMBER AND HIS DEPENDENTS WERE LOCATED WITHIN THE AREA COVERED BY 37 U.S.C. 405, FROM WHICH STATION PER DIEM ALLOWANCE AUTHORITY ARISES, BOTH BEFORE AND AFTER THE RELATED TRANSFER TO A RESTRICTED AREA.

HE SAYS FURTHER THAT THIS HAS PROVEN AN IRRITANT IN THE CASE OF MEMBERS REFERRED TO ABOVE (FIRST PARAGRAPH), AND HAS BEEN THE SOURCE OF MANY CONGRESSIONAL COMPLAINTS CHARGING THAT THE REGULATION, AS PRESENTLY WRITTEN, DISCRIMINATES AGAINST SUCH MEMBERS AND THEIR FAMILIES. ALSO, IN THE EVENT OUR ANSWER TO THE QUESTION PRESENTED IS IN THE AFFIRMATIVE, THE ACTING ASSISTANT SECRETARY ASKS WHETHER OUR ANSWER WOULD BE THE SAME IF THE DESIGNATED PLACE TO WHICH THE DEPENDENTS WERE MOVED IS LOCATED AT ANY PLACE OUTSIDE THE UNITED STATES OTHER THAN ALASKA, HAWAII, PUERTO RICO, OR A TERRITORY OR POSSESSION OF THE UNITED STATES.

UNDER THE PROVISIONS OF 37 U.S.C. 405, THE SECRETARIES CONCERNED MAY AUTHORIZE THE PAYMENT OF A PER DIEM, CONSIDERING ALL ELEMENTS OF THE COST OF LIVING TO MEMBERS OF THE UNIFORMED SERVICES 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.

PARAGRAPH M4300-1 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT A MEMBER WITH DEPENDENTS IS A MEMBER WHO IS IN A PAY GRADE ENTITLING HIM TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE AND WHOSE DEPENDENTS ARE AUTHORIZED TO AND DO RESIDE IN THE VICINITY OF THE MEMBER'S DUTY STATION OUTSIDE THE UNITED STATES. IN LINE WITH THE PURPOSE OF 37 U.S.C. 405, PARAGRAPH M4301-1 OF THE REGULATIONS PROVIDES THAT STATION 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. A MEMBER WHOSE DEPENDENTS DO NOT ACCOMPANY HIM FROM THE UNITED STATES TO AN OVERSEAS DUTY STATION INCURS NO EXCESS LIVING COSTS AT HIS DUTY STATION ON THEIR ACCOUNT AND THE LAW HAS NOT VIEWED AS AUTHORIZING THE PAYMENT OF THE ALLOWANCES FOR DEPENDENTS IN SUCH CASES.

PARAGRAPH M4305-2A OF THE REGULATIONS PROVIDES FOR THE PAYMENT OF STATION ALLOWANCES IN THE CASE OF A MEMBER ON DUTY OUTSIDE THE UNITED STATES WHOSE DEPENDENTS ARE RESIDING IN THE VICINITY OF HIS DUTY STATION WHEN ORDERS ARE ISSUED REASSIGNING HIM TO DUTY IN A RESTRICTED AREA OUTSIDE THE UNITED STATES IN WHICH DEPENDENTS ARE NOT PERMITTED TO ESTABLISH A RESIDENCE, IN THE SAME MANNER AS IF THE MEMBER WERE PRESENT AT THE OLD DUTY STATION, IF APPROVED BY THE SECRETARY OF THE SERVICE CONCERNED OR HIS DESIGNATED REPRESENTATIVE, AND IF THE DEPENDENTS CONTINUE TO RESIDE IN THE VICINITY OF SUCH OLD DUTY STATION FOR THE ENTIRE PERIOD FOR WHICH ALLOWANCES ARE CLAIMED. ALSO, PARAGRAPH M4305 2B OF THE REGULATIONS PROVIDES IN SUCH CASES THAT STATION ALLOWANCES ARE PAYABLE UNDER CERTAIN CIRCUMSTANCES IF THE DEPENDENTS ARE AUTHORIZED TO MOVE FROM THE OVERSEAS STATION TO A DESIGNATED PLACE OUTSIDE THE UNITED STATES.

SECTION 405 OF TITLE 37, U.S.C. AS APPLIED IN THE REGULATIONS ISSUED THEREUNDER, PROVIDES FOR INCREASED COST OF LIVING ALLOWANCES ON THE BASIS OF DEPENDENCY INCIDENT TO A PERMANENT DUTY ASSIGNMENT OUTSIDE THE UNITED STATES, 43 COMP. GEN. 690 (1964). THUS, THE MEMBER MAY BE PAID THE STATION ALLOWANCES FOR DEPENDENTS ONLY IN THE SITUATION WHERE HIS DEPENDENTS INITIALLY ARE RESIDING OUTSIDE THE UNITED STATES WITH HIM IN A MILITARY DEPENDENT STATUS BECAUSE OF HIS DUTY ASSIGNMENT AND CONTINUE THEIR RESIDENCE OUTSIDE THE UNITED STATES. CONSEQUENTLY, IT HAS BEEN OUR VIEW THAT NO AUTHORITY EXISTS FOR THE PAYMENT OF SUCH ALLOWANCES ON ACCOUNT OF DEPENDENTS IF THE DEPENDENTS' RESIDENCE OUTSIDE THE UNITED STATES HAS NO CONNECTION WITH THE MEMBER'S DUTY ASSIGNMENT. 38 COMP. GEN. 531 (1959). IN CASES WHERE DEPENDENTS, WHO ARE NOT AUTHORIZED TO ACCOMPANY A MEMBER TO AN OVERSEAS DUTY STATION, MOVE FROM THE UNITED STATES TO AN OVERSEAS RESIDENCE AS A DESIGNATED PLACE, THEIR OVERSEAS RESIDENCE IS PURELY A MATTER OF PERSONAL CHOICE AND, AS SUCH, IS SEPARATE AND APART FROM THE MEMBER'S OVERSEAS DUTY.

WITH RESPECT TO THE SPECIFIC PROVISIONS OF THE REGULATIONS (PARAGRAPH M4305-2A AND B) PRESCRIBING CONDITIONS UNDER WHICH MEMBERS WITH DEPENDENTS ARE AUTHORIZED TO RECEIVE STATION ALLOWANCES WHEN REASSIGNED FROM AN OVERSEAS UNRESTRICTED AREA TO A RESTRICTED AREA, WE HAVE NOT OBJECTED TO SUCH REGULATIONS AND HAVE HELD THAT THE REGULATIONS REASONABLY MAY BE VIEWED AS AUTHORIZING STATION ALLOWANCES, IF APPROVED BY APPROPRIATE AUTHORITY, AS IF THE MEMBER HAD CONTINUED ON DUTY AT HIS OLD PERMANENT STATION OVERSEAS. IN SUCH SITUATION, HOWEVER, THE DEPENDENTS WERE RESIDING OUTSIDE THE UNITED STATES IN A MILITARY DEPENDENT STATUS BECAUSE OF THE MEMBER'S DUTY ASSIGNMENT AND NOT BECAUSE THEY ELECTED TO ESTABLISH A RESIDENCE THERE FOR PERSONAL REASONS. 43 COMP. GEN. 525 (1964). THEREFORE, THE DEPENDENTS IN THE SITUATION DESCRIBED IN THE ACTING ASSISTANT SECRETARY'S LETTER AND THE DEPENDENTS COVERED BY THE REGULATIONS ARE NOT SIMILARLY SITUATED AND IT IS OUR VIEW THAT IF THE REGULATIONS AS PRESENTLY WRITTEN ARE DISCRIMINATORY, SUCH DISCRIMINATION RESULTS FROM THE PERSONAL CHOICE OF THE MEMBER OR HIS DEPENDENTS AND NOT FROM THE MEMBER'S OVERSEAS DUTY ASSIGNMENT.

SINCE UNDER THE CIRCUMSTANCES PRESENTED IN THE LETTER THE DEPENDENTS WOULD NOT BE RESIDING OUTSIDE THE UNITED STATES IN A MILITARY DEPENDENT STATUS BUT BECAUSE THEY ELECTED TO ESTABLISH A RESIDENCE THERE FOR PERSONAL REASONS, IT IS OUR OPINION THAT ANY INCREASED LIVING COSTS INCURRED BY THEM DO NOT COME WITHIN THE CONTEMPLATION OF 37 U.S.C. 405.

FOR THE FOREGOING REASONS, IT IS CONCLUDED THAT THE PROPOSED CHANGE IN THE JOINT TRAVEL REGULATIONS IS NOT AUTHORIZED. ACCORDINGLY, THE BASIC QUESTION IS ANSWERED IN THE NEGATIVE AND NO ANSWER TO THE FURTHER QUESTION IS REQUIRED.