B-131836, NOV 5, 1970, 50 COMP GEN 334

B-131836, NOV 5, 1970, 50 COMP GEN 334

FAMILY ALLOWANCES - SEPARATION - TYPE 2 - SHIP DUTY - ASHORE EFFECT NAVY MEMBERS WHO TRAVEL DURING 48 HOURS OF LIBERTY, 72 HOURS IF A HOLIDAY IS INVOLVED, FROM THE PLACE OF SHIP OVERHAUL TO THE HOME PORT OF THE SHIP TO VISIT DEPENDENTS AND RETURN AT GOVERNMENT EXPENSE PURSUANT TO PUBLIC LAW 91-210, DO NOT FORFEIT ENTITLEMENT TO THE $30 PER MONTH FAMILY SEPARATION ALLOWANCE, TYPE II, AUTHORIZED IN 37 U.S.C. 427(B) FOR MEMBERS SEPARATED FROM THEIR DEPENDENTS WHILE ON BOARD SHIP FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS. THE LEGISLATIVE HISTORY OF PUBLIC LAW 91- 210, ENACTED AS BENEFICIAL LEGISLATION TO PERMIT MEMBERS TO TRAVEL AT GOVERNMENT EXPENSE FROM A PLACE OF VESSEL OVERHAUL TO HOME PORT TO VISIT DEPENDENTS, EVIDENCES NO INTENT TO DEPRIVE A MEMBER OF OTHER BENEFITS BY REASON OF A SHORT VISIT WITH DEPENDENTS ON THE USUAL TYPE OF NAVY LIBERTY.

TO THE SECRETARY OF THE NAVY, NOVEMBER 5, 1970:

WE AGAIN REFER TO LETTER OF SEPTEMBER 24, 1970, FROM THE ASSISTANT SECRETARY OF THE NAVY (FINANCIAL MANAGEMENT) REQUESTING A DECISION AS TO THE ENTITLEMENT OF SHIPBOARD MEMBERS TO FAMILY SEPARATION ALLOWANCE, TYPE II, WHEN THEY TRAVEL FROM THE PLACE WHERE THE SHIP IS UNDERGOING OVERHAUL TO THE HOME PORT OF THE SHIP TO VISIT DEPENDENTS AND RETURN AT GOVERNMENT EXPENSE PURSUANT TO PUBLIC LAW 91-210, 37 U.S.C. 406B, AND THE TRAVEL IS PERFORMED IN A SINGLE PERIOD OF LIBERTY. THE REQUEST WAS ASSIGNED SUBMISSION NO. SS-N-1096 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE ASSISTANT SECRETARY SAYS THAT PUBLIC LAW 91-210, APPROVED MARCH 13, 1970, PROVIDES NEW TRANSPORTATION ENTITLEMENTS AT GOVERNMENT EXPENSE FOR SHIPBOARD MEMBERS OF THE UNIFORMED SERVICES FROM THE PLACE A SHIP IS UNDERGOING OVERHAUL TO THE HOME PORT OF THE SHIP AND RETURN, PROVIDED THE MEMBER'S DEPENDENTS ARE RESIDING AT THE HOME PORT OF THE SHIP. HE SAYS THAT THESE ENTITLEMENTS WERE IMPLEMENTED BY THE JOINT TRAVEL REGULATIONS, VOLUME 1, BY THE ADDITION OF PART O TO CHAPTER 6, AND THAT IMPLEMENTATION BY THE NAVY WAS ACCOMPLISHED BY THE ISSUANCE OF NAVAL MESSAGE 311947Z OF MARCH 31, 1970 (ALNAV 05) WHICH WAS SUPERSEDED BY SECNAV INSTRUCTION 7220.67 DATED JULY 21, 1970. HE STATES THAT BOTH THE ALNAV AND THE SECNAV INSTRUCTION PROVIDE, IN PERTINENT PART, THAT THE TRANSPORTATION ENTITLEMENTS WILL BE UTILIZED IN CONJUNCTION WITH NORMAL LEAVE OR LIBERTY.

THE ASSISTANT SECRETARY SAYS THAT IN VIEW OF DECISIONS 43 COMP. GEN. 332 (1963) AND 43 COMP. GEN. 749 (1964) IT IS CLEAR THAT A MEMBER'S ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE, TYPE II, DOES NOT TERMINATE WHEN HE VISITS HIS DEPENDENTS AT THE HOME PORT IN CONNECTION WITH AUTHORIZED LEAVE. HE POINTS OUT, HOWEVER, THAT THE 1964 DECISION ALSO PROVIDES THAT WHEN A MEMBER IS VISITING HIS DEPENDENTS IN CONNECTION WITH "COMPENSATORY ABSENCE" - WHICH IS DESCRIBED AS "A LUMPING TOGETHER OF SEVERAL LIBERTIES" - THE MEMBER'S ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE, TYPE II, TERMINATES DURING THE PERIOD OF THE VISIT AND HE DOES NOT AGAIN QUALIFY FOR THE ALLOWANCE UNTIL HE RETURNS TO THE VESSEL AND THEREAFTER SERVES THE REQUIRED PERIOD OF 30 DAYS.

IN VIEW OF THE HOLDING IN THE 1964 DECISION THE ASSISTANT SECRETARY SAYS THAT DOUBT EXISTS AS TO THE ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE, TYPE II, WHEN A SINGLE PERIOD OF LIBERTY IS INVOLVED IN CONNECTION WITH TRAVEL OF A MEMBER FROM PLACE OF OVERHAUL TO HOME PORT AND RETURN FOR THE PURPOSE OF VISITING DEPENDENTS RESIDING AT THE HOME PORT.

AS AN EXAMPLE, MENTION IS MADE OF A SHIP WITH HOME PORT AT NEWPORT, RHODE ISLAND, WHICH IS UNDERGOING INACTIVATION AT BOSTON, MASSACHUSETTS. MEMBERS WHOSE DEPENDENTS RESIDE IN NEWPORT ARE GRANTED WEEKEND LIBERTY. THEY TRAVEL IN A PRIVATELY OWNED VEHICLE FROM BOSTON TO NEWPORT ON FRIDAY AFTER WORKING HOURS AND RETURN TO BOSTON ON SUNDAY EVENING. THE ASSISTANT SECRETARY SAYS THAT UNDER PUBLIC LAW 91-210 AND PARAGRAPH M6701 OF THE JOINT TRAVEL REGULATIONS, THE OPERATOR OF THE AUTOMOBILE IS ENTITLED TO REIMBURSEMENT FOR TRAVEL FROM BOSTON TO NEWPORT AND RETURN AT 5 CENTS PER MILE FOR TRIPS PERFORMED DURING THE INTERVALS SPECIFIED IN THE STATUTE. THE QUESTION IS PRESENTED, HOWEVER, WHETHER ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE, TYPE II, OF THE DRIVER AND PASSENGERS TERMINATES ON FRIDAY AND DOES NOT ACCRUE AGAIN UNTIL AFTER THE 30-DAY QUALIFYING PERIOD BEGINNING ON SUNDAY HAS EXPIRED. IN VIEW OF THE SUBSTANTIAL NUMBER OF PERSONNEL ATTACHED TO SHIPS SCHEDULED FOR INACTIVATION IN THE NEAR FUTURE, THE ASSISTANT SECRETARY REQUESTED OUR EARLY CONSIDERATION OF THE PROBLEM.

SO FAR AS IS PERTINENT HERE, 37 U.S.C. 427(B) PROVIDES FOR A FAMILY SEPARATION ALLOWANCE OF $30 PER MONTH, DESIGNATED BY THE SERVICES AS TYPE II, FOR PERIODS WHEN THERE IS AN ENFORCED SEPARATION OF THE MEMBER AND HIS DEPENDENTS INCLUDING WHEN "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."

IN 43 COMP. GEN. 748 (1964) THERE WAS CONSIDERED THE ENTITLEMENT TO THIS ALLOWANCE FOR MEMBERS OF THE COAST GUARD PERMANENTLY ASSIGNED TO ISOLATED UNITS OR STATIONS WHO ARE REQUIRED TO SERVE AT THEIR STATIONS FOR CONTINUOUS SHORT PERIODS NOT EXCEEDING 21 DAYS EACH FOLLOWED BY AN INTERVAL OF COMPENSATORY ABSENCE NOT EXCEEDING 7 DAYS. WE POINTED OUT THAT THE GRANTING OF SUCH COMPENSATORY ABSENCE IS AUTHORIZED BY 14 U.S.C. 511, AND THAT IMPLEMENTING REGULATIONS CONTAINED IN COAST GUARD PERSONNEL MANUAL PROVIDE THAT SUCH COMPENSATORY ABSENCE IS A FORM OF LIBERTY GRANTED TO PERSONNEL ON LIGHT SHIPS, AT LIGHT HOUSES, AND OTHER AIDS TO NAVIGATION.

THOSE REGULATIONS FURTHER PROVIDE THAT COMPENSATORY TIME IS NOT A RIGHT TO ANY INDIVIDUAL BUT IS AUTHORIZED FOR THE PURPOSE OF MAINTAINING THE EFFICIENCY OF THE SERVICE BY PROVIDING A METHOD OF COMPENSATING ANY INDIVIDUAL FOR NORMAL LIBERTIES LOST THROUGH SERVING AT ISOLATED UNITS. SINCE UNDER THOSE PROVISIONS IT WAS EVIDENT THAT, GENERALLY, FOR AT LEAST 1 FULL WEEK OF EACH MONTH OF THEIR ASSIGNMENT, THESE MEMBERS CAN REJOIN THEIR DEPENDENTS WHO WERE AUTHORIZED TO MOVE AT GOVERNMENT EXPENSE TO THE AREA IN WHICH THE ISOLATED DUTY STATION IS LOCATED, WE HELD THAT THERE IS NOT AN ENFORCED SEPARATION FOR AN EXTENDED PERIOD OF TIME AS CONTEMPLATED BY 37 U.S.C. 427(B). THAT DECISION ALSO MENTIONS THAT SUCH COMPENSATORY TIME AND LEAVE MAY BE AUTHORIZED CONSECUTIVELY.

PUBLIC LAW 91-210, APPROVED MARCH 13, 1970, AMENDED CHAPTER 7 OF TITLE 37, U.S. CODE, BY ADDING A NEW SECTION 406B. THAT SECTION PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED A MEMBER OF THE UNIFORMED SERVICES WHO IS ON PERMANENT DUTY ABOARD A SHIP WHICH IS BEING OVERHAULED AWAY FROM ITS HOME PORT AND WHOSE DEPENDENTS ARE RESIDING AT THE HOME PORT OF THE SHIP IS ENTITLED TO TRANSPORTATION, TRANSPORTATION IN KIND, REIMBURSEMENT FOR PERSONALLY PROCURED TRANSPORTATION, OR AN ALLOWANCE FOR TRANSPORTATION AS PROVIDED IN SECTION 404(D)(3) OF THAT CHAPTER FOR ROUND TRIP TRAVEL FROM THE PORT OF OVERHAUL TO THE HOME PORT ON OR AFTER THE THIRTY-FIRST, NINETY FIRST, AND ONE HUNDRED AND FIFTY- FIRST CALENDAR DAY AFTER THE DATE ON WHICH THE SHIP ENTERS THE OVERHAUL PORT OR AFTER THE DATE ON WHICH THE MEMBER BECOMES PERMANENTLY ATTACHED TO THE SHIP, WHICHEVER DATE IS LATER.

THE LEGISLATIVE HISTORY OF THE MEASURE SHOWS THAT A MEMBER WOULD NOT BE ENTITLED TO THE TRANSPORTATION WHERE HE HAD BEEN ATTACHED TO THE SHIP "FOR LESS THAN 30 CONSECUTIVE DAYS." PAGE 5, SENATE REPORT NO. 91 665 TO ACCOMPANY H.R. 8020. THAT REPORT ALSO SHOWS IT HAS BEEN THE PRACTICE FOR THE MEMBERS TO TRAVEL FROM THE VESSEL TO THE HOME PORT AT PERSONAL EXPENSE ON "AVAILABLE WEEKENDS." PRESUMABLY, THIS REFERS TO LIBERTY TRAVEL.

WITH RESPECT TO LIBERTY, PARAGRAPH 3030100-1, BUREAU OF NAVAL PERSONNEL MANUAL, PROVIDES THAT LIBERTY, AS DEFINED IN NAVY REGULATIONS, AUTHORIZED ABSENCE OF A MEMBER FROM A PLACE OF DUTY NOT CHARGEABLE AS LEAVE. FURTHER PROVIDES THAT LIBERTY MAY NOT BE TAKEN IN CONJUNCTION WITH LEAVE AND THAT IT MAY BE GRANTED BY COMMANDING OFFICERS AT ANY TIME FOR A PERIOD OF 48 HOURS OR LESS AND THAT THIS PERIOD MAY BE EXTENDED TO 72 HOURS IF IT INCLUDES A HOLIDAY PROCLAIMED BY THE PRESIDENT OR AUTHORIZED BY THE SECRETARY OF THE NAVY. IT FURTHER PROVIDES THAT IN CERTAIN CIRCUMSTANCES LIBERTY MAY BE GRANTED FOR AS MUCH AS 96 HOURS.

OUR HOLDING IN 43 COMP. GEN. 748 THAT A PERIOD OF COMPENSATORY ABSENCE UNDER 14 U.S.C. 511 AND COAST GUARD REGULATIONS, PERMITTING A MEMBER TO BE WITH HIS DEPENDENTS A FULL WEEK EACH MONTH, WOULD TERMINATE HIS ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE, TYPE II, WAS BASED ON THE LONG PERIOD EACH MONTH THAT HE WOULD BE WITH HIS DEPENDENTS. APPARENTLY, THE NAVY HAS NO SIMILAR PROVISION.

PUBLIC LAW 91-210 WAS ENACTED AS BENEFICIAL LEGISLATION TO PERMIT MEMBERS TO TRAVEL AT GOVERNMENT EXPENSE FROM THE PLACE OF OVERHAUL OF THE VESSEL TO THE HOME PORT TO VISIT THEIR DEPENDENTS. THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE LAW TO INDICATE ANY INTENTION TO DEPRIVE A MEMBER OF OTHER BENEFITS BY REASON OF SUCH A SHORT VISIT WITH HIS DEPENDENTS ON THE USUAL TYPE OF NAVY LIBERTY.

ACCORDINGLY, IF ENTITLEMENT OTHERWISE EXISTS, WE WOULD NOT BE REQUIRED TO OBJECT TO THE CONTINUATION OF FAMILY SEPARATION ALLOWANCE, TYPE II, WHERE MEMBERS ARE GRANTED LIBERTY FOR NOT TO EXCEED 48 HOURS (72 HOURS IF A HOLIDAY IS INCLUDED) FOR THE PURPOSE OF VISITING THEIR DEPENDENTS. THERE WOULD BE NO TRANSPORTATION ENTITLEMENT, HOWEVER, WHERE, AS IN THE EXAMPLE PRESENTED, THE VESSEL IS UNDERGOING INACTIVATION RATHER THAN OVERHAUL. SEE DECISION OF OCTOBER 26, 1970, 50 COMP. GEN. , TO THE SECRETARY OF DEFENSE.