B-157814, AUGUST 18, 1966, 46 COMP. GEN. 151

B-157814: Aug 18, 1966

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THE "ALERT" NOTICE THAT A MILITARY UNIT WILL COMMENCE MOVEMENT TO A RESTRICTED OVERSEAS AREA WITHIN 90 DAYS IS NOT A PERMANENT CHANGE-OF STATION ORDER ENTITLING A MEMBER OF THE UNIFORMED SERVICES TO THE FAMILY SEPARATION ALLOWANCE. DEPENDENTS FREE TO CONTINUE TO RESIDE WITH A MEMBER UNTIL HE IS REQUIRED TO MOVE. THE FAMILY SEPARATION ALLOWANCE MAY NOT BE AUTHORIZED PRIOR TO THE EFFECTIVE DATE OF THE PERMANENT CHANGE OF STATION WHEN DEPENDENTS ARE MOVED UNDER PARAGRAPH M7108 INCIDENT TO THE ALERT NOTICE. 1966: FURTHER REFERENCE IS MADE TO LETTER OF JULY 9. IN ITS DISCUSSION THE COMMITTEE MENTIONS THAT PARAGRAPH M7108 OF THE JOINT TRAVEL REGULATIONS WAS PROMULGATED PURSUANT TO OUR DECISION OF OCTOBER 28.

B-157814, AUGUST 18, 1966, 46 COMP. GEN. 151

FAMILY ALLOWANCES - SEPARATION - TYPE 2 - PERMANENT CHANGE OF STATION REQUIREMENT - ALERT NOTICES. THE "ALERT" NOTICE THAT A MILITARY UNIT WILL COMMENCE MOVEMENT TO A RESTRICTED OVERSEAS AREA WITHIN 90 DAYS IS NOT A PERMANENT CHANGE-OF STATION ORDER ENTITLING A MEMBER OF THE UNIFORMED SERVICES TO THE FAMILY SEPARATION ALLOWANCE, TYPE II, AUTHORIZED UNDER 37 U.S.C. 427/B), AND PARAGRAPH M7108 OF THE JOINT TRAVEL REGULATIONS MAY NOT BE AMENDED TO AUTHORIZE THE ALLOWANCE WHEN DEPENDENTS MOVE INCIDENT TO THE ALERT NOTICE. DEPENDENTS FREE TO CONTINUE TO RESIDE WITH A MEMBER UNTIL HE IS REQUIRED TO MOVE, OR TO REMAIN AT THE OLD STATION INDEFINITELY, A MEMBER RELOCATING HIS DEPENDENTS UPON RECEIPT OF AN ALERT NOTICE DOES SO AT HIS OWN CHOICE, AND ABSENT THE ENFORCED SEPARATION CONTEMPLATED BY SECTION 427/B), THE FAMILY SEPARATION ALLOWANCE MAY NOT BE AUTHORIZED PRIOR TO THE EFFECTIVE DATE OF THE PERMANENT CHANGE OF STATION WHEN DEPENDENTS ARE MOVED UNDER PARAGRAPH M7108 INCIDENT TO THE ALERT NOTICE.

TO THE SECRETARY OF DEFENSE, AUGUST 18, 1966:

FURTHER REFERENCE IS MADE TO LETTER OF JULY 9, 1966, FROM THE ASSISTANT SECRETARY OF DEFENSE, ENCLOSING A COPY OF COMMITTEE ACTION NO. 382 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AND REQUESTING A DECISION WHETHER REGULATIONS MAY BE PROMULGATED AUTHORIZING PAYMENT OF FAMILY SEPARATION ALLOWANCE (TYPE II---$30 PER MONTH) TO AN OTHERWISE ELIGIBLE MEMBER, WHO RELOCATES HIS DEPENDENTS UNDER THE AUTHORITY OF PARAGRAPH M7108 OF THE JOINT TRAVEL REGULATIONS INCIDENT TO AN "ALERT" NOTICE FOR MOVEMENT OVERSEAS BEGINNING ON THE DATE THE DEPENDENTS DEPART THE MEMBER'S PERMANENT DUTY STATION.

IN ITS DISCUSSION THE COMMITTEE MENTIONS THAT PARAGRAPH M7108 OF THE JOINT TRAVEL REGULATIONS WAS PROMULGATED PURSUANT TO OUR DECISION OF OCTOBER 28, 1965, 45 COMP. GEN. 208. IN THAT DECISION WE CONCLUDED THAT 37 U.S.C. 406/E) PROVIDES AUTHORITY FOR THE ISSUANCE OF REGULATIONS AUTHORIZING THE RELOCATION OF DEPENDENTS FROM THE PERMANENT STATION WHEN THE MEMBER IS ON DUTY WITH A UNIT WHICH HAS RECEIVED AN ALERT NOTICE FOR MOVEMENT TO A RESTRICTED STATION OVERSEAS PROVIDED THAT IT IS CONTEMPLATED THE ACTUAL MOVEMENT WILL COMMENCE WITHIN 90 DAYS AFTER THE ALERT NOTICE IS ISSUED AND THE CIRCUMSTANCES ARE SUCH THAT THE MOVEMENT ORDERS CANNOT BE ISSUED SUFFICIENTLY IN ADVANCE OF THE ACTUAL MOVEMENT DATE TO PERMIT THE MEMBERS CONCERNED A REASONABLE TIME TO RELOCATE THEIR HOUSEHOLDS BEFORE THE MOVEMENT TO THE OVERSEAS STATION COMMENCES.

THE COMMITTEE POINTS OUT THAT THE STATUTORY AUTHORITY FOR FAMILY SEPARATION ALLOWANCE, TYPE II, IS CONTAINED IN 37 U.S.C. 427/B) WHICH PROVIDES AS FOLLOWS:

(B) EXCEPT IN TIME OF WAR OR OF NATIONAL EMERGENCY HEREAFTER DECLARED BY CONGRESS; AND IN ADDITION TO 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;

IN VIEW OF THOSE PROVISIONS THE COMMITTEE MENTIONS A POSSIBLE OBJECTION TO THE PROPOSED REGULATION ON THE GROUNDS THAT THE DEPENDENTS ARE, IN FACT, AT THE MEMBER'S PERMANENT DUTY STATION WHEN THE "ALERT" NOTICE IS ISSUED, BUT INVITES ATTENTION TO DECISION OF OCTOBER 9, 1963, 43 COMP. GEN. 332 (ANSWER TO QUESTION 18), WHICH INVOLVED DEPENDENTS WHO WERE AT THE OVERSEAS STATION AND WHO WERE AUTHORIZED TRAVEL FROM THE STATION UNDER THE EMERGENCY EVACUATION AND NATIONAL INTEREST PROVISIONS OF PARAGRAPHS M7101 AND M7105 OF THE JOINT TRAVEL REGULATIONS. IN THOSE SITUATIONS THE DECISION HELD THAT THE ALLOWANCE WOULD BE PAYABLE SINCE THERE WOULD BE ENFORCED SEPARATION BECAUSE OF THE MOVEMENT BY THE GOVERNMENT OF THE MEMBER'S DEPENDENTS FROM HIS OVERSEAS STATION FOR THE REASONS THERE PROVIDED, THE EFFECT BEING TO CONVERT SUCH POST OF DUTY TO A RESTRICTED STATION. THE COMMITTEE SAYS, HOWEVER, THAT IT MAY BE ARGUED THAT THE MOVEMENT OF DEPENDENTS UNDER AN "ALERT" MAY NOT BE SOLELY DUE TO THE ACTION OF THE GOVERNMENT SINCE SOME DEPENDENTS COULD ELECT TO REMAIN AT THE STATION UNTIL THE UNIT BEGINS TRAVEL TO THE NEW RESTRICTED STATION, OR IN THE ALTERNATIVE, NEVER LEAVE THE STATION, THUS RAISING A QUESTION AS TO WHETHER IT WAS AN ENFORCED SEPARATION FOR THE FAMILIES WHO DEPARTED ON THE "ALERT" NOTICE.

THE COMMITTEE URGES THAT THE PURPOSE OF THE "ALERT" IS TO MAKE POSSIBLE THE ORDERLY DISPOSITION OF FAMILIES; THAT THE MOVEMENT OF DEPENDENTS ON THE BASIS OF AN "ALERT" IS AUTHORIZED, NOT FOR THE MEMBER'S OR DEPENDENT'S BENEFIT BUT BECAUSE THE SECRETARY IS AUTHORIZED BY STATUTE (37 U.S.C. 406/E/) TO MOVE DEPENDENTS PRIOR TO THE ISSUANCE OF ORDERS IN APPROPRIATE SITUATIONS, UNUSUAL IN NATURE, OF WHICH AN ALERT IS ONE, AND THAT THE DEPENDENTS ARE MOVED BECAUSE OF MILITARY OPERATIONS. ALSO, IT IS SAID THAT WE HAVE RECOGNIZED THAT MOVEMENT OF THE DEPENDENTS FROM THE STATION IN THE NATIONAL INTEREST UNDER PARAGRAPH M7105 OF THE REGULATIONS WOULD SUPPORT FAMILY SEPARATION ALLOWANCE (DECISION OF OCTOBER 9, 1963), AND THAT A SECRETARIAL DETERMINATION THAT THE MOVE WAS IN THE NATIONAL INTEREST WILL ALREADY HAVE BEEN MADE WHEN DEPENDENTS ARE MOVED UNDER PARAGRAPH M7108 OF THE REGULATIONS. INASMUCH AS THE MOVEMENT OF DEPENDENTS TO A DESIGNATED LOCATION IS AUTHORIZED ON A UNIT "ALERT", IT IS STATED TO BE THE VIEW OF THE DEPARTMENT OF DEFENSE THAT ANY SEPARATION RESULTING FROM THE MOVE SHOULD QUALIFY THE MEMBER FOR FAMILY SEPARATION ALLOWANCE, TYPE II, ALTHOUGH AS INDICATED ABOVE, SOME DOUBT HAS BEEN EXPRESSED.

UNDER PARAGRAPH M7108 OF THE JOINT TRAVEL REGULATIONS TRANSPORTATION OF DEPENDENTS IS AUTHORIZED WHEN THE UNIT TO WHICH THE MEMBER BELONGS HAS BEEN ALERTED FOR MOVEMENT TO A RESTRICTED STATION OUTSIDE THE UNITED STATES CONTEMPLATED TO COMMENCE WITHIN 90 DAYS. THE MEMBER IS NOT REQUIRED TO MOVE FROM HIS PERMANENT STATION UNTIL HE OR HIS UNIT RECEIVES PERMANENT CHANGE-OF-STATION ORDERS, AND HIS DEPENDENTS MAY REMAIN AT THAT STATION INDEFINITELY. IF THE MEMBER RELOCATES HIS DEPENDENTS UPON RECEIPT OF THE "ALERT" NOTICE HE DOES SO OF HIS OWN CHOICE. HENCE, THERE IS NO ENFORCED SEPARATION PRIOR TO THE EFFECTIVE DATE OF THE PERMANENT CHANGE-OF -STATION ORDERS.

AS INDICATED ABOVE, IN ANSWER TO QUESTION 18 IN 43 COMP. GEN. 332, WE HELD THAT IF DEPENDENTS ARE RETURNED FROM OVERSEAS UNDER PARAGRAPH M7105 OF THE REGULATIONS FOR REASONS OF NATIONAL INTEREST PRIOR TO RETURN OF THE SPONSOR, FAMILY SEPARATION ALLOWANCE WOULD BE AUTHORIZED. WHILE THE DECISION DID NOT SPECIFICALLY SO STATE, THE ANSWER WAS PREDICATED ON A DETERMINATION BY THE SECRETARY OF THE SERVICE CONCERNED, OR BY HIGHER AUTHORITY, UNDER WHICH THE DEPENDENTS ARE REQUIRED TO LEAVE THE OVERSEAS AREA FOR REASONS OF NATIONAL INTEREST RATHER THAN ON THEIR OWN VOLITION. THAT THE MOVEMENT OF DEPENDENTS FROM THE STATION CONCERNED UNDER PARAGRAPH M7105 IS REQUIRED, RATHER THAN ELECTIVE, IS CLEARLY INDICATED BY SUBPARAGRAPH 2 THEREOF WHICH PROVIDES THAT WHEN THE AUTHORITY WHICH MADE THE ORIGINAL DETERMINATION SUBSEQUENTLY DETERMINES THAT THE ,NATIONAL INTEREST NO LONGER REQUIRES THE ABSENCE" OF THE DEPENDENTS FROM THE OVERSEAS AREA, TRANSPORTATION OF THE DEPENDENTS FROM THE DESIGNATED PLACE TO THE MEMBER'S CURRENT UNRESTRICTED DUTY STATION IS AUTHORIZED AS THERE PROVIDED. THUS, THAT DECISION DOES NOT AFFORD A BASIS FOR THE PROPOSED ACTION.

SINCE THE "ALERT" NOTICE IS NOT A PERMANENT CHANGE-OF-STATION ORDER AND AS THE DEPENDENTS ARE FREE TO RESIDE WITH THE MEMBER UNTIL HE IS REQUIRED TO MOVE, THERE IS NOT AN ENFORCED SEPARATION OF THE MEMBER FROM HIS FAMILY BY REASON OF SUCH NOTICE. THEREFORE, FAMILY SEPARATION ALLOWANCE, TYPE II, IS NOT AUTHORIZED UNDER SECTION 427/B) (1) PRIOR TO THE EFFECTIVE DATE OF THE PERMANENT CHANGE OF STATION WHEN DEPENDENTS ARE MOVED FROM THE MEMBER'S STATION UNDER PARAGRAPH M7108 OF THE JOINT TRAVEL REGULATIONS INCIDENT TO AN "ALERT" NOTICE.

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