B-131836, JANUARY 30, 1964, 43 COMP. GEN. 527

B-131836, JANUARY 30, 1964, 43 COMP. GEN. 527

FAMILY ALLOWANCES - SEPARATION - TYPE 2 - COMMON RESIDENCE WHEN THE SHIP TO WHICH A MEMBER OF THE UNIFORMED SERVICES IS ASSIGNED MOVES AWAY FROM ITS HOME PORT TO A PLACE WHICH IS NEARER THE MEMBER'S RESIDENCE SO THAT THE MEMBER IS NOT ACTUALLY SEPARATED FROM HIS DEPENDENTS BUT LIVES WITH THEM ON THE SAME BASIS THAT HE WOULD IF HE WERE ASSIGNED ASHORE AT THE LOCATION OF HIS SHIP, ENTITLEMENT TO THE FAMILY SEPARATION ALLOWANCE PAYMENTS AUTHORIZED UNDER 37 U.S.C. 427 (B) (2) IS SUBJECT TO THE QUALIFICATION THAT THE MEMBER IS NOT SEPARATED FROM HIS DEPENDENTS AND, THEREFORE, PAYMENT IS PRECLUDED.

TO L. R. FAY, DEPARTMENT OF THE NAVY, JANUARY 30, 1964:

BY SECOND INDORSEMENT DATED DECEMBER 18, 1963, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF OCTOBER 30, 1963, REQUESTING A DECISION AS TO THE LEGALITY OF PAYMENT OF A FAMILY SEPARATION ALLOWANCE ON THE BASIS OF THE CIRCUMSTANCES DISCLOSED. THE REQUEST FOR DECISION HAS BEEN ASSIGNED SUBMISSION NO. DO-N-733 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOUR LETTER REFERS TO "/B) SECNAV INSTRUCTION 7220.46 OF 15 OCT. 1963 (FAMILY SEPARATION ALLOWANCE)" AND THE FOLLOWING FACTS ARE STATED: A. A COMMON HOUSEHOLD IS ESTABLISHED IN ACCORDANCE WITH PAR. 6B (1) REFERENCE (B). B. SHIP'S HOMEPORT IS CONCORD, CALIFORNIA. C. SHIP IS CURRENTLY UNDERGOING REGULARLY SCHEDULED YARD OVERHAUL AT SAN FRANCISCO NAVAL SHIPYARD (HUNTER'S POINT), CALIFORNIA D. MEMBERS CAN COMMUTE DAILY FROM THE HOMEPORT AREA TO THE SHIPYARD AT AN ADDED EXPENSE OVER AND ABOVE THAT EXPENSE NORMALLY INCURRED. E. OFFICIAL DISTANCE COMMUTED IS 43 MILES ONE WAY F. SHIP IS ACTUALLY AWAY FROM ITS HOMEPORT FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS IN ACCORDANCE WITH PAR. 6B (E) OF REF. (B).

SECTION 427 (B) OF TITLE 37, U.S. CODE, AS ADDED BY SECTION 11 OF THE UNIFORMED SERVICES PAY ACT OF 1963, PUBLIC LAW 88-132, APPROVED OCTOBER 2, 1963, PROVIDES FOR THE PAYMENT OF A MONTHLY FAMILY SEPARATION ALLOWANCE TO CERTAIN MEMBERS UNDER SPECIFIED CONDITIONS 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;

(2) 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; OR

(3) HE IS ON TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS AND HIS DEPENDENTS DO NOT RESIDE AT OR NEAR HIS TEMPORARY DUTY STATION.

A MEMBER WHO BECOMES ENTITLED TO AN ALLOWANCE UNDER THIS SUBSECTION BY VIRTUE OF DUTY DESCRIBED IN CLAUSE (2) OR (3) FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS IS ENTITLED TO THE ALLOWANCE EFFECTIVE AS OF THE FIRST DAY OF THAT PERIOD.

IN FORWARDING YOUR LETTER HERE, THE COMPTROLLER OF THE NAVY FURNISHED SUPPLEMENTAL MATTER FOR CONSIDERATION WITH A VIEW TO CLARIFYING ENTITLEMENT TO A FAMILY SEPARATION ALLOWANCE UNDER CLAUSE (2) OF SECTION 427 (B). IN HIS COMMUNICATION, THE NAVY COMPTROLLER STATES THAT PARAGRAPH 6B (1) OF SECNAV INSTRUCTION 7220.46 OF OCTOBER 15, 1963 (CITED IN YOUR LETTER) AND BASED ON OUR DECISION OF OCTOBER 9, 1963, B-131836, 43 COMP. GEN. 332, HAS BEEN DELETED BY ALNAV 47-63 DATED NOVEMBER 29, 1963, WHICH SUBSTITUTED, IN PERTINENT PART, THE FOLLOWING:

OTHERWISE PROPER PAYMENT OF FSA, TYPE II:

(A) IS AUTHORIZED IF, DURING THE PERIOD FOR WHICH THE ALLOWANCE IS CLAIMED, THE MEMBER MAINTAINS A RESIDENCE OR HOUSEHOLD FOR HIS DEPENDENTS WHICH HE LIKELY WOULD SHARE WITH THEM AS A COMMON RESIDENCE DURING PERIODS OF LEAVE OR 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 ASSIGNMENT INVOLVED.

WHILE NOT SO STATED, THE ABOVE-QUOTED AMENDMENT TO PARAGRAPH 6B (1) APPEARS TO BE BASED ON OUR DECISION OF NOVEMBER 22, 1963, B-131836, 43 COMP. GEN. 444, COPY ENCLOSED. THE PERTINENT PROVISIONS OF PARAGRAPH 6B (3) OF SECNAV INSTRUCTION 7220.46, AS SET FORTH IN THE COMPTROLLER'S LETTER ARE AS FOLLOWS:

* * * COMMENCEMENT AND TERMINATION OF ALLOWANCE. OTHERWISE PROPER CREDIT OF FSA'S COMMENCES ON THE DATE OF THE MEMBER'S DEPARTURE ON BOARD THE SHIP FROM ITS HOME PORT PROVIDED THE SHIP IS AWAY FROM ITS HOME PORT FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS. IF A MEMBER JOINS THE SHIP AFTER ITS DEPARTURE FROM THE HOME PORT, ENTITLEMENT TO FSA'S COMMENCES ON THE DATE OF HIS JOINING PROVIDED THE SHIP REMAINS AWAY FROM ITS HOME PORT FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS FROM THE DATE OF HIS JOINING. THE PRECEDING SENTENCE APPLIES EQUALLY TO A MEMBER WHO REJOINS THE SHIP FOLLOWING A PERIOD OF ABSENCE THEREFROM WHICH COMMENCED PRIOR TO THE DEPARTURE OF THE SHIP FROM ITS HOME PORT. ENTITLEMENT WILL TERMINATE ON THE DATE PRECEDING THE DATE THE SHIP RETURNS TO ITS HOME PORT OR THE DATE OF THE MEMBER'S DETACHMENT FROM THE SHIP, WHICHEVER IS EARLIER * * *.

THE NAVY COMPTROLLER STATES THAT, NOTWITHSTANDING THE CHANGE IN THE REGULATIONS, FAMILY SEPARATION ALLOWANCE WOULD BE PAYABLE UNDER CLAUSE (2) OF 37 U.S.C. 427 (B) WERE THE MEMBER ON DUTY ON BOARD THE SHIP AT SEA AWAY FROM THE HOME PORT OF THE SHIP FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS. HE ASKS "DO THE CIRCUMSTANCES OF DAILY POSSIBLE COMMUTING REMOVE THE BASIS UPON WHICH THE ALLOWANCE RESTS? " IN THIS CONNECTION, REFERENCE IS MADE TO OUR DECISION OF OCTOBER 9, 1963, AT PAGE 22, WHEREIN WE HELD, IN ANSWER TO QUESTION 26, THAT IF THE MEMBER'S DEPENDENTS DO NOT RESIDE WITHIN A REASONABLE DAILY COMMUTING DISTANCE OF HIS DUTY STATION FOR WHICH ASSIGNMENT THE ALLOWANCE IS CLAIMED, 50 MILES BEING CONSIDERED THE MAXIMUM ONE-WAY DISTANCE FOR THIS PURPOSE EXCEPT WHERE THE MEMBER ACTUALLY COMMUTES A GREATER DISTANCE DAILY, IT MAY BE CONSIDERED THAT THE DEPENDENTS DO NOT RESIDE AT OR NEAR HIS STATION FOR THE PURPOSE OF CLAUSE (1) OF SECTION 427 (A) AND CLAUSES (1) AND (3) OF SECTION 427 (B). IT IS STATED THAT IT CANNOT BE ASSUMED WITHOUT DOUBT THAT THE REASONING APPLIED IN THAT DECISION APPLIES TO "SHIP AWAY FROM HOME PORT" SITUATIONS UNDER CLAUSE (2) AND ESPECIALLY SINCE THAT CLAUSE, UNLIKE CLAUSES (1) AND (3) DOES NOT CONTAIN THE PHRASEOLOGY "AND HIS DEPENDENTS DO NOT RESIDE AT OR NEAR THAT STATION.' AS AN EXAMPLE OF THE DAILY COMMUTING DISTANCE PROBLEM, IT IS STATED THAT THE SHIP'S HOME PORT IS SAN DIEGO, AND THE CREW MEMBER MAINTAINS HIS FAMILY RESIDENCE 20 MILES FROM LONG BEACH. THE DISTANCE FROM HIS RESIDENCE TO SAN DIEGO EXCEEDS 50 MILES AND IS NOT WITHIN A REASONABLE DAILY COMMUTING DISTANCE FROM SAN DIEGO. THE SHIP MOVES TO LONG BEACH FOR A PERIOD OF 60 DAYS' OVERHAUL. UNLIKE THE CONCORD SITUATION (DISCLOSED IN YOUR SUBMISSION), IT IS STATED THAT THE SHIP'S MOVE HAS BROUGHT THE CREW MEMBER CLOSER TO HOME AND MORE THAN 50 MILES, OR A REASONABLE DAILY COMMUTING DISTANCE FROM THE HOME PORT.

THE NAVY COMPTROLLER FURTHER STATES THAT IF 37 U.S.C. 427 (B) (2) PERMITS, THE NAVY WOULD CONSIDER AN ALLOWANCE THEREUNDER NOT TO BE PAYABLE TO MEMBERS ATTACHED TO A SHIP WHEN THE SHIP MOVES FROM HER HOME PORT TO ANOTHER LOCATION WITHIN A RADIUS OF 50 MILES EVEN THOUGH ALL THE OTHER REQUIREMENTS WERE MET. THE NAVY, IT IS STATED, WOULD CONSIDER A SHIP TO BE AWAY FROM THE HOME PORT, WITHIN THE MEANING OF 37 U.S.C. 427 (B) (2), ONLY IF THE MOVEMENT FROM THE HOME PORT TO ANOTHER LOCATION EXCEEDED A DISTANCE OF 50 MILES IN ACCORDANCE WITH TRANSPORTATION AND TRAVEL OFFICIAL TABLE OF DISTANCES AS INDICATED IN THE SUBMISSION. ALSO, IT IS STATED THAT EVEN THOUGH A LITERAL INTERPRETATION OF CLAUSE (2) MIGHT SEEM TO PERMIT PAYMENT WHEN A SHIP MOVES ONLY A FEW MILES FROM HER HOME PORT TO ANOTHER LOCATION, AS IN THE CONCORD TO THE SAN FRANCISCO NAVAL SHIPYARD SITUATION, THE CHIEF OF NAVAL PERSONNEL BELIEVES A RESTRICTION ON PAYMENT OF FAMILY SEPARATION ALLOWANCE UNDER THE CIRCUMSTANCES TO BE DESIRABLE. ON THE OTHER HAND, IT IS STATED THAT, UNDER THE FORTUITOUS CIRCUMSTANCES WHERE THE SHIP MOVES MORE THAN 50 MILES FROM HER HOME PORT, AS IN THE SAN DIEGO TO LONG BEACH EXAMPLE, TO A LOCATION WHICH HAPPENS TO BE NEARER TO A PARTICULAR MEMBER'S RESIDENCE, OR HOUSEHOLD WHICH HE MAINTAINS FOR HIS DEPENDENT AND TO WHICH HE MAY GO WHEN HIS DUTY ASSIGNMENT PERMITS, THE CHIEF OF NAVAL PERSONNEL CONSIDERS THE MEMBER CONCERNED SHOULD BE ELIGIBLE TO RECEIVE THE ALLOWANCE SINCE THE LOCATION OF THE RESIDENCE COULD BE EXCLUDED FROM CONSIDERATION. PROCEDURES TO RESTRICT PAYMENT BASED ON OTHER CIRCUMSTANCES, IT IS STATED, SUCH AS WHETHER OR NOT AN INDIVIDUAL MEMBER COMMUTED DAILY TO HIS RESIDENCE, OR WAS IN REASONABLE DAILY COMMUTING DISTANCE, WOULD PRESENT FEATURES OF ADMINISTRATIVE IMPRACTICABILITY.

IN SUBSTANCE, THE QUESTION RAISED BY THE NAVY COMPTROLLER IS WHETHER AUTHORITY EXISTS UNDER 37 U.S.C. 427 (B) (2) WHICH WOULD PERMIT THE NAVY TO CONSIDER A SHIP TO BE "AWAY FROM THE HOME PORT" FOR THE ALLOWANCE PURPOSES ONLY WHEN THE MOVEMENT FROM THE HOME PORT TO ANOTHER LOCATION EXCEEDS A DISTANCE OF 50 MILES, AND TO DISREGARD THE PROXIMITY OF THE MEMBER'S RESIDENCE TO THE SHIP'S NEW LOCATION.

A LITERAL READING OF CLAUSE (2) OF SECTION 37 U.S.C. 427 (B) WOULD SEEM TO INDICATE THAT THE ALLOWANCE IS PAYABLE, IF OTHERWISE PROPER, TO A MEMBER WHO IS ON DUTY ON BOARD A SHIP "AWAY FROM THE HOME PORT OF THE SHIP" EVEN THOUGH THE SHIP MOVES ONLY A FEW MILES FROM HER HOME PORT TO ANOTHER LOCATION AND NO FAMILY SEPARATION RESULTS FROM THE MOVE. UNLIKE THE RESTRICTIVE DEPENDENT RESIDENCE PROVISION IN CLAUSES (1) AND (3) OF SECTION 427 (B), CLAUSE (2) CONTAINS NO EXPRESS LANGUAGE WHICH WOULD RESTRICT OR QUALIFY THE PAYMENT OF THE ALLOWANCE ON THE BASIS OF WHERE DEPENDENTS RESIDE. HENCE, WE ARE DUBIOUS THAT THERE IS ADEQUATE BASIS FOR A RULE WHICH, FOR PURPOSES OF PAYMENT OF THE ALLOWANCE UNDER CLAUSE (2), WOULD MAKE A DISTINCTION BETWEEN CASES WHERE THE MEMBER'S SHIP IS LESS THAN 50 MILES FROM ITS HOME PORT AND CASES WHERE IT IS MORE THAN 50 MILES FROM THE HOME PORT. IT IS OUR VIEW, HOWEVER, AS INDICATED IN OUR DECISION OF OCTOBER 9, 1963, AND FOR THE REASONS STATED THEREIN THAT THE ALLOWANCES AUTHORIZED BY ALL THREE CLAUSES UNDER SUBSECTION (B) ARE "PREDICATED ON A SEPARATION OF THE MEMBER FROM HIS DEPENDENTS BY REASON OF HIS MILITARY ASSIGNMENT AND IS DESIGNED TO REIMBURSE HIM FOR THE ADDITIONAL EXPENSES THAT ARISE (AT THE PLACE) WHERE HIS DEPENDENTS RESIDE BY REASON OF HIS SEPARATION FROM THEM.'

ACCORDINGLY, WHILE THE GENERAL RULE IS THAT PAYMENT OF THE $30 ALLOWANCE UNDER CLAUSE (2) IS AUTHORIZED DURING ANY ABSENCE OF THE MEMBER'S SHIP FROM ITS HOME PORT FOR THE PRESCRIBED PERIOD, WE BELIEVE THAT, TO BE CONSISTENT WITH THE PLAIN INTENT OF THE LAW, SUCH GENERAL RULE MUST BE CONSIDERED SUBJECT TO THE QUALIFICATION THAT THE MEMBER IS NOT ENTITLED TO SUCH ALLOWANCE DURING PERIODS (EXCLUSIVE OF ANY MERE VISIT OF 30 DAYS OR LESS) WHEN, NOTWITHSTANDING HIS ASSIGNMENT TO DUTY ON BOARD SHIP, HE IS NOT ACTUALLY SEPARATED FROM HIS DEPENDENTS BUT LIVES WITH THEM ON SUBSTANTIALLY THE SAME BASIS AS HE WOULD IF HE WERE ASSIGNED ASHORE AT THE APPROXIMATE LOCATION OF HIS SHIP. ON THAT BASIS, IF THE MEMBER CONCERNED IN EITHER OF THE EXAMPLE CASES DISCUSSED ABOVE WAS NOT SEPARATED FROM HIS DEPENDENTS AND SO RESIDED WITH THEM DURING THE PERIOD INVOLVED, HE WOULD NOT BE ENTITLED FOR THAT PERIOD TO PAYMENT OF THE ALLOWANCE UNDER SECTION 427 (B).