B-148436, MAY 8, 1962

B-148436, MAY 8, 1962

TO CAPTAIN JERALD D. COPELAND, 02 289 693:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 6, 1962, REQUESTING REVIEW OF THE SETTLEMENT DATED FEBRUARY 26, 1962, WHICH DISALLOWED YOUR CLAIM FOR STATION HOUSING ALLOWANCE AS AN OFFICER WITH DEPENDENT RESIDING OVERSEAS FOR THE PERIOD JANUARY 11, 1960, TO DECEMBER 31, 1961.

THE RECORDS INDICATE THAT INCIDENT TO YOUR TOUR OF ACTIVE DUTY YOU WERE TRANSFERRED OVERSEAS, DEPARTING FROM THE UNITED STATES ON NOVEMBER 25, 1959. YOU WERE ASSIGNED TO THE 28TH GENERAL HOSPITAL, CROIX CHAPEAU (CHTE MME), FRANCE, AND IT APPEARS THAT YOUR WIFE ARRIVED IN THAT COMMAND ON JANUARY 11, 1960, WITHOUT AUTHORIZATION BY YOUR COMMANDING OFFICER, HER TRANSPORTATION BEING AT PERSONAL EXPENSE. IT APPEARS THAT ON JANUARY 20, 1961, YOU EXECUTED A REQUEST FOR VOLUNTARY EXTENSION OF YOUR FOREIGN SERVICE TOUR FOR A PERIOD OF SEVEN MONTHS, APPARENTLY FOR THE PURPOSE OF MEETING THE OVERSEAS SERVICE REQUIREMENTS IN ORDER THAT YOUR WIFE MIGHT QUALIFY AS AN AUTHORIZED DEPENDENT AT YOUR DUTY STATION. THAT REQUEST WAS DENIED, BUT YOU SAY THAT SUBSEQUENTLY YOUR TOUR OF DUTY OVERSEAS WAS INVOLUNTARILY EXTENDED UNTIL JUNE 1962 AND YOU APPARENTLY FEEL THAT ON SUCH BASIS YOU ARE ENTITLED TO PAYMENT OF HOUSING ALLOWANCE AS AN OFFICER WITH DEPENDENT RESIDENT OVERSEAS DURING THEIR PERIOD CLAIMED. YOUR CLAIM WAS DENIED ADMINISTRATIVELY AND DISALLOWED BY OUR SETTLEMENT OF FEBRUARY 26, 1962, SINCE UNDER CONTROLLING REGULATIONS THE RESPONSIBLE COMMANDER IN YOUR OVERSEAS AREA HAS DECLINED TO RECOGNIZE YOUR WIFE AS AN AUTHORIZED DEPENDENT FOR PURPOSES OF PAYMENT OF INCREASED HOUSING ALLOWANCE.

SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253, PROVIDES AS FOLLOWS:

"WITHOUT REGARD TO THE MONETARY LIMITATIONS IN THIS ACT, THE SECRETARIES OF THE UNIFORMED SERVICES MAY AUTHORIZE THE PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA, WHETHER OR NOT IN A TRAVEL STATUS, OF A PER DIEM CONSIDERING ALL ELEMENTS OF COST OF LIVING TO MEMBERS AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES * *

PARAGRAPH 4301-1 OF THE JOINT TRAVEL REGULATIONS, ISSUED PURSUANT TO SECTION 303 (B) ABOVE, AUTHORIZES PAYMENT OF HOUSING AND COST-OF LIVING ALLOWANCES FOR THE PURPOSE OF DEFRAYING THE AVERAGE EXCESS COSTS EXPERIENCED BY MEMBERS ON PERMANENT DUTY OUTSIDE THE UNITED STATES AND IT IS FURTHER PROVIDED IN PARAGRAPH 4301-2 THAT HOUSING AND COST-OF-LIVING ALLOWANCES ARE PAYABLE TO A MEMBER WITH OR WITHOUT DEPENDENTS AT THE PER DIEM RATES SPECIFIED IN APPENDIXES B AND C OF THE REGULATIONS. WHILE YOU APPEAR TO BELIEVE THAT YOU WERE ENTITLED TO PAYMENT OF HOUSING ALLOWANCE AS A MEMBER WITH A DEPENDENT, PARAGRAPH 4300-2, JOINT TRAVEL REGULATIONS, DEFINES THE TERM "MEMBER WITHOUT DEPENDENTS" AS INCLUDING MEMBERS IN PAY GRADE E-4 WITH MORE THAN FOUR YEARS OF SERVICE AND MEMBERS OF HIGHER GRADE

"4. WHOSE DEPENDENTS MOVE INTO THE VICINITY OF MEMBER'S DUTY STATION WITHOUT AUTHORIZATION WHEN SUCH AUTHORIZATION IS REQUIRED BY COMPETENT AUTHORITY.'

IMPLEMENTING REGULATIONS CONTAINED IN AR 55-46, CHANGE 3, IN EFFECT WHEN YOU APPLIED FOR THE EXTENSION OF YOUR OVERSEAS TOUR OF DUTY, PROVIDE IN PERTINENT PART THAT IF DEPENDENTS DO ENTER THE OVERSEAS AREA WITHOUT PRIOR APPROVAL AND RESIDE IN THE VICINITY OF THE MEMBER'S DUTY STATION, THE APPROPRIATE OVERSEAS COMMANDER WILL IN HIS DISCRETION AFTER A REASONABLE PERIOD OF TIME RECOGNIZE THEM AS AUTHORIZED DEPENDENTS AND THESE REGULATIONS MAKE IT THE PREROGATIVE OF THE COMMANDER TO DETERMINE THE "REASONABLE PERIOD OF TIME.' THE REGULATIONS FURTHER STATE THAT MEMBERS WHOSE DEPENDENT REMAIN IN AN "UNAUTHORIZED" STATUS MAY NOT BE PAID STATION ALLOWANCES AT THE "WITH DEPENDENT" RATE; HOWEVER, IT IS THE COMMANDER'S PREROGATIVE EITHER TO AUTHORIZE OR TO DENY SEPARATE RATIONS.

THE FACT THAT YOUR OVERSEAS TOUR OF DUTY MAY HAVE BEEN EXTENDED INVOLUNTARILY UNTIL JUNE 1962 DOES NOT MAKE IT MANDATORY THAT YOUR WIFE BE RECOGNIZED AS AN AUTHORIZED DEPENDENT BY APPROPRIATE AUTHORITY AS YOU APPEAR TO BELIEVE. UNDER THE CONTROLLING REGULATIONS THE DISCRETION AS TO WHETHER YOUR WIFE WAS AN "AUTHORIZED DEPENDENT" FOR PURPOSES OF PAYING YOU INCREASED STATION ALLOWANCES UNDER THE LAW AND REGULATIONS IS VESTED IN THE APPROPRIATE OVERSEAS COMMANDER AND SINCE IT IS ADMINISTRATIVELY REPORTED THAT THE RESPONSIBLE COMMANDER IN YOUR CASE HAS DECLINED TO RECOGNIZE YOUR WIFE AS AN "AUTHORIZED DEPENDENT" IN YOUR OVERSEAS AREA FOR THE PERIOD JANUARY 11, 1960, TO DECEMBER 31, 1961, NO PAYMENT OF INCREASED STATION ALLOWANCE AS A MEMBER WITH DEPENDENT MAY BE MADE TO YOU FOR THE PERIOD INVOLVED IN YOUR CLAIM. ACCORDINGLY, UPON REVIEW, THE SETTLEMENT OF FEBRUARY 26, 1962, MUST BE SUSTAINED.