B-138243, FEBRUARY 3, 1959, 38 COMP. GEN. 531

B-138243, FEBRUARY 3, 1959, 38 COMP. GEN. 531

MILITARY PERSONNEL - STATION ALLOWANCES - OVERSEAS - DEPENDENTS RESIDENT OF FOREIGN COUNTRY - EXCESS COST-OF-LIVING REQUIREMENT THE ENTITLEMENT OF A MEMBER OF THE UNIFORMED SERVICES TO OVERSEAS STATION ALLOWANCE ON ACCOUNT OF DEPENDENTS UNDER PARAGRAPH 4300-1 OF THE JOINT TRAVEL REGULATIONS IS CONDITIONED NOT ONLY ON THE DEPENDENT'S RESIDENCE IN THE VICINITY OF THE OVERSEAS STATION BUT ALSO ON THE PURPOSE WHICH FOR THE ALLOWANCE IS AUTHORIZED, NAMELY, TO DEFRAY THE AVERAGE EXCESS COST OF LIVING AS A RESULT OF THE OVERSEAS ASSIGNMENT; THEREFORE, WHERE THE DEPENDENTS RESIDE IN A FOREIGN COUNTRY PRIOR TO THE TRANSFER OF THE MEMBER TO THAT COUNTRY AND THE ONLY CONTRIBUTION BY THE MEMBER FOR THE SUPPORT OF THE DEPENDENTS IS THE CLASS Q ALLOTMENT, THE MEMBER IS NOT ENTITLED TO STATION ALLOWANCES FOR DEPENDENTS WHO RESIDE IN THE VICINITY OF THE OVERSEAS STATION IN A MILITARY DEPENDENT STATUS.

TO CAPTAIN R. J. FRENCH, DEPARTMENT OF THE ARMY, FEBRUARY 3, 1959:

BY LETTER DATED DECEMBER 18, 1958, THERE WAS REFERRED TO US YOUR UNDATED LETTER REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON MILITARY PAY ORDER NO. 19, DATED MAY 13, 1958, TRANSMITTED THEREWITH DIRECTING PAYMENT TO SERGEANT FIRST CLASS BRUDIS L. LIMAR, JR., RA 38 267 740, OF STATION ALLOWANCES AS A MEMBER WITH DEPENDENTS, BEGINNING DECEMBER 1, 1957. THE REQUEST FOR ADVANCE DECISION HAS BEEN ASSIGNED CONTROL NO. 58- 15 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE CIRCUMSTANCES SHOWN ARE THAT THE MEMBER IS STATIONED AT ORLEANS ( LOIRET DEPOT), FRANCE; THAT HIS DEPENDENTS (WIFE AND CHILDREN) ARE LIVING IN THE VICINITY OF HIS STATION, AND THAT GOVERNMENT QUARTERS AND MESSING FACILITIES ARE AVAILABLE TO AND UTILIZED BY HIM BUT ARE NOT AVAILABLE TO HIS FAMILY. IT FURTHER IS SHOWN THAT THE MEMBER'S WIFE IS A FRENCH NATIONAL AND WAS RESIDING IN FRANCE PRIOR TO HIS ARRIVAL AT HIS STATION; THAT THE MEMBER HAS NOT ESTABLISHED A RESIDENCE FOR HIS DEPENDENTS; THAT HE IS NOT LIVING WITH THEM FOR THE REASON THAT DIVORCE PROCEEDINGS HAVE BEEN INSTITUTED, AND THAT HIS SOLE CONTRIBUTION TO THEIR SUPPORT IS A CLASS Q ALLOTMENT IN THE AMOUNT OF $176.90 PER MONTH WHICH IS NOT AFFECTED BY THE DEPENDENTS' PRESENCE IN FRANCE.

SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (B), PROVIDES THAT 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 OF A PER DIEM ,CONSIDERING ALL ELEMENTS OF COST OF LIVING TO SUCH MEMBERS.' PARAGRAPH 4300-1 OF THE JOINT TRAVEL REGULATIONS ( CHANGE 61, AUGUST 1, 1957), PROVIDES THAT A MEMBER WITH DEPENDENTS IS A MEMBER WHO IS ENTITLED 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 IN A MILITARY DEPENDENT STATUS. PARAGRAPH 4301-1 OF THE SAME REGULATIONS PROVIDES THAT STATION ALLOWANCES ARE AUTHORIZED FOR THE PURPOSE OF DEFRAYING THE AVERAGE EXCESS COST OF LIVING EXPERIENCED BY MEMBERS ON PERMANENT DUTY AT PLACES OUTSIDE THE UNITED STATES. THUS, THE CONTROLLING REGULATIONS NOT ONLY PROVIDE THAT THE DEPENDENTS MUST RESIDE IN THE VICINITY OF THE MEMBER'S STATION; THEY SPECIFICALLY SET FORTH THE ONLY PURPOSE FOR WHICH THE ALLOWANCE MAY BE PAID.

IN THE PRESENT CASE THE RECORD INDICATES THAT THE DEPENDENTS RESIDE IN THE VICINITY OF THE MEMBER'S STATION SOLELY THROUGH COINCIDENCE AND ARE NOT RESIDING THERE BECAUSE OF HIS DUTY ASSIGNMENT. ORDINARILY, THE FACT THAT THE DEPENDENTS RESIDE IN THE VICINITY OF THE MEMBER'S STATION OUTSIDE THE UNITED STATES AND ARE AUTHORIZED TO BE THERE IN A MILITARY DEPENDENT STATUS JUSTIFIES THE PAYMENT OF THE ALLOWANCES. WHERE, AS HERE, HOWEVER, THE DEPENDENTS WERE RESIDING IN FRANCE PRIOR TO THE TRANSFER OF THE MEMBER TO THAT COUNTRY--- THEIR RESIDENCE THERE APPARENTLY HAVING NO CONNECTION WITH HIS DUTY ASSIGNMENT--- AND THE ONLY CONTRIBUTION OR RESPONSIBILITY THAT HE ASSUMES FOR THEIR SUPPORT IS THE CLASS Q ALLOTMENT REQUIRED IN ORDER TO RECEIVE BASIC ALLOWANCE FOR QUARTERS ON THEIR ACCOUNT, HIS SITUATION WITH RESPECT TO HIS DEPENDENTS IS NO DIFFERENT THAN IF THEY WERE RESIDING IN THE UNITED STATES. IN SUCH A SITUATION IT MAY NOT BE CONCLUDED THAT, BECAUSE OF THE FORTUITOUS CIRCUMSTANCE THAT THE SEPARATE RESIDENCE OF HIS WIFE AND CHILDREN IS IN THE COUNTRY IN WHICH HE IS STATIONED, HE IS ENTITLED TO STATION ALLOWANCES AS A MEMBER WHOSE DEPENDENTS RESIDE IN THE VICINITY OF HIS STATION IN A MILITARY DEPENDENT STATUS. HENCE, THE PAYMENT OF SUCH ALLOWANCES AS FOR A MEMBER WITH DEPENDENTS IS NOT AUTHORIZED.