B-153883, MAY 26, 1964, 43 COMP. GEN. 755

B-153883, MAY 26, 1964, 43 COMP. GEN. 755

FAMILY ALLOWANCES - SEPARATION - TYPE 2 - TEMPORARY DUTY - RETURN ON WEEKENDS A COAST GUARD OFFICER WHO, WHILE ON TEMPORARY ADDITIONAL DUTY AWAY FROM HIS PERMANENT STATION FOR MORE THAN 30 DAYS, RETURNED ON WEEKENDS TO HIS PERMANENT STATION WHERE HIS DEPENDENTS LIVED AND WHERE HE PARTICIPATED IN FLIGHTS AS A CREW MEMBER MAY NOT BE REGARDED AS HAVING BEEN ON TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS FOR FAMILY SEPARATION ALLOWANCE PAYMENTS UNDER 37 U.S.C. 427 (B) (3).

TO R. H. MILLS, UNITED STATES COAST GUARD, MAY 26, 1964:

BY FIRST INDORSEMENT DATED APRIL 2, 1964, THE COMMANDANT, U.S. COAST GUARD, FORWARDED YOUR LETTER OF APRIL 2, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE LEGALITY OF PAYMENT OF A FAMILY SEPARATION ALLOWANCE UNDER THE PROVISIONS OF 37 U.S.C. 427 (B) (3) TO LIEUTENANT (JG) CORNELIUS A. BREEN, JR. (50743), USCGR, ON THE BASIS OF THE CIRCUMSTANCES DISCLOSED.

BY ORDERS DATED SEPTEMBER 5, 1963, LIEUTENANT BREEN WAS ORDERED TO PROCEED FROM HIS PERMANENT DUTY STATION AT THE U.S. COAST GUARD AIR STATION, ELIZABETH CITY, NORTH CAROLINA, TO THE COAST GUARD RESERVE TRAINING CENTER, YORKTOWN, VIRGINIA, FOR TEMPORARY ADDITIONAL DUTY UNDER INSTRUCTION FOR APPROXIMATELY 4 MONTHS AND RETURN TO HIS PERMANENT DUTY STATION. THE RECORD INDICATES THAT THE OFFICER DEPARTED ELIZABETH CITY ON SEPTEMBER 14, 1963, AND REPORTED AT YORKTOWN ON SEPTEMBER 15, AND THAT HIS TEMPORARY ADDITIONAL DUTY TERMINATED ON DECEMBER 23, 1963, WHEN HE RETURNED AND REPORTED TO HIS PERMANENT STATION ON THAT DAY. IN HIS CLAIM, THE OFFICER ASSERTS THAT DURING THE PERIOD OF HIS TEMPORARY ADDITIONAL DUTY (SEPTEMBER 14, 1963, TO DECEMBER 23, 1963), HE COMMUTED EACH WEEKEND TO HIS HOME AT ELIZABETH CITY WHICH IS ALSO HIS PERMANENT STATION, AND WHILE THERE HE PARTICIPATED IN OPERATIONAL FLIGHTS AS A CREW MEMBER DURING OCTOBER AND NOVEMBER 1963.

YOU SAY THAT APPARENTLY PARAGRAPH 4212 OF THE JOINT TRAVEL REGULATIONS CONTEMPLATES THAT A MEMBER MAY RETURN TO HIS PERMANENT DUTY STATION (OR HOME) FOR PERSONAL REASONS WITHOUT TERMINATING HIS TEMPORARY ADDITIONAL DUTY ORDERS. THE REGULATIONS (PARAGRAPH 4212) AUTHORIZE, IN THE CASE OF A MEMBER WHO RETURNS TO HIS PERMANENT DUTY STATION FOR PERSONAL REASONS DURING A PERIOD OF TEMPORARY DUTY, PAYMENT OF ALLOWANCES FOR TEMPORARY DUTY TRAVEL FOR THE TRAVEL PERFORMED FROM TEMPORARY TO PERMANENT DUTY STATION AND RETURN, NOT TO EXCEED THE AMOUNT HE WOULD HAVE RECEIVED HAD HE REMAINED AT THE TEMPORARY DUTY STATION. IN EXPRESSING DOUBT AS TO THE PROPRIETY OF THE PAYMENT, YOU SAY THAT THE MEMBER DID IN FACT RETURN TO HIS PERMANENT DUTY STATION AND ASSUME A DUTY STATUS WHILE PARTICIPATING IN OFFICIAL FLIGHTS AS A CREW MEMBER AND THAT THIS SITUATION PREVAILED AT LESS THAN 30-DAY INTERVALS THROUGHOUT THE PERIOD OF TEMPORARY ADDITIONAL DUTY.

SECTION 427 (B) (3) OF TITLE 37, U.S. CODE, AS ADDED BY SECTION 11 OF THE UNIFORM SERVICES PAY ACT OF 1963, PUBLIC LAW 88-132, APPROVED OCTOBER 2, 1963, AUTHORIZES PAYMENT OF A MONTHLY FAMILY SEPARATION ALLOWANCE OF $30 TO CERTAIN MEMBERS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS IF:

(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.

THE LEGISLATIVE HISTORY OF SECTION 427 (B) SHOWS THAT THE RATIONALE OF THE ALLOWANCE IS THAT ,ENFORCED SEPARATIONS" OF SERVICEMEN FROM THEIR FAMILIES CAUSE ADDED HOUSEHOLD AND FAMILY EXPENSES WHERE THE MEMBER IS ABSENT FOR ANY SUBSTANTIAL PERIOD OF TIME. (PAGE 25 OF S.REPT. NO. 387, TO ACCOMPANY H.R. 5555, WHICH WAS ENACTED AS PUBLIC LAW 88-132). THERE IS ALSO FOR NOTING THAT THE UNIFORM SERVICES PAY ACT OF 1963 IS EFFECTIVE OCTOBER 1, 1963 (SECTION 14 OF PUBLIC LAW 88 132, 77 STAT. 218) AND, CONSEQUENTLY, THERE WOULD BE NO BASIS TO AUTHORIZE PAYMENT OF A CLAIM FOR A FAMILY ALLOWANCE FOR ANY PERIOD PRIOR TO THAT DATE.

CLAUSE (3) OF SECTION 427 (B) CLEARLY RESTRICTS THE PAYMENT OF A FAMILY SEPARATION ALLOWANCE TO A MEMBER WHO IS ON TEMPORARY DUTY "AWAY FROM HIS PERMANENT STATION FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS.' WHILE UNDER THE TEMPORARY ADDITIONAL DUTY ORDERS OF SEPTEMBER 5, 1963, LIEUTENANT BREEN PERFORMED TEMPORARY DUTY AWAY FROM HIS PERMANENT DUTY STATION DURING THE PERIOD SEPTEMBER 14, 1963, TO DECEMBER 23, 1963, THE RECORD SHOWS THAT DURING THAT PERIOD HE DID IN FACT RETURN AT INTERVALS TO HIS PERMANENT STATION AT ELIZABETH CITY WHICH WAS ALSO HIS HOME. SINCE THE OFFICER RETURNED ON WEEKENDS TO HIS PERMANENT STATION WHERE, AS STATED, HE PARTICIPATED IN OFFICIAL FLIGHTS AS A CREW MEMBER, IT IS OUR VIEW THAT HE MAY NOT BE REGARDED AS HAVING BEEN ON TEMPORARY DUTY "AWAY FROM HIS PERMANENT STATION FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS" WITHIN THE MEANING OF CLAUSE (3) OF SECTION 427 (B), SO AS TO ENTITLE HIM TO A FAMILY SEPARATION ALLOWANCE FOR THE PERIOD INVOLVED.

ACCORDINGLY, PAYMENT OF THE ALLOWANCE IS NOT AUTHORIZED AND THE PAPERS SUBMITTED WITH YOUR LETTER WILL BE RETAINED HERE.