B-154233, JUNE 10, 1964, 43 COMP. GEN. 783
Highlights
WHEN HE IS TRANSFERRED TO A PLACE WHERE MOVEMENT OF HIS DEPENDENTS IS NOT AUTHORIZED. IS NOT ENTITLED TO QUARTERS ALLOWANCE BECAUSE HIS DEPENDENTS CONTINUE TO LIVE IN ASSIGNED. WHICH PRESCRIBES PAYMENTS ONLY TO MEMBERS WITH DEPENDENTS WHO ARE "ENTITLED TO BASIC ALLOWANCE FOR QUARTERS" AND. THE MEMBER IS NOT ENTITLED TO THE FAMILY SEPARATION ALLOWANCE. 1964: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 16. IN YOUR LETTER IT IS STATED THAT COLONEL RUMBOLD WAS TRANSFERRED FROM FLAG ALLOWANCE. A PLACE WHERE THE MOVEMENT OF DEPENDENTS WAS NOT AUTHORIZED AT THE EXPENSE OF THE UNITED STATES. THAT HIS MILITARY PAY RECORD SHOWS THAT HE WAS ASSIGNED GOVERNMENT QUARTERS AT 28 OAMA PLACE.
B-154233, JUNE 10, 1964, 43 COMP. GEN. 783
FAMILY ALLOWANCES - SEPARATION - TYPE 2 - GOVERNMENT QUARTERS OCCUPANCY A MEMBER OF THE UNIFORMED SERVICES WHO, WHEN HE IS TRANSFERRED TO A PLACE WHERE MOVEMENT OF HIS DEPENDENTS IS NOT AUTHORIZED, IS NOT ENTITLED TO QUARTERS ALLOWANCE BECAUSE HIS DEPENDENTS CONTINUE TO LIVE IN ASSIGNED, ADEQUATE, GOVERNMENT QUARTERS AT THE FORMER STATION HAS NOT MET THE CONDITION FOR ENTITLEMENT TO TYPE 2 FAMILY SEPARATION ALLOWANCE PAYMENTS UNDER 37 U.S.C. 427 (B), WHICH PRESCRIBES PAYMENTS ONLY TO MEMBERS WITH DEPENDENTS WHO ARE "ENTITLED TO BASIC ALLOWANCE FOR QUARTERS" AND, THEREFORE, THE MEMBER IS NOT ENTITLED TO THE FAMILY SEPARATION ALLOWANCE.
TO S. F. LEADER, UNITED STATES MARINE CORPS, JUNE 10, 1964:
FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 16, 1964, WITH ENCLOSURES, RECEIVED HERE ON MAY 19, IN WHICH YOU REQUEST AN ADVANCE DECISION AS TO THE LEGALITY OF CREDITING THE PAY ACCOUNT OF LIEUTENANT COLONEL CHARLES S. RUMBOLD, 011226, U.S. MARINE CORPS, WITH FAMILY SEPARATION ALLOWANCE TYPE II RESTRICTED STATION (R) FOR THE PERIOD OCTOBER 1 TO DECEMBER 31, 1963, UNDER THE CIRCUMSTANCES STATED BELOW. THE REQUEST FOR DECISION HAS BEEN ASSIGNED CONTROL NO. DO-MC-770 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE OF THE DEPARTMENT OF DEFENSE.
IN YOUR LETTER IT IS STATED THAT COLONEL RUMBOLD WAS TRANSFERRED FROM FLAG ALLOWANCE, COMMANDER-IN-CHIEF, PACIFIC FLEET, HAWAII, ON JULY 30, 1963, TO THE 1ST MARINE AIRCRAFT WING, AIRCRAFT, FLEET MARINE FORCE, PACIFIC, C/O FLEET POST OFFICE, SAN FRANCISCO, CALIFORNIA, A PLACE WHERE THE MOVEMENT OF DEPENDENTS WAS NOT AUTHORIZED AT THE EXPENSE OF THE UNITED STATES; THAT HIS MILITARY PAY RECORD SHOWS THAT HE WAS ASSIGNED GOVERNMENT QUARTERS AT 28 OAMA PLACE, AIEA, HAWAII, ON AUGUST 27, 1960; AND THAT HIS DEPENDENTS CONTINUED TO LIVE THERE DURING THE PERIOD OCTOBER 1 TO DECEMBER 31, 1963.
YOU SAY THAT 37 U.S.C. 427 (B) PROVIDES FOR THE PAYMENT OF FAMILY SEPARATION ALLOWANCE (R) WHERE THE MEMBERS ARE ON DUTY UNDER SPECIFIED CONDITIONS GENERALLY RESULTING IN AN ENFORCED SEPARATION FROM THEIR DEPENDENTS, AND THAT THE PURPOSE OF THE ALLOWANCE IS TO COMPENSATE THEM FOR THE EXTRA EXPENSES INCURRED AS A RESULT OF THEIR BEING AWAY FROM THEIR DEPENDENTS FOR AN EXTENDED PERIOD OF TIME. FURTHER, YOU SAY THAT COLONEL RUMBOLD WAS OF AN ELIGIBLE RANK AND OTHERWISE ENTITLED TO BASIC ALLOWANCE FOR QUARTERS AND THE ONLY REASON HE WAS NOT ACTUALLY RECEIVING SUCH ALLOWANCE WAS THE FACT THAT HIS DEPENDENTS OCCUPIED GOVERNMENT QUARTERS DURING THE PERIOD CONCERNED. YOU EXPRESS THE VIEW THAT THIS FACT SHOULD NOT BE USED AS A BASIS TO DENY THE PAYMENT OF THE FAMILY SEPARATION ALLOWANCE SINCE THERE ARE ADDED EXPENSES WHEN THERE IS AN ENFORCED SEPARATION OF THE MEMBER AND HIS FAMILY, WHETHER THEY ARE IN GOVERNMENT QUARTERS OR LIVING ON THE ECONOMY. THEREFORE YOU INDICATE THE BELIEF HE IS ENTITLED TO PAYMENT OF THE FAMILY SEPARATION ALLOWANCE.
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 FAMILY SEPARATION ALLOWANCE TO CERTAIN MEMBERS UNDER SPECIFIED CONDITIONS, IN PERTINENT PART, 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--- * * *.
THE LANGUAGE OF SECTION 427 (B) IS DEFINITE AND PERMITS THE CREDITING OF FAMILY SEPARATION ALLOWANCE ONLY TO MEMBERS WITH DEPENDENTS WHO ARE "ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS" AND WHO OTHERWISE QUALIFY. IT IS A WELL SETTLED RULE OF STATUTORY CONSTRUCTION THAT IF THE LANGUAGE OF A STATUTE IS PLAIN AND FREE FROM AMBIGUITY, AND EXPRESSES A SINGLE, DEFINITE AND SENSIBLE MEANING, THAT MEANING IS PRESUMED TO BY THE MEANING WHICH THE LEGISLATIVE BODY INTENDED TO CONVEY. 21 COMP. GEN. 510, 512.
SINCE THE PLAIN LANGUAGE OF THE STATUTE PROVIDES THAT THE FAMILY SEPARATION ALLOWANCE IS PAYABLE ONLY TO MEMBERS WITH DEPENDENTS WHO ARE "ENTITLED TO BASIC ALLOWANCE FOR QUARTERS," AND SINCE A BASIC ALLOWANCE FOR QUARTERS IS NOT PAYABLE TO A MEMBER WITH DEPENDENTS WHEN THE DEPENDENTS OCCUPY ASSIGNED ADEQUATE GOVERNMENT QUARTERS (37 U.S.C. 403 (B) (, WE BELIEVE THERE IS NO BASIS ON WHICH A MEMBER MAY BE AUTHORIZED FAMILY SEPARATION ALLOWANCE UNDER SECTION 427 (B) WHEN HE IS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS. COMPARE THE ANSWER TO QUESTION 25 IN 43 COMP. GEN. 332, B-131836, OCTOBER 9, 1963, COPY ENCLOSED, TO THE SECRETARY OF DEFENSE ON THIS SUBJECT.
SINCE COLONEL RUMBOLD'S DEPENDENTS OCCUPIED ASSIGNED ADEQUATE GOVERNMENT QUARTERS, IT IS OUR VIEW THAT THE LAW PRECLUDES PAYMENT TO HIM OF THE FAMILY SEPARATION ALLOWANCE UNDER 427 (B) IN HIS CASE. YOUR QUESTION IS ANSWERED ACCORDINGLY.
THE PAPERS WHICH ACCOMPANIED YOUR REQUEST FOR DECISION WILL BE RETAINED HERE.