B-155334, DEC. 16, 1964, 44 COMP. GEN. 337

B-155334, DEC. 16, 1964, 44 COMP. GEN. 337

FAMILY ALLOWANCES - SEPARATION - TYPE 2 - SHIP DUTY - ERRONEOUS INFORMATION A NAVY MEMBER WHO, INCIDENT TO A TRANSFER BETWEEN SHIPS, DID NOT MOVE HIS DEPENDENTS BECAUSE OF ERRONEOUS INFORMATION ON THE ORDER AND ASSIGNMENT CARD CONCERNING THE HOME PORT OF THE VESSEL TO WHICH HE WAS ASSIGNED, MAY NOT HAVE HIS ENTITLEMENT TO A FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B) (1) DETERMINED ON THE BASIS OF THE ERRONEOUS INFORMATION BUT RATHER ON THE BASIS OF THE CORRECT FACTS AND, THEREFORE, SINCE THE MEMBER WOULD HAVE BEEN ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS ON THE BASIS OF THE ACTUAL HOME PORT OF THE SHIP PRIOR TO THE TIME NOTICE OF THE HOME PORT CHANGE WAS RECEIVED BY THE MEMBER WHILE ON BOARD SHIP, HE IS NOT ENTITLED TO A FAMILY SEPARATION ALLOWANCE PAYMENT.

TO THE DISBURSING OFFICER, U.S.S. WACCAMAW, DEPARTMENT OF THE NAVY, DECEMBER 16, 1964:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 3, 1964, AND ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF CREDITING THE PAY ACCOUNT OF PAUL C. EWIG, 250 73 57, HMC, USN, WITH FAMILY SEPARATION ALLOWANCE UNDER THE CIRCUMSTANCES DESCRIBED. YOUR REQUEST WAS ASSIGNED SUBMISSION NO. DO-N-807 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

BY TRANSFER ORDER 11-64 PREPARED MARCH 20, 1964, MR. EWIG WAS TRANSFERRED FROM HEADQUARTERS, FOURTH MARINE CORPS DISTRICT PHILADELPHIA, PENNSYLVANIA, TO THE U.S.S. SURIBACHI (AE-21) AT NORFOLK, VIRGINIA, TO REPORT NOT LATER THAN APRIL 21, 1964. BY TRANSFER ORDER 229-64 PREPARED MAY 19, 1964, MR. EWIG WAS TRANSFERRED FROM THE U.S.S. SURIBACHI (AE-21) AT BALTIMORE, MARYLAND, TO THE U.S.S. WACCAMAW (AO-109) AT BREMERTON, WASHINGTON, TO REPORT NOT LATER THAN JUNE 21, 1964, IT BEING STATED IN THE ORDER AND THE ASSIGNMENT CARD FOR MR. EWIG THAT THE HOME PORT OF THE U.S.S. WACCAMAW (AO-109) WAS NEWPORT, RHODE ISLAND. MR. EWIG IN A STATEMENT DATED AUGUST 27, 1964, SAID THAT WHEN HE WAS ASSIGNED TO THE U.S.S. SURIBACHI (AE-21) HE LEFT HIS FAMILY IN JOHNSTOWN, PENNSYLVANIA, FOR PERSONAL REASONS RATHER THAN MOVE THEM TO NORFOLK, AND THAT WHEN HE RECEIVED HIS ASSIGNMENT TO THE U.S.S. WACCAMAW (AO-109) HE DECIDED TO LET THEM STAY IN JOHNSTOWN UNTIL IT RETURNED TO THE EAST COAST SINCE HE HAD BEEN INFORMED THAT THE VESSEL WAS SCHEDULED TO MOVE TO THE EAST COAST IN SEPTEMBER 1964 AND HIS ORDERS ALLOWED HIM TO MOVE HIS DEPENDENTS TO NEWPORT ONLY AND NOT TO BREMERTON. ALSO, HE SAID THAT WHEN HE REPORTED ABOARD THE WACCAMAW ON JUNE 21, 1964, HE WAS INFORMED THAT SEATTLE HAD BEEN ITS HOME PORT SINCE JANUARY 1, 1964, AND THAT ON JULY 13, 1964, HIS HOME PORT WAS ESTABLISHED AS NEWPORT, RHODE ISLAND, EFFECTIVE DECEMBER 1, 1964.

IN YOUR LETTER OF SEPTEMBER 3, 1964, YOU SAY THAT WERE IT NOT FOR THE STATEMENTS IN MR. EWIG'S ORDER PREPARED MAY 19, 1964, AND HIS ASSIGNMENT CARD THAT THE HOME PORT OF THE U.S.S. WACCAMAW (AO-109) WAS NEWPORT, RHODE ISLAND, IT WOULD BE CLEAR THAT HE IS NOT ENTITLED TO THE FAMILY SEPARATION ALLOWANCE SINCE HE WAS ON BOARD THE SHIP JULY 13, 1964, WHEN THE MESSAGE CHANGING THE HOME PORT TO NEWPORT, RHODE ISLAND, EFFECTIVE DECEMBER 1, 1964, WAS RECEIVED. YOUR QUESTION IS WHETHER THE ERRONEOUS STATEMENTS IN MR. EWIG'S ORDER AND ASSIGNMENT CARD THAT THE SHIP'S HOME PORT WAS NEWPORT, RHODE ISLAND, PROHIBITED HIM FROM BRINGING HIS FAMILY TO SEATTLE, WASHINGTON, AT GOVERNMENT EXPENSE AS MR. EWIG STATES HE BELIEVED THEY DID.

IN THE DECISION OF FEBRUARY 12, 1964, B-153214, 43 COMP. GEN. 553, WE HELD THAT IF A MEMBER'S SHIP IS AT ITS HOME PORT OR AT ANOTHER LOCATION TO WHICH THE MEMBER'S DEPENDENTS ARE NOT AUTHORIZED TO TRAVEL UNDER REGULATIONS PROMULGATED PURSUANT TO THE PROVISIONS OF 37 U.S.C. 406, THE MEMBER WOULD BE ENTITLED TO FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B) (1) FOR THE PERIOD INVOLVED. PARAGRAPH 5B (3) OF SECNAV INSTRUCTION 7220.46A, BASED ON THAT DECISION, PROVIDES:

HOME PORT. IF, AT THE TIME A MEMBER IS ASSIGNED TO A SHIP, THE MOVEMENT OF HIS DEPENDENTS TO THE CURRENT HOME PORT OF THE SHIP IS NOT AUTHORIZED AT GOVERNMENT EXPENSE BECAUSE A CHANGE OF HOME PORT HAS BEEN PROMULGATED, A MEMBER IS ENTITLED TO FSA-R (FAMILY SEPARATION ALLOWANCE--- RESTRICTED STATION) UNTIL THE EFFECTIVE DATE OF THE CHANGE, PROVIDED THAT THE DEPENDENTS (1) DO NOT RESIDE AT OR NEAR THE OLD HOME PORT, OR (2) DO NOT RESIDE AT OR NEAR THE LOCATION OF THE SHIP. A MEMBER WHO IS ON BOARD AT THE TIME THE CHANGE OF HOME PORT IS PROMULGATED IS NOT ENTITLED TO FSA-R UNLESS HE QUALIFIED FOR THE ALLOWANCE UNDER THE PROVISIONS OF PARAGRAPH 4G. ENTITLEMENT TO FSA-R MAY ACCRUE ON AND AFTER THE EFFECTIVE DATE OF THE CHANGE OF HOME PORT IN ACCORDANCE WITH PARAGRAPH 6.

INCIDENT TO A PERMANENT CHANGE OF STATION, A MEMBER IN AN ELIGIBLE GRADE IS ENTITLED TO TRANSPORTATION OF HIS DEPENDENTS TO HIS DUTY STATION, INCLUDING THE HOME PORT OF THE VESSEL TO WHICH HE IS ASSIGNED, UNLESS SUCH TRANSPORTATION IS OTHERWISE RESTRICTED. SINCE THE HOME PORT OF THE U.S.S. WACCAMAW (AO-109) ACTUALLY WAS SEATTLE, WASHINGTON, AT THE TIME MR. EWIG WAS ASSIGNED TO IT, HE WOULD HAVE BEEN ENTITLED TO REIMBURSEMENT FOR THE TRANSPORTATION OF HIS DEPENDENTS TO SEATTLE IF HE HAD MOVED THEM THERE PRIOR TO JULY 13, 1964. CONSEQUENTLY, HE IS NOT ENTITLED TO FAMILY SEPARATION ALLOWANCE AS CLAIMED SINCE HE WAS ON BOARD THE SHIP WHEN NOTICE WAS RECEIVED THAT ITS HOME PORT WAS TO BE CHANGED TO NEWPORT, RHODE ISLAND.

WHILE IT IS REGRETTABLE THAT MR. EWIG MAY HAVE BEEN MISLED BY THE ERRONEOUS INFORMATION ON HIS ORDER AND ASSIGNMENT CARD, HIS RIGHTS ARE FOR DETERMINATION ON THE BASIS OF THE FACTS IN THE MATTER RATHER THAN ON SUCH ERRONEOUS INFORMATION. IN THE ABSENCE OF SPECIFIC AUTHORITY THEREFOR, THE UNITED STATES IS NOT LIABLE FOR THE ERRONEOUS ACTIONS OF ITS OFFICERS, AGENTS OR EMPLOYEES, EVEN THOUGH COMMITTED IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES. SEE GERMAN BANK V. UNITED STATES, 148 U.S. 573; 19 COMP. GEN. 503; 22 COMP. GEN. 221. ACCORDINGLY, YOU ARE ADVISED THAT HIS PAY ACCOUNT MAY NOT BE CREDITED WITH FAMILY SEPARATION ALLOWANCE FOR THE PERIOD HE PERFORMED DUTY ON THE U.S.S. WACCAMAW (AO-109) AT SEATTLE, WASHINGTON.

THE PAPERS WHICH ACCOMPANIED YOUR REQUEST FOR DECISION WILL BE RETAINED HERE.