B-156112, APR. 21, 1965, 44 COMP. GEN. 638

B-156112, APR. 21, 1965, 44 COMP. GEN. 638

FAMILY ALLOWANCES - SEPARATION - RESIDENCE DISTANCE FROM STATION EVEN THOUGH A MEMBER OF THE UNIFORMED SERVICES TRANSFERRED TO ALASKA UNDER ORDERS WHICH DO NOT PROVIDE FOR THE CONCURRENT TRAVEL OF DEPENDENTS, BUT AUTHORIZE TRAVEL TO A DESIGNATED PLACE, MOVED HIS DEPENDENTS WITHIN 50 MILES--- CONSIDERED A REASONABLE COMMUTING DISTANCE--- OF HIS NEW DUTY STATION, A LOCATION ACCESSIBLE ONLY BY COMMERCIAL OR MILITARY AIRCRAFT AND, THEREFORE, PRECLUDING DAILY COMMUTING AND LIMITING FAMILY VISITS TO 3 DAYS MONTHLY, HE IS ENTITLED TO THE FAMILY SEPARATION ALLOWANCE PRESCRIBED BY 37 U.S.C. 427 (B), AS THE DEPENDENTS, ALTHOUGH RESIDING WITHIN A DISTANCE OF 50 MILES FROM THE MEMBER'S STATION, ARE NOT REGARDED AS RESIDING NEAR THE MEMBER'S DUTY STATION WITHIN THE CONTEMPLATION OF THE RESTRICTION IN SECTION 427 (B), AND THE SHORT MONTHLY VISITS DURING THE ENFORCED SEPARATION FOR AN EXTENDED PERIOD NOT AFFECTING THE MEMBER'S ENTITLEMENT, HE MAY BE PAID A FAMILY SEPARATION ALLOWANCE.

TO CAPTAIN W. O. BROOKS, DEPARTMENT OF THE AIR FORCE, APRIL 21, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER, ALDCA-PM, REQUESTING A DECISION AS TO WHETHER FAMILY SEPARATION ALLOWANCE (FSA-II PCS) IS PAYABLE IN THE CASE OF TECHNICAL SERGEANT JOHN T. STEPP, AF 15468043, FOR THE PERIOD OCTOBER 1, 1963, TO MAY 1, 1964. THE REQUEST WAS ASSIGNED AIR FORCE REQUEST NO. DO-AF-827 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

BY PARAGRAPH 2, SPECIAL ORDER A-413, DATED APRIL 11, 1963, THE MEMBER WAS TRANSFERRED FROM EGLIN AIR FORCE BASE, FLORIDA, TO APO 942, SEATTLE, WASHINGTON, AS A PERMANENT CHANGE OF STATION. THE ORDERS PROVIDED THAT CONCURRENT TRAVEL OF DEPENDENTS WAS NOT AUTHORIZED AND FURTHER PROVIDED THAT TRAVEL OF THE DEPENDENTS TO A DESIGNATED PLACE WAS AUTHORIZED. SPECIAL ORDER A-287, DATED APRIL 18, 1963, HE WAS FURTHER ASSIGNED TO 626TH AC AND W SQUADRON, FIRE ISLAND AIR FORCE STATION, ALASKA, WHERE HE REPORTED ON JUNE 5, 1963. ON OCTOBER 1, 1963, AND FOR THE PERIOD COVERED BY THE MILITARY PAY ORDER, SERGEANT STEPP WAS ON DUTY AT FIRE ISLAND AND HIS DEPENDENTS WERE LOCATED AT ANCHORAGE, ALASKA, APPARENTLY HAVING TRAVELED THERE AS TRAVEL TO A DESIGNATED PLACE. IT IS STATED THAT ANCHORAGE IS WITHIN 50 MILES OF FIRE ISLAND; THAT PERSONNEL ASSIGNED TO THE AIR FORCE STATION AT FIRE ISLAND ARE GRANTED 3-DAY PASSES TO ANCHORAGE ON AN OCCASIONAL BASIS, NORMALLY NOT MORE THAN ONCE A MONTH, AND THAT THE ONLY TRANSPORTATION IS COMMERCIAL OR MILITARY AIRCRAFT. IT IS FURTHER STATED THAT FIRE ISLAND AIR FORCE STATION IS A RESTRICTED STATION TO WHICH DEPENDENT TRAVEL IS NOT AUTHORIZED, AND THAT ITS LOCATION PRECLUDES DAILY COMMUTING BETWEEN THE STATION AND ANCHORAGE. YOU STATE THAT SERGEANT STEPP MAY BE ENTITLED TO THE ALLOWANCE SINCE HIS DEPENDENTS ARE NOT AUTHORIZED TRANSPORTATION TO HIS DUTY STATION; HIS DUTY STATION IS REMOTE, AND HE IS NOT PERMITTED TO REJOIN HIS DEPENDENTS EXCEPT OCCASIONALLY. YOU SAY THAT YOUR DOUBT AS TO WHETHER THE ALLOWANCE IS PAYABLE IS BECAUSE OF OUR DECISIONS B-131836 DATED OCTOBER 9, 1963 (43 COMP. GEN. 332), AND B- 131836 DATED MAY 26, 1964 (43 COMP. GEN. 748).

SUBSECTION 427 (B), TITLE 37 U.S. CODE, PROVIDES IN PERTINENT PART AS FOLLOWS:

(B) EXCEPT IN TIME OF WAR OR 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 OF $30 IF---

(1) THE MOVEMENT OF HIS DEPENDENTS TO HIS PERMANENT STATION IS NOT AUTHORIZED AT THE EXPENSE OF THE UNITED STATES UNDER SECTION 406 OF THIS TITLE AND HIS DEPENDENTS DO NOT RESIDE AT OR NEAR THAT STATION; * * *

THE ALLOWANCE AUTHORIZED BY THAT PROVISION IS DESIGNATED IN AIR FORCE MANUAL 177-105, SECTION D, AS FSA-II PCS.

IN THE OCTOBER 1963 DECISION, ANSWER TO QUESTION 26, AT PAGE 353, WE HELD THAT IF THE DEPENDENTS OF A MEMBER DO NOT RESIDE WITHIN A REASONABLE DAILY COMMUTING DISTANCE OF HIS DUTY STATION, A DISTANCE OF 50 MILES BEING CONSIDERED AS THE MAXIMUM ONE-WAY DISTANCE FOR THIS PURPOSE EXCEPT WHERE A MEMBER ACTUALLY COMMUTES A GREATER DISTANCE DAILY, IT MAY BE CONSIDERED THAT HIS DEPENDENTS DO NOT RESIDE AT OR NEAR HIS STATION FOR THE PURPOSE OF CLAUSES (1) AND (3) OF SECTION 427 (B).

IN THE MAY 1964 DECISION, WE HELD THAT MEMBERS WHO ARE ASSIGNED TO ISOLATED STATIONS (LIGHTHOUSES, LIGHTSHIPS, TEXAS-TYPE TOWERS, ETC.), DESIGNATED AS BEING WITHIN A RESTRICTED AREA WITHIN THE PURVIEW OF PARAGRAPH 1150-17 OF THE JOINT TRAVEL REGULATIONS, AND WHO UNDER THE COMPENSATORY ABSENCE PRIVILEGES IN 14 U.S.C. 511, GENERALLY REJOIN THEIR DEPENDENTS AT LEAST ONE FULL WEEK EACH MONTH, MAY NOT BE REGARDED AS IN AN ENFORCED SEPARATION STATUS FROM THEIR DEPENDENTS FOR AN EXTENDED PERIOD WITHIN THE MEANING OF THE FAMILY SEPARATION ALLOWANCE PROVISIONS IN 37 U.S.C. 427 (B), EVEN THOUGH THE UNAVAILABILITY OF TRANSPORTATION PRECLUDES DAILY COMMUTING BETWEEN THE RESIDENCE OF THE DEPENDENTS AND DUTY STATION. IN THE LATTER DECISION THERE WAS CONSIDERED DUTY ASSIGNMENTS WHICH BECAUSE OF THE NATURE OF THEIR LOCALITY AND THE MODE OF TRANSPORTATION PREVENTED THE MEMBER FROM COMMUTING DAILY EVEN THOUGH THE DEPENDENTS DID NOT LIVE MORE THAN 50 MILES AWAY. WHILE IT WAS CONCLUDED THAT PAYMENT OF THE ALLOWANCE WAS NOT AUTHORIZED, THE DECISION WAS BASED PRIMARILY ON THE LIBERAL COMPENSATORY ABSENCE PRIVILEGES ACCORDED THOSE MEMBERS, GENERALLY PERMITTING THEM TO BE WITH THEIR FAMILIES AT LEAST A FULL WEEK DURING EACH MONTH OF DUTY. SERGEANT STEPP, HOWEVER, HAD NO SUCH COMPENSATORY ABSENCE PRIVILEGES AND YOU RELATE THAT, WHILE HIS DEPENDENTS RESIDED WITHIN 50 MILES OF HIS RESTRICTED STATION, THE ONLY MODE OF TRANSPORTATION WAS BY AIRCRAFT WHICH PRECLUDED DAILY COMMUTING AND THAT SUCH MEMBERS WERE PERMITTED 3-DAY PASSES TO ANCHORAGE NORMALLY NOT MORE THAN ONCE A MONTH.

THE MATTER IS NOT ENTIRELY FREE FROM DOUBT, BUT IT APPEARS THAT THERE WAS IN FACT AN ENFORCED SEPARATION OF THE MEMBER AND HIS DEPENDENTS FOR AN EXTENDED PERIOD BY REASON OF HIS DUTY ASSIGNMENT EVEN THOUGH THEY RESIDED WITHIN A DISTANCE OF 50 MILES FROM HIS STATION. DAILY COMMUTING WAS NOT POSSIBLE. THE SHORT TIME HE WAS ABLE TO SPEND WITH HIS FAMILY ON THE MONTHLY 3-DAY PASSES APPARENTLY WOULD HAVE BEEN SUBSTANTIALLY THE SAME HAD THEY RESIDED IN THE GENERAL AREA BUT MORE THAN 50 MILES FROM THE STATION. IN THESE CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE DEPENDENTS ARE NOT TO BE REGARDED AS HAVING RESIDED NEAR SERGEANT STEPP'S DUTY STATION WITHIN THE CONTEMPLATION OF THE RESTRICTION IN SUBSECTION 427 (B) AND THAT HIS ENTITLEMENT IS NOT AFFECTED BY THE SHORT VISITS WITH HIS DEPENDENTS ON THE MONTHLY BASIS. CONSEQUENTLY, PAYMENT OF THE ALLOWANCE TO SERGEANT STEPP IS AUTHORIZED IF OTHERWISE PROPER. THE MILITARY PAY ORDER AND SUPPORTING PAPERS WHICH ACCOMPANIED YOUR LETTER ARE ENCLOSED.