B-165259, OCT. 1, 1968

B-165259, OCT. 1, 1968

TO COLONEL V. E. BESS:

BY LETTER OF SEPTEMBER 9, 1968 (COMPT-FAPM), THE OFFICE OF THE COMPTROLLER OF THE ARMY FORWARDED YOUR LETTER OF JUNE 25, 1968 (AHBAFA), WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ENTITLEMENT OF MAJOR JULES B. LLOYD, 02 276 463, TO FAMILY SEPARATION ALLOWANCE, TYPE II, FOR THE PERIOD MARCH 11 THROUGH AUGUST 9, 1965, WHILE STATIONED IN KOREA. THE REQUEST WAS ASSIGNED D.O. NO. A-1018 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

MAJOR LLOYD WAS TRANSFERRED ON PERMANENT CHANGE-OF-STATION ORDERS FROM FORT KNOX, KENTUCKY, TO CAMP CASEY, KOREA, WHERE HE REPORTED ON MARCH 17, 1965. ON APRIL 30, 1965, HE ESTABLISHED A RESIDENCE FOR HIS DEPENDENTS AT 116 ITAEWON, SEOUL, KOREA, WHICH HE SAYS IS 33 STATUTE MILES FROM HIS DUTY STATION.

IT IS REPORTED THAT MAJOR LLOYD DID NOT COMMUTE DAILY TO THE PLACE WHERE HIS DEPENDENTS RESIDE DUE TO: "/A) DUTY HOURS AT CAMP CASEY ARE 0730-1630 DAILY.

(B) IT IS NECESSARY TO CHANGE FROM DUTY UNIFORM TO CLASS A UNIFORM

PRIOR TO DEPARTURE.

(C) FIRST AVAILABLE BUS FROM CAMP CASEY WOULD BE AT 1710 HOURS,

PERMITTING ARRIVAL AT ITAEWON AT ABOUT 1930 HOURS.

(D) LAST BUS BACK IN THE EVENING WOULD REQUIRE DEPARTURE FROM ITAEWON

AT ABOUT 2130 HOURS.

(E) THERE IS NO BUS IN THE MORNING WHICH WOULD PERMIT RETURN TO CAMP

CASEY IN TIME FOR DUTY AT 0730 HOURS.'

THUS, IT IS SHOWN THAT THE DRIVING TIME BY BUS IS ABOUT 2 HOURS AND 20 MINUTES. WHILE MAJOR LLOYD SAYS THE AVERAGE DRIVING TIME BY PRIVATELY OWNED VEHICLE IS 1 HOUR AND 15 MINUTES, HE FURTHER SAYS THAT REGULATIONS FORBID THE OWNERSHIP, RENTAL OR POSSESSION OF ANY PRIVATELY OWNED VEHICLE. HE ALSO SAYS THAT WHILE TAXI SERVICE IS AVAILABLE, THE COST, IN EXCESS OF $8 PER DAY, IS PROHIBITIVE. CONSEQUENTLY, THE ONLY PRACTICAL MEANS OF TRANSPORTATION IS BY BUS.

IN ADDITION, MAJOR LLOYD SAYS THAT WHILE IT WAS POSSIBLE FOR HIM TO SPEND PARTS OF SOME WEEKENDS AT THE RESIDENCE OF HIS DEPENDENTS, HE WAS SERVING IN A COMBAT-READY DIVISION, STATIONED WITHIN THE TACTICAL ZONE, AND FREQUENT DUTY REQUIREMENTS, ALERTS, AND TACTICAL TRAINING, ALL CONTRIBUTED TO GREATLY REDUCE THE AMOUNT OF TIME THAT COULD BE SPENT AT ITAEWON.

THEREFORE, ALTHOUGH MAJOR LLOYD'S DEPENDENTS RESIDED ONLY 33 MILES FROM HIS DUTY STATION, HE CONTENDS THEY DID NOT RESIDE AT OR NEAR HIS DUTY STATION WITHIN THE SCOPE OF PARAGRAPH 10382C, ARMY REGULATIONS 37 104 OR PARAGRAPH 30313, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE ENTITLEMENTS MANUAL WHICH ESTABLISH 50 MILES AS THE MAXIMUM REASONABLE COMMUTING DISTANCE UNLESS THE MEMBER ACTUALLY COMMUTES A GREATER DISTANCE DAILY.

IN FORWARDING THE CLAIM HERE FOR DECISION, YOU REFER TO THE DECISION OF THE UNITED STATES COURT OF CLAIMS IN THE CASE OF CLAYTON B. TASKER V UNITED STATES, CT. CL. NO. 357-65, DECIDED JANUARY 20, 1967. MAJOR LLOYD STATES THAT BOTH HE AND COLONEL TASKER WERE STATIONED AT CAMP CASEY, KOREA, AND THEIR WIVES LIVED A FEW BLOCKS APART IN THE CITY OF SEOUL.

SUBSECTION 427 (B), TITLE 37, U.S.C. 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 OR A PLACE NEAR THAT 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 * * *" THUS, THE BENEFITS AUTHORIZED IN SECTION 427 (B) ARE BASED ON ENFORCED SEPARATIONS OF SERVICEMEN FROM THEIR FAMILIES AND CLAUSE (1) SPECIFICALLY REQUIRES THAT, AS A CONDITION PRECEDENT, THE MEMBER'S DEPENDENTS DO NOT RESIDE AT OR NEAR HIS PERMANENT DUTY STATION.

ARMY REGULATION 37-104, PARAGRAPH 10382C, PROVIDED AT THE TIME OF MAJOR LLOYD'S TRANSFER TO KOREA THAT DEPENDENTS ARE TO BE CONSIDERED AS LIVING AT OR NEAR THE MEMBER'S DUTY STATION IF THEY LIVE WITHIN A REASONABLE COMMUTING DISTANCE OF THAT STATION. IT FURTHER PROVIDES THAT "A ONE-WAY DISTANCE OF 50 MILES IS THE MAXIMUM FOR THIS PURPOSE EXCEPT WHEN THE MEMBER ACTUALLY COMMUTES A GREATER DISTANCE DAILY.'

IT WILL BE NOTED THAT THE REGULATION DOES NOT PROVIDE THAT IN ALL CIRCUMSTANCES DEPENDENTS LIVING WITHIN A DISTANCE OF 50 MILES OF THE MEMBER'S STATION ARE TO BE REGARDED AS LIVING "AT OR NEAR" HIS STATION. THE 50 - MILE DISTANCE IS ONLY A MAXIMUM LIMITATION IN DETERMINING WHAT IS A REASONABLE COMMUTING DISTANCE UNLESS THE MEMBER ACTUALLY COMMUTES A GREATER DISTANCE TO THE PLACE WHERE HIS DEPENDENTS RESIDE. WE HAVE RECOGNIZED THAT A MEMBER WAS ENTITLED TO FAMILY SEPARATION ALLOWANCE WHILE STATIONED ON AN ISLAND FROM WHICH THERE WAS ONLY INFREQUENT TRANSPORTATION AVAILABLE TO THE MAINLAND WHERE HIS DEPENDENTS RESIDED EVEN THOUGH THE DISTANCE INVOLVED WAS LESS THAN 50 MILES. SEE OUR DECISION OF APRIL 21, 1965, B-156112, 44 COMP. GEN. 638.

IN THE TASKER CASE, THE COURT POINTED OUT THAT THE TERM "AT OR NEAR" DEPENDS ON THE CIRCUMSTANCES IN THE PARTICULAR CASE. IN THAT CASE, THE TRAVEL TIME FROM THE MEMBER'S STATION, CAMP CASEY, KOREA, TO SEOUL,WHERE HIS WIFE RESIDED WAS FROM 2 TO 2-1/2 HOURS -- A CONSIDERABLY LONGER PERIOD THAN IS USUALLY REQUIRED TO TRAVEL A DISTANCE OF 50 MILES UNDER FAVORABLE CONDITIONS. IN THESE CIRCUMSTANCES, THE COURT DID NOT REGARD THE DEPENDENTS AS RESIDING "AT OR NEAR" HIS DUTY STATION FOR THE PURPOSES OF THE FAMILY SEPARATION ALLOWANCE AUTHORIZED BY 37 U.S.C. 427 (B).

IN THE PRESENT CASE SINCE THE ONLY TRANSPORTATION REASONABLY AVAILABLE TO THE MEMBER FOR TRAVEL FROM HIS STATION TO THE RESIDENCE OF HIS DEPENDENTS REQUIRED A TRAVEL TIME OF ABOUT 2 HOURS AND 20 MINUTES IN THE EVENING AND DID NOT PROVIDE MORNING SERVICE WHICH WOULD PERMIT RETURN TO CAMP CASEY IN TIME FOR DUTY AT 0730 HOURS, HE COULD NOT COMMUTE DAILY OR EVEN FREQUENTLY. THE CIRCUMSTANCES IN THIS CASE ARE ESSENTIALLY THE SAME AS THOSE IN THE TASKER CASE AND UNDER THE DECISION OF THE COURT IN THAT CASE THE DEPENDENTS DID NOT RESIDE "AT OR NEAR" THE OFFICER'S STATION WITHIN THE MEANING OF 37 U.S.C. 427 (B). WE SEE NO COMPELLING REASON WHY THE COURT'S DECISION MAY NOT BE APPLIED IN LIKE CASES.

ACCORDINGLY, IF PROPER IN OTHER RESPECTS, MAJOR LLOYD IS ENTITLED TO FAMILY SEPARATION ALLOWANCE, TYPE II, FOR THE PERIOD CLAIMED. THE MILITARY PAY VOUCHER IS RETURNED HEREWITH.