B-193532, OCT 15, 1980

B-193532, OCT 15, 1980

DIGEST: A MEMBER OF THE ARMY STATIONED IN GERMANY VOLUNTARILY RETURNED HIS DEPENDENTS TO THE UNITED STATES BEFORE THE END OF HIS OVERSEAS TOUR. SUBSEQUENTLY, AT THE MEMBER'S REQUEST HIS TOUR OF DUTY WAS CHANGED TO AN "ALL OTHERS" (WITHOUT DEPENDENTS) TOUR WITHOUT A PERMANENT CHANGE OF STATION OR ANY OTHER SHOWING OF MILITARY NECESSITY. MEMBER MAY NOT BE PAID FAMILY SEPARATION ALLOWANCE (FSA) SINCE ENTITLEMENT TO FSA MUST ARISE BY REASON OF THE MEMBER'S SEPARATION FROM HIS FAMILY DUE TO THE REQUIREMENTS OF HIS MILITARY DUTY ASSIGNMENT, NOT BECAUSE OF PERSONAL REASONS.

CHIEF WARRANT OFFICER THOMAS J. KING, USA:

THIS CASE CONCERNS AN ARMY MEMBER'S ENTITLEMENT TO A FAMILY SEPARATION ALLOWANCE (FSA) WHERE THE MEMBER IS SERVING OUTSIDE THE CONTINENTAL UNITED STATES ACCOMPANIED BY HIS DEPENDENTS WHO HAVE BEEN SUBSEQUENTLY VOLUNTARILY RETURNED TO THE UNITED STATES BEFORE THE END OF THE MEMBER'S TOUR OF DUTY. AFTER THE DEPENDENTS' DEPARTURE THE MEMBER'S TOUR OF DUTY IS CHANGED TO AN "ALL OTHERS" (WITHOUT DEPENDENTS) TOUR AT THE MEMBER'S REQUEST WITHOUT A PERMANENT CHANGE OF STATION (PCS). SINCE THE DEPENDENTS WERE RETURNED TO THE UNITED STATES AT THE MEMBER'S REQUEST AND SINCE, AT HIS REQUEST WITHOUT A PCS, HIS TOUR OF DUTY WAS THEREAFTER CHANGED TO AN "ALL OTHERS" TOUR, THE FAMILY SEPARATION CANNOT BE CONSIDERED TO BE THE RESULT OF MILITARY ORDERS. NO ENTITLEMENT TO THE FSA EXISTS AND PAYMENT MAY NOT BE AUTHORIZED.

CHIEF WARRANT OFFICER THOMAS J. KING, USA, WHILE SERVING A "WITH COMMAND SPONSORED DEPENDENTS" TOUR OF DUTY IN GERMANY, RETURNED HIS DEPENDENTS TO THE UNITED STATES UNDER THE PROVISIONS OF PARAGRAPH M7103 2, ITEM 7, VOLUME 1, JOINT TRAVEL REGULATIONS (1 JTR), WHICH AUTHORIZES DEPENDENTS' RETURN TRANSPORTATION FOR "COMPELLING PERSONAL REASONS." THE DEPENDENTS DEPARTED GERMANY ON JANUARY 20, 1978, AND ON THE SAME DATE MR. KING REQUESTED A CHANGE OF TOUR ELECTION FROM "COMMAND SPONSORED" TO "ALL OTHERS" TOUR WHICH WAS APPROVED ON FEBRUARY 23, 1978. ON MARCH 10, 1978, THE DATE HE VACATED THE ASSIGNED FAMILY-TYPE QUARTERS HE BEGAN RECEIVING BASIC ALLOWANCE FOR QUARTERS AT THE WITH DEPENDENT RATE. HE WAS ALSO AUTHORIZED OVERSEAS STATION HOUSING ALLOWANCE EFFECTIVE MARCH 7, 1978, BASED ON THE STATEMENT OF NON AVAILABILITY OF GOVERNMENT QUARTERS FOR A MEMBER WITHOUT DEPENDENTS.

MR. KING ALSO CLAIMS FSA FROM THE TIME HIS TOUR WAS CHANGED TO "ALL OTHERS" THROUGH THE DATE OF HIS PCS RETURN TO THE UNITED STATES IN FEBRUARY 1979. HIS CLAIM WAS DISALLOWED BY THE ARMY AND OUR CLAIMS DIVISION ON THE BASIS THAT FSA IS PAYABLE WHEN A MEMBER IS SEPARATED FROM HIS DEPENDENTS AS A RESULT OF HIS MILITARY DUTY ASSIGNMENT AND NOT WHEN THE SEPARATION IS VOLUNTARY FOR PERSONAL REASONS. MR. KING HAS APPEALED THAT DETERMINATION ARGUING THAT WHEN HIS TOUR WAS CHANGED TO "ALL OTHERS" HE WAS NO LONGER ENTITLED TO HAVE HIS DEPENDENTS ACCOMPANY HIM AT HIS DUTY STATION AND, THEREFORE, HIS SEPARATION FROM THEM SHOULD BE CONSIDERED AS A RESULT OF HIS MILITARY DUTY.

FAMILY SEPARATION ALLOWANCES ARE AUTHORIZED IN 37 U.S.C. 427 (1976) WHEN, AMONG OTHER THINGS, THE MEMBER'S DEPENDENTS ARE NOT AUTHORIZED TRANSPORTATION UNDER 7 U.S.C. 406 TO OR NEAR HIS DUTY STATION. THE LEGISLATIVE HISTORY OF THIS STATUTE SHOWS THAT FSA IS TO BE PAID TO MEMBERS WHO SUFFER PERIODS OF ENFORCED SEPARATION FROM THEIR DEPENDENTS DUE TO MILITARY REQUIREMENTS. SEE GENERALLY 43 COMP.GEN. 332 (1963).

UNDER 37 U.S.C. 406(H) (1976) DEPENDENTS MAY BE TRANSPORTED FROM AREAS OUTSIDE THE UNITED STATES TO THE UNITED STATES UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES. PARAGRAPH M7103-2, ITEM 7, 1 JTR, UNDER WHICH MR. KING'S DEPENDENTS WERE RETURNED TO THE UNITED STATES, WAS ISSUED PURSUANT TO SECTION 406(H). ITEM 7 OF THAT PARAGRAPH RELATES TO COMPELLING PERSONAL REASONS OF THE MEMBER AND HIS DEPENDENTS, SUCH AS FINANCIAL DIFFICULTIES, MARITAL DIFFICULTIES, UNFORESEEN FAMILY PROBLEMS, DEATH OR SERIOUS ILLNESS OF CLOSE RELATIVES, REASONS OF A HUMANITARIAN OR COMPASSIONATE NATURE, AND IN OTHER SITUATIONS, WHICH HAVE AN ADVERSE EFFECT ON THE MEMBER'S DUTY PERFORMANCE. IN SUCH SITUATIONS THE MEMBER MAY REQUEST, AND THE COMMANDING OFFICER MAY APPROVE, TRANSPORTATION OF DEPENDENTS AFTER HE HAS ASSURED HIMSELF THAT A REASONABLE RELATIONSHIP EXISTS BETWEEN THE CONDITIONS AND THE CIRCUMSTANCES PROMPTING THE REQUEST FOR TRAVEL OF THE DEPENDENT IN EACH CASE. THESE SITUATIONS DO NOT RELATE TO MILITARY REQUIREMENTS AND IN CERTAIN INSTANCES THE DEPENDENTS MAY BE RETURNED TO THE SAME OVERSEAS STATION. 1 JTR, PARAGRAPH M7103-3. WE HAVE HELD THAT IN THE CASES OF DEPENDENTS RETURNED UNDER PARAGRAPH M7103, IT IS DOUBTFUL THAT THE MEMBERS ARE TO BE VIEWED GENERALLY AS NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS TO THEIR OVERSEAS STATION WITHIN THE CONTEMPLATION OF THE STATUTE. HENCE, PAYMENT OF FAMILY SEPARATION ALLOWANCES WOULD NOT BE AUTHORIZED IN SUCH CASES. 43 COMP.GEN. 332, 348 (1963).

THIS OFFICE HAS CONSISTENTLY HELD THAT TO BE ENTITLED TO FSA, THE SEPARATION FROM THE MILITARY MEMBER'S DEPENDENTS MUST ARISE BY REASON OF HIS MILITARY DUTY ASSIGNMENT. THUS, WHERE THE MOVEMENT OF DEPENDENTS FROM AN OVERSEAS AREA IS NOT THE RESULT OF PCS ORDERS AND THE DEPENDENTS ARE FREE TO RESIDE WITH THE MEMBER UNTIL HE IS REQUIRED TO MOVE, WE DETERMINED THAT THERE WAS NO ENFORCED SEPARATION OF THE MEMBER FROM HIS FAMILY AND IN SUCH CIRCUMSTANCES FAMILY SEPARATION ALLOWANCES ARE NOT AUTHORIZED. COMP.GEN. 151 (1966). ALSO, WHERE A MEMBER WAS SERVING AN "ALL OTHERS" TOUR AND WAS NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS TO HIS OVERSEAS STATION, WE HELD IN 49 COMP.GEN. 867 (1970) THAT THE MEMBER WAS NOT ENTITLED TO FSA WHERE THE SEPARATION FROM HIS FAMILY WAS DUE TO A DIVORCE RATHER THAN HIS MILITARY DUTIES. SEE ALSO 56 COMP.GEN. 805 (1977).

IN THE PRESENT CASE, MR. KING WAS AUTHORIZED TO HAVE HIS DEPENDENTS WITH HIM AT HIS DUTY STATION AND THEY DID ACCOMPANY HIM THERE. THEIR EARLY RETURN TO THE UNITED STATES WAS NOT DUE TO MILITARY REQUIREMENTS. INSTEAD, THEY RETURNED FOR PERSONAL REASONS AND, THUS, THEIR SEPARATION FROM THE MILITARY MEMBER WAS NOT THE RESULT OF MILITARY REQUIREMENTS. ALTHOUGH AFTER HIS DEPENDENTS WERE RETURNED TO THE UNITED STATES MR. KING HAD HIS TOUR CHANGED TO "ALL OTHERS," NO PCS WAS INVOLVED AND THERE WAS NO FORCED SEPARATION BECAUSE OF OTHER MILITARY OPERATIONS. IN FACT, THE MEMBER CONTINUED AT THE SAME OVERSEAS STATION, APPARENTLY IN THE SAME JOB ASSIGNMENT. THE CHANGE OF HIS STATUS TO AN "ALL OTHERS" TOUR REQUESTED BY HIM COULD NOT ENTITLE HIM TO FSA WITHOUT A SHOWING THAT THE CHANGE WAS BROUGHT ABOUT DUE TO THE NECESSITY OF MILITARY OPERATIONS.

ACCORDINGLY, THE SETTLEMENT OF OUR CLAIMS DIVISION DENYING THE CLAIM FOR FSA IS SUSTAINED.