B-158950, JUN. 28, 1966

B-158950, JUN. 28, 1966

TO SFC JOEL R. SCHENKELBERGER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 29, 1966, REQUESTING REVIEW OF THE SETTLEMENT OF MARCH 22, 1966, WHICH DISALLOWED YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE, TYPE II, FOR THE PERIOD NOVEMBER 15, 1963 TO MAY 10, 1965, WHILE ON DUTY OVERSEAS.

YOU WERE ORDERED TO DUTY OVERSEAS BY PARAGRAPH 10, SPECIAL ORDER NO. 177, DATED AUGUST 20, 1963, WHICH DESIGNATED THE LENGTH OF DUTY AS "LONG TOUR.' UNDER DEPARTMENT OF DEFENSE DIRECTIVE NO. 1315.7, APRIL 6, 1963, SUCH DESIGNATION INDICATED YOU WOULD BE ACCOMPANIED BY YOUR DEPENDENTS. IN PRESENTING YOUR ORIGINAL CLAIM ON AUGUST 30, 1965, YOU STATED YOU DID NOT ATTEMPT TO TAKE YOUR FAMILY TO YOUR OVERSEAS STATION BECAUSE OF THE WAITING LIST FOR FAMILY HOUSING IN OKINAWA, AND THAT AFTER ARRIVING THERE YOU ELECTED TO LEAVE YOUR FAMILY IN THE CONTINENTAL UNITED STATES. THAT CLAIM WAS REJECTED BY THE FINANCE CENTER, U.S. ARMY, FOR THE REASON THAT YOU WERE OVERSEAS ON APRIL 1, 1964, AND HAD NOT MADE AN ELECTION WITHIN 30 DAYS OF THAT DATE TO SERVE THE ,ALL OTHERS" TOUR AS REQUIRED BY REGULATIONS. ON JANUARY 6, 1966, YOU FILED A SECOND CLAIM SAYING THAT YOU WERE IN VIETNAM FROM JANUARY 16 TO JULY 17, 1964, AND WERE NOT GIVEN AN OPPORTUNITY TO SELECT THE "ALL OTHERS" OR "WITH DEPENDENTS" TOUR WHILE IN VIETNAM OR AFTER YOUR RETURN TO OKINAWA. IN THE SETTLEMENT IT WAS POINTED OUT THAT ARMY REGULATIONS 37-104, CHANGE 84, DATED APRIL 27, 1964 (AND CHANGE 82, DATED APRIL 1, 1964) PROMULGATED PURSUANT TO 37 U.S.C. 427 PROVIDE THAT TO QUALIFY FOR FAMILY SEPARATION ALLOWANCE, TYPE II, MEMBERS ON DUTY AT OR EN ROUTE TO THE OVERSEAS STATION ON APRIL 1, 1964, HAD 30 DAYS FROM APRIL 1, 1964, OR 30 DAYS AFTER REPORTING AT THE OVERSEAS STATION, WHICHEVER WAS LATER, TO SELECT THE LENGTH OF HIS OVERSEAS TOUR, EITHER THE ,ALL OTHERS" (SHORT TOUR) OR THE "WITH DEPENDENTS" (LONG TOUR); THAT MEMBERS WHO SELECTED THE "ALL OTHERS" TOUR WERE ENTITLED TO THE ALLOWANCE AND THAT YOU HAD NOT DONE SO. THE SETTLEMENT ALSO STATED THAT THE ALLOWANCE WAS TO COMPENSATE MEMBERS WITH DEPENDENTS FOR ADDED EXPENSE INCURRED AT THE PLACE WHERE THE DEPENDENTS RESIDE AS A RESULT OF THE SEPARATION OF THE MEMBERS FROM HIS DEPENDENTS FOR A SUBSTANTIAL PERIOD OF TIME. IN YOUR PRESENT LETTER YOU SAY THAT WHILE IT IS TRUE THAT YOU DID NOT MAKE SUCH A SELECTION, SINCE THE ALLOWANCE WAS TO COMPENSATE FOR THE ADDED EXPENSE DURING SEPARATION OF THE MEMBER FROM HIS DEPENDENTS AND SINCE YOU IN FACT WERE NOT ACCOMPANIED BY YOUR DEPENDENTS YOU BELIEVE YOUR CLAIM SHOULD BE PAID.

THE PERTINENT STATUTE, 37 U.S.C. 427 (B), AS ADDED BY SECTION 11 OF THE UNIFORMED SERVICES PAY ACT OF 1963, PUB.L. 88-132, APPROVED OCTOBER 2, 1963, PROVIDES FOR PAYMENT OF A FAMILY SEPARATION ALLOWANCE, DESIGNATED BY THE SERVICES AS TYPE II, TO CERTAIN MEMBERS UNDER SPECIFIED CIRCUMSTANCES INCLUDING WHEN "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. THE LEGISLATIVE HISTORY OF SECTION 427 (B) SHOWS THAT THE RATIONALE OF THE ALLOWANCE IS THAT "ENFORCED SEPARATIONS" OF SERVICEMEN FROM THEIR FAMILIES CAUSE ADDED HOUSEHOLD AND FAMILY EXPENSE WHERE THE MEMBER IS ABSENT FOR ANY SUBSTANTIAL PERIOD OF TIME. SEE 43 COMP. GEN. 547, COPY ENCLOSED.

SECTION 406 OF TITLE 37, U.S. CODE, PROVIDES IN EFFECT THAT A MEMBER OF THE UNIFORMED SERVICE WHO IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENTS, REIMBURSEMENT THEREFOR OR A MONETARY ALLOWANCE IN LIEUOF TRANSPORTATION, SUBJECT TO SUCH CONDITIONS AND LIMITATIONS, FOR SUCH GRADES AND RATINGS, AND TO AND FROM SUCH PLACES AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED. THE CONDITIONS AND LIMITATIONS ARE SET FORTH IN CHAPTER 7 OF THE JOINT TRAVEL REGULATIONS.

THE RECORD DOES NOT INDICATE THAT YOUR DEPENDENTS WERE NOT PERMITTED TO JOIN YOU IN OKINAWA AND THAT TRANSPORTATION WAS DENIED UNDER SECTION 406 OF TITLE 37, U.S.C. YOUR ORDERS, BY DESIGNATING "LONG TOUR" INDICATED YOUR DEPENDENTS WOULD BE AUTHORIZED TO BE AT YOUR STATION AND THE RECORD SHOWS YOU VOLUNTARILY CHOSE NOT TO HAVE THEM AT OKINAWA, YOUR PERMANENT STATION OVERSEAS. THEREFORE, THERE WAS NOT AN "ENFORCED SEPARATION" BY REASON OF YOUR DUTY ASSIGNMENT AT OKINAWA AS CONTEMPLATED BY THE STATUTE. THE ELECTION OF THE "ALL OTHERS" TOUR WHEN MADE WITHIN PROPER TIME AFTER APRIL 1, 1964, RESULTED IN AN ENDORSEMENT ON ORDERS STATING THAT TRANSPORTATION OF DEPENDENTS TO THE OVERSEAS STATION WAS NOT AUTHORIZED. SUCH BARRING OF DEPENDENTS RESULTED IN AN ENFORCED SEPARATION AS REQUIRED FOR PAYMENT OF THE TYPE II FAMILY SEPARATION ALLOWANCE. SINCE YOU DID NOT MAKE SUCH ELECTION YOUR ORDERS WERE NOT SO ENDORSED AND YOU DID NOT BECOME ELIGIBLE FOR THE ALLOWANCE WHILE ON DUTY IN OKINAWA NOTWITHSTANDING THAT YOUR DEPENDENTS WERE NOT AT YOUR OVERSEAS STATION.

THE RECORD DOES NOT SHOW WHY YOU WERE NOT AFFORDED AN OPPORTUNITY TO ELECT THE "ALL OTHERS" TOUR WITHIN 30 DAYS OF APRIL 1. SINCE THIS MAY HAVE BEEN AN OVERSIGHT ON THE PART OF ARMY PERSONNEL, IT MAY BE STATED IT IS WELL ESTABLISHED THAT IN THE ABSENCE OF SPECIFIC PROVISION OF LAW, THE GOVERNMENT IS NOT LIABLE FOR NEGLIGENCE OR OMISSIONS ON THE PART OF ITS OFFICERS AND EMPLOYEES. GERMAN BANK V. UNITED STATES, 148 U.S. 573; 19 COMP. GEN. 503, 22 ID. 221.

SINCE OKINAWA WAS A STATION TO WHICH TRAVEL OF DEPENDENTS WAS AUTHORIZED UPON APPROVAL OF THE OVERSEAS COMMANDER AND YOU DID NOT SELECT THE "ALL OTHERS" TOUR, THERE WAS NO ENFORCED SEPARATION FROM YOUR DEPENDENTS AND, FOR THAT REASON, THERE IS NO BASIS FOR PAYMENT OF THE FAMILY SEPARATION ALLOWANCE INCIDENT TO THAT DUTY ASSIGNMENT.

WITH RESPECT TO YOUR STATEMENT THAT YOU WERE IN VIETNAM FROM JANUARY 16 TO JULY 17, 1964, THE DEPARTMENT OF THE ARMY HAS RECOMMENDED PAYMENT OF FAMILY SEPARATION ALLOWANCE TO YOU FOR THAT PERIOD SINCE DEPENDENTS ARE NOT PERMITTED THERE. WHILE YOUR DEPENDENTS WERE NOT AT YOUR PERMANENT DUTY STATION, 37 U.S.C. 427 (B) (3) AUTHORIZES PAYMENT OF THE FAMILY SEPARATION ALLOWANCE WITHOUT OTHER LIMITATION WHEN A MEMBER IS ON TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS AND HIS DEPENDENTS DO NOT RESIDE AT OR NEAR HIS TEMPORARY DUTY STATION. CONSEQUENTLY, IT IS CONCLUDED THAT YOU ARE ENTITLED TO FAMILY SEPARATION ALLOWANCE FOR SUCH PERIOD OF DUTY IN VIETNAM AND OUR CLAIMS DIVISION WILL ISSUE A SETTLEMENT IN YOUR FAVOR FOR THE AMOUNT DUE ON THAT BASIS.