B-160874, MAR. 13, 1967

B-160874, MAR. 13, 1967

TO MAJOR JOHN R. GILBERT:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 27, 1967, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR FAMILY SEPARATION ALLOWANCE, TYPE II, WHILE ON DUTY IN GERMANY DURING THE PERIOD JUNE 3, 1965, TO MARCH 31, 1966, WHICH CLAIM WAS DISALLOWED BY SETTLEMENT DATED OCTOBER 25, 1966.

BY PARAGRAPH 133, SPECIAL ORDERS NO. 304, DATED DECEMBER 4, 1964, YOU WERE TRANSFERRED FROM FORT BENNING, GEORGIA, TO GERMANY, AS A PERMANENT CHANGE OF STATION. IT APPEARS THAT YOU ARRIVED IN EUROPE ON APRIL 3, 1965, AND DEPARTED FOR YOUR RETURN TO THE UNITED STATES ON APRIL 25, 1966. YOU SAY THAT YOUR DEPENDENTS RESIDED IN COLUMBUS, GEORGIA, WHILE YOU WERE OVERSEAS.

YOU SAY THAT IN SEPTEMBER 1964, WHEN YOU SUBMITTED DA FORM 1049 REQUESTING OVERSEAS ASSIGNMENT YOU STATED THERE WOULD BE NO MOVEMENT OF DEPENDENTS, AND THAT YOU WERE NOT INFORMED PRIOR TO YOUR DEPARTURE FOR OVERSEAS NOR UPON YOUR ARRIVAL THERE OF THE REQUIREMENT TO SELECT THE TYPE OF TOUR IN ORDER TO QUALIFY FOR FAMILY SEPARATION ALLOWANCE, TYPE II. IT APPEARS THAT YOU SUBMITTED A REQUEST FOR THE "ALL OTHERS" TOUR IN MARCH 1966. IT WAS NOT APPROVED, HOWEVER, FOR THE REASON THAT IT WAS NOT RECEIVED BY HEADQUARTERS, DEPARTMENT OF THE ARMY, UNTIL AFTER YOU HAD BEEN REASSIGNED TO THE UNITED STATES.

YOUR CLAIM WAS DISALLOWED BY THE SETTLEMENT MENTIONED ABOVE FOR THE REASON STATED THEREIN. IN YOUR PRESENT LETTER YOU SAY YOU WERE NOT INFORMED BY THE COMMANDER ISSUING TRAVEL ORDERS THAT YOU WERE REQUIRED TO MAKE A TOUR SELECTION AS STATED IN ARMY REGULATIONS 55-46, AND THAT THE SPIRIT OF PARAGRAPH 10383, ARMY REGULATIONS 37-104; IS TO DETERMINE WHETHER DEPENDENTS WILL OR WILL NOT BE WITH THE SPONSOR IN A COMMAND APPROVED AREA. ALSO, YOU REQUEST THAT THE DA FORM 1049 EXECUTED BY YOU IN SEPTEMBER 1964 BE USED AS THE BASIS OF YOUR ELECTION OF THE "ALL OTHERS" TOUR.

THE PERTINENT STATUTE, 37 U.S.C. 427 (B), 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 SEPARATION" OF SERVICEMEN FROM THEIR FAMILIES CAUSES ADDED HOUSEHOLD AND FAMILY EXPENSES WHERE THE MEMBER IS ABSENT FOR A SUBSTANTIAL PERIOD OF TIME.

SECTION 406 OF TITLE 37, U.S. CODE, PROVIDES IN EFFECT THAT A MEMBER OF THE UNIFORMED SERVICES 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 LIEU OF 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 SHOW THAT YOUR DEPENDENTS WERE NOT PERMITTED TO JOIN YOU IN GERMANY AND THAT TRANSPORTATION WAS DENIED UNDER SECTION 406 OF TITLE 37 U.S.C. THUS, THERE WAS NO ENFORCED SEPARATION.

PARAGRAPH 15C OF ARMY REGULATIONS 55-46 PROVIDES THAT MEMBERS ASSIGNED TO AN AREA WHERE APPLICATION FOR CONCURRENT TRAVEL IS AUTHORIZED WILL BE REQUIRED TO ELECT TO SERVE EITHER THE ,WITH DEPENDENTS" TOUR OR THE "ALL OTHERS" TOUR PRIOR TO DEPARTURE FROM THE CONTINENTAL UNITED STATES. WHERE THE MEMBER DOES NOT MAKE SUCH AN ELECTION PRIOR TO HIS DEPARTURE FROM THE UNITED STATES, HE WILL, INSOFAR AS ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE IS CONCERNED, BE CONSIDERED AS SERVING THE "WITH DEPENDENTS" TOUR.

SINCE THERE IS NO RECORD THAT YOU MADE THE REQUIRED ELECTION PRIOR TO YOUR DEPARTURE FROM THE UNITED STATES, IT MUST BE CONSIDERED THAT YOU WERE SERVING THE "WITH DEPENDENT" TOUR SO FAR AS FAMILY SEPARATION ALLOWANCE IS CONCERNED. THE FACT THAT YOU INDICATED IN YOUR SEPTEMBER 1964 APPLICATION FOR OVERSEAS DUTY THAT YOUR DEPENDENTS WOULD NOT MOVE DOES NOT CONSTITUTE THE ELECTION WHICH WAS REQUIRED TO BE MADE PRIOR TO YOUR DEPARTURE AFTER THE ORDERS HAD BEEN ISSUED. WHILE THE RECORD DOES NOT SHOW WHAT NOTICE, IF ANY, OF THE REQUIREMENT TO MAKE THE ELECTION WAS GIVEN TO YOU AT THAT TIME, AN ACT OF OMISSION ON THE PART OF AN OFFICER OR EMPLOYEE OF THE GOVERNMENT IN THIS RESPECT WOULD NOT AFFORD A BASIS FOR THE ALLOWANCE OF YOUR CLAIM CONTRARY TO THE REGULATIONS.

UNDER PARAGRAPH 10383, ARMY REGULATIONS 37-104, PAYMENT OF THE FAMILY SEPARATION ALLOWANCE DOES NOT DEPEND MERELY ON THE ABSENCE OF THE DEPENDENTS FROM THE OVERSEAS STATION. PARAGRAPH 10383B (5) (B), ARMY REGULATIONS 37-104, PROVIDES THAT A MEMBER WHOSE DEPENDENTS DO NOT TRAVEL CONCURRENTLY TO HIS OVERSEAS STATION MAY REELECT, PRIOR TO THEIR DEPARTURE FROM THE UNITED STATES, TO SERVE THE "ALL OTHERS" TOUR. THE REELECTION MUST BE IN WRITING AND IF THE MEMBER IS NOT RECEIVING FAMILY SEPARATION ALLOWANCE, ENTITLEMENT TO THE ALLOWANCE WILL EXIST ONLY AFTER THE DATE THE REELECTION IS APPROVED BY HEADQUARTERS, DEPARTMENT OF THE ARMY, AS IN THE BEST INTEREST OF THE SERVICE. SINCE IN YOUR CASE THE REELECTION WAS NOT APPROVED WHILE YOU WERE OVERSEAS, YOU CONTINUED TO SERVE IN A STATUS IN WHICH YOUR DEPENDENTS WERE NOT PRECLUDED FROM BEING WITH YOU AT YOUR PERMANENT STATION AND NO ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE, TYPE II, EXISTS.