B-157728, OCT. 28, 1965, 45 COMP. GEN. 205

B-157728, OCT. 28, 1965, 45 COMP. GEN. 205

FAMILY ALLOWANCES - SEPARATION - TYPE 2 - SOME DEPENDENTS AT OTHER PLACE THE FACT THAT THE MEMBERS OF THE FAMILY OF AN OFFICER OF THE UNIFORMED SERVICES WHO IS ASSIGNED TO A RESTRICTED OVERSEAS AREA ARE SEPARATED, HIS WIFE AND SON TRAVELING AT PERSONAL EXPENSE TO THE RESTRICTED AREA, AND REMAINING THERE FOR A PERIOD EXCEEDING THE 3 MONTHS REGARDED AS THE MAXIMUM PERIOD FOR TEMPORARY VISITS% AND HIS TWO DAUGHTERS WHO WERE ATTENDING SCHOOL REMAINING IN THE FAMILY HOUSEHOLD MAINTAINED IN THE UNITED STATES BY THE OFFICER, DOES NOT DEPRIVE HIM FOR THE PERIOD HIS WIFE AND SON RESIDED AT OR NEAR HIS PERMANENT OVERSEAS DUTY STATION OF ENTITLEMENT TO PAYMENT OF A FAMILY SEPARATION ALLOWANCE UNDER 37 U.S.C. 427 (B) (1) ON ACCOUNT OF THE DAUGHTERS WHO, NOT ENTITLED TO GOVERNMENT TRANSPORTATION TO THE OVERSEAS DUTY STATION, CONTINUED TO RESIDE IN THE FAMILY HOUSEHOLD.

TO A. V. MCGREEVY, UNITED STATES MARINE CORPS, OCTOBER 28, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 13, 1965, AAB/AVM/LES 7220.1 REQUESTING DECISION AS TO THE ENTITLEMENT OF MAJOR NATHANIEL N. REICH, USMC, TO FAMILY SEPARATION ALLOWANCE FOR THE PERIOD OCTOBER 18, 1964 THROUGH MARCH 13, 1965. THE REQUEST WAS ASSIGNED CONTROL NO. DO-MC- 870 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE ENCLOSURES WITH YOUR LETTER SHOW THAT MAJOR REICH WAS TRANSFERRED FROM QUANTICO, VIRGINIA, TO 3RD MARINE DIVISION (REIN), FMF, AS A PERMANENT CHANGE OF STATION. TRANSPORTATION OF DEPENDENTS WAS NOT AUTHORIZED AT GOVERNMENT EXPENSE TO THE OVERSEAS STATION OR TO A PLACE NEAR THE STATION. MAJOR REICH REPORTED AT THE RESTRICTED OVERSEAS STATION (OKINAWA) ON AUGUST 31, 1964. ON SEPTEMBER 8, 1964, HE APPLIED FOR FAMILY SEPARATION ALLOWANCE STATING THAT HE MAINTAINED A HOUSEHOLD FOR HIS DEPENDENTS AT 5872 STREAMVIEW DRIVE, SAN DIEGO, CALIFORNIA. IT APPEARS THAT THE MEMBER HAS FOUR DEPENDENTS CONSISTING OF A WIFE AND THREE CHILDREN; THAT THE TWO OLDER CHILDREN (DAUGHTERS) REMAINED IN SAN DIEGO, WHERE THEY WERE ATTENDING SCHOOL; THAT THE WIFE AND YOUNGEST CHILD (SON) TRAVELED TO OKINAWA AT PERSONAL EXPENSE; THAT THEY ARRIVED ON OCTOBER 19, 1964, AND EXCEPT FOR TWO ABSENCES OF 24 HOURS EACH REQUIRED BY LOCAL IMMIGRATION REGULATIONS, REMAINED UNTIL MARCH 13, 1965, WHEN THEY DEPARTED UNDER PROTEST. IT FURTHER APPEARS THAT THE SON WAS ENROLLED IN DEPENDENTS SCHOOL IN OKINAWA, AND THAT MRS. REICH WAS QUOTED BY BOTH FOREIGN AND AMERICAN PRESS AGENCIES AS INTENDING TO REMAIN WITH HER HUSBAND SO LONG AS HE REMAINED IN OKINAWA.

TYPE II (RESTRICTED STATION) FAMILY SEPARATION ALLOWANCE WAS INITIATED ON MAJOR REICH'S APPLICATION. HOWEVER, ON FEBRUARY 17, 1965, IT WAS ADMINISTRATIVELY DETERMINED THAT HE WAS NOT ENTITLED TO SUCH ALLOWANCE FOR THE PERIOD BEGINNING OCTOBER 18, 1964 (THE DATE PRECEDING THE ARRIVAL OF THE DEPENDENTS IN OKINAWA) AND THE AMOUNT PAID FROM THAT DATE TO FEBRUARY 19, 1965 ($118), WAS COLLECTED BY CHECK AGE. PAYMENT OF THE ALLOWANCE WAS RECOMMENDED ON MARCH 14, 1965, FOLLOWING DEPARTURE OF MAJOR REICH'S DEPENDENTS.

THE MEMBER POINTS OUT THAT PARAGRAPH 4.C OF SECNAVINST 7220.46A PROVIDES THAT "IF A MEMBER HAS MORE THAN ONE DEPENDENT AND NOT ALL OF THE DEPENDENTS VISIT AT OR NEAR HIS PERMANENT STATION, THE ALLOWANCE WILL CONTINUE WITHOUT REGARD TO THE LENGTH OF THE VISIT.' HE STATES THAT WHILE HIS WIFE AND SON WERE IN OKINAWA HIS OTHER TWO CHILDREN CONTINUED TO LIVE IN AN APARTMENT IN SAN DIEGO FOR WHICH HE PAID THE RENT AND UTILITIES COSTS AS WELL AS FOR THEIR FOOD, CLOTHING, DENTAL CARE AND ALL OTHER LIVING EXPENSES. SINCE NOT ALL OF HIS DEPENDENTS WERE ON THE ISLAND OF OKINAWA HE CONTENDS THAT THE FAMILY SEPARATION ALLOWANCE SHOULD NOT HAVE BEEN TERMINATED. IN THIS CONNECTION IT IS THE ADMINISTRATIVE VIEWPOINT THAT PARAGRAPH 4.C OF THE INSTRUCTIONS RELATES TO VISITS OF DEPENDENTS, WHEREAS IT IS BELIEVED THAT THE WIFE AND SON WERE IN OKINAWA FOR THE PURPOSE OF MAINTAINING A RESIDENCE, NOT FOR THE PURPOSE OF VISITING.

MAJOR REICH FURTHER POINTS OUT THAT PARAGRAPH 4.B OF SECNAVINST 7220.46A PROVIDES THAT "IF THE PLACE WHERE THE MEMBER'S DEPENDENTS RESIDE IS NOT WITHIN A REASONABLE DAILY COMMUTING DISTANCE OF THE MEMBER'S DUTY STATION, IT WILL BE CONSIDERED THAT THEY DO NOT RESIDE AT OR NEAR HIS STATION. FOR THIS PURPOSE A DISTANCE OF 50 MILES ONE-WAY FROM THE STATION WILL BE CONSIDERED AS THE REASONABLE DAILY COMMUTING DISTANCE, EXCEPT WHERE THE MEMBER ACTUALLY COMMUTES A GREATER STANCE.' HE STATES THAT ON FEBRUARY 20, 1965, HE WAS TRANSFERRED FROM THE CAMP NEAR WHICH HIS WIFE AND SON WERE LIVING TO A LOCATION OVER 50 MILES AWAY; THAT THE COMMUTING TIME WAS ABOUT 4 1/2 HOURS WHICH PRECLUDED HIS SEEING HIS FAMILY ON ANY REGULAR BASIS; THAT HE WAS NOT ALLOWED TO LEAVE HIS DUTY STATION EXCEPT DURING NONTRAINING PERIODS WHICH CAME ABOUT ONCE EVERY 6 OR 7 WEEKS AND, THUS, HE COULD PLAN ON ONLY 3 TO 5 DAYS OFF EVERY 45-DAY PERIOD. IN THIS CONNECTION IT IS ADMINISTRATIVELY REPORTED THAT MAJOR REICH'S DUTY STATION IS AN OPERATIONAL COMMAND SPREAD OVER A 3000-MILE FRONT, NOT A CERTAIN LOCALE AND, THEREFORE, THAT PARAGRAPH 4B OF THE INSTRUCTION IS NOT APPLICABLE.

YOU QUESTION WHETHER OR NOT THE CHECK AGE AGAINST THE PAY OF MAJOR REICH FOR THE PERIOD OCTOBER 18, 1964 TO FEBRUARY 19, 1965, WAS PROPER AND WHETHER HE IS ENTITLED TO THE ALLOWANCE FOR THE PERIOD FEBRUARY 20 TO MARCH 13, 1965. THE COMMANDING GENERAL 3RD MARINE DIVISION (REIN) (REAR) FMF, IN FIRST ENDORSEMENT DATED AUGUST 3, 1965, STATES THAT THE BACKGROUND INFORMATION IN THIS CASE SUPPORTS THE CONCLUSION THAT THE "VISIT" OF MRS. REICH WAS MADE FOR THE PURPOSE OF RESIDING IN OKINAWA IN VIOLATION OF COMBAT READINESS POLICY FOR THE 3RD MARINE DIVISION; THAT EXTENSIVE RESIDENCE DID OCCUR, BROKEN ONLY BY TOKEN ABSENCES TO DEPART FROM THE ISLAND AND RETURN IN ORDER TO COMPLY WITH LOCAL IMMIGRATION REGULATIONS, AND THAT MAJOR REICH SPONSORED THE PART OF HIS FAMILY IN THIS VENTURE. THE COMMANDING GENERAL THEREFORE QUESTIONS WHETHER THE STATUTE AND REGULATIONS PERMIT A SERVICE MEMBER TO ESTABLISH TWO RESIDENCES, ONE OF WHICH IS IN VIOLATION OF A SERVICE POLICY DEVOTED TO COMBAT READINESS, AND CLAIM THE BENEFITS OF A TYPE II (RESTRICTED STATION) FAMILY SEPARATION ALLOWANCE.

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; * * *

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. SEE B 157449, OCTOBER 8, 1965.

IN DECISION B-131836 OF OCTOBER 9, 1963, 43 COMP. GEN. 332 (ANSWER TO QUESTION 19), IT WAS HELD THAT 3 MONTHS NORMALLY WOULD BE REGARDED AS THE MAXIMUM PERIOD DURING WHICH DEPENDENTS COULD VISIT AT OR NEAR THE MEMBER'S PERMANENT STATION WITHOUT LOSS OF BENEFITS UNDER 37 U.S.C. 427 (A) AND CLAUSE (1) OF 427 (B). SEE ALSO DECISION B-153204 OF MARCH 16, 1964, 43 COMP. GEN. 596 (ANSWER TO QUESTION 1). IN THE DECISION OF OCTOBER 9, 1963 (ANSWER TO QUESTION 21), IT WAS HELD THAT IF THE MEMBER HAS MORE THAN ONE DEPENDENT AND NOT ALL OF THE DEPENDENTS VISIT HIM AT OR NEAR HIS PERMANENT STATION, THE VISIT OF ONE OR MORE OF THE DEPENDENTS "EVEN THOUGH EXCEEDING THREE MONTHS" WOULD NOT DEPRIVE HIM OF THE ALLOWANCE UNDER SUBSECTION (A) AND CLAUSE (1) OF SUBSECTION (B) "IF HE IS OTHERWISE ENTITLED TO THE ALLOWANCE BY REASON OF THE DEPENDENTS WHO DO NOT VISIT HIM.' THE RATIONALE OF THAT DECISION IS THAT THE MEMBER IS REQUIRED TO CONTINUE TO MAINTAIN A HOUSEHOLD FOR THE DEPENDENTS WHO DO NOT JOIN HIM AT HIS STATION. COMPARE ANSWER TO QUESTION 22 IN OCTOBER 9, 1963 DECISION.

IN THE PRESENT CASE, THERE WAS A RESTRICTION ON TRAVEL OF DEPENDENTS TO THE MEMBER'S OVERSEAS STATION AND TRAVEL TO SUCH STATION AT GOVERNMENT EXPENSE WAS NOT AUTHORIZED. ON THE OFFICER'S APPLICATION DATED SEPTEMBER 8, 1964, HE STATED THAT HE MAINTAINED A RESIDENCE FOR HIS DEPENDENTS AT 5872 STREAMVIEW DRIVE, SAN DIEGO, AND IN HIS LETTER OF MARCH 16, 1965, HE STATED THAT HIS WIFE AND SON DEPARTED OKINAWA ON MARCH 13, 1965, AND HAD REJOINED HIS TWO DEPENDENT DAUGHTERS IN SAN DIEGO. HE FURTHER CERTIFIED THAT AT THAT TIME HE MAINTAINED A RESIDENCE FOR HIS DEPENDENTS AT THE ABOVE ADDRESS. THUS, THE RECORD INDICATES THAT DURING THE PERIOD THE WIFE AND SON WERE IN OKINAWA THE OFFICER CONTINUED TO MAINTAIN A RESIDENCE FOR HIS DEPENDENTS AT THE ABOVE ADDRESS IN SAN DIEGO AND IT IS ASSUMED THAT THE TWO DAUGHTERS RESIDED AT SUCH ADDRESS WHILE THE OTHER DEPENDENTS WERE IN OKINAWA. THEIR ADDRESS OTHER THAN SAN DIEGO DURING SUCH PERIOD, HOWEVER, IS NOT DISCLOSED BY THE PRESENT RECORD. IF IT BE ASCERTAINED THAT THE FACTS ARE AS INDICATED ABOVE, THEN IT IS OUR VIEW THAT THE OFFICER IS ENTITLED TO FAMILY SEPARATION ALLOWANCE ON ACCOUNT OF THE TWO DAUGHTERS WHO RESIDED IN SAN DIEGO SINCE HE MAINTAINED FAMILY QUARTERS WHERE THEY RESIDED AND THEY WERE NOT ENTITLED TO GOVERNMENT TRANSPORTATION TO HIS STATION. SEE THE ANSWER TO QUESTION 15 IN OUR DECISION OF OCTOBER 9, 1963, B-131836. ON THAT BASIS PAYMENT OF THE ALLOWANCE IS AUTHORIZED FOR THE PERIOD INVOLVED. IF IT BE DETERMINED, HOWEVER, THAT THE TWO DAUGHTERS DID NOT RESIDE IN FAMILY QUARTERS MAINTAINED BY THE OFFICER DURING SUCH PERIOD, THE MATTER MAY BE RESUBMITTED HERE FOR FURTHER CONSIDERATION TOGETHER WITH A FULL DISCLOSURE OF THE ACTUAL FACTS. SEE 43 COMP. GEN. 444.

THE PAPERS WHICH ACCOMPANIED YOUR REQUEST ARE RETURNED FOR APPROPRIATE ACTION IN ACCORDANCE WITH WHAT IS STATED ABOVE.