family separation allowance under the provisions of clause (2) of 37 U.S.C. 427 (b). If he is ordered to temporary additional duty under circumstances which would change his eligibility for family separation allowance under clause (2) to eligibility under clause (3) without any break in continuity, may family separation allowance under clause (3) be considered as an item of saved pay? 2. Would it make any difference if, after his temporary appointment and while family separation allowance under the provisions of clause (2) of 37 U.S.C. 427 (b) was being considered as an item of saved pay, the ship returned to its home port and he later entered upon the performance of temporary additional duty, so that an interval of days or weeks results before eligibility under clause (3) could commence?

Under the provisions of 10 U.S.C. 5596(f) a person receiving a temporary appointment under that section may not suffer any reduction in the pay and allowances to which he was entitled because of his permanent status at the time of his temporary appointment, or any reduction in the pay and allowances to which he was entitled under a prior temporary appointment in a lower grade. In its discussion of the questions presented the Committee says that family separation allowances under the provisions of 37 U.S.C. 427 (b) must be considered as part of the total pay and allowances in computing entitlement to saved pay, citing 44 Comp. Gen. 121. The Committee expresses the view, therefore, that in the case contemplated by Question 1, the member would be entitled to have considered the amount of the clause (2) allowance as part of the total pay and allowances in computing his entitlement to saved pay so long as the ship remained away from its home port and he remained attached thereto. It is said, however, that doubt as to entitlement arises if, while the ship is away from its home port and the member is still attached to the ship, he immediately enters upon the performance of temporary additional duty ashore and the conditions of entitlement to family separation allowance change immediately from clause (2) to clause (3). The Committee points out in that connection that in 23 Comp. Gen. 21, it was stated on page 23, "Moreover, while the previous pay and allowances of a person temporarily appointed to a higher grade are saved from reduction due to the temporary appointment, they are not saved from reduction due to other changes in the conditions affecting such pay and allowances," and on page 24 it was stated, "Nor would foreign service or sea pay be saved after return to the United States because such reduction would not be caused by the temporary appointment but to being transferred to a location where such additional pay was not payable."

The Committee further comments that in the situation contemplated under Question 2, the return of the ship to its home port prior to entering upon the performance of temporary additional duty would terminate entitlement to family separation allowance under clause (2) of subsection (b) and would result in some interval of

time, a matter of days or weeks, before eligibility for entitlement under clause (3) could commence.

Section 427(b) of Title 37, U.S. Code, provides as follows:

(b) Except in time of war or of 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 equal to $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;

(2) he is on duty on board a ship away from the home port of the ship for a continuous period of more than 30 days; or

(3) he 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.

A member who becomes entitled to an allowance under this subsection by virtue of duty described in clause (2) or (3) for a continuous period of more than thirty days is entitled to the allowance effective as of the first day of that period.

The amount of the family separation allowance under 37 U.S.C. 427(b) (2) and (3) is the same regardless of the member's pay grade, and the allowance is payable while the conditions imposed by either clause (1) (2) or (3) are met.

In decision of September 2, 1964, 44 Comp. Gen. 121, supra, we held that family separation allowances under the provisions of 37 U.S.C. 427(a) and (b) must be considered as part of the total pay and allowances in computing entitlement to saved pay for the purpose of the savings provisions of 10 U.S.C. 5596 (f), so long as entitlement to the allowance remains unbroken. While it was emphasized in the decision that, as in the case of the foreign service or sea duty pay considered in 23 Comp. Gen. 21, entitlement to family separation allowance does not exist unless the conditions imposed by 37 U.S.C. 427(a) and (b) are met and that it is not an item of pay and allowances which is continued by the saved pay provisions when eligibility therefor otherwise ceases, the decision left unanswered the question whether family separation allowance accruing under different conditions may be viewed as an item of pay and allowances to which a member was entitled because of his permanent status at the time of his temporary appointment, within the contemplation of 10 U.S.C. 5596 (f). The family separation allowance, however, is predicated on an enforced separation from the member's family and, if the purpose of section 5596 of preventing any reduction in pay and allowances because of the temporary appointment is to be given full effect in such cases, we believe that, if the $30 per month family separation allowance was payable to a member under either of the clauses enumerated in 37 U.S.C. 427 (b), he is entitled to have such allowance included in any subsequent computation of his saved pay

during any subsequent period of enforced separation from his family entitling him to the allowance under any of these clauses.

Thus, with reference to Question 1, since the change in the basis for eligibility for the family separation allowance from clause (2) to clause (3) of 37 U.S.C. 427 (b) would have no effect upon the member's status of enforced separation from his family, it is our view that the family separation allowance would continue to be an item properly for inclusion in the computation of saved pay. Question 1 is answered in the affirmative.

As to Question 2, the return of the vessel to the home port would terminate entitlement to family separation allowance under clause (2) of 37 U.S.C. 427(b) and it would no longer be for inclusion in the computation of saved pay under 10 U.S.C. 5596. However, upon being ordered from the home port to temporary additional duty a new entitlement to family separation allowance would arise, assuming the conditions of clause (3) are met and, since the member was entitled to the allowance because of his enforced separation from his family at the time of his temporary appointment, the allowance would be for inclusion in the computation of his saved pay for the period of entitlement. Question 2 is answered accordingly.

[B-159327]

Property---Private-Federal Funds for Improvements, Repairs,

Etc.-Rent-Free Space

The expenditure of appropriated funds for the reinforcements of building foundations and other structural improvements necessitated by the construction of air navigation facilities on rent-free space in airport buildings authorized by section 11(6) of the Federal Airport Act (49 U.S.C. 1110) is not prohibited by section 322 of the Economy Act, 40 U.S.C. 278a, the limitation on obligating appropriations for the alteration, improvements, and repairs of premises contained in section 322 applying only to rented buildings, and the airport act providing for the construction at Federal expense of air travel control and related facilities at selected airports, payment may be made from appropriated funds for the reinforcements of building foundations and other structural improvements as part of the cost of constructing air navigation and related facilities.

To the Administrator, Federal Aviation Agency, July 20, 1966:

We are in receipt of your letter dated May 31, 1966, in which you request our advice "on the extent to which the Federal Aviation Agency may expend appropriated funds to establish air navigation facilities under section 307 (b) of the Federal Aviation Act, 49 U.S.C. 1348 (b), on airport terminal buildings or other airport buildings where the airport operator or owner, under section 11(6) of the Fed

eral Airport Act, 49 U.S.C. 1110(6), has granted the Government the right without cost to make the installation."

Section 307(b) of the Federal Aviation Act authorizes the Administrator of the Federal Aviation Agency to acquire, establish, and improve air-navigation facilities wherever necessary within the limits of available appropriations made by the Congress. The facilities with which you are primarily concerned are air traffic control tower cabs which are installed on the roofs of buildings. There are no limitations in the Independent Offices Appropriation Act on the general availability of the funds for these purposes but, as you indicate, installation of an air traffic control tower cab on the roof of a building often necessitates the reinforcement of the building foundation and other structural improvements. You question, therefore, whether the appropriated funds are available for these structural changes and improvements inasmuch as they might not be considered as acquiring, establishing or improving air-navigation facilities as those terms are used in the statute.

It may be stated as a general rule that appropriated funds ordinarily may not be used for permanent improvements to private property unless specifically authorized by law. See B-152722, dated August 16, 1965, and cases cited therein. In this regard, section 11(6) of the Federal Airport Act, 49 U.S.C. 1110(6), provides as follows:

(6) the airport operator or owner will furnish without cost to the Federal Government for use in connection with any air traffic control activities, or weather-reporting activities and communication activities related to air traffic control, such areas of land or water, or estate therein, or rights in buildings of the sponsor as the Administrator may consider necessary or desirable for construction at Federal expense of space or facilities for such purposes; [Italic supplied.]

This section provides specific authorization for construction, at Federal expense, of air traffic control and related activities at selected airports. The only question that remains, then, is whether there are limitations on the amount which the Federal Aviation Agency may spend on these facilities.

Section 322 of the Economy Act, 40 U.S.C. 278a, provides that no appropriation shall be obligated for:

alterations, improvements, and repairs of the rented premises in excess of 25 per centum of the amount of the rent for the first year of the rental term, or for the rental term if less than one year:

This section serves to limit funds that may be expended for the stated purposes only in situations where the Government is renting a building or part of a building. At first blush it seems obvious the situation at hand does not fall within this category because the Government is not renting anything from the sponsor. However, in a recent decision issued by this Office, B-152722, dated August 16, 1965,

involving expenditures of appropriated funds for alterations, improvements, and repairs to rent-free space provided by airport owners and operators in accordance with former section 11(5) of the Federal Airport Act, 49 U.S.C. 1110(5), it was held that payments made for changes in the rent-free space furnished by the airport will be regarded as payments in kind in lieu of rent and, therefore, section 322 of the Economy Act applies to limit the amount the Federal Aviation Agency may expend to improve the space.

As noted above, this decision was based on former section 11(5) of the Federal Airport Act as that section existed prior to its amendment in 1961 by Public Law 87-255, 75 Stat. 523. We feel there are significant changes in the wording of the new act as well as a clearly established legislative intent which indicate a different interpretation should be given to the amendment. For example, former section 11(5) required the airport owner or operator to furnish without charge space in airport buildings which was reasonably adequate for the use intended. Thus, the Congress contemplated space in a building that was initially tailored somewhat for air traffic control work, although no future tailoring or changes were required to be made by the sponsor. Since the Government was occupying space provided by the sponsor airport we concluded the changes and improvements in that space were equivalent to payments of rent or, payments in kind in lieu of rent even though no rental was actually charged by the sponsor. The amendment changes the old section and adds to it. That is, the sponsor is no longer required to provide space in buildings, but rather rights in buildings as the Administrator deems necessary or desirable. In addition, the amendment provides specifically, as the old section did not, that construction of these facilities is to be at Federal expense. Furthermore, the Administrator is authorized:

to relieve the sponsor from any contractual obligation entered into under this Act to provide free space in airport buildings to the Federal Government to the extent he finds such space no longer required for the purposes set forth in paragraph (5) of this section. 75 Stat. 526.

It seems clear the Congress has expressed its intent in unequivocal language that the Federal Aviation Agency not be hampered by restrictions or limitations in the construction of those vitally important air traffic control facilities.

In view of the above, this Office has no objection to payment from funds appropriated to the Federal Aviation Agency for reinforcements of building foundations and other structural improvements as part of the cost of constructing air-navigation and related facilities at selected airports.