B-147838, JAN. 24, 1962

B-147838, JAN. 24, 1962

TO MR. J. W. BIAN, DISBURSING OFFICER:

BY SECOND ENDORSEMENT DATED DECEMBER 20, 1961, PDTATAC CONTROL NO. DO-N- 619, THE COMPTROLLER OF THE NAVY FORWARDED HERE YOUR UNDATED LETTER WITH ENCLOSURERS, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF CREDITING THE PAY ACCOUNT OF LIEUTENANT COMMANDER DORA KRONE, NC, USN, WITH BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT HUSBAND FOR THE PERIOD BEGINNING AUGUST 1, 1961.

IN THE OFFICER'S DEPENDENCY CERTIFICATE (NAVCOMPT FORM 2040 (12-57) ( DATED NOVEMBER 14, 1961, SHE CERTIFIES THAT HER HUSBAND'S ACTUAL LIVING EXPENSES AVERAGE $500 A MONTH; THAT HIS MONTHLY INCOME FROM ALL SOURCES OTHER THAN HER CONTRIBUTIONS IS $234.97, WHICH AMOUNT APPARENTLY IS RECEIVED INCIDENT TO HIS TOTAL AND PERMANENT DISABILITY STATUS, AND THAT HER CONTRIBUTIONS TOWARD HIS LIVING EXPENSES ARE NOT LESS THAN $275 A MONTH. EXPLAINING THE DEPENDENCY STATUS OF HER HUSBAND, SHE SAYS HE WAS EMPLOYED UNTIL AUGUST 21, 1960, WHEN HE SUFFERED A HEART ATTACK AND THAT HE HAS BEEN ON TOTAL AND PERMANENT DISABILITY STATUS SINCE THAT TIME.

SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, 37 U.S.C. 252, AUTHORIZES THE PAYMENT OF AN INCREASED BASIC ALLOWANCE FOR QUARTERS TO MEMBERS OF THE UNIFORMED SERVICES ON ACCOUNT OF A DEPENDENT. THE TERM "DEPENDENT" IS DEFINED IN SECTION 102 (G) OF THE ACT, 63 STAT. 804, 37 U.S.C. 231 (G), WHICH PROVIDES THAT IN THE CASE OF FEMALE MEMBERS OF THE UNIFORMED SERVICES, THE TERM "DEPENDENT" SHALL INCLUDE A HUSBAND, BUT ONLY WHEN THE HUSBAND IS IN FACT DEPENDENT UPON THE FEMALE MEMBER FOR OVER HALF OF HIS SUPPORT. TO BE REGARDED AS IN FACT DEPENDENT UPON HIS WIFE IN THE MILITARY SERVICE A HUSBAND MUST, ON ACCOUNT OF PHYSICAL OR MENTAL INCAPACITY OR FOR OTHER REASONS, BE INCAPABLE OF SELF-SUPPORT. UNEXPLAINED SHOWING THAT THE HUSBAND DERIVES HIS LIVELIHOOD FROM HIS OFFICER WIFE IS NOT SUFFICIENT TO ESTABLISH HIS DEPENDENCY FOR THE PURPOSE OF PAYING INCREASED ALLOWANCES TO THE OFFICER. SEE 32 COMP. GEN. 364; 34 ID. 21.

WHILE IT IS RECOGNIZED THAT CORONARY HEART DISEASE FREQUENTLY RENDERS A PERSON INCAPABLE OF SELF-SUPPORT FOR AN EXTENDED PERIOD, IT IS NOT NECESSARILY CONSIDERED TO BE PERMANENTLY INCAPACITATING. IN THE PRESENT CASE, NO COMPETENT MEDICAL EVIDENCE HAS BEEN SUBMITTED TO SHOW THE HUSBAND'S PHYSICAL CONDITION AND THE REASON WHY HE IS INCAPABLE OF SELF- SUPPORT, THE ONLY EVIDENCE IN SUPPORT OF THE CLAIM BEING THE OFFICER'S STATEMENT THAT HER HUSBAND SUFFERED A HEART ATTACK ON AUGUST 21, 1960, AND THAT HE HAS BEEN ON TOTAL AND PERMANENT DISABILITY STATUS SINCE THAT TIME. THE MEANING OF THAT STATEMENT IS NOT CLEAR BUT IF IT IS MADE ON THE BASIS OF HIS STATUS WITH RESPECT TO THE MONTHLY PAYMENTS THAT HE RECEIVES, IT MAY BE STATED THAT THE FACT THAT HIS CONDITION IS SUCH AS TO QUALIFY FOR THOSE PAYMENTS DOES NOT NECESSARILY MEAN THAT HE QUALIFIES AS A DEPENDENT OF THE OFFICER FOR QUARTERS ALLOWANCE PURPOSES SINCE ENTIRELY DIFFERENT STATUTORY PROVISIONS ARE INVOLVED. ALSO IT APPEARS THAT THE DEPENDENCY CERTIFICATE WAS FIRST MADE OUT TO CLAIM QUARTERS ALLOWANCE FOR THE PERIOD COMMENCING AUGUST 1, 1960, BUT WAS CORRECTED TO COVER THE PERIOD COMMENCING AUGUST 1, 1961. NO INFORMATION HAS BEEN FURNISHED, HOWEVER, AS TO ANY CHANGE IN STATUS OR THE REASON FOR CLAIMING THE ALLOWANCE FROM THAT DATE.

THEREFORE, ON THE BASIS OF THE PRESENT RECORD, WE MAY NOT CONCLUDE THAT THE OFFICER HAS A DEPENDENT HUSBAND. HOWEVER, IF ADDITIONAL EVIDENCE SHOULD BE FURNISHED TO SHOW THAT THE HUSBAND, ON ACCOUNT OF PHYSICAL INCAPACITY OR FOR OTHER REASONS, WAS INCAPABLE OF SELF-SUPPORT DURING THE PERIOD INVOLVED, TOGETHER WITH INFORMATION AS TO WHEN THE CONDITION COMMENCED AND TERMINATED OR WHETHER IT STILL EXISTS, THE MATTER WILL RECEIVE FURTHER CONSIDERATION.