B-148561, APR. 20, 1962

B-148561, APR. 20, 1962

TO CAPTAIN W. D. GUTWEILER, USAF:

BY LETTER OF MARCH 30, 1962, THE CHIEF, PAY AND TRAVEL DIVISION, DIRECTOR OF ACCOUNTING AND FINANCE, UNITED STATES AIR FORCE, FORWARDED YOUR LETTER OF FEBRUARY 12, 1962, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF EFFECTING PAYMENT TO MAJOR MARGARET Y. SIEGEL, AN 764814, ON HER APPLICATION FOR INCREASED BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITH A DEPENDENT HUSBAND FOR THE PERIOD COMMENCING JANUARY 1, 1961. YOUR REQUEST WAS ASSIGNED AIR FORCE REQUEST NO. 641 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

INCLUDED AMONG THE DOCUMENTS AND PAPERS SUBMITTED WITH YOUR LETTER IS THE OFFICER'S APPLICATION FOR THE BASIC ALLOWANCE FOR QUARTERS (DD FORM 137), WHICH CONTAINS ON THE REVERSE SIDE THEREOF INFORMATION FURNISHED IN COMPLIANCE WITH PARAGRAPH 20334A (13) (E) OF AIR FORCE MANUAL 177-105. IS SHOWN THERE THAT HER HUSBAND'S LIVING AND MEDICAL EXPENSES AGGREGATE $180 PER MONTH AND THAT HE HAS BEEN HOSPITALIZED IN VETERANS ADMINISTRATION HOSPITALS AT VARIOUS INTERVALS, THE LAST ONE BEING FOR ONE MONTH DURING MAY AND JUNE 1961. THERE IS ALSO INCLUDED A DEPENDENCY AFFIDAVIT (DD FORM 137-3) EXECUTED BY THE HUSBAND IN WHICH HE HAS AVERRED THAT HE HAS NO INCOME FROM ANY SOURCE AND THAT HE IS NOT RECEIVING SOCIAL SECURITY OR VETERANS ADMINISTRATION PAYMENTS. HE HAS STATED ON THAT FORM THAT, WHILE HE IS ABLE TO WORK OCCASIONALLY, HE HAS BEEN UNABLE TO WORK AT ALL IN OVER A YEAR. IN A STATEMENT DATED FEBRUARY 27, 1958, DR. FRANK O. SCHMIDT, 137 LAMEUSE STREET, BILOXI, MISSISSIPPI, ADVISED THAT THE OFFICER'S HUSBAND IS AN EPILEPTIC GRAND MAL, AND IS "TOO UNSTABLE TO CONTINUE ON A JOB; " IN A STATEMENT DATED MARCH 24, 1961, DR. ROBERT A. DOUGLAS, 510 NORTH KROME AVENUE, HOMESTEAD, FLORIDA, STATES THAT THE SUBJECT CONCERNED HAS CHRONIC GRAND MAL EPILEPSY WITH FREQUENT SEIZURES AND THAT HE "WILL NEVER BE ABLE TO HOLD DOWN A STEADY JOB.'

THE TERM "DEPENDENT" IN THE CASE OF A FEMALE MEMBER IS DEFINED IN SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, 37 U.S.C. 231 (G), TO INCLUDE A HUSBAND ONLY WHEN HE IS IN FACT DEPENDENT UPON HER FOR OVER HALF OF HIS SUPPORT. IN INTERPRETING THAT SECTION OF LAW WE CONCLUDED IN A DECISION OF FEBRUARY 16, 1953, 32 COMP. GEN. 364, THAT A HUSBAND MAY BE REGARDED AS, IN FACT, DEPENDENT UPON HIS WIFE IN THE MILITARY SERVICE ONLY IF HE IS INCAPABLE OF SELF SUPPORT BY REASON OF A PHYSICAL OR MENTAL INCAPACITY OR FOR OTHER REASON.

EPILEPSY IS DEFINED AS A CHRONIC CEREBRAL DISORDER, USUALLY FOUNDED ON A HEREDITARY NEUROPATHIC PREDISPOSITION, CHARACTERIZED BY THE OCCURRENCE AT VARYING INTERVALS OF SEIZURES OR ATTACKS WHICH VARY IN SEVERITY FROM ALMOST IMPERCEPTIBLE MOMENTARY LAPSES OF CONSCIOUSNESS OR MENTAL CLOUDING TO VIOLENT GENERALIZED CONVULSIONS LASTING FOR SEVERAL MINUTES. IN THE MAJOR OR COMPLETE SEIZURE (GRAND MAL) THE AFFLICTED PERSON SUDDENLY LOSES CONSCIOUSNESS WITH OR WITHOUT A BRIEF PRELIMINARY WARNING FOLLOWED BY CONVULSIONS AND FINALIZED BY A DEEP SLEEP WHICH MAY LAST FOR AN HOUR OR MORE. SINCE A SEIZURE GENERALLY LASTS ONLY A A SHORT TIME AND USUALLY DOES NOT CREATE ANY CRIPPLING EFFECTS, IT IS CONCEIVABLE THAT THE SEIZURES, IF SPACED AT COMPARATIVELY LONG INTERVALS, WOULD NOT INTERFERE WITH THE AFFLICTED PERSON'S PERFORMANCE OF DUTY IN MANY VOCATIONAL FIELDS. THUS IN THE CASE OF A PERSON HAVING CHRONIC GRAND MAL EPILEPSY A DETERMINATION AS TO WHETHER HIS PHYSICAL CONDITION WOULD IMPAIR THE SATISFACTORY PERFORMANCE OF HIS DUTIES IS DEPENDENT UPON A SHOWING OF THE FREQUENCY AND DURATION OF THE SEIZURES. CLEARLY, IF THE SEIZURES OCCUR AT SUCH FREQUENT INTERVALS AS TO ENTIRELY PREVENT HIM FROM PERFORMING ANY DUTIES WITHIN THE RANGE OF HIS CAPABILITIES, HE MUST BE CONSIDERED AS BEING UNABLE TO FOLLOW A SUBSTANTIALLY GAINFUL OCCUPATION AND, IN SUCH INSTANCE, DEEMED AS BEING TOTALLY DISABLED SO AS TO QUALIFY AS AN OFFICER'S DEPENDENT WITHIN THE MEANING AND INTENT OF THE LAW.

IN THIS CASE THE OFFICER'S HUSBAND HAS STATED THAT IN PAST YEARS HE HAS BEEN ABLE TO WORK ON OCCASIONS. HOWEVER, HE HAS FURNISHED NO EXPLANATION AS TO WHY HE WAS "UNABLE TO WORK AT ALL" DURING THE YEAR PRIOR TO APRIL 10, 1961, THE DATE OF HIS AFFIDAVIT. FURTHERMORE, NO EVIDENCE HAS BEEN SUBMITTED TO DISCLOSE THE FREQUENCY OF THE SEIZURES OR ATTACKS AND TO CONCLUSIVELY ESTABLISH THAT HIS PHYSICAL AND MENTAL ABILITIES HAVE BEEN IMPAIRED TO THE EXTENT THAT UNDER NORMAL CIRCUMSTANCES HE WOULD, AS A MATTER OF FACT, BE UNABLE TO OBTAIN EMPLOYMENT. ACCORDINGLY, ON THE BASIS OF THE PRESENT EVIDENCE OF RECORD BEFORE US, IT MAY NOT BE CONCLUDED THAT THE OFFICER'S HUSBAND IS INCAPABLE OF SELF-SUPPORT DUE TO A PHYSICAL INFIRMITY AND, THEREFORE, DEPENDENT UPON HER FOR HIS LIVELIHOOD. SEE IN THIS CONNECTION 34 COMP. GEN. 21.

IN VIEW OF THE FOREGOING YOU ARE NOT AUTHORIZED TO MAKE PAYMENT OF THE INCREASED BASIC ALLOWANCE FOR QUARTERS TO MAJOR SIEGEL. THE MILITARY PAY ORDER TOGETHER WITH THE OTHER PAPERS SUBMITTED WITH YOUR LETTER WILL BE RETAINED HERE.