B-177035, JAN 23, 1973, 52 COMP GEN 454

B-177035, JAN 23, 1973, 52 COMP GEN 454

QUARTERS ALLOWANCE - DEPENDENTS - CHILDREN - PAYMENTS THAT DO NOT CONSTITUTE SUPPORT AN OFFICER OF THE UNIFORMED SERVICES WHO GAVE HIS WIFE AT THE TIME OF THEIR DIVORCE A PROMISSORY NOTE FOR $1,500 THAT IS BEING REDUCED BY HIS MOTHER IN THE AMOUNT OF $30 PER MONTH PAID TO THE FATHER OF HIS FORMER SPOUSE IS NOT ENTITLED, IN THE ABSENCE OF A DEFINITIVE COURT DECREE REQUIRING CHILD SUPPORT PAYMENTS FOR THE SON BORN OF THE MARRIAGE, TO A BASIC ALLOWANCE FOR QUARTERS FOR THE CHILD WHO IS IN THE CUSTODY OF HIS MOTHER SINCE THE PAYMENTS ARE NOT SUPPORT PAYMENTS AND THERE IS NO SHOWING ANY PART OF THE MONTHLY PAYMENTS ARE USED TO SUPPORT THE CHILD. IF THE REQUIREMENTS FOR PAYMENT OF A QUARTERS ALLOWANCE CANNOT BE SHOWN FOR THE PERIODS THE OFFICER RECEIVED THE ALLOWANCE, THE PAYMENTS ARE SUBJECT TO COLLECTION UNLESS THERE IS FOR APPLICATION PUBLIC LAW 92-453, AUTHORIZING WAIVER OF CERTAIN CLAIMS OF THE UNITED STATES AGAINST MEMBERS IN PRESCRIBED CIRCUMSTANCES.

TO LIEUTENANT COLONEL J. M. MAGALDI, JR., UNITED STATES MARINE CORPS, JANUARY 23, 1973:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 4, 1972, WHICH WAS FORWARDED HERE BY HEADQUARTERS UNITED STATES MARINE CORPS LETTER DATED SEPTEMBER 14, 1972, AND SUPPLEMENTED BY LETTER OF OCTOBER 17, 1972, REQUESTING A DECISION REGARDING THE PROPRIETY OF PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS (BAQ) TO CAPTAIN ROBERT CARL DELONES, XXX-XX-XXXX, USMC, ON ACCOUNT OF HIS LEGITIMATE CHILD RESIDING WITH HIS FORMER WIFE, IN THE CIRCUMSTANCES DESCRIBED. YOUR REQUEST HAS BEEN ASSIGNED CONTROL NO. DO-MC-1164 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTE.

IT APPEARS FROM THE RECORD (AS DISCLOSED IN CAPTAIN DELONES' STATEMENT ENCLOSED WITH YOUR LETTER) THAT IN JANUARY 1966 THE MEMBER WAS DIVORCED FROM EDWINA SMITH DELONES, THE MOTHER OF HIS SON, ROBERT SHAWN DELONES. THE DIVORCE DECREE OF THE CIRCUIT COURT, LAUDERDALE COUNTY, STATE OF ALABAMA, DATED JANUARY 17, 1966, GAVE CUSTODY OF THEIR MINOR CHILD TO THE MOTHER, AND STIPULATED AS FOLLOWS:

THE SECOND PARTY (ROBERT CARL DELONES) AGREES TO PAY ALL MEDICAL EXPENSES IN CONNECTION WITH THE CARE OF THE MOTHER IN THE BIRTH OF THE CHILD AND IN ADDITION THERETO TO PAY TO THE MOTHER A SUM OF FIFTEEN HUNDRED DOLLARS ($1500.00) IN CASH, WHICH SHALL BE SECURED BY BORROWING THE SAME FROM A LOCAL BANK.

IT IS EXPRESSLY UNDERSTOOD BY THE PARTIES HERETO THAT BOTH OF THE PARTIES TO THIS AGREEMENT ARE STUDENTS ENROLLED IN FLORENCE STATE COLLEGE, AND THE PAYMENT OF THE AFORESAID LUMP SUM CONSTITUTES A FULL AND COMPLETE SATISFACTION OF ALL FINANCIAL RESPONSIBILITY OF THE SECOND PARTY TO THE FIRST PARTY AND THEIR MINOR CHILD, AND THE FIRST PARTY HEREBY RELEASES THE SECOND PARTY FROM ALL CLAIMS OF SUPPORT, DOWER, AND ALIMONY FOR HERSELF AND HER MINOR CHILD.

CAPTAIN DELONES STATES THAT IT WAS AGREED BETWEEN HIMSELF AND HIS FORMER SPOUSE THAT THE $1,500 WOULD BE PAID IN THE FORM OF A PROMISSORY NOTE DATED JANUARY 14, 1966, PAYABLE ON DEMAND.

THEREAFTER, IN OCTOBER 1968, THE MEMBER REMARRIED EDWINA SMITH DELONES. THIS MARRIAGE TERMINATED IN DIVORCE ON JULY 1, 1969. THE DIVORCE DECREE (ISSUED BY THE SAME COURT AND THE SAME JUDGE AS THE PRIOR DIVORCE), DATED JULY 1, 1969, GAVE CUSTODY OF THE MINOR CHILD TO THE MOTHER, AND STIPULATED AS FOLLOWS:

IT IS FURTHER ADJUDGED AND DECREED THAT THE MATTER OF CHILD SUPPORT IS SPECIFICALLY RESERVED BY THE COURT FOR FUTURE DECREE, BUT ALIMONY IS DENIED.

WITH THE FOREGOING AS BACKGROUND, THE MEMBER AVERS THAT AT THE TIME OF THE SECOND DIVORCE (JULY 1969), IT WAS AGREED, PRESUMABLY VERBALLY, THAT THE DIVORCE SETTLEMENT WOULD CONSIST OF PAYMENT OF THE FORMER 1966 PROMISSORY NOTE, PAYABLE ON DESIRED TERMS OF SPOUSE, AND THAT THE FORMER SPOUSE COULD REQUEST AND RECEIVE ANY FURTHER CHILD SUPPORT THAT SHE DEEMED NECESSARY. THE MEMBER STATES THAT HIS FORMER SPOUSE REQUESTED THAT HE BEGIN PAYMENTS OF $30 PER MONTH, STARTING AUGUST 1969, TOWARDS PAYMENT OF THE 1966 PROMISSORY NOTE.

WHILE THE RECORD IS NOT CLEAR ON THIS POINT, THE MEMBER FURTHER STATES THAT THESE PAYMENTS HAVE BEEN MADE IN THE FORM OF PERSONAL CHECKS FROM HIS MOTHER, VIVIAN I. DELONES, TO CLARENCE E. SMITH, THE GRANDFATHER OF ROBERT S. DELONES, AND THAT CLARENCE E. SMITH PLACES SAID PAYMENTS INTO A SAVINGS ACCOUNT FOR ROBERT TO BE UTILIZED FOR CHILD SUPPORT, WHEN REQUIRED. CLARENCE E. SMITH AND THE FORMER SPOUSE HAVE THE OPTION TO WITHDRAW FUNDS AS DESIRED FOR SUPPORT. THE MEMBER STATES THAT HE REIMBURSES HIS MOTHER BY MONTHLY ALLOTMENT CHECKS IN THE AMOUNT OF $325, IN ORDER TO MAKE THE $30 MONTHLY PAYMENTS AND WHATEVER OTHER SUPPORT HIS FORMER SPOUSE MAY REQUEST.

CAPTAIN DELONES CONTENDS THAT HE IS ENTITLED TO PAYMENT OF BAQ BY VIRTUE OF HIS LEGITIMATE CHILD AND STATES THAT IT IS HIS INTENTION TO CONTINUE THE $30 PER MONTH PAYMENTS FOR AN INDEFINITE PERIOD OF TIME BEYOND THE TERMINATION DATE OF THE PROMISSORY NOTE.

YOU REQUEST OUR DECISION ON WHETHER OR NOT THE $30 PAYMENTS BEING PROVIDED BY CAPTAIN DELONES SINCE THE FIRST DIVORCE IN 1966, AND CONTINUED WITH THE SECOND DIVORCE IN 1969, ARE CONSIDERED SUPPORT PAYMENTS SO AS TO ENTITLE THE MEMBER TO RECEIVE PAYMENT OF BAQ ON BEHALF OF HIS LEGITIMATE CHILD SINCE AUGUST 4, 1967, THE DATE OF HIS ORIGINAL ENTRY INTO THE MARINE CORPS. IN THIS CONNECTION, YOU HAVE TERMINATED THE MEMBER'S BAQ, EFFECTIVE MAY 31, 1971, BUT HAVE NOT TAKEN ANY ACTION TO RECOVER PREVIOUS CREDITS OF BAQ PENDING DECISION BY OUR OFFICE.

IN TRANSMITTING THE MATTER HERE, THE HEAD, DISBURSING BRANCH, FISCAL DIVISION, U.S. MARINE CORPS, ASKS WHETHER PAYMENT OF PAY AND ALLOWANCES MAY CONTINUE WITHOUT DEDUCTION OF BAQ PREVIOUSLY PAID ON THE CHILD'S BEHALF FOR THE PERIODS AUGUST 4, 1967, THROUGH OCTOBER 25, 1968, AND JULY 11, 1969, THROUGH MAY 31, 1971. BASIC ALLOWANCE FOR QUARTERS WAS PAID ON BEHALF OF A WIFE FROM OCTOBER 26 THROUGH NOVEMBER 21, 1968, BUT NO BAQ WAS PAID FOR THE PERIOD NOVEMBER 22, 1968, THROUGH JULY 10, 1968, AS GOVERNMENT QUARTERS WERE ASSIGNED.

UNDER THE PERTINENT PROVISIONS OF 37 U.S.C. 403, A MEMBER OF THE UNIFORMED SERVICES WHO IS ENTITLED TO BASIC PAY IS ENTITLED TO AN INCREASED BASIC ALLOWANCE FOR QUARTERS FOR HIS DEPENDENTS WHEN NOT ASSIGNED TO APPROPRIATE GOVERNMENT QUARTERS. SUBSTANTIALLY SIMILAR PROVISIONS HAVE BEEN CONTAINED IN THE MILITARY PAY AND ALLOWANCE LAWS SINCE 1922, THEIR BASIC PURPOSE BEING TO AT LEAST PARTIALLY REIMBURSE THE MEMBERS CONCERNED FOR THE EXPENSE OF PROVIDING PRIVATE QUARTERS FOR THEIR DEPENDENTS, WHERE GOVERNMENT QUARTERS ARE NOT AVAILABLE, AND NOT TO GRANT THE HIGHER ALLOWANCE AS A BONUS MERELY FOR THE TECHNICAL STATUS OF BEING MARRIED OR A PARENT. 42 COMP. GEN. 642, 644(1963).

WHILE, UNDER THE NORMAL RELATIONSHIP OF HUSBAND AND FATHER, PROOF OF DEPENDENCY IS NOT GENERALLY REQUIRED TO ESTABLISH A RIGHT TO THE HIGHER BASIC QUARTERS ALLOWANCE ON ACCOUNT OF A MEMBER'S WIFE OR CHILD, THAT GENERAL RULE, HOWEVER, IS NOT FREE FROM EXCEPTIONS AND HAS NOT BEEN VIEWED AS APPLICABLE IN CERTAIN CASES. WITH RESPECT TO THE FOREGOING, PARAGRAPH 30236, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL PROVIDES, IN PERTINENT PART, AS FOLLOWS:

A. MEMBER ABSOLVED FROM SUPPORT RESPONSIBILITY BY DIVORCE DECREE OR COURT ORDER. BAQ IS NOT PAYABLE WHEN A MEMBER HAS BEEN ABSOLVED BY DIVORCE DECREE OR COURT ORDER FROM THE RESPONSIBILITY OF SUPPORTING HIS CHILD OR CHILDREN, AND HE DOES NOT CONTRIBUTE TO THEIR SUPPORT.

C. DIVORCE DECREE OR COURT ORDER SILENT ON SUPPORT. A DIVORCE DECREE OR COURT ORDER GIVING CUSTODY OF A MEMBER'S MINOR CHILDREN TO THE MOTHER, WITHOUT STATING THAT THE MEMBER IS REQUIRED TO SUPPORT THEM, DOES NOT OF ITSELF DEPRIVE THE MEMBER OF BAQ FOR THE CHILDREN. THIS IS TRUE REGARDLESS OF THE JURISDICTION IN WHICH THE DECREE WITH ISSUED OR IN WHICH THE CHILDREN ARE DOMICILED, IF IT IS SHOWN THAT THE MEMBER CONTRIBUTES TO THEIR SUPPORT.

THE DIVORCE DECREE OF JULY 1, 1969, DID NOT SPECIFICALLY ABSOLVE CAPTAIN DELONES FROM SUPPORT RESPONSIBILITY OF HIS CHILD WITHIN THE CONTEMPLATION OF PARAGRAPH 30236A, ABOVE. HOWEVER, IN STATING THAT "THE MATTER OF CHILD SUPPORT IS SPECIFICALLY RESERVED BY THE COURT FOR FUTURE DECREE," THE DIVORCE DECREE FALLS WITHIN THE PURVIEW OF PARAGRAPH 30236C, IN BEING SILENT ON THE MATTER OF SUPPORT. THIS, OF ITSELF, WOULD NOT OPERATE TO DEPRIVE CAPTAIN DELONES OF BAQ ON ACCOUNT OF HIS CHILD. HOWEVER, FROM THE FACTS AS SUBMITTED, AND FROM THE STATEMENTS OF CAPTAIN DELONES, IT APPEARS THAT THE $30 MONTHLY PAYMENTS BEING MADE THROUGH HIS MOTHER TO THE GRANDFATHER OF HIS CHILD, ARE DIRECTED TOWARDS PAYMENT OF A $1,500 PROMISSORY NOTE TO HIS FORMER SPOUSE. MOREOVER, NOTHING IN THE RECORD SUBMITTED HERE SHOWS THAT ANY PART OF THE $30 MONTHLY PAYMENTS IS ACTUALLY BEING UTILIZED FOR THE SUPPORT OF HIS CHILD. IN FACT, THE MEMBER'S DEPENDENCY CERTIFICATE INDICATES THAT HIS FORMER SPOUSE (HAVING CUSTODY OF HIS SON) HAS REMARRIED, AND HER ADDRESS IS UNKNOWN TO HIM.

IN THE CIRCUMSTANCES, WHILE CAPTAIN DELONES MAY BE SETTING ASIDE PAYMENT OF $30 PER MONTH IN A FUND FOR HIS CHILD, IT DOES NOT APPEAR FROM THE PRESENT RECORD THAT ANY PART OF THIS SUM IS BEING UTILIZED FOR THE SUPPORT OF HIS CHILD. IN VIEW OF CAPTAIN DELONES' OWN STATEMENT THAT THE PAYMENTS ARE BEING MADE TOWARD PAYMENT OF THE 1966 PROMISSORY NOTE, SUCH PAYMENTS CANNOT BE VIEWED AS SUPPORT PAYMENTS FOR HIS CHILD. SEE, GENERALLY, 23 COMP. GEN. 71(1943); 38 ID 89(1958); 42 ID. 642(1963); AND ROBEY V. UNITED STATES, 71 CT. CL. 561(1931).

IN THE ABSENCE OF A DEFINITIVE COURT DECREE REQUIRING CHILD SUPPORT PAYMENTS, AND IN THE ABSENCE OF A DEFINITE SHOWING OF THE DISPOSITION OF THE $30 MONTHLY PAYMENTS AND WHETHER THEY ARE BEING UTILIZED FOR THE SUPPORT OF HIS CHILD, THE MATTER ADMITS OF TOO MUCH DOUBT TO AUTHORIZE CREDITING THE MEMBER WITH INCREASED QUARTERS ALLOWANCE ON ACCOUNT OF A DEPENDENT CHILD. ALSO, IF THE FOREGOING ELEMENTS CANNOT BE SHOWN TO APPLY TO PRIOR PERIODS, ACTION SHOULD BE TAKEN TO COLLECT PAYMENTS OF INCREASED BAQ PAID THE MEMBER FOR THE PERIODS AUGUST 4, 1967, THROUGH OCTOBER 25, 1968, AND JULY 11, 1969, THROUGH MAY 31, 1971.

IN THIS CONNECTION, HOWEVER, THERE MAY BE FOR CONSIDERATION THE PROVISIONS OF THE ACT OF OCTOBER 2, 1972, PUBLIC LAW 92-453, 10 U.S.C. 2774, AUTHORIZING THE WAIVER OF CERTAIN CLAIMS OF THE UNITED STATES AGAINST MEMBERS IN PRESCRIBED CIRCUMSTANCES.

YOUR QUESTION IS ANSWERED ACCORDINGLY.