B-113093, FEBRUARY 16, 1953, 32 COMP. GEN. 364

B-113093: Feb 16, 1953

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ALTHOUGH HE IS PHYSICALLY AND MENTALLY CAPABLE OF SELF-SUPPORT. DOES NOT HAVE A HUSBAND WHO IS "IN FACT DEPENDENT" UPON HER FOR OVER HALF OF HIS SUPPORT. THERE WAS FORWARDED TO THIS OFFICE YOUR LETTER OF SEPTEMBER 23. REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON A MILITARY PAY ORDER ( DD FORM 114). THERE ALSO WAS SUBMITTED WITH YOUR LETTER THE OFFICER'S DEPENDENCY CERTIFICATE ( DD FORM 137-1) DATED JUNE 27. THEREAFTER HE WILL BE DEPENDENT UPON HER SINCE IN ORDER TO COMPLETE HIS WORK IN ONE SEMESTER AND SUMMER TERM HE HAS TO TAKE A FULL COURSE LOAD WHICH ALLOWS HIM NO FREE TIME FOR A "JOB.'. THE TERM "DEPENDENT" IS DEFINED IN SECTION 102 (G) OF THE ACT. ARE IN FACT DEPENDENT UPON SAID FEMALE MEMBER FOR OVER HALF OF HIS OR HER SUPPORT.

B-113093, FEBRUARY 16, 1953, 32 COMP. GEN. 364

QUARTERS ALLOWANCE - DEPENDENTS - UNEMPLOYED HUSBAND A FEMALE OFFICER OF THE UNIFORMED SERVICES WHO VOLUNTARILY ASSUMES THE SUPPORT OF HER HUSBAND IN ORDER TO PERMIT HIM TO ATTEND COLLEGE, ALTHOUGH HE IS PHYSICALLY AND MENTALLY CAPABLE OF SELF-SUPPORT, DOES NOT HAVE A HUSBAND WHO IS "IN FACT DEPENDENT" UPON HER FOR OVER HALF OF HIS SUPPORT, WITHIN THE MEANING AND INTENT OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, SO AS TO ENTITLE SUCH OFFICER TO INCREASED BASIC QUARTERS ALLOWANCE.

ACTING COMPTROLLER GENERAL YATES TO LT. COL. C. O. LOGAN, DEPARTMENT OF THE ARMY, FEBRUARY 16, 1953:

BY ST ENDORSEMENT DATED DECEMBER 8, 1952, OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, THERE WAS FORWARDED TO THIS OFFICE YOUR LETTER OF SEPTEMBER 23, 1952, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON A MILITARY PAY ORDER ( DD FORM 114), DATED SEPTEMBER 15, 1952, TRANSMITTED THEREWITH, STATED IN FAVOR OF SECOND LIEUTENANT ALTA N. MEADOWS, N 100019, WOMEN'S MEDICAL SPECIALIST CORPS, COVERING INCREASED BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITH A DEPENDENT HUSBAND FOR THE PERIOD COMMENCING JULY 1, 1952.

THERE ALSO WAS SUBMITTED WITH YOUR LETTER THE OFFICER'S DEPENDENCY CERTIFICATE ( DD FORM 137-1) DATED JUNE 27, 1952, IN WHICH SHE CERTIFIES THAT HER HUSBAND'S ACTUAL LIVING EXPENSES AVERAGE $90 A MONTH; THAT HE HAS NO INCOME FROM OTHER SOURCES, AND THAT HER CONTRIBUTIONS TOWARD HIS ACTUAL LIVING EXPENSES AVERAGE AVERAGE $90 A MONTH. IN AN EXPLANATION OF HER HUSBAND'S DEPENDENCY STATUS SHE STATES THAT HE HAS BEEN ATTENDING OKLAHOMA A. AND M. COLLEGE UNDER THE " G.I. BILL, WHICH BENEFIT EXPIRES ON THE FIRST OF JULY, AND THEREAFTER HE WILL BE DEPENDENT UPON HER SINCE IN ORDER TO COMPLETE HIS WORK IN ONE SEMESTER AND SUMMER TERM HE HAS TO TAKE A FULL COURSE LOAD WHICH ALLOWS HIM NO FREE TIME FOR A "JOB.'

SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, 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, AND PROVIDES, IN MATERIAL PART---

* * * THAT IN THE CASE OF FEMALE MEMBERS OF THE UNIFORMED SERVICES, THE TERMS "DEPENDENT" SHALL INCLUDE A HUSBAND IN ADDITION TO THOSE PERSONS OTHERWISE DEFINED AS DEPENDENTS IN THIS SUBSECTION, BUT ONLY WHEN SUCH HUSBAND, OR CHILDREN, AS DEFINED ABOVE, ARE IN FACT DEPENDENT UPON SAID FEMALE MEMBER FOR OVER HALF OF HIS OR HER SUPPORT.

WHILE IT APPEARS FROM THE OFFICER'S CERTIFICATE OF DEPENDENCY THAT HER HUSBAND IS WHOLLY WITHOUT OTHER INCOME AND THAT SHE HAS ASSUMED HIS ENTIRE SUPPORT, THE QUESTION FOR DECISION IS WHETHER UNDER THE CIRCUMSTANCES THAT BROUGHT ABOUT THE ALLEGED DEPENDENCY THE HUSBAND IS "IN FACT EPENDENT" ON HER, WITHIN THE MEANING OF SAID SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949.

WHILE UNDER A LITERAL INTERPRETATION OF THE WORDING OF THE ABOVE QUOTED PORTION OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, A HUSBAND MIGHT BE CONSIDERED A DEPENDENT OF A FEMALE MEMBER OF THE UNIFORMED SERVICES WITHOUT FURTHER QUALIFICATION IF SHE FURNISHED OVER HALF OF HIS SUPPORT, IT IS A SETTLED RULE OF STATUTORY INTERPRETATION THAT THE LITERAL MEANING OF A STATUTE NEED NOT BE FOLLOWED IF SO DOING WOULD ACHIEVE A RESULT CONTRARY TO ITS EVIDENT PURPOSE AND LEGISLATIVE INTENT. ( UNITED STATES V. SAUNDERS, 22 WALL. 492; UNITED STATES V. AMERICAN TRUCKING ASSOCIATION, INC., 310 U.S. 534; UNITED STATES V. KATZ, 271 U.S. 354), AND THAT COURTS WILL LOOK INTO THE OCCASION FOR THE PASSAGE OF AN ACT, AND CONSIDER THE WRONGS WHICH IT SEEKS TO REMEDY, IN ORDER TO ASCERTAIN HOW FAR CONGRESS INTENDED TO AFFORD RELIEF. JOHNSTON V. UNITED STATES, 17 C.1CLS. 157. FOR AN APPLICATION OF THESE PRINCIPLES TO A PRIOR STATUTE AUTHORIZING MILITARY DEPENDENCY ALLOWANCES, SEE PARTICULARLY ROBEY V. UNITED STATES, 71 C.1CLS. 561.

INCREASED RENTAL AND SUBSISTENCE ALLOWANCES FIRST WERE AUTHORIZED FOR A FEMALE MEMBER OF THE UNIFORMED SERVICES WITH A DEPENDENT HUSBAND BY SECTION 6 OF THE ACT OF SEPTEMBER 7, 1944, PUBLIC LAW 421, 58 STAT. 730, AMENDING SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361, BUT SUCH ALLOWANCES WERE PAYABLE ONLY IN CASE THE HUSBAND WAS "IN FACT DEPENDENT" UPON SUCH MEMBER FOR HIS "CHIEF SUPPORT.' IN DISCUSSING AN AMENDMENT TO SECTION 6 OF THE BILL ( H.R. 1506, WHICH LATER BECAME THE SAID ACT OF SEPTEMBER 7, 1944) DURING HEARINGS THEREON BEFORE THE SUBCOMMITTEE OF THE SENATE COMMITTEE ON MILITARY AFFAIRS, COLONEL WILLIAM D. PARTLOW, JR., MILITARY PERSONNEL DIVISION, UNITED STATES ARMY, STATED:

I THINK OTHERWISE THE LAW PERTAINING TO MEMBERS OF THE WOMEN'S ( ARMY) CORPS WOULD NOT AUTHORIZE INCREASED ALLOWANCES ON ACCOUNT OF A HUSBAND, AND IT WAS FELT THAT THERE MIGHT BE SOME CASES WHERE THERE WOULD BE INVALID HUSBANDS OR SOME CASES WHERE THE MEN WOULD BE ABSOLUTELY DEPENDENT ON THE WOMEN, AND, THEREFORE, THE WORDS WERE PUT IN THIS PROPOSED AMENDMENT. (ITALICS SUPPLIED.)

THE DEFINITION OF A DEPENDENT HUSBAND AS USED IN THE ACT OF SEPTEMBER 7, 1944, SUPRA, WAS INCORPORATED IN SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, EXCEPT THAT THE WORDS "OVER HALF" WERE SUBSTITUTED FOR THE WORDS "CHIEF SUPPORT.'

WHILE FROM THE RELATION OF HUSBAND, THE LAW PRESUMES THE WIFE TO BE DEPENDENT UPON HIM FOR SUPPORT, THE HUSBAND, ON THE OTHER HAND, TRADITIONALLY IS REGARDED, NOT AS A DEPENDENT OF HIS WIFE, BUT THE SOURCE OF HER CHIEF, IF NOT WHOLE, SUPPORT. FOR THIS REASON, AND IN THE LIGHT OF THE ABOVE-QUOTED STATEMENT OF THE MILITARY REPRESENTATIVE TO THE CONGRESS IN URGING ENACTMENT INTO LAW OF THE PROPOSAL THAT IN THE CASE OF A FEMALE OFFICER THE TERM DEPENDENT SHALL INCLUDE A HUSBAND "IN FACT DEPENDENT" UPON HER FOR OVER HALF OF HIS SUPPORT OR, IN WORDS MEANING ESSENTIALLY THE SAME THING, FOR HIS CHIEF SUPPORT, IT SEEMS CLEAR THAT THE WORDS "IN FACT DEPENDENT" AS USED IN THE INVOLVED STATUTES REQUIRE SOMETHING MORE THAN A MERE SHOWING THAT THE HUSBAND DERIVES HIS LIVELIHOOD FROM HIS OFFICER WIFE. CF. 25 COMP. GEN. 360. IT WILL BE NOTED, IN THAT RESPECT, THAT THE SAID SECTION 102 (G), DEFINING THE TERM "DEPENDENT," EXPRESSLY EXCLUDES CHILDREN OVER 21 YEARS OF AGE UNLESS THEY ARE "INCAPABLE OF SELF-SUPPORT BECAUSE OF BEING MENTALLY DEFECTIVE OR PHYSICALLY INCAPACITATED.' CANNOT BE BELIEVED THAT IN THE SAME PARAGRAPH EXPRESSLY EXCLUDING CHILDREN OVER 21 YEARS OF AGE WHO ARE CAPABLE OF SELF-SUPPORT, THE CONGRESS INTENDED, NEVERTHELESS, TO INCLUDE HUSBANDS WHO ARE CAPABLE OF SELF- SUPPORT. HENCE, IT MUST BE CONCLUDED THAT TO BE REGARDED AS IN FACT DEPENDENT A HUSBAND MUST, ON ACCOUNT OF PHYSICAL OR MENTAL INCAPACITY OR FOR OTHER REASON, BE INCAPABLE OF SELF-SUPPORT.

IN THE PRESENT CASE IT DOES NOT APPEAR THAT THE OFFICER'S HUSBAND IS UNABLE TO SUPPORT HIMSELF ON ACCOUNT OF MENTAL OR PHYSICAL INFIRMITY, BUT RATHER IT APPEARS THAT HE HAS VOLUNTARILY ABANDONED SELF-SUPPORT IN ORDER TO ATTEND COLLEGE FOR FUTURE ADVANTAGE. IN THESE CIRCUMSTANCES, THIS OFFICE WOULD NOT BE JUSTIFIED IN CONCLUDING THAT HE WAS "IN FACT DEPENDENT" UPON HER WITHIN THE MEANING AND INTENT OF THE APPLICABLE STATUTORY PROVISIONS. ACCORDINGLY, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE MILITARY PAY ORDER, WHICH, TOGETHER WITH THE OTHER PAPERS SUBMITTED WITH YOUR LETTER, WILL BE RETAINED IN THIS OFFICE. TO THE EXTENT THAT PRIOR DECISIONS, BASED LARGELY ON THE APPLICATION OF THE TEMPORARY PROVISIONS OF THE CERTIFICATE ACT OF OCTOBER 26, 1942, 56 STAT. 987, MAY BE VIEWED AS REACHING A DIFFERENT RESULT, THEY WILL NO LONGER BE FOLLOWED.