B-116572, JAN 29, 1954

B-116572: Jan 29, 1954

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THERE WAS SUBMITTED WITH YOUR LETTER THE OFFICER'S DEPENDENCY CERTIFICATE (DD FORM 137) DATED JUNE 22. THERE ALSO WAS RECEIVED WITH YOUR LETTER A STATEMENT DATED JUNE 8. WILL CONTINUE SO UNTIL AT LEAST SEPTEMBER 15. I AM OF THE OPINION THAT HE IS TOTALLY DEPENDENT UPON THE INCOME OF HIS WIFE.". ONLY WHEN THE HUSBAND IS IN FACT DEPENDENT UPON THE FEMALE MEMBER FOR OVER HALF OF HIS SUPPORT. IT IS INDICATED THAT THE HUSBAND HAD BEEN CONFINED TO BED UNDER A DOCTOR'S ORDERS FOR SOME SEVEN MONTHS AS OF JUNE 8. THERE HAS BEEN NO SHOWING AS TO THE NATURE OF THE HUSBAND'S DISABILITY OR WHETHER SUCH DISABILITY IS OTHER THAN A TEMPORARY ONE AND IT IS NOT ESTABLISHED THAT HE WAS INCAPACITATED FOR GAINFUL EMPLOYMENT BEFORE AND AFTER THE PERIOD OF HIS CONFINEMENT OR THAT.

B-116572, JAN 29, 1954

PRECIS-UNAVAILABLE

LIEUTENANT (JG) J. A. WINSLOW (SC), USNR:

BY LETTER OF AUGUST 7, 1953, THE JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED TO THIS OFFICE YOUR LETTER OF JULY 20, 1953, WITH ENCLOSURES, REQUESTING DECISION AS TO THE LEGALITY OF CREDITING LIEUTENANT DORIS J. L. BULLOCK, 379699, USNR, WITH BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT HUSBAND, UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, APPARENTLY FOR THE PERIOD BEGINNING JUNE 22, 1953.

THERE WAS SUBMITTED WITH YOUR LETTER THE OFFICER'S DEPENDENCY CERTIFICATE (DD FORM 137) DATED JUNE 22, 1953, IN WHICH SHE CERTIFIES THAT HER HUSBAND'S ACTUAL LIVING EXPENSES AVERAGE $100 A MONTH; THAT HE HAS NO INCOME FROM OTHER SOURCES; THAT HER CONTRIBUTIONS TOWARD HIS ACTUAL LIVING EXPENSES AVERAGE $100 A MONTH, AND THAT HE OWNS INCOME PRODUCING PROPERTY AMOUNTING TO $3,000. THERE ALSO WAS RECEIVED WITH YOUR LETTER A STATEMENT DATED JUNE 8, 1953, BY DR. ROBERT M. HOYNE OF THE CARLE HOSPITAL CLINIC, DEPARTMENT OF INTERNAL MEDICINE, URBANA, ILLINOIS, IN WHICH HE STATES THAT THE OFFICER'S HUSBAND HAS BEEN UNDER HIS CARE SINCE APRIL 1952; THAT UPON HIS ADVICE THE HUSBAND HAS BEEN CONFINED TO BED SINCE NOVEMBER 9, 1952, AND WILL CONTINUE SO UNTIL AT LEAST SEPTEMBER 15, 1953, AND THAT "INASMUCH AS THIS CONFINEMENT DOES NOT ALLOW THE PATIENT TO WORK, I AM OF THE OPINION THAT HE IS TOTALLY DEPENDENT UPON THE INCOME OF HIS WIFE."

SECTION 102(G) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, PROVIDES THAT THE TERM "DEPENDENT" SHALL INCLUDE IN THE CASE OF FEMALE OFFICERS OF THE UNIFORMED SERVICES, A HUSBAND, BUT ONLY WHEN THE HUSBAND IS IN FACT DEPENDENT UPON THE FEMALE MEMBER FOR OVER HALF OF HIS SUPPORT.

IN ORDER TO BE REGARDED AS IN FACT DEPENDENT ON HIS WIFE IN THE SERVICE, A HUSBAND MUST ON ACCOUNT OF PHYSICAL OR MENTAL INCAPACITY OR FOR OTHER REASON BE INCAPABLE OF SELF-SUPPORT. SEE DECISION OF FEBRUARY 16, 1953, B -113093, 32 COMP. GEN. 364. IN THE PRESENT CASE, IT IS INDICATED THAT THE HUSBAND HAD BEEN CONFINED TO BED UNDER A DOCTOR'S ORDERS FOR SOME SEVEN MONTHS AS OF JUNE 8, 1953, AND MIGHT CONTINUE TO BE SO CONFINED FOR AN ADDITIONAL PERIOD IN EXCESS OF THREE MONTHS. HOWEVER, THERE HAS BEEN NO SHOWING AS TO THE NATURE OF THE HUSBAND'S DISABILITY OR WHETHER SUCH DISABILITY IS OTHER THAN A TEMPORARY ONE AND IT IS NOT ESTABLISHED THAT HE WAS INCAPACITATED FOR GAINFUL EMPLOYMENT BEFORE AND AFTER THE PERIOD OF HIS CONFINEMENT OR THAT, BY REASON OF NECESSITY, HE RELIED ON HIS WIFE FOR THE MAJOR PORTION OF HIS SUPPORT DURING SUCH PERIOD.

IT LONG HAS BEEN HELD UNDER STATUTES AUTHORIZING INCREASED ALLOWANCES FOR OFFICERS WITH DEPENDENTS "IN FACT DEPENDENT" UPON THEM FOR THEIR "CHIEF SUPPORT," OR IN WORDS MEANING ESSENTIALLY THE SAME THING, FOR "OVER HALF" OF THEIR SUPPORT, THAT AN OFFICER WHO ONLY OCCASIONALLY CONTRIBUTES WHETHER GRATUITOUSLY OR NECESSARILY TOWARD THE LIVING EXPENSES OF THE DEPENDENT IS NOT ENTITLED TO RECEIVE SUCH ALLOWANCES. 2 COMP. GEN. 41. ACCORDINGLY, BASED UPON THE PRESENT RECORD, YOU ARE NOT AUTHORIZED TO CREDIT LIEUTENANT BULLOCK WITH BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT HUSBAND.

THE PAPERS SUBMITTED WITH YOUR LETTER ARE RETAINED IN THIS OFFICE.