B-122417, AUG. 31, 1955

B-122417: Aug 31, 1955

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REITER: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 17. YOU WERE RELIEVED FROM ASSIGNMENT AND DUTY AT THAT STATION EFFECTIVE APRIL 7. YOU WERE ASSIGNED GOVERNMENT FAMILY QUARTERS FOR YOURSELF AND YOUR WIFE. THE TERM "DEPENDENT" IS DEFINED BY SECTION 102 (G) OF THE ACT. PROVIDED HE OR SHE IS IN FACT DEPENDENT ON THE MEMBER FOR OVER HALF OF HIS OR HER SUPPORT "AND ACTUALLY RESIDES IN THE HOUSEHOLD OF SAID MEMBER.'. A MEMBER IS NOT ENTITLED TO INCREASED QUARTERS ALLOWANCE ON ACCOUNT OF A DEPENDENT PARENT WHO. YOU WERE PAID A BASIC ALLOWANCE FOR QUARTERS FOR YOUR MOTHER FOR THE PERIOD FROM JANUARY 1. WAS CORRECT AND YOU WERE ERRONEOUSLY PAID SUCH ALLOWANCE FOR THE PERIOD APRIL 7 TO 20.

B-122417, AUG. 31, 1955

TO SERGEANT FIRST CLASS DONALD P. REITER:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 17, 1954, REQUESTING RECONSIDERATION OF THAT PORTION OF SETTLEMENT DATED OCTOBER 19, 1954, WHICH DISALLOWED YOUR CLAIM FOR A BASIC ALLOWANCE FOR QUARTERS FOR YOUR DEPENDENT MOTHER FOR THE PERIODS FROM APRIL 7, 1950, TO JULY 31, 1950, AND FROM JANUARY 1, 1951, TO DECEMBER 6, 1951.

THE RECORDS ON FILE IN YOUR CLAIM SHOW THAT BY SPECIAL ORDERS NO. 60, DATED APRIL 6, 1950, ISSUED BY BROOKE GENERAL HOSPITAL, FORT SAM HOUSTON, TEXAS, YOU WERE RELIEVED FROM ASSIGNMENT AND DUTY AT THAT STATION EFFECTIVE APRIL 7, 1950, AND TRANSFERRED IN GRADE TO CAMP STONEMAN, CALIFORNIA, FOR SHIPMENT TO THE FAR EAST COMMAND. THE ORDERS DIRECTED YOU TO REPORT AT CAMP STONEMAN ON APRIL 21, 1950, AND IT APPEARS THAT YOU DEPARTED FROM THE UNITED STATES ON MAY 15, ARRIVING IN JAPAN ON MAY 27, 1950. ON NOVEMBER 1, 1950, YOU WERE ASSIGNED GOVERNMENT FAMILY QUARTERS FOR YOURSELF AND YOUR WIFE--- BOTH OF YOU BEING IN THE MILITARY SERVICE--- AT YOUR STATION IN JAPAN. ON DECEMBER 7, 1951, YOUR MOTHER JOINED YOU AT YOUR STATION.

PRIOR TO AUGUST 1, 1950, SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, AUTHORIZED THE PAYMENT OF AN INCREASED BASIC ALLOWANCE FOR QUARTERS TO MEMBERS OF THE UNIFORMED SERVICES OF SPECIFIED PAY GRADES WITH DEPENDENTS.

THE TERM "DEPENDENT" IS DEFINED BY SECTION 102 (G) OF THE ACT,63 STAT. 804-805, AS INCLUDING THE FATHER OR MOTHER OF SUCH MEMBER, PROVIDED HE OR SHE IS IN FACT DEPENDENT ON THE MEMBER FOR OVER HALF OF HIS OR HER SUPPORT "AND ACTUALLY RESIDES IN THE HOUSEHOLD OF SAID MEMBER.' IT HAS BEEN HELD THAT THE LAW PERMITS NO EXCEPTION TO THE REQUIREMENT THAT, FOR PURPOSES OF COMPUTING QUARTERS ALLOWANCE, A DEPENDENT PARENT MUST ALSO ACTUALLY RESIDE IN THE HOUSEHOLD OF THE MEMBER, AND A MEMBER IS NOT ENTITLED TO INCREASED QUARTERS ALLOWANCE ON ACCOUNT OF A DEPENDENT PARENT WHO, FOR ANY REASON, RESIDES ELSEWHERE THAN IN THE HOUSE MAINTAINED BY THE MEMBER FOR HIMSELF AND THOSE ACTUALLY LIVING WITH HIM. SEE 29 COMP. GEN. 280.

YOU WERE PAID A BASIC ALLOWANCE FOR QUARTERS FOR YOUR MOTHER FOR THE PERIOD FROM JANUARY 1, 1950, TO APRIL 20, 1950, WHILE AT YOUR OLD STATION IN THE UNITED STATES AND WHILE TRAVELING PURSUANT TO THE ORDERS DATED APRIL 6, 1950, TO CAMP STONEMAN PERSONNEL CENTER, PITTSBURG, CALIFORNIA. WHILE YOU ASSERT THAT YOUR HOUSEHOLD REMAINED IN THE HOME MAINTAINED BY YOU FOR YOUR MOTHER AFTER YOUR DEPARTURE FROM FORT SAM HOUSTON THE FACT THAT SHE DID NOT ACTUALLY RESIDE WITH YOU, AS REQUIRED BY THE STATUE, OR JOIN YOU WITHIN THREE MONTHS AFTER YOUR ARRIVAL IN JAPAN PRECLUDES PAYMENT TO YOU OF A BASIC ALLOWANCE FOR QUARTERS ON HER ACCOUNT FOR THE PERIOD FROM APRIL 7 TO JULY 31, 1950. 29 COMP. GEN. 441. THE SETTLEMENT OF OCTOBER 19, 1954, DISALLOWING YOUR CLAIM FOR A BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD ENDING JULY 31, 1950, WAS CORRECT AND YOU WERE ERRONEOUSLY PAID SUCH ALLOWANCE FOR THE PERIOD APRIL 7 TO 20, 1950.

THE RECORD SHOWS, ALSO, THAT YOU WERE PAID A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF YOUR MOTHER COVERING THE PERIOD FROM AUGUST 1, 1950, THROUGH OCTOBER 31, 1950, AFTER THE EFFECTIVE DATE OF THE DEPENDENTS ASSISTANCE ACT OF 1950, APPROVED SEPTEMBER 8, 1950, 64 STAT. 794, WHICH AMENDED SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949 BY SUSPENDING, FOR THE DURATION OF THAT AMENDMENT, THE PROVISION REGARDING ACTUAL RESIDENCE OF A FATHER OR MOTHER IN THE HOUSEHOLD OF THE MEMBER. THE 1950 STATUTE PROVIDED FURTHER THAT, EFFECTIVE NOVEMBER 1, 1950, TO BE ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS, AN ENLISTED MEMBER SHOULD HAVE IN EFFECT AN ALLOTMENT OF PAY NOT LESS THAN THE SUM OF THE BASIC ALLOWANCE FOR QUARTERS TO WHICH HE WOULD BE ENTITLED PLUS AN ADDITIONAL SPECIFIED SUM DEPENDING UPON THE PAY GRADE IN WHICH ASSIGNED, FOR THE SUPPORT OF THE DEPENDENT OR DEPENDENTS ON WHOSE ACCOUNT THE ALLOWANCE IS CLAIMED.

WHILE IT APPEARS THAT YOU AUTHORIZED SUCH ALLOTMENT EFFECTIVE NOVEMBER 1, 1950, THE RECORD SHOWS THAT, DUE TO ADMINISTRATIVE DIRECTION, YOU CANCELED THE ALLOTMENT FROM ITS EFFECTIVE DATE FOR THE REASON THAT YOU WERE ASSIGNED FAMILY-TYPE GOVERNMENT QUARTERS EFFECTIVE NOVEMBER 1, 1950, FOR YOUR WIFE AND YOURSELF. IT IS YOUR CONTENTION THAT YOU SHOULD HAVE RECEIVED PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF YOUR MOTHER EVEN THOUGH YOU AND YOUR WIFE OCCUPIED FAMILY-TYPE GOVERNMENT QUARTERS SINCE YOUR MOTHER WAS PREVENTED BY ORDERS OF COMPETENT AUTHORITY FROM JOINING YOU AT YOUR OVERSEAS STATION AT AN EARLIER DATE AND YOUR FAILURE TO MAINTAIN THE REQUIRED ALLOTMENT WAS NOT DUE TO YOUR OWN NEGLECT.

SECTION 302 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, PROVIDES:

"/D) NO MEMBER OF THE UNIFORMED SERVICES ASSIGNED TO GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES SHALL BE DENIED HIS BASIC ALLOWANCE FOR QUARTERS IF, BY REASON OF ORDERS OF COMPETENT AUTHORITY, HIS DEPENDENTS ARE PREVENTED FROM OCCUPYING SUCH QUARTERS.'

THE RECORD SHOWS THAT BY DEPARTMENT OF THE ARMY MESSAGE WAR 85304, DATED JULY 8, 1950, ALL TRAVEL OF DEPENDENTS TO PACIFIC DESTINATIONS WAS SUSPENDED EFFECTIVE JULY 15, 1950, DUE TO THE KOREAN CONFLICT. YOU ALLEGE THAT YOU MADE APPLICATION IN MAY 1950 FOR TRANSPORTATION OF YOUR MOTHER TO YOUR STATION BUT THAT SHE WAS NOT PERMITTED TO JOIN YOU UNTIL DECEMBER 7, 1951, AFTER THE SUSPENSION OF TRAVEL OF DEPENDENTS HAD BEEN REMOVED. WHILE THE RECORD IS NOT ENTIRELY CLEAR IN THAT RESPECT, IT WILL BE ACCEPTED AS ESTABLISHING THAT YOUR MOTHER WAS PREVENTED BY ORDERS OF COMPETENT AUTHORITY FROM OCCUPYING THE QUARTERS ASSIGNED TO YOU DURING THE PERIOD FROM NOVEMBER 1, 1950, TO DECEMBER 6, 1951. COMPARE 34 COMP. GEN. 436. UNDER THE PROVISIONS OF SECTION 4 (J) OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 796, THE DEPARTMENT OF THE ARMY HAS NOW WAIVED THE ALLOTMENT REQUIREMENT IN YOUR CASE FOR SUCH PERIOD.

BY THE SETTLEMENT OF OCTOBER 19, 1954, YOU WERE ALLOWED BASIC ALLOWANCE FOR QUARTERS FOR YOUR DEPENDENT MOTHER FOR THE MONTHS OF NOVEMBER AND DECEMBER 1950, AND, ACCORDINGLY, A SETTLEMENT WILL NOW ISSUE IN YOUR FAVOR FOR THE AMOUNT DUE FOR THE PERIOD FROM JANUARY 1 TO DECEMBER 6, 1951, LESS THE AMOUNT OF SUCH ALLOWANCE ERRONEOUSLY PAID FOR THE PERIOD FROM APRIL 7 TO 20, 1950.