B-125339, DEC. 21, 1955

B-125339, DEC. 21, 1955

TO LIEUTENANT COLONEL C. W. BATTS, DISBURSING OFFICER, DEPARTMENT OF THE ARMY:

BY SECOND INDORSEMENT DATED AUGUST 24, 1955, FILE FINEM 245.1 MARTINE- LALLY, BERNICE W., L-303 508, THE CHIEF OF FINANCE FORWARDED YOUR LETTER OF JULY 28, 1955, SUBMITTING FOR ADVANCE DECISION SUPPLEMENT TO D.O. VOUCHER NO. 28200, FEBRUARY, 1955, STATED IN FAVOR OF CAPTAIN BERNICE W. MARTINE-LALLY, L 303508, WAC USAR, FOR INCREASED BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITH A DEPENDENT HUSBAND DURING THE PERIOD FROM JANUARY 23, 1955, TO FEBRUARY 6, 1955, WHILE SHE WAS ON ACTIVE TRAINING DUTY.

ALSO SUBMITTED WITH YOUR LETTER WAS THE OFFICER'S SIGNED, UNDATED CERTIFICATE STATING THAT SHE ,CONTRIBUTES IN EXCESS OF FIFTY PERCENT (50 PERCENT) TO THE SUPPORT" OF HER INVALID HUSBAND, TOGETHER WITH AN EXECUTED D.D. FORM 137-1, DATED MARCH 14, 1955, IN WHICH SHE CERTIFIED THAT HER HUSBAND INJURED HIS BACK, HAS WORKED ONLY ONE MONTH IN OVER A YEAR, WAS CONFINED TO BED FOR A PERIOD AND HAS BEEN WEARING A STEEL BRACE FOR SOME TIME. SHE FURTHER CERTIFIES THAT HER HUSBAND OWNS NO INCOME-PRODUCING PROPERTY, HAS NO INCOME FROM ANY SOURCE, AND INCURS AVERAGE MONTHLY ACTUAL PERSONAL LIVING EXPENSES OF $150, ALL OF WHICH IS CONTRIBUTED BY HER. ACCOMPANYING THE CERTIFICATE IS A LETTER DATED MAY 12, 1955, SIGNED BY GRANT L. BENSON, M.D., FOR THE PERMANENTE MEDICAL CENTER, CERTIFYING THAT THE CLAIMANT'S HUSBAND HAS BEEN UNDER CARE AT SUCH CLINIC MUCH OF THE TIME SINCE FEBRUARY 11, 1953, FOR "FINDINGS CONSISTENT WITH HERNIATED NUCLEUS PULPOSIS," THAT DURING THE PERIOD INVOLVED IN THE CLAIM--- JANUARY 23 TO FEBRUARY 5, 1955--- HE WAS "UPON A PROGRAM CONSISTING OF A BACK BRACE, COMPLETE AVOIDANCE OF LIFTING AND FLEXION, AND PART TIME BED REST," AND THAT "DISABILITY WAS ESSENTIALLY COMPLETE AND DURING THIS PERIOD HE WAS INCAPABLE OF SELF SUPPORT.'

IT IS NOTED THAT WHILE THE OFFICER STATES HER HUSBAND INJURED HIS BACK AND HAS WORKED ONLY ONE MONTH IN OVER A YEAR, THERE IS NO ALLEGATION THAT HIS NOT WORKING WAS THE RESULT OF, OR WAS CAUSED BY THE INJURY. ALSO, HER CERTIFICATE THAT HE WAS CONFINED TO BED "FOR A PERIOD" AND HAS BEEN, WEARING A BRACE "FOR SOMETIME" ARE VAGUE AND AMBIGUOUS IN THAT THE PERIOD OF CONFINEMENT AND THE WEARING OF A BRACE ARE NOT SPECIFIED. THE MEDICAL CERTIFICATE WOULD APPEAR TO INDICATE THE HUSBAND'S DISABILITY WAS ALMOST COMPLETE DURING THE 15 DAY PERIOD FOR WHICH THE QUARTERS ALLOWANCE IS CLAIM AND THAT HE WAS INCAPABLE OF SELF-SUPPORT DURING SUCH PERIOD; HOWEVER, THERE IS NOTHING THEREIN WHICH WOULD INDICATE THAT THE DISABILITY WHICH PREVENTED HIS BEING EMPLOYED DURING THE 15 DAY PERIOD WAS OTHER THAN A TEMPORARY ONE FOR A LIMITED PERIOD OF TIME. CONSIDERED TOGETHER, THE CERTIFICATES FAIL DEFINITELY TO ESTABLISH THAT THE OFFICER'S HUSBAND WAS SO DISABLED AS TO PREVENT HIS BEING GAINFULLY EMPLOYED FOR OTHER THAN A TEMPORARY PERIOD AND WE ARE UNABLE TO CONCLUDE THEREFROM THAT HE PROPERLY MAY BE CONSIDERED A DEPENDENT WITHIN THE MEANING OF THE CAREER COMPENSATION ACT SO AS TO ENTITLE THE OFFICER TO THE INCREASED BASIC QUARTERS ALLOWANCE. SEE 34 COMP. GEN. 21. PAYMENT OF THE VOUCHER, WHICH IS RETURNED HEREWITH, IN ITS PRESENT FORM, IS THEREFORE NOT AUTHORIZED.

IT IS NOTED THAT YOU STATE IN YOUR LETTER THAT MRS. MARTINE-LALLY WAS PAID AS AN OFFICER WITHOUT DEPENDENTS ON YOUR VOUCHER 28200. IF SUCH PAYMENT INCLUDED THE BASIC QUARTERS ALLOWANCE PAYABLE FOR THE 15 DAY PERIOD TO A CAPTAIN WITHOUT DEPENDENTS, AT MOST THE OFFICER WOULD BE ENTITLED TO CLAIM THE DIFFERENCE BETWEEN THE QUARTERS ALLOWANCE DUE A CAPTAIN WITH, AND A CAPTAIN WITHOUT DEPENDENTS, OR 15/30 OF $102.60 LESS $85.50 RATHER THAN THE SUM OF $51.30 SHOWN ON THE VOUCHER. ON THE OTHER HAND, IF THE PAYMENT DID NOT INCLUDE ANY QUARTERS ALLOWANCE, SHE WOULD APPEAR ENTITLED ON THE PRESENT RECORD ASSUMING GOVERNMENT QUARTERS WERE NOT AVAILABLE OR FURNISHED HER, DESPITE THE FACT THAT THE EVIDENCE IS INSUFFICIENT TO ESTABLISH THAT SHE HAS DEPENDENTS, TO THE QUARTERS ALLOWANCE DUE AN OFFICER OF HER RANK WITHOUT DEPENDENTS, 15/30 OF $85.50 OR $42.75. IF NO QUARTERS ALLOWANCE WAS PAID HER FOR THE PERIOD AND QUARTERS WERE NOT AVAILABLE OR FURNISHED HER, THIS OFFICE WILL INTERPOSE NO OBJECTION TO PAYMENT OF THE VOUCHER IN SUCH REDUCED AMOUNT, IF OTHERWISE PROPER.