B-128757, SEPTEMBER 5, 1956, 36 COMP. GEN. 199

B-128757: Sep 5, 1956

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WHO IS CONFINED IN A PENAL INSTITUTION PENDING TRIAL OR SERVING A SENTENCE OF MORE THAN THIRTY DAYS. MINOR CHILD WHO IS CONFINED IN A REFORM SCHOOL OR SIMILAR CORRECTIONAL INSTITUTION FOR MORE THAN 30 DAYS HAS A DEPENDENT CHILD WITHIN THE MEANING OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949 SO AS TO BE ENTITLED TO INCREASED QUARTERS ALLOWANCE ON ACCOUNT OF THE DEPENDENT. MINOR CHILD OF A MEMBER OF THE UNIFORMED SERVICES WILL NOT AFFECT THE MEMBER'S RIGHT TO BASIC ALLOWANCE FOR QUARTERS. CASES WHICH ARE DOUBTFUL AND FOR WHICH NO GENERAL RULE CAN BE ENUNCIATED. 1956: REFERENCE IS MADE TO LETTER DATED JULY 25. REQUESTING A DECISION ON TWO QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE RIGHT OF A MEMBER OF THE UNIFORMED SERVICES TO BE CREDITED WITH A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A LAWFUL WIFE OR AN UNMARRIED LEGITIMATE MINOR CHILD AS DEFINED IN SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949.

B-128757, SEPTEMBER 5, 1956, 36 COMP. GEN. 199

QUARTERS ALLOWANCE - DEPENDENTS - CONFINEMENT IN PENAL INSTITUTIONS A MEMBER OF THE UNIFORMED SERVICES WHO HAS NOT REFUSED TO SUPPORT OR BEEN ABSOLVED FROM SUPPORTING HIS WIFE, WHO IS CONFINED IN A PENAL INSTITUTION PENDING TRIAL OR SERVING A SENTENCE OF MORE THAN THIRTY DAYS, HAS A DEPENDENT WIFE WITHIN THE MEANING OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949 SO AS TO BE ENTITLED TO INCREASED QUARTERS ALLOWANCE ON HER ACCOUNT. A MEMBER OF THE UNIFORMED SERVICES WHO HAS NOT REFUSED TO SUPPORT OR HAS BEEN ABSOLVED FROM SUPPORTING HIS UNEMANCIPATED, UNMARRIED, LEGITIMATE, MINOR CHILD WHO IS CONFINED IN A REFORM SCHOOL OR SIMILAR CORRECTIONAL INSTITUTION FOR MORE THAN 30 DAYS HAS A DEPENDENT CHILD WITHIN THE MEANING OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949 SO AS TO BE ENTITLED TO INCREASED QUARTERS ALLOWANCE ON ACCOUNT OF THE DEPENDENT. EVEN THOUGH MERE CONVICTION AND IMPRISONMENT OF THE WIFE OR LEGITIMATE, UNMARRIED, MINOR CHILD OF A MEMBER OF THE UNIFORMED SERVICES WILL NOT AFFECT THE MEMBER'S RIGHT TO BASIC ALLOWANCE FOR QUARTERS, CASES WHICH ARE DOUBTFUL AND FOR WHICH NO GENERAL RULE CAN BE ENUNCIATED, AS WELL AS CASES WHICH INVOLVE EXTENDED CONFINEMENT, SHOULD BE SUBMITTED TO THE COMPTROLLER GENERAL FOR DECISION.

TO THE SECRETARY OF DEFENSE, SEPTEMBER 5, 1956:

REFERENCE IS MADE TO LETTER DATED JULY 25, 1956, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION ON TWO QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE RIGHT OF A MEMBER OF THE UNIFORMED SERVICES TO BE CREDITED WITH A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A LAWFUL WIFE OR AN UNMARRIED LEGITIMATE MINOR CHILD AS DEFINED IN SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, 37 U.S.C. 231 (G).

THE QUESTIONS ON WHICH A DECISION IS REQUESTED ARE SET FORTH IN COMMITTEE ACTION NO. 146 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, TRANSMITTED AS AN ENCLOSURE, AS FOLLOWS:

1. SHOULD A MEMBER BE CREDITED WITH BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITH DEPENDENTS, IF OTHERWISE ELIGIBLE THERETO, ON ACCOUNT OF A LAWFUL WIFE OR UNMARRIED LEGITIMATE CHILD UNDER TWENTY-ONE YEARS OF AGE WHILE SAID WIFE OF CHILD IS IN CONFINEMENT PENDING TRIAL OR SERVING A SENTENCE TO CONFINEMENT OF MORE THAN 30 DAYS IN A PENAL INSTITUTION, FEDERAL OR OTHERWISE, FOR THE COMMISSION OF A FELONY OR MISDEMEANOR?

2. WOULD THE ANSWER TO QUESTION NO. 1 BE THE SAME IN THE CASE WHERE THE MEMBER'S ONLY DEPENDENT IS AN UNMARRIED LEGITIMATE CHILD UNDER TWENTY-ONE YEARS OF AGE WHO IS REMANDED TO A REFORM SCHOOL OR SIMILAR CORRECTIONAL INSTITUTION?

SECTION 102 (G) OF THE CAREER COMPENSATION ACT PROVIDES IN PART:

THE TERM "DEPENDENT" SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES THE LAWFUL WIFE AND UNMARRIED LEGITIMATE CHILDREN, UNDER TWENTY-ONE YEARS OF AGE, OF ANY MEMBER OF THE UNIFORMED SERVICES * * *.

THE PROBLEM IS SHOWN BY THE DISCUSSION IN THE PAY AND ALLOWANCE COMMITTEE ACTION, WHICH RELATES THE FACTS AND CONCLUSION OF THE COURT OF CLAIMS IN THE CASE OF ROBEY V. UNITED STATES, 71 C.1CLS. 561, AND SUBSEQUENT DECISIONS OF THAT COURT AND OF THIS OFFICE WHICH LIMIT THE SCOPE OF THE ROBEY CASE STRICTLY TO THOSE SITUATIONS WHICH THE STATUTE MAY NOT HAVE CONTEMPLATED AS ARISING UNDER THE NORMAL RELATIONSHIP OF HUSBAND AND WIFE. THOSE DECISIONS RECOGNIZE THAT, NOTWITHSTANDING THE LITERAL TERMS OF THE STATUTE, THE PROVISIONS FOR THE PAYMENT OF QUARTERS ALLOWANCE FOR DEPENDENTS ARE NOT INTENDED TO CONFER AN OUTRIGHT GRATUITY ON MEMBERS WHO REPUDIATE THEIR OBLIGATIONS TO SUPPORT THEIR DEPENDENTS OR WHO ARE WHOLLY ABSOLVED OF SUCH OBLIGATION. THE EMANCIPATION THEORY OF UNMARRIED MINOR CHILDREN ALSO IS REFERRED TO IN THE COMMITTEE DISCUSSION AS HAVING SOME POSSIBLE BEARING ON THE ANSWER TO THE QUESTIONS. SPECIFIC REFERENCE IS MADE TO THE FOLLOWING CASES: STRAUS V. UNITED STATES, 73 C.1CLS. 690; ABSON V. UNITED STATES, 73 C.1CLS. 442; HERITAGE V. UNITED STATES, 81 C.1CLS. 492; RALINS V. UNITED STATES, 93 C.1CLS. 231; BRIGGS V. UNITED STATES, 116 C.1CLS. 638; 26 COMP. GEN. 514; 33 COMP. GEN. 308, AND 34 COMP. GEN. 16 AND 101.

WHILE THE CONVICTION AND IMPRISONMENT OF A SPOUSE MAY BE GROUNDS FOR DIVORCE, THEY DO NOT DISSOLVE A MARRIAGE. VERNIER'S AMERICAN FAMILY LAWS, VOLUME II, SECTIONS 69, 120; NELSON ON DIVORCE AND ANNULMENT (2D ED.), VOLUME I, SECTION 8.02. INVOLUNTARY SEPARATION OF THE SPOUSES BY CONVICTION AND IMPRISONMENT OF EITHER OF THEM DOES NOT OPERATE AS A SEVERANCE OF THE MARITAL RELATION. SITTERSON V. SITTERSON, 191 N.C. 319, 131 S.E. 641; ANNOTATIONS, 51 A.L.R. 770. CONFINEMENT AS AN INMATE IN A PENAL INSTITUTION, FEDERAL OR OTHERWISE, OF A DEPENDENT OF A MEMBER OF THE UNIFORMED SERVICES MAY NOT REASONABLY BE CONSIDERED THE EQUIVALENT OF FURNISHING PUBLIC QUARTERS SO AS TO DEPRIVE THE MEMBER OF A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF EITHER A LAWFUL WIFE OR AN UNMARRIED MINOR CHILD, AND UNLESS COUPLED WITH CONDUCT ON THE PART OF THE MEMBER SUCH AS WOULD WARRANT APPLICATION OF THE PRINCIPLE OF THE ROBEY CASE, THE CONFINEMENT OF A DEPENDENT SHOULD NOT AFFECT THE MEMBER'S RIGHT IN THE ORDINARY CASE. AS A PRACTICAL MATTER, THE MEMBER MAY BE SUBJECTED TO SUBSTANTIAL ADDITIONAL EXPENSE IN SUCH CASES. OF COURSE, THE DURATION OF CONFINEMENT MIGHT BE A FACTOR FOR CONSIDERATION. AS AN EXTREME EXAMPLE, A SENTENCE OF LIFE IMPRISONMENT WOULD CREATE MUCH DOUBT AS TO THE PROPRIETY OF INDEFINITELY CONTINUED PAYMENTS OF THE ALLOWANCE IN THE ABSENCE OF A SHOWING OF SOME CONTINUED SUPPORT OR EXPENSES INCURRED ON THE DEPENDENT'S ACCOUNT.

RESPECTING THE EMANCIPATION OF CHILDREN OF A MEMBER OF THE UNIFORMED SERVICES, THE PAY AND ALLOWANCE COMMITTEE REFERS TO OUR DECISION OF OCTOBER 25, 1926, 6 COMP. GEN. 288, CONCERNING THE RIGHT OF AN OFFICER OF THE NAVY TO AN INCREASED RENTAL AND SUBSISTENCE ALLOWANCE ON ACCOUNT OF AN UNMARRIED MINOR CHILD ATTENDING THE NAVAL ACADEMY AND IN THE COMMITTEE ACTION THERE IS QUOTED AN EXTRACT FROM THAT DECISION, AT PAGE 290, AS FOLLOWS:

* * * IT IS INCONCEIVABLE THAT THE CONGRESS COULD HAVE INTENDED TO INCLUDE IN THE PHRASE ,UNMARRIED CHILDREN UNDER TWENTY-ONE YEARS OF AGE" (AS FOUND IN SEC. 4, ACT OF 10 JUNE 1922 AS AMENDED) A SON WHO HAS BEEN EMANCIPATED BY APPOINTMENT AS A MIDSHIPMAN FOR HIS MANUMISSION IS MORE COMPLETE THAN THAT OF A MINOR SON WHO CONTRACTS MARRIAGE, THE STATUTE EXPRESSLY EXCLUDING THE LATTER FROM THE TERM "DEPENDENT.'

THE CONCLUSION THERE EXPRESSED WAS PREDICATED MAINLY ON THE FACTS, THAT WHEN A CANDIDATE IS APPOINTED AS MIDSHIPMAN AND ADMITTED TO THE NAVAL ACADEMY, HE HAS SIGNED ARTICLES, WITH THE CONSENT OF HIS PARENT OR GUARDIAN, BY WHICH HE BINDS HIMSELF TO SERVICE IN THE UNITED STATES NAVY DURING THE PLEASURE OF THE PRESIDENT (INCLUDING TIME AT THE NAVAL ACADEMY) UNLESS SOONER DISCHARGED; THAT HE IS PROVIDED QUARTERS, RATIONS, AND A COURSE OF TECHNICAL TRAINING; THAT FROM THE TIME HE ENTERS THE ACADEMY UNTIL HIS GRADUATION, EACH OF THE TWENTY-FOUR HOURS OF HIS DAY IS CONTROLLED BY RIGID AND SPECIFIC REGULATIONS; AND, QUOTING FURTHER FROM THE DECISION, IT WAS SAID:

IT IS A FORM OF INDENTURE OR APPRENTICESHIP IN WHICH THE PARENT SURRENDERS PRACTICALLY ALL PARENTAL CONTROL AND RESPONSIBILITY AND THE OBLIGATION OF SUPPORT AND EDUCATION IS ASSUMED BY THE UNITED STATES. MAY BE CLASSED AS EQUIVALENT TO THE DUTIES OF A FOSTER PARENT BY ADOPTION. WITH HIS OWN AND HIS PARENTS' CONSENT THE MIDSHIPMAN BECOMES IN FACT A CHILD OR WARD OF THE GOVERNMENT. IT HAS EVEN BEEN HELD WHEN A MINOR ENLISTS IN THE ARMY OR NAVY THAT THE ENLISTMENT OPERATES AS AN EMANCIPATION. COMMONWEALTH V. MORRIS, 1 PHILA. ( PA.) 381; BAKER V. BAKER, 41 VT. 55; 29 CYC. 1625.

IT CAN HARDLY BE SAID THAT THE CONFINEMENT OF A MEMBER'S UNMARRIED MINOR CHILD IN A REFORM SCHOOL OR SIMILAR CORRECTIONAL INSTITUTION HAS THE SAME INCIDENTS AND EFFECT AS THE ATTENDANCE OF A MINOR CHILD AT ONE OF THE SERVICE ACADEMIES OR THE ENLISTMENT OF A MINOR CHILD IN ONE OF THE UNIFORMED SERVICES, SO AS TO OPERATE AS AN EMANCIPATION. SUCH CONFINEMENT MAY HAVE FOR ITS PURPOSE, IN ADDITION TO EXACTING A PENALTY FOR A WRONG COMMITTED, THE MORE IMPORTANT PURPOSE OF AIDING IN REHABILITATION OR EDUCATION AND EVEN THE INDIVIDUAL'S PROTECTION AND SAFETY. IT IS REASONABLE TO ASSUME THAT THE MEMBER'S INTEREST IN THE EDUCATION AND WELFARE OF HIS MINOR CHILD AND HIS WILLINGNESS TO CONTRIBUTE FOR SUCH PURPOSES WILL CONTINUE DURING THE PERIOD OF CONFINEMENT. IT IS OUR UNDERSTANDING THAT IN SOME INSTANCES THE PARENTS OF MINOR CHILDREN MAY BE REQUIRED BY LAW TO REIMBURSE THE STATE, OR A SUBDIVISION, FOR HIS UPKEEP DURING THE PERIOD OF CONFINEMENT.

IN THE CIRCUMSTANCES WE MAY NOT, AS A GENERAL PROPOSITION, VIEW THE MERE CONVICTION AND IMPRISONMENT OF A MEMBER'S LAWFUL WIFE OR UNMARRIED MINOR CHILD AS AFFECTING HIS RIGHT TO A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF EITHER OF THEM, EXCEPT WHERE IT IS SHOWN THAT THE MEMBER HAS REFUSED TO SUPPORT THEM, OR THAT HE HAS BEEN ABSOLVED FROM SUPPORTING THEM. HOWEVER, IN VIEW OF THE DOUBT WHICH MAY ARISE IN CASES OF PROTRACTED CONFINEMENT AND THE NUMEROUS CIRCUMSTANCES AND CONDITIONS WHICH MAY BE INVOLVED IN THOSE CASES, AS TO WHICH NO GENERAL RULE CAN SAFELY BE ENUNCIATED, ANY SUCH CASES WHERE THE CONFINEMENT MAY EXTEND BEYOND FIVE YEARS TOGETHER WITH ANY OTHER DOUBTFUL CASES, SHOULD BE PRESENTED HERE FOR DECISION AS THEY ARISE, SO THAT THE FACTS MAY BE EVALUATED.