B-134206, JANUARY 2, 1958, 37 COMP. GEN. 451

B-134206: Jan 2, 1958

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MILITARY PERSONNEL - QUARTERS ALLOWANCE - HUSBAND AND WIFE - MARRIAGE - DIVORCE - CHILDREN -ADOPTION A MEMBER OF THE UNIFORMED SERVICES WHO IS RECEIVING BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A WIFE AND WHO HAS HIS MARRIAGE DISSOLVED BY A FINAL DECREE OF DIVORCE CONTINUES TO BE ENTITLED TO THE QUARTERS ALLOWANCE THROUGH THE DATE OF THE FINAL DECREE OF DIVORCE. A MEMBER OF THE UNIFORMED SERVICES WHOSE MARRIAGE IS VOID BECAUSE OF A PRE-EXISTING MARRIAGE OF THE OTHER PARTY HAS NO LAWFUL WIFE FOR ENTITLEMENT TO A BASIC ALLOWANCE FOR QUARTERS ON HER ACCOUNT FOR ANY PERIOD. HE DOES NOT HAVE A RIGHT TO ANY PAYMENTS NOT PREVIOUSLY RECEIVED AFTER THE INVALIDITY OF THE VOID MARRIAGE IS DISCOVERED.

B-134206, JANUARY 2, 1958, 37 COMP. GEN. 451

MILITARY PERSONNEL - QUARTERS ALLOWANCE - HUSBAND AND WIFE - MARRIAGE - DIVORCE - CHILDREN -ADOPTION A MEMBER OF THE UNIFORMED SERVICES WHO IS RECEIVING BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A WIFE AND WHO HAS HIS MARRIAGE DISSOLVED BY A FINAL DECREE OF DIVORCE CONTINUES TO BE ENTITLED TO THE QUARTERS ALLOWANCE THROUGH THE DATE OF THE FINAL DECREE OF DIVORCE. A MEMBER OF THE UNIFORMED SERVICES WHOSE MARRIAGE IS VOID BECAUSE OF A PRE-EXISTING MARRIAGE OF THE OTHER PARTY HAS NO LAWFUL WIFE FOR ENTITLEMENT TO A BASIC ALLOWANCE FOR QUARTERS ON HER ACCOUNT FOR ANY PERIOD; HOWEVER, UNDER SECTION 503 OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 303, THE MEMBER MIGHT BE RELIEVED FROM THE OBLIGATION OF REPAYMENT FOR QUARTERS ALLOWANCES RECEIVED IF HE ENTERED INTO THE MARRIAGE IN GOOD FAITH, BUT HE DOES NOT HAVE A RIGHT TO ANY PAYMENTS NOT PREVIOUSLY RECEIVED AFTER THE INVALIDITY OF THE VOID MARRIAGE IS DISCOVERED. AN ANNULMENT OF A VOIDABLE MARRIAGE OF AN OFFICER OF THE UNIFORMED SERVICES WHO IS RECEIVING A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A WIFE TERMINATES HIS ENTITLEMENT TO QUARTERS ALLOWANCES ON THE DATE THE ANNULMENT DECREE BECOMES EFFECTIVE, AND, ALTHOUGH QUARTERS ALLOWANCE PAYMENTS RECEIVED PRIOR TO THAT DATE MAY BE RETAINED, PAYMENTS MAY NOT BE MADE ON OR AFTER THAT DATE FOR ANY PERIOD, WHETHER PRIOR OR SUBSEQUENT TO THE DATE OF THE ANNULMENT DECREE. AN OFFICER OF THE UNIFORMED SERVICES WHO IS RECEIVING A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF AN UNMARRIED LEGITIMATE CHILD UNDER 21 YEARS OF AGE ON THE DATE OF THE CHILD'S MARRIAGE HAS HIS RIGHT TO QUARTERS ALLOWANCE TERMINATED ON THAT DATE BUT MAY RECEIVE PAYMENT FOR THAT DAY, AND, IF THE CHILD--- A DAUGHTER--- MARRIES A MEMBER OF THE UNIFORMED SERVICES WHO IS ENTITLED TO RECEIVE QUARTERS ALLOWANCE ON ACCOUNT OF DEPENDENTS, HIS RIGHT TO PAYMENT ON ACCOUNT OF A WIFE COMMENCES ON THE DATE OF THE MARRIAGE. WHEN ON THE DATE OF A FINAL DECREE OF DIVORCE DISSOLVING THE MARRIAGE OF AN OFFICER, WHO IS IN RECEIPT OF A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A WIFE, THE DIVORCED WIFE MARRIES ANOTHER OFFICER WHO IS ENTITLED TO RECEIVE QUARTERS ALLOWANCE ON ACCOUNT OF A LAWFUL WIFE, BOTH OFFICERS ARE ENTITLED TO PAYMENT ON HER ACCOUNT FOR THE SAME DAY. IN VIEW OF THE CONFLICT OF OPINIONS CONCERNING JURISDICTION FOR DETERMINING THE LEGITIMACY STATUS OF CHILDREN AND THE TENDENCY OF THE COURTS TO EFFECT A STATUS OF LEGITIMACY RATHER THAN ILLEGITIMACY, PAYMENTS OF QUARTERS ALLOWANCE ON ACCOUNT OF AN UNMARRIED CHILD UNDER 21 YEARS OF AGE, WHO WAS BORN OUT OF WEDLOCK BUT WHO HAS BEEN LEGITIMATED BY THE INTERMARRIAGE OF THE PARENTS, NEED NOT BE QUESTIONED TO DETERMINE THE PARTICULAR LAW IN EACH CASE, PROVIDED THE FATHER HAS ACKNOWLEDGED AND ACCEPTED THE CHILD AS HIS OWN AND THE CHILD HAS NOT BEEN FOUND BY A COURT TO BE ILLEGITIMATE. IN VIEW OF THE DIVERSITY OF THE ADOPTION LAWS OF THE VARIOUS JURISDICTIONS, IT IS INADVISABLE TO FORMULATE A GENERAL RULE WITH RESPECT TO THE EFFECTIVE DATE FOR COMMENCEMENT OF ENTITLEMENT TO QUARTERS ALLOWANCE BY AN OFFICER WHO ACQUIRES A DEPENDENT BY VIRTUE OF AN INTERLOCUTORY ORDER OR DECREE OF ADOPTION; HOWEVER, ANY QUESTION MAY BE SUBMITTED TO THE COMPTROLLER GENERAL FOR DECISION.

TO THE SECRETARY OF DEFENSE, JANUARY 2, 1958:

FURTHER REFERENCE IS MADE TO LETTER DATED OCTOBER 23, 1957, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON SEVERAL QUESTIONS SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 195 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, RELATING TO THE DATE OF COMMENCEMENT AND TERMINATION OF ENTITLEMENT OF OFFICERS OF THE ARMED FORCES TO BASIC ALLOWANCE FOR QUARTERS.

THE FIRST QUESTION IS AS FOLLOWS:

1. ON WHAT DATE DOES OTHERWISE PROPER ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS TERMINATE UNDER THE FOLLOWING CIRCUMSTANCES:

A. WHERE AN OFFICER'S MARRIAGE IS DISSOLVED BY A FINAL DECREE OF DIVORCE?

B. WHERE AN OFFICER'S MARRIAGE IS DISSOLVED BY A FINAL DECREE OF ANNULMENT?

C. WHERE AN OFFICER'S UNMARRIED LEGITIMATE CHILD UNDER 21 YEARS OF AGE MARRIES (1) A CIVILIAN, (2) A MEMBER ON INACTIVE DUTY, OR (3) AN ENLISTED MEMBER ON ACTIVE DUTY FOR TRAINING WHO IS NOT ENTITLED TO BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF DEPENDENTS. (SEE SECTION 7 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, PUBLIC LAW 771, 81ST CONGRESS.)

D. WHERE AN OFFICER'S UNMARRIED LEGITIMATE CHILD UNDER 21 YEARS OF AGE MARRIES A MEMBER ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING WHO IS ENTITLED TO RECEIVE BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF DEPENDENTS?

THE DECISION IN 21 COMP. GEN. 1, CITED IN THE COMMITTEE ACTION, HOLDING THAT ENTITLEMENT TO ALLOWANCES FOR A DEPENDENT WIFE EXTENDS THROUGH THE DATE OF THE DIVORCE DECREE, APPEARS TO STATE THE PROPER RULE. THAT RULE IS CONSISTENT WITH THE RULE THAT PAY AND ALLOWANCES CONTINUE THROUGH THE DATE OF DEATH. ALSO, IN A CASE INVOLVING FOREIGN SERVICE PAY, THE RULE IS TO INCLUDE THE DAY OF RETURN TO CONTINENTAL UNITED STATES. IN 33 COMP. GEN. 308, ALSO CITED IN THE COMMITTEE ACTION, AND OTHER CASES WHERE PAYMENT OF A DEPENDENCY ALLOWANCE ON ACCOUNT OF A WIFE WAS TERMINATED ON THE DAY BEFORE THE DATE OF THE DIVORCE DECREE, IT DOES NOT APPEAR THAT THE PRECISE QUESTION OF THE RIGHT OF THE MEMBER TO THE DEPENDENCY ALLOWANCE ON THE DATE OF THE DECREE ITSELF WAS RAISED OR SPECIFICALLY CONSIDERED. ANSWER TO QUESTION A, OTHERWISE PROPER ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS CONTINUES THROUGH THE DATE OF AN OFFICER'S FINAL DECREE OF DIVORCE.

IT IS ASSUMED THAT QUESTION B RELATES ONLY TO ANNULMENTS OF VOIDABLE MARRIAGES, SINCE IT REFERS TO A MARRIAGE THAT "IS DISSOLVED" BY AN ANNULMENT DECREE. SECTION 102 (G) OF THE CAREER COMPENSATION ACT, 63 STAT. 804, 37 U.S.C. 231 (G), REQUIRES THE EXISTENCE OF A "LAWFUL WIFE" TO ENTITLE A MEMBER TO A BASIC ALLOWANCE FOR QUARTERS ON HER ACCOUNT. WHERE THE MARRIAGE IS VOID BECAUSE OF A PREEXISTING MARRIAGE OF THE OTHER PARTY, FOR EXAMPLE, THE MEMBER HAS NO LAWFUL WIFE AND IS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS ON HER ACCOUNT FOR ANY PERIOD; HE MAY RETAIN PAYMENTS RECEIVED ONLY TO THE EXTENT SUCH PAYMENTS MAY BE VALIDATED BY SECTION 503 OF THE CAREER COMPENSATION A 63 STAT. 827, 37 U.S.C. 303. COMPARE 22 COMP. GEN. 316. THAT SECTION IS IN THE NATURE OF RELIEF LEGISLATION INTENDED TO RELIEVE MILITARY PERSONNEL OF THE OBLIGATION OF REPAYMENT IN THE CIRCUMSTANCES TO WHICH IT APPLIES AND CANNOT FORM A BASIS FOR ANY PAYMENT NOT PREVIOUSLY RECEIVED AFTER THE VALIDITY OF A VOID MARRIAGE IS DISCOVERED. IN VOIDABLE MARRIAGE CASES, HOWEVER, WE HAVE HELD THAT PAYMENTS OF RENTAL ALLOWANCES ON ACCOUNT OF A WIFE RECEIVED PRIOR TO THE DATE ON WHICH THE ANNULMENT DECREE WAS RENDERED MAY BE RETAINED (23 COMP. GEN. 107), BUT AFTER ON AND AFTER THE DATE THE ANNULMENT DECREE BECOMES EFFECTIVE PAYMENTS MAY NOT BE MADE FOR ANY PERIOD, WHETHER PRIOR OR SUBSEQUENT TO THAT DATE. B-44218, OCTOBER 13, 1944; B-51256, SEPTEMBER 7, 1945; B 52135, OCTOBER 12, 1945; B-52558, SEPTEMBER 28, 1945; B-59042, SEPTEMBER 25, 1946; B-63294, MARCH 13, 1947. QUESTION B IS ANSWERED ACCORDINGLY.

SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949 DEFINES THE TERM "DEPENDENT" AS INCLUDING "UNMARRIED LEGITIMATE CHILDREN, UNDER TWENTY-ONE YEARS OF AGE.' ON THE DATE A PERSON IS MARRIED HE OR SHE IS "UNMARRIED" FOR AT LEAST A PART OF THAT DAY WITHIN THE MEANING OF THAT WORK AS USED IN THE ABOVE-QUOTED DEFINITION. HENCE, WHETHER THE MARRIAGE IS TO (1) A CIVILIAN, (2) A MEMBER ON INACTIVE DUTY, OR (3) AN ENLISTED MEMBER ON ACTIVE DUTY FOR TRAINING WHO IS NOT ENTITLED TO BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF DEPENDENTS WITHIN THE PROVISIONS OF SECTION 7 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 796, 50 U.S.C. APP. 2207, AS IN QUESTION C, OR TO A MEMBER ON ACTIVE DUTY OR ACTIVE DUTY FOR TRAINING WHO IS ENTITLED TO RECEIVE BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF DEPENDENTS, AS IN QUESTION D, THE PARENT'S ENTITLEMENT TO INCREASED BASIC ALLOWANCE FOR SUCH A CHILD TERMINATES ON THE DAY OF THE CHILD'S MARRIAGE AND PAYMENT MAY BE MADE FOR THAT DAY. QUESTIONS C AND D ARE ANSWERED ACCORDINGLY. OF COURSE, IT IS TO BE UNDERSTOOD IN CONNECTION WITH THE CASE INVOLVED IN QUESTION D THAT A MALE MEMBER WHO MARRIES A MINOR FEMALE CHILD OF AN OFFICER WOULD HAVE A DEPENDENT (LAWFUL WIFE) ON THE DAY OF THE MARRIAGE. COMPARE ANSWER TO QUESTION 2, BELOW.

QUESTION 2 IS AS FOLLOWS:

2. IS AN OFFICER ENTITLED TO OTHERWISE PROPER PAYMENT OF BASIC ALLOWANCES FOR QUARTERS ON ACCOUNT OF A DEPENDENT WIFE ON THE DATE OF HIS MARRIAGE TO HER, IF HER DIVORCE FROM ANOTHER MEMBER WHO WAS RECEIVING BASIC ALLOWANCE FOR QUARTERS ON HER BEHALF BECAME FINAL ON THE SAME DATE?

UNDER THE RULE SET FORTH IN ANSWER TO QUESTION A, THE WOMAN'S FIRST HUSBAND WOULD BE ENTITLED TO RECEIVE BASIC ALLOWANCE FOR QUARTERS FOR HER TO INCLUDE THE DATE OF THE FINAL DECREE OF DIVORCE. AN OFFICER HAS A WIFE ON THE DATE OF MARRIAGE AND BECOMES ENTITLED TO BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A LAWFUL WIFE BEGINNING ON THAT DATE. NO REASON IS PERCEIVED WHY THE FACT THAT THE WIFE IN THE QUESTION PRESENTED MAY BE THE SAME PERSON IN THE CASE OF EACH OFFICER WOULD DEFEAT THE RIGHT OF EITHER OFFICER TO THE BASIC ALLOWANCE FOR QUARTERS ON HER ACCOUNT, SINCE EACH OFFICER WOULD HAVE A "LAWFUL WIFE" ON THAT DAY. THE ANSWER TO QUESTION 2 IS IN THE AFFIRMATIVE.

QUESTION 3 IS AS FOLLOWS:

3. MAY AN UNMARRIED CHILD UNDER 21 YEARS OF AGE WHO WAS BORN OUT OF WEDLOCK BE CONSIDERED AS HAVING BEEN LEGITIMATED BY THE INTERMARRIAGE OF THE PARENTS SO AS TO ENTITLE AN OFFICER TO OTHERWISE PROPER PAYMENT OF BASIC ALLOWANCE FOR QUARTERS ON THE CHILD'S BEHALF, UNLESS AND UNTIL THE CHILD IS FOUND BY A COURT TO BE ILLEGITIMATE?

IN 21 COMP. GEN. 79, AT PAGE 82, CITED IN THE COMMITTEE ACTION, IT WAS HELD:

WITH REFERENCE TO THE CHILD, THE PREVAILING THOUGH, PERHAPS, NOT UNIVERSAL RULE IS THAT AN INFANT BORN OUT OF WEDLOCK IS LEGITIMATED BY THE SUBSEQUENT INTERMARRIAGE OF THE PARENTS AND ACKNOWLEDGMENT AND ACCEPTANCE OF THE CHILD BY THE FATHER AS HIS OFFSPRING, AND THAT IS THE RULE IN THE STATE OF WASHINGTON WHERE THE MARRIAGE WAS CONTRACTED. ACCORDINGLY, IT WOULD APPEAR THAT SINCE THE DATE OF THE LEGAL MARRIAGE BETWEEN THE PARENTS OF THE CHILD * * * THE INFANT MEETS THE REQUIREMENTS OF THE STATUTE FOR A LEGITIMATE CHILD.

IN DECISION OF MARCH 3, 1947, 26 COMP. GEN. 645, AFTER STATING THAT THERE IS MUCH CONFLICT OF OPINION IN THE DECISIONS OF THE COURTS AND IN LEGAL TREATISES WITH REGARD TO THE "PARTICULAR JURISDICTION THE LAW OF WHICH SHALL GOVERN IN DETERMINING THE LEGITIMACY STATUS OF SUCH CHILDREN," IT WAS POINTED OUT THAT ANY ONE OF THE FOLLOWING JURISDICTIONS CONCEIVABLY MAY FURNISH THE PERSONAL LAW OF THE CHILD BY WHICH LEGITIMACY IS TO BE DETERMINED (CITING 162 A.L.R. 627/---

(1) THE STATE WHERE THE MARRIAGE WAS CELEBRATED.

(2) THE STATE WHERE THE PARENTS WERE DOMICILED AT THE TIME OF CELEBRATION.

(3) THE STATE WHERE THE CHILD WAS BORN.

FURTHERMORE, AS IS BROUGHT OUT IN IN RE LUND'S ESTATE ( CALIFORNIA, 1945), 159 P.2D 643; 162 A.L.R. 606, AND THE ANNOTATION THERETO AT PAGE 628, THERE IS A GENERAL TENDENCY OF THE COURTS TO EFFECT A STATUS OF LEGITIMACY RATHER THAN ILLEGITIMACY EVEN TO THE POINT OF APPLYING THE LAW OF WHICHEVER JURISDICTION WOULD HAVE THE EFFECT OF SUSTAINING LEGITIMACY, ALTHOUGH, UNDER THE STRICT THEORY OF CONFLICT OF LAWS, SUCH LAW CLEARLY WOULD BE INAPPLICABLE. OUR DECISION OF MARCH 3, 1947, CONCLUDED THAT:

UNDER THESE CIRCUMSTANCES, AND THE PRACTICAL ASPECT OF THE MATTER, THERE APPEARS NO COMPELLING REASON WHY, FOR RENTAL AND SUBSISTENCE ALLOWANCE PURPOSES, THIS OFFICE SHOULD UNDERTAKE, IN EACH SUCH CASE, TO DETERMINE THE PARTICULAR LAW APPLICABLE, AND CREDITS OF SUCH ALLOWANCES ON ACCOUNT OF UNMARRIED MINOR CHILDREN OF MARRIAGES NULL IN LAW, AND MARRIAGES ANNULLED AS VOID OR VOIDABLE, WILL NOT HEREAFTER BE QUESTIONED IN THE ACCOUNTS, IF SUCH CREDITS ARE OTHERWISE CORRECT AND PROPER, UNLESS AND UNTIL SUCH CHILDREN, IN A PARTICULAR CASE, ARE FOUND BY A COURT TO BE ILLEGITIMATE. * * *

FOR THE REASONS GIVEN IN THOSE DECISIONS, IT WOULD NOT APPEAR TO BE REQUIRED THAT, IN BASIC ALLOWANCE FOR QUARTERS CASES, WE SHOULD UNDERTAKE IN EVERY CASE TO DETERMINE THE PARTICULAR LAW APPLICABLE. ACCORDINGLY, QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE IF THE FATHER HAS ACKNOWLEDGED AND ACCEPTED THE CHILD AS HIS OWN.

QUESTION 4 IS AS FOLLOWS:

4. ON WHAT DATE DOES OTHERWISE PROPER ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS COMMENCE WHERE AN OFFICER ACQUIRES A DEPENDENT BY VIRTUE OF AN INTERLOCUTORY DECREE OF ADOPTION WHICH IS SUBSEQUENTLY FINALIZED?

ADOPTION IS REGULATED BY THE STATUTES OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA. IN A SUBSTANTIAL NUMBER OF JURISDICTIONS PROVISION IS MADE FOR INTERLOCUTORY DECREES. IN SOME OF THOSE JURISDICTIONS THE STATUTES PROVIDE THAT ADOPTION WILL BE EFFECTIVE WHEN THE FINAL DECREE IS ENTERED. SEE, FOR EXAMPLE, SECTION 5 OF TITLE 27 OF THE CODE OF ALABAMA AND SECTION 205 OF TITLE 16 OF THE DISTRICT OF COLUMBIA CODE. WHEN ADOPTION IS EFFECTED IN SUCH JURISDICTIONS, OF COURSE, A MEMBER OF THE UNIFORMED SERVICES IS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS FOR ANY PART OF THE PERIOD PRIOR TO THE DATE THE ADOPTION BECOMES EFFECTIVE.

IN VIEW OF THE DIVERSITY OF THE PROVISIONS OF THE ADOPTION LAWS OF THE VARIOUS JURISDICTIONS, IT IS CONSIDERED INADVISABLE AT THIS TIME TO FORMULATE A GENERAL RULE IN ADOPTION CASES. ANY CASE INVOLVING A QUESTION AS TO THE EFFECTIVE DATE OF ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS WHERE A MEMBER ACQUIRES A DEPENDENT BY VIRTUE OF AN INTERLOCUTORY ORDER OR DECREE OF ADOPTION, HOWEVER, MAY BE SUBMITTED HERE FOR CONSIDERATION. QUESTION 4 IS ANSWERED ACCORDINGLY.