B-137568, FEBRUARY 27, 1959, 38 COMP. GEN. 568

B-137568, FEBRUARY 27, 1959, 38 COMP. GEN. 568

MILITARY PERSONNEL - STATION ALLOWANCES - HUSBAND AND WIFE MEMBERS OF UNIFORMED SERVICES THE RESTRICTION IN SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 231 (G), AGAINST MEMBERS OF THE UNIFORMED SERVICES RECEIVING INCREASED ALLOWANCES ON ACCOUNT OF A DEPENDENT, WHEN THE DEPENDENT IS ENTITLED TO RECEIVE BASIC PAY AS A MEMBER, IS APPLICABLE TO STATION ALLOWANCES FOR SUBSISTENCE AND QUARTERS AS WELL AS TO BASIC ALLOWANCE FOR QUARTERS. AN OVERSEAS MEMBER OF THE UNIFORMED SERVICES WHOSE WIFE IS ALSO A MEMBER OF THE UNIFORMED SERVICES IS PRECLUDED BY THE RESTRICTION IN SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 231 (G), AGAINST PAYMENT OF INCREASED ALLOWANCES ON ACCOUNT OF A DEPENDENT WHEN THE DEPENDENT IS ENTITLED TO BASIC PAY AS A MEMBER, FROM RECEIVING EITHER A STATION QUARTERS OR STATION SUBSISTENCE ALLOWANCE FOR ANY PERIOD THE WIFE IS IN RECEIPT OF BASIC PAY, IRRESPECTIVE OF WHETHER HE AND HIS MEMBER WIFE OCCUPY A FAMILY RESIDENCE OFF BASE AT THEIR OWN EXPENSE OR ARE ASSIGNED FAMILY TYPE QUARTERS ON THE BASE. WHEN HUSBAND AND WIFE ARE BOTH OFFICER MEMBERS OF THE UNIFORMED SERVICES AND RESIDE OFF BASE AT OVERSEAS INSTALLATION IN A JOINT FAMILY RESIDENCE MAINTAINED AT THEIR OWN EXPENSE, THE HUSBAND MEMBER IS ENTITLED TO STATION ALLOWANCE FOR QUARTERS AS FOR A MEMBER WITHOUT DEPENDENTS. WHEN HUSBAND AND WIFE ARE BOTH OFFICER MEMBERS OF THE UNIFORMED SERVICES AT AN OVERSEAS INSTALLATION BOTH ARE ENTITLED TO THE STATION ALLOWANCE FOR SUBSISTENCE PRESCRIBED FOR A MEMBER WITHOUT DEPENDENTS, IRRESPECTIVE OF WHETHER THEY OCCUPY A FAMILY RESIDENCE OFF BASE AT THEIR OWN EXPENSE OR ARE ASSIGNED FAMILY TYPE QUARTERS ON BASE, AND WHEN HUSBAND AND WIFE ARE BOTH ENLISTED MEMBERS AND ARE AUTHORIZED TO LIVE OFF BASE IN FAMILY QUARTERS AND TO MESS SEPARATELY EACH WOULD BE ENTITLED TO A STATION SUBSISTENCE ALLOWANCE AS A MEMBER WITHOUT DEPENDENTS. WHEN HUSBAND AND WIFE ARE BOTH OFFICER MEMBERS OF THE UNIFORMED SERVICES OR WHEN BOTH ARE ENTITLED MEMBERS AND SINGLE QUARTERS ARE NOT AVAILABLE FOR ASSIGNMENT TO THE FEMALE MEMBER AT THE OVERSEAS STATION, SHE IS ENTITLED TO STATION QUARTERS ALLOWANCE AS A MEMBER WITHOUT DEPENDENTS.

TO CAPTAIN K. P. RITTER, UNITED STATES AIR FORCE, FEBRUARY 27, 1959:

THE DEPUTY DIRECTOR OF ACCOUNTING AND FINANCE ( COMPTROLLER), HEADQUARTERS, UNITED STATES AIR FORCE, HAS FORWARDED BY LETTER DATED SEPTEMBER 29, 1958, YOUR LETTER OF APRIL 18, 1958, AND ENCLOSURES, REQUESTING AN ADVANCE DECISION CONCERNING THE PROPRIETY OF PAYMENT OF THE CLAIMS OF TECHNICAL SERGEANT CHARLES A. MYERS; FIRST LIEUTENANT RALPH N. HOFFMAN, JR.; AND FIRST LIEUTENANT FLORENCE F. HOFFMAN, FOR STATION ALLOWANCES FOR QUARTERS AND SUBSISTENCE AS AUTHORIZED IN PARAGRAPH 4301, JOINT TRAVEL REGULATIONS, IN THE CIRCUMSTANCES STATED BELOW. THE SUBMISSION OF YOUR REQUEST WAS APPROVED BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, AND ASSIGNED PDTATAC CONTROL NO. 58- 8.

PARAGRAPHS 2 AND 3 OF YOUR LETTER OF APRIL 18, 1958, SET FORTH THE FACTUAL SITUATIONS INVOLVED AS FOLLOWS:

ONE SERIES OF MILITARY PAY ORDERS ATTACHED THAT HAVE BEEN PRESENTED TO THE UNDERSIGNED FOR PAYMENT PERTAINS TO T/SGT CHARLES A. MYERS, AF3338 7147, WHO IS MARRIED TO S/SGT JAYNE A. MYERS, AA409 809. THESE PAY ORDERS REQUEST PAYMENT TO THE MALE MEMBER, FOR THE PERIOD 6 JULY 1957 TO 26 JANUARY 1958, OF STATION ALLOWANCES FOR SUBSISTENCE AND QUARTERS AS A MEMBER WITH DEPENDENTS. BOTH MEMBERS OBTAINED THE NECESSARY AUTHORITY FROM THEIR COMMANDERS TO RESIDE OFF BASE AND WERE RESIDING IN THE DOWNTOWN FAIRBANKS AREA, AT THE ADDRESS INDICATED ON THE MILITARY PAY ORDERS, DURING THE PERIOD INVOLVED. THE MALE MEMBER WAS PAID, DURING THIS PERIOD, BASIC ALLOWANCE FOR QUARTERS, AS A MEMBER WITHOUT DEPENDENTS, IN ACCORDANCE WITH THE PROVISIONS OF PARA 20405C (2) (A), AFM 173-20. ADDITION TO BEING AUTHORIZED TO RESIDE OFF THE BASE, BOTH MEMBERS WERE ALSO AUTHORIZED TO MESS SEPARATELY, PER PARA 20104B (1) (B), AFM 173- 20,DURING THE PERIOD INVOLVED AND BOTH RECEIVED THE ALLOWANCE PRESCRIBED BY PARA 20101D, AFM 173-20, AS APPROPRIATE WHEN PERMISSION TO MESS SEPARATELY IS GRANTED. DURING THE PERIOD INVOLVED, BOTH QUARTERS AND MESSING FACILITIES WERE AVAILABLE ON THE BASE FOR BOTH MEMBERS AS MEMBERS WITHOUT DEPENDENTS, BUT FAMILY TYPE QUARTERS WERE NOT AVAILABLE. ON 27 JANUARY 1958, ASSIGNMENT OF FAMILY TYPE QUARTERS WAS MADE AND THEREAFTER BOTH MEMBERS RESIDED ON THE BASE IN SUCH ASSIGNED QUARTERS.

THE OTHER SERIES OF MILITARY PAY ORDERS ATTACHED THAT HAVE BEEN PRESENTED TO THE UNDERSIGNED FOR PAYMENT PERTAINS TO ST LT RALPH N. HOFFMAN, JR. A0302 10180, AND HIS WIFE, ST LT FLORENCE F. HOFFMAN, AN224 2393. THESE PAY ORDERS REQUEST PAYMENT TO BOTH THE MALE AND FEMALE MEMBERS FROM 6 AUGUST 1957 UNTIL FURTHER ORDERS, OF STATION ALLOWANCES FOR SUBSISTENCE AS MEMBERS WITHOUT DEPENDENTS AND REQUEST PAYMENT TO THE MALE MEMBER AS A MEMBER WITHOUT DEPENDENTS OF STATION ALLOWANCES FOR QUARTERS FOR THE PERIOD 6 AUGUST 1957 TO 24 NOVEMBER 1957. BOTH MEMBERS WERE AUTHORIZED TO RESIDE OFF BASE AND WERE RESIDING IN THE DOWNTOWN FAIRBANKS AREA, AT THE ADDRESS INDICATED ON THE MILITARY PAY ORDERS, DURING THE PERIOD INVOLVED. THE MALE MEMBER WAS PAID, DURING THIS PERIOD, BASIC ALLOWANCE FOR QUARTERS, AS A MEMBER WITHOUT DEPENDENTS, IN ACCORDANCE WITH THE PROVISIONS OF PARA 20405C (2) (A), AFM 173-30. THE FEMALE MEMBER WAS PAID, DURING THIS PERIOD, BASIC ALLOWANCE FOR QUARTERS, AS A MEMBER WITH DEPENDENTS, DUE TO THE DEPENDENCY OF HER MOTHER RESIDING IN THE UNITED STATES, WHICH WAS PROPERLY ESTABLISHED IN ACCORDANCE WITH PARA 20407 AND PARAGRAPHS 20431-20437, AFM 173-20. DURING THE PERIOD INVOLVED BOTH QUARTERS AND MESSING FACILITIES WERE AVAILABLE ON THE BASE FOR BOTH MEMBERS AS MEMBERS WITHOUT DEPENDENTS BUT FAMILY TYPE QUARTERS WERE NOT AVAILABLE. ON 24 NOVEMBER 1957, ASSIGNMENT OF FAMILY TYPE QUARTERS WAS MADE AND THEREAFTER, BOTH MEMBERS RESIDED ON THE BASE IN SUCH ASSIGNED QUARTERS.

THE FOLLOWING QUESTIONS (NUMBERED 1 TO 6 AS SHOWN IN YOUR LETTER), ARE PRESENTED BY YOU:

1. MAY THE MALE MEMBER BE AUTHORIZED PAYMENT OF COST-OF-LIVING STATION ALLOWANCE FOR QUARTERS, AS PRESCRIBED IN PARA 4301, JTR, AS A MEMBER WITH DEPENDENTS WHEN THE MALE AND FEMALE MEMBER ARE AUTHORIZED TO RESIDE OFF THE BASE AND MAINTAIN A JOINT FAMILY RESIDENCE AT THEIR EXPENSE? (SEE ATTACHED MILITARY PAY ORDER T/SGT CHARLES A. MYERS, AF3338 7147, FOR STATION ALLOWANCE FOR QUARTERS FOR THE PERIOD 6 JULY 1957 TO 26 JANUARY 1958).

2. MAY THE MALE MEMBER BE AUTHORIZED PAYMENT OF COST-OF-LIVING STATION ALLOWANCES FOR SUBSISTENCE, AS PRESCRIBED IN PARA 4301, JTR, AS A MEMBER WITH DEPENDENTS WHEN THE MALE AND FEMALE MEMBER ARE AUTHORIZED TO MAINTAIN A JOINT FAMILY RESIDENCE AND, IF ENLISTED MEMBERS, BOTH ARE AUTHORIZED TO MESS SEPARATELY PER PARA 20104B (1) (B), AFM 173-20? IN THIS CASE IT IS NOT BELIEVED PERTINENT AS TO WHETHER THE MEMBERS OCCUPY A FAMILY RESIDENCE OFF BASE AT THEIR OWN EXPENSE OR ARE ASSIGNED FAMILY TYPE QUARTERS ON BASE, HOWEVER, IT IS REQUESTED THAT YOUR DECISION BE SPECIFIC AS TO THIS POINT. (SEE ATTACHED MILITARY PAY ORDER FOR T/SGT. CHARLES A. MYERS, AF3338 7147 FOR STATION ALLOWANCE FOR SUBSISTENCE FOR PERIOD 6 JULY 1957 TO 26 JANUARY 1958.)

3. MAY THE MALE MEMBER BE AUTHORIZED PAYMENT OF COST-OF-LIVING STATION ALLOWANCES FOR QUARTERS, AS PRESCRIBED IN PARA 4301, JTR, AS A MEMBER WITHOUT DEPENDENTS WHEN THE MALE AND FEMALE MEMBER ARE AUTHORIZED TO RESIDE OFF THE BASE AND MAINTAIN A JOINT FAMILY RESIDENCE AT THEIR EXPENSE? (SEE ATTACHED MILITARY PAY ORDER FOR ST LT RALPH N. HOFFMAN A0302 10180, FOR STATION ALLOWANCE FOR QUARTERS FOR THE PERIOD 6 AUGUST 1957 TO 24 NOVEMBER 1957.)

4. MAY EITHER, OR BOTH, THE MALE AND FEMALE MEMBER BE AUTHORIZED PAYMENT OF COST-OF-LIVING STATION ALLOWANCES FOR SUBSISTENCE, AS PRESCRIBED IN PARA 4301, JTR, AS MEMBERS WITHOUT DEPENDENTS, WHERE THE MALE AND FEMALE MEMBER ARE AUTHORIZED TO MAINTAIN A JOINT FAMILY RESIDENCE? IN THIS CASE IT IS NOT BELIEVED PERTINENT AS TO WHETHER THE MEMBERS OCCUPY A FAMILY RESIDENCE OFF BASE AT THEIR OWN EXPENSE OR ARE ASSIGNED FAMILY TYPE QUARTERS ON BASE, HOWEVER, IT IS REQUESTED THAT YOUR DECISION BE SPECIFIC AS TO THIS POINT. (SEE ATTACHED MILITARY PAY ORDERS FOR ST LT RALPH N. HOFFMAN, A03302 10180 AND ST LT FLORENCE F. HOFFMAN, AN224 2393, FOR STATION ALLOWANCE FOR SUBSISTENCE FOR THE PERIOD 6 AUGUST 1957 UNTIL FURTHER ORDERS.) ALTHOUGH THIS CASE COVERS OFFICER MEMBERS, REQUEST YOUR DECISION INDICATE WHETHER THE ANSWER WOULD BE DIFFERENT IF THE MEMBERS INVOLVED WERE ENLISTED MEMBERS AND EACH WAS AUTHORIZED TO MESS SEPARATELY PER PARA 20104B (1) (B), AFM 173-20.

5. THE ABOVE QUESTIONS, AND THE MILITARY PAY ORDERS ATTACHED WHICH HAVE BEEN SUBMITTED FOR PAYMENT, ARE ALL PREDICATED ON THE BASIS THAT QUARTERS AND MESSING FACILITIES FOR A SINGLE PERSON ARE EACH AVAILABLE TO BOTH THE MALE AND FEMALE MEMBER, BOTH AS TO OFFICER AND ENLISTED MEMBERS. ALTHOUGH A SPECIFIC CASE IS NOT PRESENTED, YOUR DECISION IS REQUESTED AS TO WHETHER YOUR ANSWER WOULD BE DIFFERENT IN THE EVENT QUARTERS FOR THE FEMALE MEMBER, AS FOR A SINGLE PERSON, WOULD NOT BE AVAILABLE. THIS IS A MATTER THAT COULD ARISE AT THIS BASE WHERE A WAF DETACHMENT OR SQUADRON IS NOT AUTHORIZED.

6. THE ABOVE QUESTIONS, AND THE MILITARY PAY ORDERS ATTACHED WHICH HAVE BEEN SUBMITTED FOR PAYMENT, ARE ALL PREDICATED ON SITUATIONS THAT HAVE DEVELOPED SINCE 1 JULY 1957. SINCE 1 JULY 1957 IS THE EFFECTIVE DATE OF CHANGE 60 TO THE JTR, WHICH MADE MATERIAL CHANGES TO PARA 4301, JTR, IT IS REQUESTED THAT YOUR REPLY STATE AS TO WHETHER YOUR DECISION WOULD BE DIFFERENT IF THE PERIOD INVOLVED WAS PRIOR TO 1 JULY 1957.

IN CONNECTION WITH THE ISSUES PRESENTED IN THE ABOVE QUESTIONS, YOU SAY THAT DOUBT ARISES AS TO THE PROPRIETY OF PAYMENT ON THE SUBMITTED MILITARY PAY ORDERS BECAUSE NEITHER THE AIR FORCE REGULATIONS NOR THE JOINT TRAVEL REGULATIONS COVERS THE PAYMENT OF STATION COST-OF-LIVING ALLOWANCES, AS PRESCRIBED IN PARAGRAPH 4301 OF THE JOINT TRAVEL REGULATIONS, TO SERVICE MEMBERS WHO ARE MARRIED TO EACH OTHER AND WHO MAINTAIN FAMILY RESIDENCES AT OR NEAR THEIR DUTY STATIONS.

SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, 37 U.S.C. 253, PROVIDES AS FOLLOWS:

WITHOUT REGARD TO THE MONETARY LIMITATIONS IN THIS ACT, THE SECRETARIES OF THE UNIFORMED SERVICES MAY AUTHORIZE THE PAYMENT TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA, WHETHER OR NOT IN A TRAVEL STATUS, OF A PER DIEM CONSIDERING ALL ELEMENTS OF COST OF LIVING TO MEMBERS AND THEIR DEPENDENTS, INCLUDING THE COST OF QUARTERS, SUBSISTENCE, AND OTHER NECESSARY INCIDENTAL EXPENSES: PROVIDED, THAT DEPENDENTS SHALL NOT BE CONSIDERED IN DETERMINING PER DIEM ALLOWANCES FOR MEMBERS IN A TRAVEL STATUS.

SUBPARAGRAPH 4301-3B (1), CHANGE 60, JULY 1, 1957, JOINT TRAVEL REGULATIONS, ISSUED PURSUANT TO THESE PROVISIONS OF THE STATUTE, PROVIDES THAT, WITH SPECIFIED EXCEPTIONS, STATION ALLOWANCES FOR SUBSISTENCE ARE PAYABLE TO A MEMBER WITHOUT DEPENDENTS FOR ANY DAY UPON WHICH A GOVERNMENT MESS (THREE MEALS A DAY) IS NOT AVAILABLE TO HIM AT HIS PERMANENT DUTY STATION OR WHEN THE MEMBER IS AUTHORIZED TO MESS SEPARATELY. SUBPARAGRAPH 4301-3B (2) PROVIDES THAT STATION ALLOWANCES FOR QUARTERS ARE PAYABLE TO A MEMBER WITHOUT DEPENDENTS FOR ANY DAY UPON WHICH GOVERNMENT QUARTERS ARE NOT AVAILABLE TO HIM. SUBPARAGRAPH 4301-3C (1) PROVIDES THAT, WITH SPECIFIED EXCEPTIONS, MEMBERS WITH DEPENDENTS ARE ENTITLED TO STATION ALLOWANCES FOR SUBSISTENCE AT RATES PRESCRIBED IN APPENDIX B, TABLE 2, NOTWITHSTANDING THE AVAILABILITY OF A GOVERNMENT MESS TO THE MEMBER AT HIS PERMANENT DUTY STATION. SUBPARAGRAPH 4301-3C (2) PROVIDES THAT STATION ALLOWANCES FOR QUARTERS ARE PAYABLE TO A MEMBER WITH DEPENDENTS AT ALL TIME EXCEPT WHEN GOVERNMENT QUARTERS ARE ASSIGNED TO, OR OCCUPIED JOINTLY BY, THE MEMBER AND HIS DEPENDENTS.

SUBSECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, 37 U.S.C. 231 (G), DEFINES THE TERM "DEPENDENT" AS INCLUDING AT ALL TIMES AND IN ALL PLACES THE LAWFUL WIFE OF ANY MEMBER OF THE UNIFORMED SERVICES, BUT PROVIDES THAT NO MEMBER CLAIMING A DEPENDENT AS DEFINED IN THAT SUBSECTION MAY BE PAID "INCREASED ALLOWANCES" ON ACCOUNT OF SUCH DEPENDENT FOR ANY PERIOD DURING WHICH SUCH DEPENDENT IS ENTITLED TO RECEIVE BASIC PAY UNDER THAT ACT, AS A MEMBER OF THE UNIFORMED SERVICES. THIS RESTRICTION APPLIES NOT ONLY TO THE BASIC ALLOWANCE FOR QUARTERS BUT ALSO TO STATION ALLOWANCES FOR SUBSISTENCE AND QUARTERS. IT FOLLOWS THAT WHILE A MEMBER WHOSE WIFE IS ALSO A MEMBER HAS A DEPENDENT, HE IS NOT ENTITLED TO RECEIVE INCREASED ALLOWANCES, INCLUDING STATION SUBSISTENCE AND QUARTERS ALLOWANCES, ON HER ACCOUNT FOR ANY PERIOD DURING WHICH SHE IS ENTITLED TO RECEIVE BASIC PAY AS A MEMBER OF THE UNIFORMED SERVICES. HENCE, SERGEANT CHARLES A. MEYERS, IN THE CIRCUMSTANCES ABOVE DESCRIBED, IS NOT ENTITLED TO RECEIVE A STATION QUARTERS ALLOWANCE OR A STATION SUBSISTENCE ALLOWANCE AS A MEMBER WITH DEPENDENTS ON ACCOUNT OF HIS WIFE DURING ANY PERIOD SHE IS ENTITLED TO RECEIVE BASIC PAY, IRRESPECTIVE OF WHETHER HE AND HIS MEMBER WIFE OCCUPIED A FAMILY RESIDENCE OFF THE BASE AT THEIR OWN EXPENSE OR WERE ASSIGNED FAMILY TYPE QUARTERS ON THE BASE. QUESTIONS 1 AND 2 ARE ANSWERED ACCORDINGLY.

LIEUTENANT RALPH N. HOFFMAN, IN THE CIRCUMSTANCES ABOVE DESCRIBED, IS ENTITLED TO A STATION ALLOWANCE FOR QUARTERS AT THE RATE PRESCRIBED FOR A MEMBER WITHOUT DEPENDENTS. QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE.

BOTH LIEUTENANT HOFFMAN AND HIS WIFE, AS OFFICERS, ARE ENTITLED TO A STATION ALLOWANCE FOR SUBSISTENCE AS MEMBERS WITHOUT DEPENDENTS. THE ANSWER WOULD BE THE SAME IRRESPECTIVE OF WHETHER THEY OCCUPIED A FAMILY RESIDENCE OFF THE BASE AT THEIR OWN EXPENSE OR WERE ASSIGNED FAMILY TYPE QUARTERS ON THE BASE. WHERE BOTH ENLISTED MEMBERS MARRIED TO EACH OTHER ARE AUTHORIZED TO LIVE OFF THE BASE IN FAMILY QUARTERS AND TO MESS SEPARATELY, EACH WOULD BE ENTITLED TO A STATION SUBSISTENCE ALLOWANCE AS A MEMBER WITHOUT DEPENDENTS. QUESTION 4 IS ANSWERED ACCORDINGLY.

QUESTION 5 IS ANSWERED BY SAYING THAT AS BOTH OFFICER MEMBERS AND ENLISTED MEMBERS IF SINGLE QUARTERS SHOULD NOT BE AVAILABLE FOR ASSIGNMENT TO THE FEMALE MEMBER, SHE WOULD BE ENTITLED TO A STATION QUARTERS ALLOWANCE AS A MEMBER WITHOUT DEPENDENTS.

WITH RESPECT TO YOUR QUESTION (6) AS TO WHETHER OUR DECISION WOULD BE DIFFERENT IF THE PERIOD INVOLVED WAS PRIOR TO JULY 1, 1957, YOU ARE ADVISED THAT THE QUESTION IS TOO GENERAL FOR AN AUTHORITATIVE DECISION. HENCE, IN THE ABSENCE OF A SPECIFIC CLAIM INVOLVING SUCH PRIOR PERIOD, WE WOULD NOT BE JUSTIFIED IN ATTEMPTING TO ANSWER THE QUESTION AS PRESENTED.

THE MILITARY PAY ORDERS SUBMITTED WITH YOUR REQUEST ARE RETURNED HEREWITH, PAYMENT THEREON BEING AUTHORIZED ONLY TO THE EXTENT SET FORTH IN THE ABOVE DECISION.