B-148561, APR. 6, 1964

B-148561, APR. 6, 1964

TO CAPTAIN W. D. GUTWEILER, USAF, ACCOUNTING AND FINANCE OFFICER, HEADQUARTERS, UNITED STATES AIR FORCE:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 20, 1964, AND ENCLOSURES, REQUESTING AN ADVANCE DECISION CONCERNING THE PROPRIETY OF PAYMENT TO MAJOR MARGARET Y. SIEGEL, AN-764814, OF QUARTERS ALLOWANCE BECAUSE OF A DEPENDENT HUSBAND FROM JUNE 1, 1963. YOUR ORIGINAL REQUEST FOR A DECISION ON THIS MATTER DATED FEBRUARY 12, 1962, WAS ASSIGNED AIR FORCE REQUEST NO. 641 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN OUR DECISION OF APRIL 20, 1962, B-148561, CONCERNING MAJOR SIEGEL'S CLAIM FOR INCREASED BASIC ALLOWANCE FOR QUARTERS FROM JANUARY 1, 1961, IT WAS CONCLUDED THAT PAYMENT WAS NOT AUTHORIZED, SINCE THE EVIDENCE SUBMITTED DID NOT WARRANT THE CONCLUSION THAT HER HUSBAND WAS INCAPABLE OF SELF-SUPPORT AND THUS WAS HER DEPENDENT WITHIN THE MEANING OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 804, 37 U.S.C. 231 (G) (1958 ED.).

SECTION 403, 37 U.S.C. (ENACTED INTO LAW BY PUB.L. 87-649, SEPTEMBER 7, 1962, 76 STAT. 470), AUTHORIZES THE PAYMENT OF INCREASED BASIC ALLOWANCE FOR QUARTERS TO MEMBERS OF THE UNIFORMED SERVICES ON ACCOUNT OF DEPENDENTS. A MEMBER'S "DEPENDENT" IS DEFINED IN SECTION 401 AS "HIS SPOUSE" IF, IN THE CASE OF A FEMALE MEMBER,"HE IS IN FACT DEPENDENT ON HER FOR OVER ONE-HALF OF HIS SUPPORT.' SUCH STATUTORY PROVISIONS DO NOT DIFFER MATERIALLY FROM THOSE CONTAINED IN THE 1949 ACT ON WHICH THE DECISION OF APRIL 20, 1962, WAS BASED.

WITH YOUR CURRENT REQUEST THERE WAS SUBMITTED A STATEMENT DATED JUNE 7, 1963, BY DR. ROBERT H. SYKES, THAT JOHN A. SIEGEL, THE OFFICER'S HUSBAND, WAS EXAMINED BY HIM ON JUNE 5, 1963. DR. SYKES REPORTS THE MEDICAL SYMPTOMS INVOLVED IN MR. SIEGEL'S CASE AS FOLLOWS: EXTREME MALNUTRITION, ASSOCIATED WITH PRIMARY AND HYPOCHROMIC ANEMIA; EPILEPSY, GRAND MAL TYPE, NOT COMPLETELY CONTROLLED BY THE ACCEPTED BEST THERAPEUTIC DRUGS FOR THIS DISEASE, DILANTIN AND PHENOBARBITAL, EVEN THOUGH GIVEN IN OPTIMUM DOSES; AND THAT THE PSYCHIATRIC REACTION TO HIS CONDITION IS SUCH THAT MR. SIEGEL IS NOW IN A STATE OF MANIC INVOLUTIONAL TYPE OF DEPRESSION AND UNABLE TO ENGAGE IN ANY USEFUL OR GAINFUL EMPLOYMENT. A STATEMENT DATED AUGUST 1, 1963, IS TO THE EFFECT THAT THE PATIENT HAS NOT BEEN SEEN IN SEIZURES BY THE PHYSICIAN AND THAT THE OFFICER HAS REPORTED TO HIM THE CONDITION OF HER HUSBAND. MAJOR SIEGEL STATES THAT THE FREQUENCY OF HER HUSBAND'S SEIZURES IS VARIABLE, INTERVALS OF OCCURRENCE BEING FROM 3 TIMES DAILY TO AS LONG AS 3 WEEKS. MR. SIEGEL AFFIRMS THAT HE DOES NOT RECEIVE A VETERANS ADMINISTRATION PENSION AND THAT HE HAS HAD NO INCOME, SALARY OR GAINFUL EMPLOYMENT SINCE 1956 WHEN HE WAS FIRST TREATED FOR EPILEPSY.

IT HAS LONG BEEN HELD THAT TO BE REGARDED AS IN FACT DEPENDENT ON HIS WIFE IN THE SERVICE, A HUSBAND MUST ON ACCOUNT OF PHYSICAL OR MENTAL INCAPACITY OR FOR OTHER REASON, BE INCAPABLE OF SELF-SUPPORT. SEE 32 COMP. GEN. 364 AND 34 COMP. GEN. 21.

ON SEPTEMBER 26, 1956, CONSIDERATION WAS GIVEN BY THE VETERANS ADMINISTRATION TO MR. SIEGEL'S CLAIM FOR A PENSION BASED ON A DISABILITY. IN ORDER TO BE ENTITLED TO SUCH PENSION IT WAS REQUIRED THAT THE DISABILITY BE "SUFFICIENT TO RENDER IT IMPOSSIBLE FOR THE AVERAGE PERSON TO FOLLOW A SUBSTANTIALLY GAINFUL OCCUPATION.' AT THAT TIME THE VETERAN GAVE AS A HISTORY OF HIS DISEASE (EPILEPSY) THAT WITHIN THE PAST YEAR HE HAD AVERAGED ONE SEIZURE PER MONTH. HOWEVER, IT IS REPORTED THAT DURING A PERIOD OF HOSPITALIZATION OF 67 DAYS THE VETERAN DID NOT SUFFER ANY TYPE OF SEIZURE. BASED UPON ALL THE EVIDENCE OF RECORD IT WAS DETERMINED THAT HE WAS NOT ENTITLED TO PENSION BENEFITS BY THE VETERANS ADMINISTRATION.

ON MARCH 17, 1958, THE VETERAN'S CLAIM WAS AGAIN DISALLOWED BY THE VETERANS ADMINISTRATION. CLINICAL RECORDS RECEIVED MARCH 6, 1958, DISCLOSED THAT THE VETERAN WAS TREATED DURING HIS SERVICE FOR NERVOUSNESS AND EXCESSIVE CONSUMPTION OF ALCOHOL. HOWEVER, NO EVIDENCE WAS FOUND OF AN ACQUIRED NEUROPSYCHIATRIC DISABILITY OR ANY CONDITION RELATED TO EPILEPSY. ON JULY 21, 1961, THE CLAIM WAS AGAIN DISALLOWED ON THE GROUND THAT HIS UNEMPLOYABILITY DUE TO AGE AND DISABILITIES WAS NOT ESTABLISHED. THE RECORD SHOWS THAT THE VETERAN'S CLAIM, NO. 07086560, HAS RECENTLY BEEN REOPENED AT HIS REQUEST FOR THE PURPOSE OF FURNISHING ADDITIONAL EVIDENCE TO THE VETERANS ADMINISTRATION. NONE HAS YET BEEN RECEIVED.

IT IS UNDERSTOOD THAT MR. SIEGEL WAS A PATIENT IN A VETERANS ADMINISTRATION FACILITY FROM AUGUST 20, 1963, TO OCTOBER 26, 1963, AND THAT HE DID NOT THEN COMPLAIN OF THE CONDITIONS TO WHICH DR. SYKES REFERS. HE WAS TREATED FOR A CHEST AILMENT AND HERNIA.

IN THE CIRCUMSTANCES, WE MAY NOT ACCEPT DR. SYKES STATEMENT THAT MR. SIEGEL IS UNABLE TO ENGAGE IN ANY GAINFUL EMPLOYMENT. HENCE, THE EVIDENCE NOW AVAILABLE DOES NOT DEFINITELY ESTABLISH HIS DEPENDENCY WITHIN THE MEANING OF 37 U.S.C. 401, AND YOU ARE NOT AUTHORIZED TO CREDIT MAJOR SIEGEL WITH QUARTERS ALLOWANCE BECAUSE OF A DEPENDENT HUSBAND FOR THE ADDITIONAL PERIOD CLAIMED. THE OFFICER'S APPLICATION FOR THE ALLOWANCE AND OTHER PAPERS SUBMITTED WITH YOUR LETTER WILL BE ..END :