B-152990, DEC. 23, 1963

B-152990: Dec 23, 1963

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THIS REQUEST WAS FORWARDED UNDER D.O. THERE WAS SUBMITTED WITH YOUR LETTER A DA FORM 2139. IN WHICH SHE CERTIFIED THAT HER HUSBAND'S MONTHLY LIVING EXPENSES ARE $250. IS ATTACHED TO THE DD FORM 137. IT IS CERTIFIED THEREON UNDER DATE OF AUGUST 20. THAT HE WAS LAST EXAMINED ON JUNE 26. THAT THE DIAGNOSIS OF HIS PHYSICAL CONDITION IS: 1. THE DOCTOR STATES FURTHER THAT IT IS HIS BELIEF THAT MR. DERUM IS "PHYSICALLY INCAPABLE OF DOING HIS WORK SO HE IS CONSIDERED A DEPENDENT OF HIS WIFE. IT IS PROVIDED IN 37 U.S.C. 401 THAT A PERSON IS NOT A DEPENDENT OF A FEMALE MEMBER UNLESS HE IS IN FACT DEPENDENT ON HER FOR OVER HALF OF HIS SUPPORT. DEPENDENT UPON HIS WIFE IN THE MILITARY SERVICE ONLY IF HE IS INCAPABLE OF SUPPORT BY REASON OF A PHYSICAL OR MENTAL INCAPACITY OR FOR OTHER REASON.

B-152990, DEC. 23, 1963

MAJOR E. P. SILVA:

BY SECOND INDORSEMENT DATED NOVEMBER 29, 1963, THE FINANCIAL POLICIES DIVISION, OFFICE, CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER DATED OCTOBER 18, 1963, REQUESTING AN ADVANCE DECISION CONCERNING THE PROPRIETY OF PAYMENT TO MAJOR FRANCES G. DERUM OF BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT HUSBAND FOR THE PERIOD AUGUST 18 TO SEPTEMBER 1, 1963. THIS REQUEST WAS FORWARDED UNDER D.O. NO. DOA-735 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THERE WAS SUBMITTED WITH YOUR LETTER A DA FORM 2139, MILITARY PAY VOUCHER OF MAJOR DERUM, SUPPORTED BY THE OFFICER'S DEPENDENCY CERTIFICATE DD FORM 137, DATED AUGUST 22, 1963, IN WHICH SHE CERTIFIED THAT HER HUSBAND'S MONTHLY LIVING EXPENSES ARE $250; THAT HE HAS NO INCOME FROM OTHER SOURCES; AND THAT SHE CONTRIBUTES 100 PERCENT OF HIS SUPPORT AND HAS DONE SO SINCE JUNE 1, 1962, DUE TO A PHYSICAL DISABILITY THAT INCAPACITATES HIM FOR WORK OF ANY KIND. A SUBSTANTIATING CERTIFICATE FROM HIS PHYSICIAN, AS REQUIRED BY PARAGRAPH 5-124, AR 37-104, IS ATTACHED TO THE DD FORM 137. IT IS CERTIFIED THEREON UNDER DATE OF AUGUST 20, 1963, THAT JOE W. DERUM HAS BEEN UNDER TREATMENT IN THE DOCTOR'S OFFICE SINCE FEBRUARY 27, 1962; THAT HE WAS LAST EXAMINED ON JUNE 26, AND CONTINUES UNDER TREATMENT; THAT HE LAST WORKED JUNE 1,1962; AND THAT THE DIAGNOSIS OF HIS PHYSICAL CONDITION IS: 1. ARTERIOSCLEROTIC HEART DISEASE WITH INCOMPLETE RIGHT BUNDLE BRANCH BLOCK; OLD POSTERIOR INFRACTION; 2. PULMONARY EMPHYSEMA, MODERATELY SEVERE; 3. CHRONIC CHOLECYSTITIS. THE DOCTOR STATES FURTHER THAT IT IS HIS BELIEF THAT MR. DERUM IS "PHYSICALLY INCAPABLE OF DOING HIS WORK SO HE IS CONSIDERED A DEPENDENT OF HIS WIFE, FRANCES G. DERUM.'

IT IS PROVIDED IN 37 U.S.C. 401 THAT A PERSON IS NOT A DEPENDENT OF A FEMALE MEMBER UNLESS HE IS IN FACT DEPENDENT ON HER FOR OVER HALF OF HIS SUPPORT. IN INTERPRETING THE SIMILAR PROVISION CONTAINED IN SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 804, WE CONCLUDED IN DECISION OF FEBRUARY 16, 1953, 32 COMP. GEN. 364, THAT A HUSBAND MAY BE REGARDED AS, IN FACT, DEPENDENT UPON HIS WIFE IN THE MILITARY SERVICE ONLY IF HE IS INCAPABLE OF SUPPORT BY REASON OF A PHYSICAL OR MENTAL INCAPACITY OR FOR OTHER REASON. IN THE PRESENT CASE IT IS INDICATED THAT THE HUSBAND IS RECEIVING MEDICAL TREATMENT IN THE OFFICE OF HIS PHYSICIAN AT INTERVALS, AND THAT IT IS HIS DOCTOR'S OPINION THAT HE IS PHYSICALLY UNABLE TO WORK.

WHILE THE DISABLING EXTENT OF EACH OF MR. DERUM'S AILMENTS IS NOT SHOWN, THEY APPEAR TO BE OF A NATURE WHICH COULD MAKE HIM INCAPABLE OF SUPPORTING HIMSELF AND, IN VIEW OF THE SUBMITTED MEDICAL CERTIFICATE INDICATING THAT HE HAS NOT WORKED FOR OVER A YEAR AND IS PHYSICALLY INCAPABLE OF WORKING FOR A LIVING, THE OFFICER MAY BE CONSIDERED AS HAVING A DEPENDENT HUSBAND WITHIN THE MEANING OF THE APPLICABLE STATUTE, AND PAYMENT OF AN INCREASED BASIC ALLOWANCE FOR QUARTERS AS AN OFFICER WITH A DEPENDENT HUSBAND MAY BE MADE TO MAJOR DERUM FOR THE PERIOD INVOLVED.

ACCORDINGLY, PAYMENT OF THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE MADE IF OTHERWISE PROPER.