B-157559, SEPT. 23, 1965, 45 COMP. GEN. 163

B-157559: Sep 23, 1965

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800 RECEIVES $100 EACH MONTH FROM THE OFFICER WHILE AT THE UNIVERSITY AND $300 FOR EACH OF THE 3 REMAINING MONTHS OF THE YEAR IS NOT A DEPENDENT WITHIN THE MEANING OF 37 U.S.C. 401 TO ENTITLE THE OFFICER TO THE PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS AS FOR A DEPENDENT. DOES NOT HAVE A DEPENDENT. THE HUSBAND ACCEPTING A STIPEND IN ORDER TO ATTEND CLASSES FOR HIS FUTURE ADVANTAGE IS NOT INCAPABLE OF SELF-SUPPORT ON ACCOUNT OF MENTAL OR PHYSICAL INFIRMITY. 1965: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 23. TO WHOM SHE WAS MARRIED ON JUNE 12. IS A GRADUATE STUDENT AT JOHN CARROLL UNIVERSITY. THAT HIS LIVING EXPENSES ARE $300 A MONTH. IT IS PROVIDED IN 37 U.S.C. 401 THAT A PERSON IS NOT A DEPENDENT OF A FEMALE MEMBER OF A UNIFORMED SERVICE UNLESS HE IS IN FACT DEPENDENT ON HER FOR OVER ONE-HALF OF HIS SUPPORT.

B-157559, SEPT. 23, 1965, 45 COMP. GEN. 163

QUARTERS ALLOWANCE - DEPENDENTS - HUSBAND'S DEPENDENCY - ACTUAL DEPENDENCY REQUIREMENT THE HUSBAND OF AN OFFICER OF THE UNIFORMED SERVICES, A GRADUATE STUDENT AT A UNIVERSITY WHO IN ADDITION TO A 9-MONTH STIPEND OF $1,800 RECEIVES $100 EACH MONTH FROM THE OFFICER WHILE AT THE UNIVERSITY AND $300 FOR EACH OF THE 3 REMAINING MONTHS OF THE YEAR IS NOT A DEPENDENT WITHIN THE MEANING OF 37 U.S.C. 401 TO ENTITLE THE OFFICER TO THE PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS AS FOR A DEPENDENT, THE OFFICER NOT CONTRIBUTING OVER ONE-HALF OF THE SUPPORT OF HER HUSBAND, AS REQUIRED BY SECTION 401, DOES NOT HAVE A DEPENDENT, AND THE HUSBAND ACCEPTING A STIPEND IN ORDER TO ATTEND CLASSES FOR HIS FUTURE ADVANTAGE IS NOT INCAPABLE OF SELF-SUPPORT ON ACCOUNT OF MENTAL OR PHYSICAL INFIRMITY.

TO F. NORMAN HEARN, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, SEPTEMBER 23, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 23, 1965, PHS:FIN, FORWARDING, FOR DETERMINATION OF DEPENDENCY, APPLICATION FOR BASIC ALLOWANCE FOR QUARTERS PROVIDED FOR AN OFFICER WITH DEPENDENTS SIGNED BY S.A. SURGEON BARBARA R. SELIGMAN, SERIAL NUMBER 23320, CLAIMING AS A DEPENDENT, HER HUSBAND, JOSEPH P. STAUFFER.

THE OFFICER CERTIFIED THAT HER HUSBAND, TO WHOM SHE WAS MARRIED ON JUNE 12, 1965, IS A GRADUATE STUDENT AT JOHN CARROLL UNIVERSITY, CLEVELAND, OHIO, AND RECEIVES A 9-MONTH STIPEND OF $1,800; THAT HIS LIVING EXPENSES ARE $300 A MONTH; AND THAT SHE CONTRIBUTES $300 A MONTH FOR HIS SUPPORT FROM JUNE THROUGH AUGUST AND $100PER MONTH FROM SEPTEMBER THROUGH MAY.

IT IS PROVIDED IN 37 U.S.C. 401 THAT A PERSON IS NOT A DEPENDENT OF A FEMALE MEMBER OF A UNIFORMED SERVICE UNLESS HE IS IN FACT DEPENDENT ON HER FOR OVER ONE-HALF OF HIS SUPPORT. IN OUR DECISION, B-113093, OF FEBRUARY 16, 1953, 32 COMP. GEN. 364, INTERPRETING A SIMILAR PROVISION CONTAINED IN SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 804, 37 U.S.C. 231 (G) (1958 ED.), IT WAS HELD THAT TO BE REGARDED AS IN FACT DEPENDENT ON A FEMALE MEMBER A HUSBAND MUST, ON ACCOUNT OF PHYSICAL OR MENTAL INCAPACITY, OR FOR OTHER REASONS, BE INCAPABLE OF SELF-SUPPORT. IT IS NOT ALLEGED THAT THE OFFICER'S HUSBAND IS UNABLE TO SUPPORT HIMSELF ON ACCOUNT OFMENTAL OR PHYSICAL INFIRMITY. IT APPEARS THAT HE IS CAPABLE OF EARNING A LIVING AND THAT HE HAS ACCEPTED THE 9-MONTH STIPEND IN ORDER TO ATTEND CLASSES OF INSTRUCTION FOR HIS FUTURE ADVANTAGE. NO REASON IS GIVEN FOR HIS FAILURE TO OBTAIN EMPLOYMENT FOR HIS SUPPORT DURING THE MONTHS OF JUNE, JULY AND AUGUST. THEREFORE, ON THE PRESENT RECORD, WE MAY NOT CONCLUDE THAT THE OFFICER HAS A DEPENDENT HUSBAND WITHIN THE MEANING OF 37 U.S.C. 401.