B-163155, FEBRUARY 16, 1968, 47 COMP. GEN. 467

B-163155: Feb 16, 1968

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QUARTERS ALLOWANCE - DEPENDENTS - MEMBER OF ARMED SERVICES - EXCESS LEAVE PERIOD AN ARMY CAPTAIN WHOSE WIFE IS AUTHORIZED EXCESS LEAVE WITHOUT PAY AND ALLOWANCES FOR THE PERIOD BETWEEN BEING COMMISSIONED AND REPORTING TO HER NEW DUTY STATION. DURING WHICH TIME SHE IS NEITHER FURNISHED NOR OCCUPIES QUARTERS IN KIND. MAY BE PAID AN INCREASED QUARTERS ALLOWANCE UNDER 37 U.S.C. 403 ON BEHALF OF HIS WIFE FOR THE PERIOD SHE WAS IN THE EXCESS LEAVE STATUS. THE LIMITATION IN 37 U.S.C. 420 THAT A MEMBER MAY NOT BE PAID INCREASED ALLOWANCES ON ACCOUNT OF A DEPENDENT FOR ANY PERIOD DURING WHICH THAT DEPENDENT IS ENTITLED TO BASIC PAY DOES NOT BAR PAYMENT OF ALL THE BENEFITS INCIDENT TO THE CAPTAIN'S RANK THAT IS AUTHORIZED BY SECTION 403 FOR A MEMBER WITH A DEPENDENT.

B-163155, FEBRUARY 16, 1968, 47 COMP. GEN. 467

QUARTERS ALLOWANCE - DEPENDENTS - MEMBER OF ARMED SERVICES - EXCESS LEAVE PERIOD AN ARMY CAPTAIN WHOSE WIFE IS AUTHORIZED EXCESS LEAVE WITHOUT PAY AND ALLOWANCES FOR THE PERIOD BETWEEN BEING COMMISSIONED AND REPORTING TO HER NEW DUTY STATION, DURING WHICH TIME SHE IS NEITHER FURNISHED NOR OCCUPIES QUARTERS IN KIND, MAY BE PAID AN INCREASED QUARTERS ALLOWANCE UNDER 37 U.S.C. 403 ON BEHALF OF HIS WIFE FOR THE PERIOD SHE WAS IN THE EXCESS LEAVE STATUS. THE LIMITATION IN 37 U.S.C. 420 THAT A MEMBER MAY NOT BE PAID INCREASED ALLOWANCES ON ACCOUNT OF A DEPENDENT FOR ANY PERIOD DURING WHICH THAT DEPENDENT IS ENTITLED TO BASIC PAY DOES NOT BAR PAYMENT OF ALL THE BENEFITS INCIDENT TO THE CAPTAIN'S RANK THAT IS AUTHORIZED BY SECTION 403 FOR A MEMBER WITH A DEPENDENT. THE MERE EXISTENCE OF THE WIFE'S ACTIVE DUTY STATUS IN ITSELF IS NOT DETERMINATIVE OF THE CAPTAIN'S ENTITLEMENT TO AN INCREASE IN QUARTERS ALLOWANCE.

TO LIEUTENANT COLONEL C. V. TOULME, DEPARTMENT OF THE ARMY, FEBRUARY 16, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 20, 1967 (AVDB FO), WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER SUBMITTED THEREWITH, STATED IN FAVOR OF CAPTAIN HERBERT G. VAUGHAN, OF 101 756, COVERING PAYMENT OF INCREASED BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD JUNE 3, 1967, THROUGH SEPTEMBER 24, 1967, ON ACCOUNT OF HIS SPOUSE, SECOND LIEUTENANT MARY C. VAUGHAN, N 5 422 216, ARMY NURSE CORPS. YOUR REQUEST FOR DECISION HAS BEEN FORWARDED HERE BY ENDORSEMENT OF THE COMPTROLLER OF THE ARMY DATED DECEMBER 20, 1967, AND HAS BEEN ASSIGNED D.O. NUMBER A-978 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT LIEUTENANT VAUGHAN, WHO MARRIED THE SERVICE MEMBER IN 1965, ATTENDED BAYLOR UNIVERSITY SCHOOL OF NURSING UNDER THE ARMY STUDENT NURSE PROGRAM, WAS COMMISSIONED A SECOND LIEUTENANT IN THE ARMY NURSE CORPS, AND GRADUATED FROM THE UNIVERSITY ON MAY 26, 1967. IT IS REPORTED THAT SHE WAS AUTHORIZED EXCESS LEAVE WITHOUT PAY DURING THE PERIOD INVOLVED PRIOR TO REPORTING TO HER NEW DUTY STATION AT FORT SAM HOUSTON, TEXAS, AND THAT SHE WAS NEITHER FURNISHED NOR OCCUPIED QUARTERS IN KIND DURING THAT INTERVAL. CAPTAIN VAUGHAN WAS STATIONED OVERSEAS.

CITED AS BEING APPLICABLE IN THIS MATTER IS PARAGRAPH 30224A (2) OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENT MANUAL, EFFECTIVE JANUARY 1, 1967, WHICH STATES:

"A MEMBER IS NOT ENTITLED TO BAQ ON BEHALF OF A SPOUSE WHO IS ON ACTIVE DUTY IN THE ARMED FORCES OF THE UNITED STATES.'

IN A LETTER FROM THE FIELD SERVICE OFFICE, U.S. ARMY FINANCE CENTER, DATED JUNE 26, 1967, IT IS STATED THAT "MARY C. VAUGHAN IS CONSIDERED AS BEING ON ACTIVE DUTY IN THE ARMY, ALTHOUGH IN AN EXCESS LEAVE STATUS WITHOUT PAY AND ALLOWANCES.'

AUTHORITY FOR PAYMENT OF BASIC ALLOWANCE FOR QUARTERS IS CONTAINED IN 37 U.S. CODE, CHAPTER 7, SECTION 403. SUBSECTION 403 (A) PROVIDES THAT:

"EXCEPT AS OTHERWISE PROVIDED BY THIS SECTION OR BY ANOTHER LAW, A MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS * *

SECTION 401 DEFINES THE TERM "DEPENDENT" AS USED IN CHAPTER 7, AS INCLUDING "HIS SPOUSE.' HOWEVER, IN CASES WHERE BOTH HUSBAND AND WIFE ARE MEMBERS OF THE UNIFORMED SERVICE, SECTION 420 PLACES A LIMITATION ON THE INCLUSION OF THE WIFE AS A DEPENDENT FOR THE PURPOSES OF RECEIVING AN INCREASED QUARTERS ALLOWANCE. THAT SECTION PROVIDES:

"A MEMBER OF A UNIFORMED SERVICE MAY NOT BE PAID AN INCREASED ALLOWANCE UNDER THIS CHAPTER (CHAPTER 7, TITLE 37, U.S. CODE), ON ACCOUNT OF A DEPENDENT, FOR ANY PERIOD DURING WHICH THAT DEPENDENT IS ENTITLED TO BASIC PAY UNDER SECTION 204 OF THIS TITLE.'

WITH RESPECT TO THE DENIAL OF BASIC ALLOWANCE FOR QUARTERS ON THE GROUND THAT THE SERVICE MEMBER'S WIFE WAS ON ACTIVE DUTY DURING THE PERIOD IN QUESTION, IT SHOULD BE NOTED THAT THE REGULATIONS QUOTED ABOVE WERE SUPERSEDED BY CHANGE 2, JUNE 23, 1967. NOTHING HAS BEEN FOUND IN THE SUPERSEDING REGULATIONS, HOWEVER, WHICH PURPORTS TO COVER A SITUATION SUCH AS IS HERE INVOLVED. WHILE IT IS TRUE THAT UNDER THE PROVISIONS OF 37 U.S.C. 204, MEMBERS CANNOT RECEIVE BASIC PAY UNLESS THEY ARE IN AN ACTIVE DUTY STATUS AS DEFINED IN 37 U.S.C. 101 (18), IT SEEMS EVIDENT THAT A SERVICE MEMBER BY VIRTUE OF CERTAIN LEAVE LAW PROVISIONS, 37 U.S.C. 502 (B), MAY BE IN AN EXCESS LEAVE ACTIVE DUTY STATUS AND NOT BE ENTITLED TO BASIC PAY, AS IN LIEUTENANT VAUGHAN'S SITUATION.

THUS, IT APPEARS THAT BY THE SPECIFIC LANGUAGE OF SECTIONS 403 AND 420 THE MERE EXISTENCE OF AN ACTIVE DUTY STATUS WOULD NOT IN ITSELF BE DETERMINATIVE OF ENTITLEMENT IN THIS CASE. SINCE THE SERVICE MEMBER'S WIFE WAS IN AN EXCESS LEAVE STATUS AND WAS NOT ENTITLED TO BASIC PAY OR ALLOWANCES IN HER OWN RIGHT DURING THE PERIOD IN QUESTION, SECTION 420 PROVIDES NO BAR TO THE PAYMENT TO CAPTAIN VAUGHAN OF ALL THE BENEFITS INCIDENT TO HIS RANK AUTHORIZED BY SECTION 403 FOR A MEMBER WITH A DEPENDENT.

ACCORDINGLY, PAYMENT ON THE VOUCHER, HEREWITH RETURNED, IS AUTHORIZED IF OTHERWISE CORRECT.