B-164549, JULY 22, 1968, 48 COMP. GEN. 28

B-164549: Jul 22, 1968

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FROM WHICH HIS DEPENDENTS WERE NOT PRECLUDED BY . THE DIVORCE DECREE OF THE COURT HAVING JURISDICTION OF THE CHILDREN IS NOT THE "COMPETENT AUTHORITY" CONTEMPLATED BY 37 U.S.C. 403 (D) IN PROVIDING THAT A MEMBER ASSIGNED GOVERNMENT QUARTERS MAY NOT BE DENIED A BASIC ALLOWANCE FOR QUARTERS IF. BECAUSE BY ORDERS OF COMPETENT AUTHORITY HIS DEPENDENTS ARE PREVENTED FROM OCCUPYING THE ASSIGNED QUARTERS. 1968: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 18. YOU REPORT THAT COMMANDER BELL WAS DIVORCED FROM LIJEAN BELL ON JUNE 3. THAT HE WAS ASSIGNED GOVERNMENT QUARTERS. THAT BASIC ALLOWANCE FOR QUARTERS ON BEHALF OF HIS CHILDREN WAS STARTED SINCE THE "CHILDREN COULD NOT RESIDE WITH THE MEMBER DUE TO VALID COURT ORDER AND HE WAS REQUIRED TO CONTRIBUTE TO THEIR COMPLETE SUPPORT.'.

B-164549, JULY 22, 1968, 48 COMP. GEN. 28

QUARTERS ALLOWANCE - DEPENDENTS - QUARTERS OCCUPANCY PREVENTED BY "COMPETENT AUTHORITY" THE FACT THAT AN OFFICER OF THE UNIFORMED SERVICES SUPPORTS HIS CHILDREN RESIDING WITH HIS FORMER WIFE WHO HAD BEEN AWARDED THEIR CUSTODY IN THE DIVORCE DECREE DOES NOT ENTITLE HIM TO A BASIC ALLOWANCE FOR QUARTERS ON THEIR BEHALF, THE OFFICER HAVING REMARRIED AND HAVING BEEN ASSIGNED GOVERNMENT QUARTERS AT HIS OVERSEAS STATION, FROM WHICH HIS DEPENDENTS WERE NOT PRECLUDED BY ,COMPETENT ORDERS.' THE DIVORCE DECREE OF THE COURT HAVING JURISDICTION OF THE CHILDREN IS NOT THE "COMPETENT AUTHORITY" CONTEMPLATED BY 37 U.S.C. 403 (D) IN PROVIDING THAT A MEMBER ASSIGNED GOVERNMENT QUARTERS MAY NOT BE DENIED A BASIC ALLOWANCE FOR QUARTERS IF, BECAUSE BY ORDERS OF COMPETENT AUTHORITY HIS DEPENDENTS ARE PREVENTED FROM OCCUPYING THE ASSIGNED QUARTERS.

TO LIEUTENANT W. J. SHEEHAN, DEPARTMENT OF THE NAVY, JULY 22, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 18, 1968, FORWARDED HERE BY FIRST ENDORSEMENT DATED JUNE 7, 1968, OF THE COMPTROLLER OF THE NAVY, REQUESTING THAT A DETERMINATION BE MADE AS TO THE ENTITLEMENT OF COMMANDER BILL J. BELL, 582246, USN, TO BASIC ALLOWANCE FOR QUARTERS ON BEHALF OF DEPENDENT CHILDREN RESIDING WITH HIS FORMER WIFE. YOUR REQUEST HAS BEEN ASSIGNED SUBMISSION NO. DO-N 1001 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU REPORT THAT COMMANDER BELL WAS DIVORCED FROM LIJEAN BELL ON JUNE 3, 1964; THAT THE DIVORCE DECREE AWARDED THE CHILDREN TO THE MOTHER AND REQUIRED HIM TO CONTRIBUTE TO THEIR SUPPORT IN THE AMOUNT OF $350 PER MONTH; AND THAT HIS CURRENT PAY RECORD SHOWS A DEPENDENCY ALLOTMENT OF $175 PAYABLE TO THE CLERK OF THE COURT OF ESCAMBIA COUNTY, FLORIDA, FOR THE USE OF MRS. ROBERT B. WATERS (FORMER LIJEAN BELL). YOU FURTHER STATE THAT COMMANDER BELL HAS REMARRIED; THAT ON FEBRUARY 25, 1964, HE REPORTED TO THE OFFICE OF THE NAVAL ATTACHE, MONROVIA, LIBERIA, FOR DUTY; THAT HE WAS ASSIGNED GOVERNMENT QUARTERS; AND THAT BASIC ALLOWANCE FOR QUARTERS ON BEHALF OF HIS CHILDREN WAS STARTED SINCE THE "CHILDREN COULD NOT RESIDE WITH THE MEMBER DUE TO VALID COURT ORDER AND HE WAS REQUIRED TO CONTRIBUTE TO THEIR COMPLETE SUPPORT.'

BY LETTER DATED NOVEMBER 14, 1967, FROM THE COMPTROLLER OF THE NAVY, YOU WERE ADVISED THAT COMMANDER BELL WAS NOT ENTITLED TO BASIC ALLOWANCE FOR QUARTERS WHILE ASSIGNED ADEQUATE GOVERNMENT QUARTERS AND HIS DEPENDENTS WERE NOT PREVENTED FROM OCCUPYING SUCH QUARTERS BY COMPETENT (MILITARY) AUTHORITY. YOU SAY THAT HIS CASE CONCERNS DEPENDENTS WHO WERE PREVENTED BY "COMPETENT AUTHORITY"--- YOU APPEAR TO VIEW THE DIVORCE DECREE OF A COURT HAVING JURISDICTION OF HIS CHILDREN AS CONSTITUTING SUCH AUTHORITY-- - FROM OCCUPYING ASSIGNED GOVERNMENT QUARTERS.

IT IS PROVIDED IN 37 U.S.C. 403 (B) THAT, EXCEPT AS OTHERWISE PROVIDED BY LAW, A MEMBER OF A UNIFORMED SERVICE WHO IS ASSIGNED TO QUARTERS OF THE UNITED STATES OR A HOUSING FACILITY UNDER THE JURISDICTION OF A UNIFORMED SERVICE, APPROPRIATE TO HIS GRADE, RANK, OR RATING AND ADEQUATE FOR HIMSELF, AND HIS DEPENDENTS, IF WITH DEPENDENTS, IS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS. HOWEVER, SUBSECTION (D) PROVIDES THAT A MEMBER ASSIGNED GOVERNMENT QUARTERS MAY NOT BE DENIED THE BASIC ALLOWANCES FOR QUARTERS IF, BECAUSE OF ORDERS OF COMPETENT AUTHORITY, HIS DEPENDENTS ARE PREVENTED FROM OCCUPYING THOSE QUARTERS.

IT HAS LONG BEEN ESTABLISHED THAT QUARTERS AND RENTAL ALLOWANCES ARE PAYABLE TO A MEMBER OF A MILITARY SERVICE AS REASONABLE COMMUTATION IN MONEY WHEN HE IS NOT FURNISHED PUBLIC QUARTERS AND HE MUST PROVIDE HIS OWN. ALSO, IT HAS BEEN THE POLICY OF THE UNIFORMED SERVICES TO PRESERVE FAMILY UNITS TO THE EXTENT THAT EXIGENCIES OF THE SERVICE WILL ALLOW. THUS, WITHIN CERTAIN LIMITATIONS, THE LAW AUTHORIZES TRANSPORTATION OF AN OFFICER'S DEPENDENTS TO HIS STATION TO RESIDE WITH HIM. ALSO, THE LAW PERMITS PAYMENT OF BASIC ALLOWANCE FOR QUARTERS WHERE, BECAUSE OF THE MEMBER'S MILITARY ASSIGNMENT, ADEQUATE QUARTERS ARE NOT AVAILABLE OR HE IS NOT PERMITTED TO HAVE HIS DEPENDENTS AT HIS PERMANENT POST OF DUTY, EVEN THOUGH HE IS ASSIGNED QUARTERS FOR HIMSELF.

COMMANDER BELL'S CHILDREN WERE NOT PREVENTED BY COMPETENT MILITARY AUTHORITY OR THE NATURE OF HIS MILITARY ASSIGNMENT FROM OCCUPYING ADEQUATE QUARTERS ASSIGNED HIM. RATHER, THEY DID NOT LIVE WITH HIM (REGARDLESS OF HIS PLACE OF MILITARY ASSIGNMENT) BECAUSE OF THE COURT ORDER AWARDING CUSTODY TO THEIR MOTHER. SINCE HIS CHILDREN DID NOT RESIDE WITH HIM FOR REASONS WHICH HAD NOTHING TO DO WITH HIS MILITARY ASSIGNMENT OR AN ORDER ISSUED BY COMPETENT MILITARY AUTHORITY, HIS SITUATION DOES NOT COME WITHIN THE PURVIEW OF 37 U.S.C. 403 (D).

ACCORDINGLY, IT IS CONCLUDED THAT HE WAS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS IN THE CIRCUMSTANCES DESCRIBED AND APPROPRIATE ACTION SHOULD BE TAKEN TO COLLECT THE AMOUNTS OF SUCH ALLOWANCE ERRONEOUSLY CREDITED TO HIS ACCOUNT.