B-177049(1), FEB 13, 1973, 52 COMP GEN 510

B-177049(1): Feb 13, 1973

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MAY NOT BE AUTHORIZED IN THE ABSENCE OF A COMMANDING OFFICER'S CERTIFICATION THAT GOVERNMENT QUARTERS ARE UNAVAILABLE OR INADEQUATE. WHICH IS FOR APPLICATION NOTWITHSTANDING THE CIVIL RIGHTS ACT OF 1964. RESTS WITH THE MALE MEMBER AND THE FEMALE MEMBER HAS NO ENTITLEMENT TO THE ALLOWANCE UNLESS SINGLE QUARTERS ARE NOT AVAILABLE TO HER. DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL (DODPM) WHICH PROVIDE THAT WHERE A SERVICE MEMBER IS MARRIED TO ANOTHER MEMBER THE MALE MEMBER IS ALLOWED TO RESIDE OFF-BASE AND DRAW BAQ AS A MEMBER WITHOUT DEPENDENTS. HIS WIFE IN PAY GRADE O-3 AND BELOW IS ENTITLED TO SUCH ALLOWANCE ONLY IF BACHELOR QUARTERS ARE NOT AVAILABLE OR ARE NOT CONSIDERED ADEQUATE BY THE INSTALLATION COMMANDER.

B-177049(1), FEB 13, 1973, 52 COMP GEN 510

QUARTERS ALLOWANCE - GOVERNMENT QUARTERS - NONOCCUPANCY - PERSONAL CONVENIENCE THE PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS (BAQ) UNDER 37 U.S.C. 403(A) TO A FEMALE AIR FORCE CAPTAIN, PAY GRADE O-3, AS AN OFFICER WITHOUT DEPENDENTS, WHO RESIDES IN NON-GOVERNMENT QUARTERS WITH HER OFFICER HUSBAND AND HIS TWO DEPENDENT CHILDREN BY A PRIOR MARRIAGE, MAY NOT BE AUTHORIZED IN THE ABSENCE OF A COMMANDING OFFICER'S CERTIFICATION THAT GOVERNMENT QUARTERS ARE UNAVAILABLE OR INADEQUATE, THE ADEQUACY OF THE QUARTERS TO BE DETERMINED ON THEIR FITNESS FOR USE AS BACHELOR QUARTERS WITHOUT REGARD TO THEIR SUITABILITY FOR A MARRIED WOMAN WHO DESIRES TO RESIDE WITH HER HUSBAND SINCE PURSUANT TO DEPARTMENT OF DEFENSE INSTRUCTIONS 1338.1, WHICH IS FOR APPLICATION NOTWITHSTANDING THE CIVIL RIGHTS ACT OF 1964, THE ELIGIBILITY OF MARRIED MEMBERS FOR BAQ, WITHOUT DEPENDENTS, RESTS WITH THE MALE MEMBER AND THE FEMALE MEMBER HAS NO ENTITLEMENT TO THE ALLOWANCE UNLESS SINGLE QUARTERS ARE NOT AVAILABLE TO HER.

TO CAPTAIN GERALD A. REASOR, DEPARTMENT OF THE AIR FORCE, FEBRUARY 13, 1973:

WE REFER FURTHER TO YOUR LETTER DATED AUGUST 29, 1972, WITH ATTACHMENTS, FILE REFERENCE 1840 ACF (CAPT. REASOR/3107), FORWARDED HERE BY LETTER OF SEPTEMBER 22, 1972, OF HEADQUARTERS, UNITED STATES AIR FORCE (DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE NUMBER DO-AF-1174), IN WHICH YOU REQUEST AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF BASIC ALLOWANCE FOR QUARTERS (BAQ) TO CAPTAIN BETTY M. CALLICOTTE, USAF, EFFECTIVE AUGUST 21, 1972.

CAPTAIN CALLICOTTE APPARENTLY RESIDES IN NON-GOVERNMENT QUARTERS WITH HER HUSBAND, A MAJOR IN THE AIR FORCE, WHO HAS TWO DEPENDENT CHILDREN BY A PRIOR MARRIAGE. SHE HAS NO CHILDREN OR OTHER DEPENDENTS.

ON AUGUST 21, 1972, CAPTAIN CALLICOTTE (PAY GRADE O-3) MADE APPLICATION FOR BAQ AS AN OFFICER WITHOUT DEPENDENTS. SHE PROTESTS THE CRITERIA OUTLINED IN TABLE 3-2-4, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL (DODPM) WHICH PROVIDE THAT WHERE A SERVICE MEMBER IS MARRIED TO ANOTHER MEMBER THE MALE MEMBER IS ALLOWED TO RESIDE OFF-BASE AND DRAW BAQ AS A MEMBER WITHOUT DEPENDENTS, BUT HIS WIFE IN PAY GRADE O-3 AND BELOW IS ENTITLED TO SUCH ALLOWANCE ONLY IF BACHELOR QUARTERS ARE NOT AVAILABLE OR ARE NOT CONSIDERED ADEQUATE BY THE INSTALLATION COMMANDER. FURTHER, THE OFFICER QUESTIONS HOW BACHELOR QUARTERS MAY BE CONSIDERED TO BE ADEQUATE FACILITIES FOR A MARRIED WOMAN WHO HAS THE RIGHT TO ESTABLISH A JOINT RESIDENCE WITH HER HUSBAND AND WHO DESIRES TO DO SO. SHE CONSIDERS THAT THE CURRENT CRITERIA DISCRIMINATE AGAINST FEMALE MEMBERS.

SUBSECTION 403(A) OF TITLE 37, U.S. CODE, PROVIDES THAT EXCEPT AS OTHERWISE PROVIDED IN SECTION 403 OR ANOTHER LAW, A MEMBER OF A UNIFORMED SERVICE ENTITLED TO BASIC PAY IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS. SUBSECTION (B) PROVIDES THAT EXCEPT AS OTHERWISE PROVIDED BY LAW, A MEMBER 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, EXCEPT AS PROVIDED BY REGULATIONS PRESCRIBED UNDER SUBSECTION 403(G) A COMMISSIONED OFFICER WITHOUT DEPENDENTS WHO IS IN A PAY GRADE ABOVE PAY GRADE O-3 AND WHO IS ASSIGNED TO QUARTERS OF THE UNITED STATES OR A HOUSING FACILITY UNDER THE JURISDICTION OF A UNIFORMED SERVICE, APPROPRIATE TO HIS GRADE OR RANK AND ADEQUATE FOR HIMSELF, MAY ELECT NOT TO OCCUPY THOSE QUARTERS AND INSTEAD RECEIVE THE BASIC ALLOWANCE FOR QUARTERS PRESCRIBED FOR HIS PAY GRADE BY THIS SECTION. SUBSECTION (G) PROVIDES THAT THE PRESIDENT MAY PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF SECTION 403.

IN ACCORDANCE WITH SECTION 407 OF EXECUTIVE ORDER 11157, JUNE 22, 1964, AS AMENDED, ISSUED PURSUANT TO SECTION 403(G), DEPARTMENT OF DEFENSE (DOD) INSTRUCTION 1338.1, JANUARY 30, 1964, ESTABLISHES POLICY WITH RESPECT TO ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS AS FOLLOWS:

A. IT IS THE POLICY OF THE DEPARTMENT OF DEFENSE TO ENCOURAGE MAINTENANCE OF THE FAMILY UNIT. WHEN BOTH HUSBAND AND WIFE ARE MEMBERS OF THE UNIFORMED SERVICES AND ARE ASSIGNED TO THE SAME OR ADJACENT MILITARY INSTALLATIONS, THE MALE MEMBER IS AUTHORIZED BASIC ALLOWANCE FOR QUARTERS PRESCRIBED FOR A MEMBER WITHOUT DEPENDENTS WHEN PUBLIC QUARTERS FOR DEPENDENTS ARE NOT AVAILABLE, NOTWITHSTANDING THE AVAILABILITY OF SINGLE QUARTERS.

C. WHEN BOTH HUSBAND AND WIFE ARE MEMBERS OF THE UNIFORMED SERVICES WITH NO OTHER DEPENDENTS AND ARE STATIONED AT THE SAME OR ADJACENT MILITARY INSTALLATIONS THE FOLLOWING PROVISIONS APPLY:

2. BOTH OFFICER OR BOTH ENLISTED. ELIGIBILITY FOR ASSIGNMENT TO PUBLIC QUARTERS FOR DEPENDENTS OR TO THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS PRESCRIBED FOR A MEMBER WITHOUT DEPENDENTS IN LIEU THEREOF RESTS WITH THE MALE MEMBER. THE FEMALE MEMBER IS NOT ELIGIBLE FOR ASSIGNMENT TO PUBLIC QUARTERS FOR DEPENDENTS NOR IS SHE ENTITLED TO THE BASIC ALLOWANCE FOR QUARTERS PRESCRIBED FOR A MEMBER WITHOUT DEPENDENTS UNLESS QUARTERS FOR MEMBERS WITHOUT DEPENDENTS ARE NOT AVAILABLE FOR HER OCCUPANCY. WHERE QUARTERS ARE AVAILABLE FOR HER OCCUPANCY, THE FEMALE MEMBER WILL NEVERTHELESS BE PERMITTED TO RESIDE WITH HER HUSBAND BUT WILL NOT BE ENTITLED TO THE PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS PRESCRIBED FOR A MEMBER WITHOUT DEPENDENTS, UNLESS SHE IS IN A PAY GRADE ABOVE 0-3 AND PUBLIC QUARTERS ARE NOT ASSIGNED FOR THEIR JOINT OCCUPANCY.

4. THE PROVISIONS OF C.2 AND C.3, ABOVE, ARE INTENDED TO PERMIT THE HUSBAND TO DRAW THE BASIC ALLOWANCE FOR QUARTERS PRESCRIBED FOR A MEMBER WITHOUT DEPENDENTS WHEN PUBLIC QUARTERS FOR DEPENDENTS ARE NOT AVAILABLE AND THE HUSBAND AND WIFE DESIRE TO MAINTAIN JOIN RESIDENCE OFF THE MILITARY INSTALLATION.***.

D. WHEN BOTH PARTIES CONCERNED ARE MEMBERS OF THE UNIFORMED SERVICES AND EITHER OR BOTH HAVE DEPENDENTS OTHER THAN SPOUSE, THE ASSIGNMENT TO PUBLIC QUARTERS FOR DEPENDENTS RESTS WITH EITHER OR BOTH AND EITHER OR BOTH MAY BE ENTITLED TO THE BASIC ALLOWANCE FOR QUARTERS PRESCRIBED FOR MEMBERS WITH DEPENDENTS WHEN NOT ASSIGNED PUBLIC QUARTERS, DEPENDING ON DEPENDENCY STATUS OF EACH OF THE MEMBERS.***.

THIS INSTRUCTION IS IMPLEMENTED IN TABLE 3-2-4, DODPM, WHICH IN RULE 10 PROVIDES THAT WHEN BOTH MEMBERS ARE ASSIGNED TO THE SAME OR ADJACENT BASES OR SHORE INSTALLATIONS AND THE MALE MEMBER HAS DEPENDENTS OTHER THAN WIFE AND THE FEMALE MEMBER HAS NO DEPENDENTS IN HER OWN RIGHT, AND FAMILY-TYPE QUARTERS ARE NOT ASSIGNED FOR JOINT OCCUPANCY, AND SINGLE TYPE QUARTERS ARE NOT AVAILABLE FOR ASSIGNMENT TO THE FEMALE MEMBER, OR THE FEMALE MEMBER IS IN PAY GRADE O-4 OR HIGHER AND ELECTS NOT TO OCCUPY AVAILABLE QUARTERS, THEN THE MALE MEMBER IS ENTITLED TO BAQ AS A MEMBER WITH DEPENDENTS AND THE FEMALE MEMBER IS ENTITLED TO BAQ AS A MEMBER WITHOUT DEPENDENTS.

FOLLOWING THE ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, THE PERSONNEL POLICY BOARD, OFFICE OF THE SECRETARY OF DEFENSE, ON APRIL 12, 1950, ISSUED A POLICY TO THE EFFECT THAT MEMBERS OF THE UNIFORMED SERVICES MARRIED TO EACH OTHER WHO WERE ASSIGNED TO PERMANENT DUTY AT THE SAME OR ADJACENT INSTALLATIONS NEED NOT BE ASSIGNED TO GOVERNMENT QUARTERS IF THE BEST INTERESTS OF THE SERVICE CONCERNED WERE BEST SERVED OTHERWISE, AND IF NOT SO ASSIGNED TO GOVERNMENT QUARTERS EACH MARRIED MEMBER, IF OTHERWISE ENTITLED THERETO, WOULD RECEIVE A SEPARATE BASIC ALLOWANCE FOR QUARTERS PRESCRIBED FOR MEMBERS WITHOUT DEPENDENTS.

IT APPEARS THAT UNDER THIS POLICY IN THE INTEREST OF THE MEMBERS' MORALE, FEMALE MARRIED MEMBERS WERE AUTHORIZED QUARTERS ALLOWANCES WITHOUT REGARD TO THE AVAILABILITY OF SINGLE QUARTERS FOR THEM. HOWEVER, THIS POLICY WAS RESCINDED ON MARCH 2, 1951, BY THE BOARD WHICH THEN PROVIDED THAT ELIGIBILITY FOR BAQ, WITHOUT DEPENDENTS, RESTED WITH THE MALE MEMBER AND THAT THE FEMALE MEMBER HAD NO ENTITLEMENT TO SUCH ALLOWANCE UNLESS SINGLE QUARTERS WERE NOT AVAILABLE TO HER. THIS REQUIREMENT WAS INCORPORATED IN DOD INSTRUCTION 1338.1 DATED APRIL 16, 1954, AND APPEARS IN THE CURRENT INSTRUCTION.

IN DECISION B-117268, JANUARY 7, 1954, BASED UPON REGULATIONS SIMILAR TO THOSE CURRENTLY IN FORCE, WE DENIED PAYMENT OF BAQ TO A FEMALE AIR FORCE MEMBER WHO, BECAUSE FAMILY QUARTERS WERE NOT AVAILABLE AT THAT STATION, LIVED OFF-BASE WITH HER BUSBAND, ALSO AN AIR FORCE MEMBER, AS PERMISSION FOR BOTH MEMBERS TO RESIDE OFF-BASE DID NOT WARRANT THE CONCLUSION THAT SINGLE QUARTERS WERE NOT AVAILABLE TO THE FEMALE MEMBER IN THE ABSENCE OF SUCH DETERMINATION BY THE COMMANDING OFFICER. IN A SIMILIAR DECISION, B- 152373, APRIL 21, 1964, AN AIR FORCE OFFICER'S LIVING OFF-BASE WAS TREATED AS A VOLUNTARY RELINQUISHMENT BY HER OF SINGLE GOVERNMENT QUARTERS IN ORDER TO LIVE WITH HER HUSBAND. DISALLOWANCE OF A SIMILIAR CLAIM WAS AFFIRMED IN DECISION B-150830, JULY 26, 1963. COPIES OF THESE DECISIONS ARE ENCLOSED.

IN DECISION OF JULY 3, 1972(52 COMP. GEN. 1), COPY ENCLOSED, WE CONSIDERED CERTAIN INEQUITIES IN THE DEPENDENCY REQUIREMENTS APPLICABLE TO FEMALE MEMBERS WHO CLAIM BAQ ON ACCOUNT OF A DEPENDENT HUSBAND. IN THIS REGARD WE REFERRED TO SECTION 703(A) OF THE CIVIL RIGHTS ACT OF 1964, 78 STAT. 255, AS AMENDED, 42 U.S.C. 2000E-2, AND WE OBSERVED THAT IN ENACTING THIS BAN ON DISCRIMINATION BASED ON SEX, THE CONGRESS INTENDED TO BRING TO AN END PRESCRIBED DISCRIMINATORY PRACTICES AGAINST FEMALE EMPLOYEES BASED ON STEREOTYPED CHARACTERIZATIONS OF THE SEXES AND THAT EVEN CHARACTERIZATIONS OF THE PROPER DOMESTIC ROLES OF THE SEXES WERE NOT TO SERVE AS PREDICATES FOR RESTRICTING EMPLOYMENT OPPORTUNITY.

CONSISTENT WITH THIS VIEWPOINT, WE EXAMINED OUR PRIOR DECISION, 32 COMP. GEN. 364(1953), AND SIMILAR DECISIONS CONCERNING THE DEPENDENCY OF A FEMALE MEMBER'S HUSBAND WHO WAS PHYSICALLY AND MENTALLY CAPABLE OF SELF- SUPPORT. IN THE LIGHT OF PRESENT-DAY DEVELOPMENTS IN THE LAW WE CONCLUDED THAT THE DEPENDENCY CONCEPTS APPLICABLE TO THE TRADITIONAL FAMILY AND FUNDAMENTAL TO THOSE DECISIONS WERE NO LONGER FOR APPLICATION UNDER PRESENT STANDARDS. THEREFORE, TO THE EXTENT THAT CERTAIN DEPENDENCY REQUIREMENTS WE HAD APPLIED IN OUR PRIOR DECISIONS WERE NOT SPECIFICALLY REQUIRED BY STATUTORY PROVISION, THEY WERE CHANGED EFFECTIVE THE DATE OF THAT DECISION.

HOWEVER, IN THE CASE OF FRONTIERO V. LAIRD, 341 F.SUPP. 201(1972), THE COURT UPHELD THE CONSTITUTIONALITY OF 37 U.S.C. 401, WHICH CONTAINS A DEPENDENCY REQUIREMENT APPLICABLE TO FEMALE MEMBERS WHO CLAIM BAQ ON ACCOUNT OF A DEPENDENT HUSBAND. IT FOUND A REASONABLE RELATIONSHIP FOR THE DIFFERENT METHODS OF ESTABLISHING DEPENDENCY ON THE BASIS OF ADMINISTRATIVE AND ECONOMIC CIRCUMSTANCES. THE CASE HAS BEEN APPEALED TO THE UNITED STATES SUPREME COURT, WHICH IS EXPECTED TO RENDER A DECISION DURING ITS CURRENT TERM.

IT MAY BE THAT THE U.S. SUPREME COURT'S DECISION IN THE FRONTIERO CASE, WHEN RENDERED, WILL REQUIRE A REEXAMINATION OF OUR DECISIONS AS WELL AS A REVISION OF THE ADMINISTRATIVE REGULATIONS RELATING TO THE PAYMENT OF QUARTERS ALLOWANCES TO FEMALE MEMBERS OF THE UNIFORM SERVICES. ACCORDINGLY, WE DO NOT CONSIDER THAT ANY REEXAMINATION OF OUR DECISIONS IN THIS AREA WOULD BE APPROPRIATE AT THIS TIME.

WHILE THE STANDARD IN QUESTION IS NOT FOUND IN 37 U.S.C. 403(A), IT HAS BEEN ESTABLISHED BY REGULATIONS ISSUED PURSUANT TO SECTION 407 OF EXECUTIVE ORDER 11157 AND PRIOR SIMILAR PROVISIONS WHICH AUTHORIZED THE SECRETARIES CONCERNED TO ISSUE SUCH SUPPLEMENTAL REGULATIONS AS THEY DEEMED NECESSARY OR DESIRABLE TO CARRY OUT THOSE ORDERS. OUR PREVIOUSLY CITED DECISIONS HAVE BEEN BASED ON SUCH REGULATIONS.

IN VIEW OF THE FOREGOING, CAPTAIN CALLICOTTE'S CLAIM MUST BE CONSIDERED IN LIGHT OF THE REGULATIONS PRESENTLY IN EFFECT. THEREFORE, IN THE ABSENCE OF A COMMANDING OFFICER'S CERTIFICATION THAT GOVERNMENT QUARTERS ARE UNAVAILABLE OR INADEQUATE, QUARTERS ALLOWANCE MAY NOT BE APPROVED FOR HER.

REGARDING THE ADEQUACY OF QUARTERS, DOD INSTRUCTION 1338.1, IIIC.2 AND TABLE 3-2-4, DODPM, PROVIDE THAT THE FEMALE MEMBER IS NOT ENTITLED TO THE BASIC ALLOWANCE FOR QUARTERS PRESCRIBED FOR A MEMBER WITHOUT DEPENDENTS UNLESS QUARTERS FOR MEMBERS WITHOUT DEPENDENTS (SINGLE QUARTERS) ARE NOT AVAILABLE FOR HER OCCUPANCY. UNDER CURRENT REGULATIONS THE ADEQUACY OF GOVERNMENT QUARTERS IS TO BE DETERMINED ON THEIR FITNESS FOR USE AS BACHELOR QUARTERS, WITHOUT REGARD TO THEIR SUITABILITY FOR A MARRIED WOMAN WHO DESIRES TO RESIDE WITH HER HUSBAND. SEE DECISION OF THIS DATE TO FIRST LIEUTENANT L. JACK STALEY, USAF, 52 COMP. GEN. 514(1973), COPY ENCLOSED.

CONSEQUENTLY, ON THE RECORD NOW BEFORE US, CAPTAIN BETTY M. CALLICOTTE MAY NOT BE AUTHORIZED BASIC ALLOWANCE FOR QUARTERS AT THE WITHOUT DEPENDENTS RATE. HER APPLICATION WILL BE RETAINED HERE.