B-183176, NOV 18, 1975

B-183176: Nov 18, 1975

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TWO MEMBERS OF A UNIFORMED SERVICE WERE HUSBAND AND WIFE AND HAD A CHILD BY THAT MARRIAGE BUT ARE DIVORCED AT THE TIME OF ENTITLEMENT TO A DISLOCATION ALLOWANCE INCIDENT TO A TRANSFER. REGARDLESS OF BASIC ALLOWANCE FOR QUARTERS ENTITLEMENTS THE FEMALE MEMBER IS ENTITLED TO DISLOCATION ALLOWANCE AT THE "WITH DEPENDENT" RATE SINCE UNDER REGULATIONS APPLICABLE TO THAT ALLOWANCE SHE DOES HAVE A DEPENDENT. 2. REFERENCE IN 37 U.S.C. 407 TO 37 U.S.C. 403 IS CONSIDERED TO RELATE ONLY TO THE RATES OF DISLOCATION ALLOWANCES WHICH MAY BE PAID. RATE OF DISLOCATION ALLOWANCE: THIS ACTION IS IN RESPONSE TO LETTER DATED JANUARY 20. FROM THE ASSISTANT SECRETARY OF THE ARMY (MANPOWER AND RESERVE AFFAIRS) REQUESTING AN ADVANCE DECISION CONCERNING THE PROPER RATE OF DISLOCATION ALLOWANCE WHERE TWO MEMBERS OF THE UNIFORMED SERVICES WERE HUSBAND AND WIFE AND HAVE A DEPENDENT CHILD OF THE MARRIAGE.

B-183176, NOV 18, 1975

1. TWO MEMBERS OF A UNIFORMED SERVICE WERE HUSBAND AND WIFE AND HAD A CHILD BY THAT MARRIAGE BUT ARE DIVORCED AT THE TIME OF ENTITLEMENT TO A DISLOCATION ALLOWANCE INCIDENT TO A TRANSFER. THE FEMALE MEMBER HAS CUSTODY OF THE CHILD ALTHOUGH THE MALE MEMBER PAYS CHILD SUPPORT. REGARDLESS OF BASIC ALLOWANCE FOR QUARTERS ENTITLEMENTS THE FEMALE MEMBER IS ENTITLED TO DISLOCATION ALLOWANCE AT THE "WITH DEPENDENT" RATE SINCE UNDER REGULATIONS APPLICABLE TO THAT ALLOWANCE SHE DOES HAVE A DEPENDENT. 2. REFERENCE IN 37 U.S.C. 407 TO 37 U.S.C. 403 IS CONSIDERED TO RELATE ONLY TO THE RATES OF DISLOCATION ALLOWANCES WHICH MAY BE PAID. THAT REFERENCE DOES NOT FIX THE DISLOCATION ALLOWANCE ON THE BASIS OF ALL THE RULES AND REGULATIONS APPLICABLE TO THE BASIC ALLOWANCE FOR QUARTERS BUT PERMITS DETERMINATIONS OF DEPENDENCY BASED UPON RULES AND REGULATIONS APPLICABLE UNDER 37 U.S.C. 407.

RATE OF DISLOCATION ALLOWANCE:

THIS ACTION IS IN RESPONSE TO LETTER DATED JANUARY 20, 1975, FROM THE ASSISTANT SECRETARY OF THE ARMY (MANPOWER AND RESERVE AFFAIRS) REQUESTING AN ADVANCE DECISION CONCERNING THE PROPER RATE OF DISLOCATION ALLOWANCE WHERE TWO MEMBERS OF THE UNIFORMED SERVICES WERE HUSBAND AND WIFE AND HAVE A DEPENDENT CHILD OF THE MARRIAGE, BUT ARE DIVORCED AT THE TIME OF ENTITLEMENT. THE REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 75-2 BY PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE ASSISTANT SECRETARY INDICATES THAT A QUESTION HAS ARISEN AS TO THE APPLICATION OF PARAGRAPH M9002, 1 JOINT TRAVEL REGULATIONS (1 JTR), IN THE ADMINISTRATION OF PAYMENTS OF A DISLOCATION ALLOWANCE TO EACH MEMBER IN THE ABOVE-DESCRIBED SITUATION. THE MALE MEMBER IS REQUIRED TO PAY CHILD SUPPORT PURUSANT TO A COURT ORDER AND IS CREDITED WITH A BASIC ALLOWANCE FOR QUARTERS (BAQ) AT THE "WITH DEPENDENT" RATE PURSUANT TO PARAGRAPH 30236(D) OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL. THE FEMALE MEMBER, ALTHOUGH AWARDED CUSTODY OF THE CHILD, RECEIVES BAQ AT THE "WITHOUT DEPENDENT" RATE.

THE ASSISTANT SECRETARY NOTES THAT BOTH MEMBERS ARE PAID A DISLOCATION ALLOWANCE AT THE "WITHOUT DEPENDENT" RATE OF BAQ IN ACCORDANCE WITH PARAGRAPH M9002, 1 JTR, WHEN ENTITLED TO SUCH ALLOWANCE. IT IS INDICATED THAT PAYMENT AT THIS RATE IS QUESTIONABLE, HOWEVER, BECAUSE BOTH MEMBERS CONTRIBUTE TO THE CHILD SUPPORT AND THE FEMALE MEMBER IS CURRENTLY DEFINED AS A MEMBER "WITH DEPENDENT" FOR DISLOCATION ALLOWANCE ENTITLEMENT PURPOSES BY PARAGRAPH M9001-1, 1JTR.

THE OPINION OF THIS OFFICE IS REQUESTED AS TO THE PROPER RATE OF DISLOCATION ALLOWANCE TO BE APPLIED TO THE MEMBERS.

SUBSECTION 407(A) OF TITLE 37, U.S. CODE, AUTHORIZING A DISLOCATION ALLOWANCE, PROVIDES AS FOLLOWS:

"(A) EXCEPT AS PROVIDED BY SUBSECTIONS (B) AND (C) OF THIS SECTION, UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, A MEMBER OF A UNIFORMED SERVICE -

"(1) WHOSE DEPENDENTS MAKE AN AUTHORIZED MOVE IN CONNECTION WITH HIS CHANGE OF PERMANENT STATION;

"(2) WHOSE DEPENDENTS ARE COVERED BY SECTION 405(A) OF THIS TITLE; OR

"(3) WITHOUT DEPENDENTS, WHO IS TRANSFERRED TO A PERMANENT STATION WHERE HE IS NOT ASSIGNED TO QUARTERS OF THE UNITED STATES;

IS ENTITLED TO A DISLOCATION ALLOWANCE EQUAL TO HIS BASIC ALLOWANCE FOR QUARTERS FOR ONE MONTH AS PROVIDED FOR A MEMBER OF HIS PAY GRADE AND DEPENDENCY STATUS IN SECTION 403 OF THIS TITLE. ***"

THE PURPOSE OF THIS ALLOWANCE AS STATED IN PARAGRAPH M9000, 1 JTR, IS TO PROVIDE A MEANS BY WHICH A MEMBER, WITH OR WITHOUT DEPENDENTS, MAY BE PARTIALLY REIMBURSED FOR EXPENSES INCURRED IN RELOCATING HIS OR HER HOUSEHOLD UPON A PERMANENT CHANGE OF STATION OR INCIDENT TO AN EVACUATION. PARAGRAPH M9001-1 DEFINES A MEMBER "WITH DEPENDENTS" AS A MEMBER IN PAY GRADE E-4 (WITH OVER 2 YEARS' SERVICE) OR A MEMBER OF HIGHER GRADE WHO HAS DEPENDENTS ENTITLED TO TRANSPORTATION IN CONNECTION WITH A CHANGE OF PERMANENT STATION. A MEMBER "WITHOUT DEPENDENTS" IS DEFINED IN ITEM 2 OF THAT PARAGRAPH AS A MEMBER WHO HAS NO DEPENDENTS OR WHO IS NOT ENTITLED TO TRANSPORTATION OF DEPENDENTS UNDER THE PROVISIONS OF PARAGRAPH M7000, 1 JTR, IN CONNECTION WITH A PERMANENT CHANGE OF STATION.

IN APPLYING THE FOREGOING TO THE SITUATION SET OUT IN THE ASSISTANT SECRETARY'S LETTER, IT WILL BE SEEN THAT ONLY THE FEMALE MEMBER WHO HAS CUSTODY OF THE CHILD APPEARS TO MEET THE REQUIREMENTS OF 37 U.S.C. 407(A)(1) AND THE REGULATIONS AS A MEMBER "WITH DEPENDENTS", SINCE THE CHILD IS RESIDING WITH HER AND THUS MOVING WHEN THE MEMBER HAS A CHANGE OF PERMANENT STATION. SINCE THE CHILD WOULD NOT MAKE A MOVE INCIDENT TO THE MALE MEMBER'S PERMANENT CHANGE OF STATION, THE MALE MEMBER COULD ONLY QUALIFY FOR THE ALLOWANCE UNDER 37 U.S.C. 407(A)(3) AS A MEMBER "WITHOUT DEPENDENTS."

SECTION 407(A) OF TITLE 37, U.S. CODE, QUOTED ABOVE, PROVIDES IN EFFECT THAT THE DISLOCATION ALLOWANCE ENTITLEMENT IS EQUAL TO THE MEMBER'S BAQ FOR ONE MONTH AS PRESCRIBED IN 37 U.S.C. 403 FOR A MEMBER OF HIS PAY GRADE AND DEPENDENCY STATUS. SECTION 403, HOWEVER, DOES NOT PRESCRIBE THE RULES FOR PAYMENT AT THE "WITH DEPENDENT" RATHER THAN THE "WITHOUT DEPENDENT" RATE. THEREFORE, DETERMINATION OF THE APPROPRIATE RATE MUST BE MADE IN ACCORDANCE WITH OTHER APPLICABLE LAWS AND REGULATIONS.

IN THIS CONNECTION, WE NOTE THAT UNDER THE PROVISIONS OF 37 U.S.C. 401(2) - DEFINING DEPENDENT FOR THE PURPOSES OF ENTITLEMENT TO THE ALLOWANCES AUTHORIZED BY CHAPTER 7, OF TITLE 37 - THE CHILD APPEARS TO BE CONSIDERED THE DEPENDENT OF BOTH MEMBERS. HOWEVER, IT HAS BEEN STATED THAT "THE LAW DOES NOT CONTEMPLATE PAYMENT OF AN INCREASED QUARTERS ALLOWANCE TO MORE THAN ONE MEMBER ON ACCOUNT OF THE SAME DEPENDENT (51 COMP. GEN. 413 (1972))." 52 COMP. GEN. 602, 604 (1973).

IN THE FACTS PRESENTED IT IS STATED THAT THE FEMALE MEMBER, ALTHOUGH HAVING CUSTODY OF THE CHILD, DID NOT RECEIVE BAQ AT THE "WITH DEPENDENT" RATE. A MEMBER RECEIVING THE BAQ AT THE "WITHOUT DEPENDENT" RATE UNDER REGULATIONS RELATING TO THAT ALLOWANCE, SHOULD NOT BE RESTRICTED TO A DISLOCATION ALLOWANCE AS A MEMBER WITHOUT DEPENDENTS WHEN THAT MEMBER OTHERWISE MEETS ALL THE CONDITIONS OF A MEMBER WITH DEPENDENTS UNDER 37 U.S.C. 407 AND 37 U.S.C. 401(2). TO HOLD OTHERWISE WOULD DEFEAT THE PURPOSE OF THE STATUE AUTHORIZING REIMBURSEMENT FOR EXPENSES INCIDENT TO A PERMANENT CHANGE OF STATION, WHERE THE LAW OBVIOUSLY INTENDS AN INCREASED ALLOWANCE FOR THOSE MEMBERS WHOSE DEPENDENTS ACTUALLY MOVE IN CONNECTION WITH A PERMANENT CHANGE OF STATION. WE DO NOT FIND THAT THE PAYMENT OF THE DISLOCATION ALLOWANCE IS BY LAW REQUIRED TO BE EQUAL TO THE BAQ ENTITLEMENT OF THE MEMBER IN QUESTION. ALTHOUGH THE BAQ RATES PRESCRIBED BY LAW MUST BE APPLIED THE ENTITLEMENT TO PAYMENT AT THE "WITH DEPENDENT" RATE AS OPPOSED TO THE LOWER "WITHOUT DEPENDENT" RATE IS NOT FOR DETERMINATION BASED ON RULES AND REGULATIONS APPLICABLE TO BAQ PAYMENTS BUT ON THE REGULATIONS APPLICABLE DIRECTLY TO DISLOCATION ALLOWANCE PAYMENTS.

FOR THE REASONS STATED, IT IS OUR VIEW THAT THE REFERENCE TO 37 U.S.C. 403 IN 37 U.S.C. 407 SHOULD BE VIEWED AS A REFERENCE TO THE RATES THAT MAY BE PAID, RATHER THAN A REQUIREMENT THAT A MEMBER'S RATE OF DISLOCATION ALLOWANCE IS TO BE DETERMINED EXCLUSIVELY ON HIS ACTUAL RATE OF BAQ.

THEREFORE, SINCE THE FEMALE MEMBER WITH CUSTODY OF HER DEPENDENT CHILD SATISFIES THE REQUIREMENTS SPECIFIED IN 37 U.S.C. 401(2), 37 U.S.C. 407(A)(1) AND CHAPTER 9 OF 1 JTR, IT IS OUR VIEW THAT SHE IS ENTITLED TO A DISLOCATION ALLOWANCE EQUAL TO THE BAQ PRESCRIBED FOR A MEMBER OF HER PAY GRADE "WITH DEPENDENTS." CONVERSELY, THE MALE MEMBER MUST BE CONSIDERED, IN LIGHT OF THE REQUIREMENTS OF 37 U.S.C. 407 AND IMPLEMENTING REGULATIONS, AS A MEMBER WITHOUT DEPENDENTS AND IS ENTITLED TO A DISLOCATION ALLOWANCE EQUAL TO THE BAQ FOR A MEMBER OF HIS PAY GRADE AT THE "WITHOUT DEPENDENT" RATE.

THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.