B-208650, MAR 21, 1983

B-208650: Mar 21, 1983

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QUARTERS ALLOWANCES: THIS DECISION IS IN RESPONSE TO A REQUEST BY THE FINANCE AND ACCOUNTING OFFICER. REGARDING THE VALIDITY OF PAYMENTS OF BASIC ALLOWANCE FOR QUARTERS AND VARIABLE HOUSING ALLOWANCE AT THE WITH-DEPENDENTS RATE PAID TO AN ARMY WARRANT OFFICER DURING A PERIOD OF 1 YEAR IN WHICH HE AND HIS WIFE (HIS ONLY DEPENDENT) WERE SEPARATED. WE DO NOT FIND THAT THESE PAYMENTS WERE IMPROPER. THE SUBMISSION WAS ASSIGNED CONTROL NUMBER DO-A-1405 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE. HE PROVIDED A LIST OF WHAT HE PAID ON THEIR JOINT OBLIGATIONS AND CLAIMS THAT THESE PAYMENTS WERE SUPPORT-IN- KIND IN EXCESS OF THE DIFFERENCE BETWEEN THE ALLOWANCES AT THE WITH- DEPENDENTS AND WITHOUT-DEPENDENTS RATES.

B-208650, MAR 21, 1983

DIGEST: AN ARMY OFFICER LIVED APART FROM HIS WIFE FOR 1 YEAR PRIOR TO THEIR DIVORCE, WITHOUT A LEGAL SEPARATION, DURING WHICH TIME ALTHOUGH HE MADE NO DIRECT PAYMENTS TO HER, HE INDICATES HE PROVIDED HER WITH VARIOUS TYPES OF INDIRECT MONETARY SUPPORT BY PAYING JOINT OBLIGATIONS, ETC. IN THESE CIRCUMSTANCES THE PAYMENTS MADE TO HIM OF BASIC ALLOWANCE FOR QUARTERS, AND VARIABLE HOUSING ALLOWANCE AT THE WITH-DEPENDENTS RATE NEED NOT BE RECOUPED.

QUARTERS ALLOWANCES:

THIS DECISION IS IN RESPONSE TO A REQUEST BY THE FINANCE AND ACCOUNTING OFFICER, 4TH INFANTRY DIVISION, FORT CARSON, COLORADO, REGARDING THE VALIDITY OF PAYMENTS OF BASIC ALLOWANCE FOR QUARTERS AND VARIABLE HOUSING ALLOWANCE AT THE WITH-DEPENDENTS RATE PAID TO AN ARMY WARRANT OFFICER DURING A PERIOD OF 1 YEAR IN WHICH HE AND HIS WIFE (HIS ONLY DEPENDENT) WERE SEPARATED. WE DO NOT FIND THAT THESE PAYMENTS WERE IMPROPER.

THE SUBMISSION WAS ASSIGNED CONTROL NUMBER DO-A-1405 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN MARCH OF 1981, THE MEMBER'S WIFE LEFT THE MARITAL RESIDENCE IN COLORADO AND MOVED TO HER PARENTS' HOME IN ARKANSAS. SHE SECURED EMPLOYMENT IN ARKANSAS AND, ACCORDING TO THE MEMBER, DID NOT REQUEST MONETARY SUPPORT FROM HIM UNTIL HE FILED FOR DIVORCE IN AUGUST 1981. THE MEMBER HAS BEEN LIVING IN THE MARITAL RESIDENCE SINCE HER DEPARTURE AND INDICATES HE HAS PAID THE MORTGAGE THEREON.

IN DECEMBER 1981, THE MEMBER'S WIFE WROTE A LETTER TO THE FINANCE OFFICER AT HER HUSBAND'S BASE INFORMING HIM THAT THE MEMBER HAD CONTINUED TO RECEIVE HIS QUARTERS ALLOWANCE AT THE WITH-DEPENDENTS RATE ALTHOUGH HE HAD PROVIDED HER WITH NO SUPPORT SINCE THEIR SEPARATION. SHE FURTHER INDICATED THAT WHEN HE FILED FOR DIVORCE IN AUGUST 1981 HE HAD THE LOCKS CHANGED ON THE FAMILY RESIDENCE. SHE FELT THAT HER HUSBAND SHOULD BE REQUIRED TO PAY THE EXTRA QUARTERS ALLOWANCE EITHER TO HER AS SPOUSAL SUPPORT OR RETURN IT TO THE ARMY.

IN RESPONSE, THE MEMBER SUBMITTED A STATEMENT IN MARCH 1982 TO THE EFFECT THAT ALTHOUGH HE DID NOT PROVIDE HIS WIFE WITH DIRECT MONETARY SUPPORT DURING THEIR SEPARATION, HE ASSUMED MANY OF THEIR JOINT OBLIGATIONS, FORMERLY PAID FOR BY HIS WIFE. HE PROVIDED A LIST OF WHAT HE PAID ON THEIR JOINT OBLIGATIONS AND CLAIMS THAT THESE PAYMENTS WERE SUPPORT-IN- KIND IN EXCESS OF THE DIFFERENCE BETWEEN THE ALLOWANCES AT THE WITH- DEPENDENTS AND WITHOUT-DEPENDENTS RATES.

THE DIVORCE BECAME FINAL IN APRIL 1982 AND PAYMENT OF THE QUARTERS ALLOWANCES AT THE WITH-DEPENDENTS RATE CEASED AS OF THAT TIME. THE FINANCE OFFICER NOW QUESTIONS WHETHER THE MEMBER'S BASIC ALLOWANCE FOR QUARTERS AND VARIABLE HOUSING ALLOWANCE SHOULD BE ADJUSTED AND THE EXCESS BETWEEN THE WITH - AND WITHOUT-DEPENDENTS RATES COLLECTED FROM HIM FOR THE PERIOD OF THEIR SEPARATION PRIOR TO DIVORCE, MARCH 1981 TO MARCH 1982. THE TOTAL EXCESS IS REPORTED TO BE $906.99.

THE AUTHORIZATION FOR PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS AND THE VARIABLE HOUSING ALLOWANCE IS CONTAINED IN 37 U.S.C. SEC. 403 (SUPP. IV, 1980). A MEMBER'S DEPENDENT FOR THE PURPOSES OF THESE ALLOWANCES INCLUDES HIS SPOUSE. 37 U.S.C. SEC. 401. THESE ALLOWANCES ARE HIGHER FOR MEMBERS WITH DEPENDENTS THAN FOR THOSE WITHOUT DEPENDENTS. THEY ARE DESIGNED TO AT LEAST PARTIALLY REIMBURSE A MEMBER FOR THE EXPENSE OF PROVIDING PRIVATE QUARTERS FOR HIMSELF AND HIS DEPENDENTS WHERE GOVERNMENT QUARTERS ARE NOT AVAILABLE, AND NOT AS A BONUS MERELY FOR THE TECHNICAL STATUS OF BEING MARRIED OR A PARENT. SEE MATTER OF CHELIUS, B-192144, FEBRUARY 5, 1979, AS MODIFIED MARCH 15, 1979. THUS, WHILE PARAGRAPH 30236 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL PROVIDES THAT PROOF OF SUPPORT OF A LAWFUL SPOUSE GENERALLY IS NOT REQUIRED, THIS REGULATION MAKES SPECIAL PROVISION FOR SITUATIONS IN WHICH PROOF OF SUPPORT IS NECESSARY. SUCH PROOF IS REQUIRED WHERE THE MEMBER AND HIS OR HER SPOUSE HAVE BEEN LEGALLY SEPARATED. THE MEMBER IS ENTITLED TO ALLOWANCES FOR THE SPOUSE FROM WHOM HE OR SHE IS SEPARATED IF IT CAN BE SHOWN THAT THE MEMBER CONTRIBUTES SUPPORT WHICH IS GREATER THAN OR EQUAL TO THE DIFFERENCE BETWEEN THE MEMBER'S APPLICABLE "WITH" OR "WITHOUT" DEPENDENTS RATES. MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, PARAGRAPH SEC. 30236(C). IN THE CASE BEFORE US IT DOES NOT APPEAR THAT THE MEMBER WAS LEGALLY SEPARATED FROM HIS WIFE PRIOR TO THEIR DIVORCE. THUS, THIS PROVISION WOULD NOT BE APPLICABLE TO THIS SITUATION.

IN ADDITION, HOWEVER, PARAGRAPH 30236B OF THE MANUAL PRECLUDES PAYMENT OF THE QUARTERS ALLOWANCE ON BEHALF OF A DEPENDENT WHOM THE MEMBER REFUSES TO SUPPORT.

DURING THE PERIOD IN QUESTION, THE MEMBER AND HIS WIFE WERE LAWFULLY MARRIED.

GENERALLY, AS THE REGULATIONS PROVIDE, THE DEPENDENCY OF A LAWFUL SPOUSE IS PRESUMED TO EXIST, AND THE MEMBER IS NOT CHARGED WITH THE BURDEN OF PROVING CIRCUMSTANCES SHOWING THE SORT OF DEPENDENCY THAT COMES WITHIN THE INTENT AND SPIRT OF THE LAW. 43 COMP.GEN. 249, 250 (1963), AND STRAUSS V. UNITED STATES, 73 CT.CL. 691 (1932).

IN THIS CASE WHILE THE SPOUSE INDICATES SHE RECEIVED NO DIRECT PAYMENTS FROM THE MEMBER, APPARENTLY HE DID PROVIDE INDIRECT SUPPORT IN EXCESS OF THE DIFFERENCE BETWEEN THE QUARTERS ALLOWANCES AT THE WITH - AND WITHOUT- DEPENDENTS RATES. THEREFORE WE HOLD THAT IN THIS CASE THERE HAS NOT BEEN A SUFFICIENTLY CLEAR SHOWING THAT THE ADDITIONAL AMOUNT OF BASIC ALLOWANCE FOR QUARTERS AND VARIABLE HOUSING ALLOWANCE THE MEMBER RECEIVED ON ACCOUNT OF HIS WIFE PRIOR TO THEIR DIVORCE WAS IMPROPERLY PAID TO HIM. ACCORDINGLY, THESE AMOUNTS SHOULD NOT BE COLLECTED FROM THE MEMBER.