B-33199, DECEMBER 22, 1943, 23 COMP. GEN. 454

B-33199: Dec 22, 1943

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RENTAL AND SUBSISTENCE ALLOWANCES - CHILDREN IN CUSTODY OF OFFICER'S FORMER WIFE WHO IS REMARRIED TO ANOTHER OFFICER WHERE CUSTODY OF A DIVORCED NAVAL OFFICER'S MINOR CHILD WAS AWARDED BY COURT DECREE TO THE OFFICER'S FORMER WIFE. THE DIVORCED OFFICER IS NOT ENTITLED TO PAYMENT OF INCREASED RENTAL ALLOWANCE AUTHORIZED UNDER THE PAY READJUSTMENT ACT OF 1942. HE IS ENTITLED TO INCREASED SUBSISTENCE ALLOWANCE ON ACCOUNT OF SUCH CHILD. WHERE THE MINOR CHILDREN OF A DIVORCED OFFICER OF THE MILITARY OR NAVAL SERVICES ARE IN THE LEGAL CUSTODY OF THEIR MOTHER. WHO IS REMARRIED TO ANOTHER OFFICER WHO IS NOT ASSIGNED PUBLIC QUARTERS AND IS PAID RENTAL ALLOWANCE IN LIEU THEREOF. THIS OFFICE WILL NOT QUESTION OTHERWISE PROPER PAYMENTS OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES TO THE DIVORCED OFFICER IN ACCORDANCE WITH THE PAY READJUSTMENT ACT OF 1942.

B-33199, DECEMBER 22, 1943, 23 COMP. GEN. 454

RENTAL AND SUBSISTENCE ALLOWANCES - CHILDREN IN CUSTODY OF OFFICER'S FORMER WIFE WHO IS REMARRIED TO ANOTHER OFFICER WHERE CUSTODY OF A DIVORCED NAVAL OFFICER'S MINOR CHILD WAS AWARDED BY COURT DECREE TO THE OFFICER'S FORMER WIFE, WHO REMARRIED ANOTHER OFFICER ASSIGNED TO PUBLIC QUARTERS FOR OCCUPANCY BY HIMSELF, AND DEPENDENTS, AND THE CHILD OCCUPIED SUCH QUARTERS WITH ITS STEPFATHER, THE DIVORCED OFFICER IS NOT ENTITLED TO PAYMENT OF INCREASED RENTAL ALLOWANCE AUTHORIZED UNDER THE PAY READJUSTMENT ACT OF 1942, ON ACCOUNT OF LEGITIMATE UNMARRIED CHILDREN UNDER 21 YEARS OF AGE, BUT HE IS ENTITLED TO INCREASED SUBSISTENCE ALLOWANCE ON ACCOUNT OF SUCH CHILD, IF HE CONTRIBUTES TO THE CHILD'S SUPPORT. WHERE THE MINOR CHILDREN OF A DIVORCED OFFICER OF THE MILITARY OR NAVAL SERVICES ARE IN THE LEGAL CUSTODY OF THEIR MOTHER, WHO IS REMARRIED TO ANOTHER OFFICER WHO IS NOT ASSIGNED PUBLIC QUARTERS AND IS PAID RENTAL ALLOWANCE IN LIEU THEREOF, THIS OFFICE WILL NOT QUESTION OTHERWISE PROPER PAYMENTS OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES TO THE DIVORCED OFFICER IN ACCORDANCE WITH THE PAY READJUSTMENT ACT OF 1942, ON ACCOUNT OF LEGITIMATE UNMARRIED CHILDREN UNDER 21 YEARS OF AGE, PROVIDED IT IS SHOWN THAT HE CONTRIBUTES TO THEIR SUPPORT. 23 COMP. GEN. 71, AMPLIFIED. A DIVORCED OFFICER OF THE MILITARY OR NAVAL SERVICES WHO OCCUPIES BACHELOR OFFICERS' QUARTERS AND WHOSE MINOR CHILDREN ARE IN THE LEGAL CUSTODY OF THE OFFICER'S FORMER WIFE, WHO IS REMARRIED TO ANOTHER OFFICER RECEIVING A RENTAL ALLOWANCE IN LIEU OF BEING FURNISHED PUBLIC QUARTERS FOR HIMSELF AND DEPENDENTS, IS ENTITLED TO THE FULL AMOUNT OF THE INCREASED RENTAL ALLOWANCE AND THE SUBSISTENCE ALLOWANCE AUTHORIZED BY THE PAY READJUSTMENT ACT OF 1942, ON ACCOUNT OF LEGITIMATE UNMARRIED CHILDREN UNDER 21 YEARS OF AGE, PROVIDED IT IS SHOWN THAT HE CONTRIBUTES TO THEIR SUPPORT. 23 COMP. GEN. 71, AMPLIFIED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, DECEMBER 22, 1943:

REFERENCE IS MADE TO YOUR LETTERS OF MARCH 16, 1943, AND JUNE 9, 1943, WITH ENCLOSURES, RELATIVE TO THE RIGHT OF LIEUTENANT WILLIAM R. CRUTCHER, USNR, TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS FOR AN OFFICER WITH A DEPENDENT (MINOR CHILD IN CUSTODY OF DIVORCED WIFE) UPON THE FACTS APPEARING, AND RELATED QUESTIONS.

YOUR LETTER OF MARCH 16, 1943, IS AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH A LETTER FROM THE DISBURSING OFFICER U.S. SUBMARINE BASE, NEW LONDON, CONN., DATED FEBRUARY 13, 1943, WITH ENCLOSURES AND ACCOMPANYING ENDORSEMENT, RELATIVE TO THE RIGHT OF A DIVORCED OFFICER TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES FOR DEPENDENT (MINOR CHILD IN CUSTODY OF FORMER WIFE) UNDER THE CIRCUMSTANCES OUTLINED IN THE ENCLOSED CORRESPONDENCE.

YOUR DECISION IS REQUESTED ON THE QUESTIONS PRESENTED IN THE ENCLOSED CORRESPONDENCE, AS FOLLOWS:

(1) WHETHER LIEUTENANT WILLIAM R. CRUTCHER, USNR, IS ENTITLED TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCE AS AN OFFICER WITH A DEPENDENT (MINOR CHILD IN CUSTODY OF FORMER WIFE) WHEN HIS FORMER WIFE IS REMARRIED TO AN ARMY OFFICER WHO IS ASSIGNED PUBLIC QUARTERS AND SAID CHILD IS LIVING IN SUCH QUARTERS.

(2) WHETHER A DIVORCED OFFICER IS ENTITLED TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES FOR A DEPENDENT (MINOR CHILD IN CUSTODY OF FORMER WIFE) IN CASES WHERE THE CHILD'S MOTHER IS REMARRIED TO AN OFFICER WHO IS NOT ASSIGNED PUBLIC QUARTERS FOR HIMSELF AND DEPENDENTS, AND IS THEREFORE DRAWING RENTAL ALLOWANCE.

(3) IF THE ANSWER TO QUERY (2) IS IN THE AFFIRMATIVE, WHETHER A DIVORCED OFFICER WHO OCCUPIES BACHELOR OFFICERS' QUARTERS IS ENTITLED TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES FOR A DEPENDENT (MINOR CHILD IN CUSTODY OF FORMER WIFE) IN CASES WHERE THE CHILD'S MOTHER IS REMARRIED TO AN OFFICER WHO IS NOT ASSIGNED PUBLIC QUARTERS FOR HIMSELF AND DEPENDENTS, AND IS THEREFORE DRAWING RENTAL ALLOWANCE.

IT APPEARS FROM ENCLOSURES WITH YOUR SUBMISSION THAT ANNE MALLORY CRUTCHER WAS GRANTED A DIVORCE A VINCULO MATRIMONII FROM WILLIAM R. CRUTCHER UNDER A DECREE ENTERED SEPTEMBER 3, 1940, IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR PALM BEACH COUNTY, IN THE CHANCERY CAUSE OF ANNE MALLORY CRUTCHER, PLAINTIFF V. WILLIAM R. CRUTCHER, DEFENDANT; THAT UNDER THE PROVISIONS OF SAID DECREE ANNE MALLORY CRUTCHER WAS AWARDED THE CARE, CUSTODY AND CONTROL OF CAROLINE MALLORY CRUTCHER, MINOR CHILD OF THE PARTIES, SUBJECT TO FURTHER ORDERS OF THE COURT; AND THAT WILLIAM R. CRUTCHER WAS REQUIRED TO PAY TO PLAINTIFF THE SUM OF $50 PER MONTH FOR THE CARE, MAINTENANCE AND SUPPORT OF SAID MINOR CHILD, THE COURT RETAINING JURISDICTION OF THE CAUSE INSOFAR AS SAID MINOR CHILD WAS CONCERNED. IT FURTHER APPEARS THAT ANNE MALLORY CRUTCHER SUBSEQUENTLY MARRIED MAJOR L. M. VON SCHILLING, JR., U.S. ARMY, AND THAT THE MINOR DAUGHTER, CAROLINE MALLORY CRUTCHER, AS A MEMBER OF HER STEPFATHER'S FAMILY, RESIDES IN PUBLIC QUARTERS ASSIGNED TO THAT OFFICER FOR HIMSELF AND HIS DEPENDENTS, AT FORT GEORGE G. MEADE, MARYLAND.

LIEUTENANT CRUTCHER CERTIFIES ( FEBRUARY 11, 1943,) THAT HE HAS PAID THE "ALIMONY" HE WAS REQUIRED BY THE DECREE TO PAY FOR THE CARE, MAINTENANCE AND SUPPORT OF THE SAID CHILD,"AS EVIDENCED BY CERTIFIED COPIES OF RECEIPTS FOR THE LAST QUARTER.' HOWEVER, NO COPIES OF RECEIPTS SHOWING ANY PAYMENTS ACCOMPANIED YOUR SUBMISSION.

IT HAS BEEN HELD BY THIS OFFICE AND BY THE COURT OF CLAIMS THAT COMMUTATION OF QUARTERS, OR RENTAL ALLOWANCE, IS NO PART OF THE PAY PROPER OF AN OFFICER, BUT IS DESIGNED AND INTENDED RATHER AS IN THE NATURE OF REIMBURSEMENT FOR EXPENSES NECESSARILY INCURRED BY HIM AS RENTAL FOR PRIVATE QUARTERS FOR HIS DEPENDENT/S) BY REASON OF THE FAILURE OR INABILITY OF THE GOVERNMENT TO FURNISH PUBLIC QUARTERS ADEQUATE FOR THEIR ACCOMMODATION; AND THAT IF AN OFFICER'S DEPENDENTS RESIDE IN PUBLIC QUARTERS ASSIGNED TO ANOTHER OFFICER, THERE IS NO RIGHT TO THE INCREASED ALLOWANCE ON ACCOUNT OF DEPENDENTS. IN BYRNE V. UNITED STATES, 87 C.1CLS. 241, 248, THE COURT SAID:

* * * COMMUTATION IS FOR THE PURPOSE OF COMPENSATING AN OFFICER FOR EXPENSES INCURRED IN PROVIDING PRIVATE QUARTERS FOR HIMSELF AND HIS DEPENDENTS WHEN THE GOVERNMENT FAILS TO PROVIDE PUBLIC QUARTERS. ON THIS THEORY ONLY CAN RECOVERY BE HAD AND, AS IT APPEARS IN THIS CASE THAT THE OFFICER HAS NOT BEEN PUT TO ANY EXPENSE, NO RIGHT TO REIMBURSEMENT HAS BEEN ESTABLISHED. CF. 15 COMP. GEN. 524, REFERENCE (F) OF FIRST INDORSEMENT OF MARCH 9, 1943, WITH YOUR SUBMISSION. ALSO, CF. BEERY, V. UNITED STATES, 87 C.1CLS. 557, 562, WHERE THE COURT SAID:

IT IS NOW WELL SETTLED BY THE DECISIONS OF THIS COURT BEGINNING WITH THE CASE OF ODELL V. UNITED STATES, 38 C.1CLS. 194, THAT COMMUTATION FOR QUARTERS IS REIMBURSEMENT TO AN OFFICER FOR EXPENSE PAID BY HIM FOR PRIVATE QUARTERS WHEN THE GOVERNMENT FAILS TO FURNISH HIM PUBLIC QUARTERS, AND IF AN OFFICER INCURS NO EXPENSE IN PROVIDING QUARTERS FOR HIS DEPENDENTS, THERE IS NO REIMBURSEMENT. * * *

IT MAY BE POINTED OUT HERE THAT THE CASE OF JAMES B. GLENNON V. UNITED STATES, 66 C.1CLS. 723, REFERENCE (C) IN FIRST INDORSEMENT SUPRA, WHICH WAS CONTRARY TO DECISIONS OF THE COMPTROLLER GENERAL A 14562, NOVEMBER 8, 1926, AND MAY 16, 1927, IN THE SAME MATTER, ALSO REFERENCED (A) AND (B) IN SAID INDORSEMENT, WAS OVERRULED PRO TANTO BY THE COURT OF CLAIMS IN THE BYRNE CASE.

THE RULE THUS STATED WOULD APPEAR TO BE APPLICABLE HERE. THE MINOR DAUGHTER OF LIEUTENANT CRUTCHER IS IN THE CARE, CUSTODY AND CONTROL OF HIS FORMER WIFE PURSUANT TO THE DICTATE OF THE DIVORCE DECREE, AND IS OCCUPYING PUBLIC QUARTERS ASSIGNED TO HER STEPFATHER BY THE GOVERNMENT FOR THE OCCUPANCY OF HIMSELF AND HIS DEPENDENTS. MANIFESTLY, LIEUTENANT CRUTCHER INCURS NO EXPENSE IN PROVIDING PRIVATE QUARTERS FOR HIS DAUGHTER BY REASON OF THE FAILURE OF THE GOVERNMENT TO PROVIDE PUBLIC QUARTERS WHEN SHE IS OCCUPYING QUARTERS FURNISHED BY THE GOVERNMENT.

ACCORDINGLY, IT MUST BE HELD THAT UPON THE FACTS PRESENTED, LIEUTENANT CRUTCHER IS NOT ENTITLED TO BE CREDITED WITH INCREASED RENTAL ALLOWANCES ON ACCOUNT OF HIS MINOR DAUGHTER UNDER THE CIRCUMSTANCES SET FORTH IN QUESTION NUMBERED (1) OF YOUR SUBMISSION AND SAID QUESTION IS ANSWERED IN THE NEGATIVE INSOFAR AS INCREASED RENTAL ALLOWANCE IS CONCERNED, WITH THE UNDERSTANDING THAT THIS DOES NOT APPLY TO INCREASED SUBSISTENCE ALLOWANCE, WHICH IS PAYABLE TO AN OFFICER WITH DEPENDENT/S) REGARDLESS OF WHETHER SAID OFFICER AND HIS DEPENDENTS OCCUPY PUBLIC QUARTERS.

QUESTIONS NUMBERED (2) AND (3) ABOVE APPARENTLY DO NOT HAVE REFERENCE TO A PARTICULAR CASE OR CASES AND, PRESUMABLY, THE DECISION REQUESTED IS SOUGHT FOR THE GUIDANCE OF DISBURSING OFFICERS OF YOUR DEPARTMENT IN ANY CASES THAT MAY ARISE INVOLVING CONDITIONS SUCH AS OUTLINED IN SAID QUESTIONS.

YOUR LETTER OF JUNE 9, 1943, REFERRED TO A DECISION OF THIS OFFICE, B- 28900, JANUARY 9, 1943, AND, ALSO, TO YOUR ORIGINAL SUBMISSION IN THE INSTANT MATTER. THE CITED DECISION INVOLVED THE RIGHT OF AN OFFICER OF THE COAST GUARD, LIEUTENANT (JG) JOHN R. HARRIS, TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES BY REASON OF DEPENDENTS (TWO MINOR SONS IN CUSTODY OF HARRIS'S DIVORCED WIFE, WHO HAD MARRIED ANOTHER COAST GUARD OFFICER WHO WAS NOT ASSIGNED PUBLIC QUARTERS BUT WAS PAID INCREASED RENTAL ALLOWANCES IN LIEU THEREOF).

THE DECISION WAS RENDERED TO LIEUTENANT HARRIS AND SUSTAINED A PREVIOUS DISALLOWANCE OF HIS CLAIM BY THE CLAIMS DIVISION OF THIS OFFICE, AND WAS, IN PERTINENT PART, AS FOLLOWS:

* * * THE DECISIONS OF THIS OFFICE HAVE HELD THAT SECTION 4 (ACT OF JUNE 10, 1922, 42 STAT. 627, AS AMENDED) WAS DRAWN WITH RESPECT TO THE NORMAL SITUATION OF A FATHER AND HUSBAND AS THE HEAD OF A FAMILY AND CHARGED WITH THE LEGAL DUTY TO SUPPORT HIS WIFE AND CHILDREN, AND THE RULE THAT HAS BEEN ADOPTED IN THE SETTLEMENT OF ACCOUNTS AND CLAIMS INVOLVING INCREASED ALLOWANCES CLAIMED BY DIVORCED OFFICERS ON BEHALF OF CHILDREN IS THAT WHERE THE CUSTODY OF THE CHILDREN HAS BEEN AWARDED TO THE DIVORCED WIFE, AND SHE REMARRIES AN OFFICER OF THE MILITARY OR NAVAL SERVICES, AND THE CHILDREN BECOME MEMBERS OF HIS HOUSEHOLD, THE DIVORCED OFFICER IS TO BE TREATED AS AN OFFICER WITHOUT DEPENDENTS FOR THE PURPOSES OF RENTAL AND SUBSISTENCE ALLOWANCES. THE BASIS FOR THIS RULE IS THAT FROM THE DATE OF MARRIAGE OF THE FORMER WIFE TO AN OFFICER IN THE SERVICES, THE CHILDREN BECOME HIS STEPCHILDREN AND WHETHER OR NOT HE EXERCISES SUCH RIGHT, HE HAS THE RIGHT OF CLAIMING ALLOWANCES AS FOR AN OFFICER WITH DEPENDENT CHILDREN AND ALWAYS IN THE MATTER OF THE ASSIGNMENT OR NONASSIGNMENT OF PUBLIC QUARTERS, THEY ARE HIS CHILDREN. IT WAS STATED IN YOUR LETTER OF JUNE 9, 1943, SUPRA, THAT THE BUREAU OF SUPPLIES AND ACCOUNTS HAD NO KNOWLEDGE OF THE RULE ANNOUNCED IN THAT DECISION, WHICH WAS RENDERED TO THE CLAIMANT HIMSELF,"UNTIL A COPY OF THE DECISION WAS UNOFFICIALLY RECEIVED IN THE BUREAU OF SUPPLIES AND ACCOUNTS FROM A SPECIAL DISBURSING AGENT OF THE U.S. COAST GUARD ON OR ABOUT MAY 8, 1943.' YOUR LETTER THEN RESTATED THE THREE QUERIES POSED IN YOUR LETTER OF MARCH 16, 1943, AS SET OUT ABOVE, AND REQUESTED "THAT THE COMPTROLLER GENERAL OF THE UNITED STATES WITHHOLD APPLICATIONS OF THE RULING PRESCRIBED IN DECISION B-28900 OF JANUARY 9, 1943, UNTIL SUCH TIME AS THE NAVY DEPARTMENT PROMULGATES THE INSTRUCTIONS BASED ON THE DECISION TO BE RENDERED BY THE COMPTROLLER GENERAL OF THE UNITED STATES ON THE SPECIFIC QUESTIONS SET FORTH IN THE PRECEDING PARAGRAPH.'

WITH A LETTER OF JUNE 18, 1943, YOU TRANSMITTED A LETTER FROM LIEUTENANT O. F. MCCLOW, SPECIAL DISBURSING AGENT ( NAVY), U.S. COAST GUARD, WITH ENCLOSURE AND ACCOMPANYING INDORSEMENT WITH FURTHER REFERENCE TO THE CASE OF LIEUTENANT (JG) JOHN H. HARRIS AND STATED IN RELEVANT PART AS FOLLOWS:

IN THIS CONNECTION YOUR DECISION IS REQUESTED ON THE SPECIFIC QUESTION RAISED BY THE BUREAU OF SUPPLIES AND ACCOUNTS IN THE ENCLOSURE, NAMELY, WHETHER THE RULING ANNOUNCED IN THE COMPTROLLER GENERAL'S DECISION B- 28900, DATED JANUARY 9, 1943, IS APPLICABLE, IN DETERMINING THE RIGHT OF LIEUTENANT (JG) HARRIS TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS AN OFFICER WITH DEPENDENTS (MINOR CHILD IN CUSTODY OF FORMER WIFE), ON AND AFTER JUNE 1, 1942, IN VIEW OF THE UNRESTRICTED LANGUAGE USED IN SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942 (56 STAT. 361; 37 U.S.C. 104). REPLY TO THAT SUBMISSION YOU WERE INFORMED IN DECISION B-28900, JULY 30, 1943, 23 COMP. GEN. 71, THAT EXCEPT WHERE IT WAS SHOWN THAT A DIVORCED OFFICER HAD BEEN ABSOLVED FROM THE RESPONSIBILITY TO SUPPORT HIS CHILD OR CHILDREN, OR THAT HIS CHILD OR CHILDREN HAD BEEN EMANCIPATED, OR THAT THE DIVORCED OFFICER HAD REFUSED TO SUPPORT HIS CHILD OR CHILDREN, THIS OFFICE WOULD NOT, IN CASES OF DIVORCED OFFICERS, QUESTION OTHERWISE PROPER PAYMENTS OF INCREASED ALLOWANCES UNDER THE PAY READJUSTMENT ACT OF JUNE 16, 1942, 56 STAT. 361, ON ACCOUNT OF LEGITIMATE UNMARRIED CHILDREN UNDER 21 YEARS OF AGE.

THE CONDITIONS OUTLINED IN QUESTIONS NUMBERED (2) AND (3) OF YOUR PRESENT SUBMISSION WOULD APPEAR TO BE REASONABLY WITHIN THAT RULE. THE COURT OF CLAIMS, IN THE CASE OF ODELL V. UNITED STATES, 38 C.1CLS. 194, WHICH APPARENTLY HAS BEEN THE PATTERN FOR SUBSEQUENT DECISIONS OF THAT COURT ON SIMILAR SUBJECTS, HELD THAT COMMUTATION OF QUARTERS WAS A FORM OF REIMBURSEMENT, AND NOT A PART OF THE COMPENSATION OF AN OFFICER, AND THAT WHERE THERE WAS NO EXPENSE FOR QUARTERS, THE CLAIMANT OCCUPYING PUBLIC QUARTERS, THERE COULD BE NO COMMUTATION. HOWEVER, THE COURT SAID THAT IF THE CLAIMANT THERE HAD OCCUPIED QUARTERS NOT BELONGING TO THE UNITED STATES, AND WAS OTHERWISE ENTITLED UNDER THE CIRCUMSTANCES TO QUARTERS, THE FACT THAT HE WAS NOT CHARGED FOR THE USE OF SUCH QUARTERS WOULD NOT BE MATERIAL AND WOULD NOT AFFECT THE RIGHT AND OBLIGATION OF THE PARTIES. WHILE RENTAL ALLOWANCES ARE, OF COURSE, IN LIEU OF PUBLIC QUARTERS, WHEN AN OFFICER FURNISHES PRIVATE QUARTERS FOR HIMSELF AND HIS DEPENDENTS, THE GOVERNMENT IS NOT CONCERNED WHETHER HE PAYS RENT, OR WHAT RENT HE PAYS--- WHETHER MORE OR LESS THAN THE AMOUNT OF HIS SPECIFIED RENTAL ALLOWANCE--- OR WHAT ARRANGEMENTS HE HAS OR MAY HAVE FOR DEFRAYING THE EXPENSE, IF ANY, OF SUCH RENTAL. AN OFFICER MAY EXPEND MORE FOR THE RENTAL OF PRIVATE QUARTERS THAN THE RENTAL ALLOWANCE TO WHICH HE IS ENTITLED. ALSO, HE MAY PAY LESS. ORDINARILY, IT WOULD APPEAR REASONABLE TO ASSUME THAT THE PRESENCE OF ONE OR MORE STEPCHILDREN IN THE HOUSEHOLD WOULD NECESSITATE THE RENTAL OF MORE CAPACIOUS QUARTERS THAN WOULD BE ADEQUATE FOR THE OFFICER AND HIS WIFE. IT MAY BE PRESUMED IN SUCH A CASE THAT THE MOTHER OF THE STEPCHILD OR STEPCHILDREN WOULD MAKE CONTRIBUTIONS TO THE COST OF RENTAL OF PRIVATE QUARTERS IN ORDER TO RELIEVE HER HUSBAND OF THE ADDITIONAL EXPENSE ENTAILED BY THE PRESENCE OF HER CHILD OR CHILDREN IN THE FAMILY WHERE THE NATURAL FATHER OF THE CHILD OR CHILDREN WAS CONTRIBUTING TO ITS OR THEIR SUPPORT. HOWEVER, THAT MAY BE, IN CASES SUCH AS OUTLINED IN YOUR QUESTION NUMBERED (2) THERE WOULD APPEAR TO BE NO NECESSITY FOR INQUISITION AS TO ANY ARRANGEMENTS WHICH MAY MAINTAIN BETWEEN THE MOTHER AND STEPFATHER OF THE CHILDREN; AND WHERE IT APPEARS THAT THE CHILDREN OF A DIVORCED OFFICER ARE IN THE LEGAL CUSTODY OF THEIR MOTHER WHO IS REMARRIED TO AN OFFICER OF THE MILITARY OR NAVAL SERVICES WHO IS NOT ASSIGNED PUBLIC QUARTERS, AND IS PAID RENTAL ALLOWANCES IN LIEU THEREOF, THIS OFFICE WILL NOT QUESTION OTHERWISE PROPER PAYMENTS OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES TO SAID DIVORCED OFFICER AS FOR AN OFFICER WITH DEPENDENTS (MINOR CHILD OR CHILDREN IN CUSTODY OF DIVORCED WIFE) IF HE CONTRIBUTES TO THEIR SUPPORT, AND QUESTION NO. (2) IS ANSWERED ACCORDINGLY. QUESTION NO. (3) IS AS TO WHETHER A DIVORCED OFFICER WHO OCCUPIES BACHELOR OFFICERS' QUARTERS IS ENTITLED TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES FOR A DEPENDENT (MINOR CHILD IN CUSTODY OF A FORMER WIFE), IN CASES WHERE THE CHILD'S MOTHER IS REMARRIED TO AN OFFICER WHO IS NOT ASSIGNED PUBLIC QUARTERS FOR HIMSELF AND DEPENDENTS, AND, THEREFORE, IS ENTITLED TO RENTAL ALLOWANCES.

FOR SOME TIME IT WAS THE RULE, UNDER SEVERAL DECISIONS OF THE COURT OF CLAIMS WHICH NEED NOT NOW BE CITED, THAT AN OFFICER WHO OCCUPIED BACHELOR QUARTERS AT HIS PERMANENT STATION, WHOSE DEPENDENTS DID NOT OCCUPY PUBLIC QUARTERS BY REASON OF THEIR UNAVAILABILITY, WAS NOT ENTITLED, UNDER THE ACT OF JUNE 10, 1922, 42 STAT. 625, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 250 ( TITLE 37 U.S.C., SECTION 10), TO BE PAID THE FULL RENTAL ALLOWANCE TO WHICH HE WOULD OTHERWISE BE ENTITLED, BUT ONLY THE DIFFERENCE BETWEEN THE RENTAL VALUE, AS FIXED BY STATUTE, OF THE NUMBER OF ROOMS WHICH HE WAS ENTITLED TO BE ASSIGNED AS AN OFFICER WITH DEPENDENTS, AND THE NUMBER OF ROOMS ACTUALLY OCCUPIED BY HIM AT HIS PERMANENT STATION. HOWEVER, IN THE CASE OF MUMMA V. UNITED STATES, 99 C.1CLS. 261 DECIDED FEBRUARY 1, 1943, THE COURT OVERRULED AGETON V. UNITED STATES 95 C.1CLS. 718, AND HELD THAT UNDER THE PROVISIONS OF THE CITED ACT AN ARMY OFFICER WITH DEPENDENTS WHO WAS NOT ASSIGNED AS QUARTERS AT HIS PERMANENT STATION "THE NUMBER OF ROOMS PROVIDED BY LAW FOR AN OFFICER OF HIS RANK" WAS ENTITLED TO BE PAID THE FULL AMOUNT OF RENTAL ALLOWANCE PRESCRIBED BY LAW IN LIEU THEREOF, WITHOUT DEDUCTION THEREFROM FOR THE LESSER NUMBER OF ROOMS ASSIGNED TO HIM FOR OCCUPATION WITHOUT HIS DEPENDENTS. THAT DECISION HAD TO DO WITH THE ACT OF JUNE 10, 1922, AS AMENDED. THE LANGUAGE AND FORM OF SECTION 6 OF THE ACT OF JUNE 16, 1942, AS AMENDED, DIFFERS SOMEWHAT FROM THAT OF THE EARLIER LAW, BUT THE GENERAL INTENT, PURPOSE AND EFFECT WOULD APPEAR TO BE SUBSTANTIALLY THE SAME. HENCE, THE DECISION OF THE COURT OF CLAIMS IN THE MUMMA CASE, WOULD APPEAR TO BE APPLICABLE TO A SIMILAR SITUATION ARISING UNDER THE LATER LAW. THEREFORE, IF AN OFFICER OTHERWISE IS ENTITLED TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCE FOR A DEPENDENT CHILD, YOUR QUESTION NO. 3 IS ANSWERED IN THE AFFIRMATIVE.

THE REQUIREMENT HEREIN THAT A DIVORCED OFFICER CLAIMING THE INCREASED ALLOWANCES ON ACCOUNT OF HIS MINOR CHILDREN MUST SHOW THAT HE CONTRIBUTED TO THEIR SUPPORT WHEN SUCH CHILDREN HAVE BECOME THE STEPCHILDREN OF ANOTHER OFFICER IS TO BE REGARDED AS A QUALIFICATION OR AMPLIFICATION OF THE THIRD EXCEPTION STATED IN THE CONCLUDING PARAGRAPH OF THE DECISION OF JULY 30, 1943, B-28900, 23 COMP. GEN. 71.