B-90615, JANUARY 11, 1951, 30 COMP. GEN. 282

B-90615: Jan 11, 1951

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1951: THERE HAVE BEEN RECEIVED IN THIS OFFICE FROM VARIOUS DISBURSING OFFICERS IN THE NAVY (IN SOME INSTANCES VIA THE BUREAU OF SUPPLIES AND ACCOUNTS) A NUMBER OF REQUESTS FOR ADVANCE DECISION AS TO THE LEGALITY OF CREDITING THE PAY ACCOUNTS OF NAVAL OFFICERS WITH BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENT PARENTS BEGINNING AUGUST 1. AN EXAMPLE IS A REQUEST RECEIVED DIRECTLY FROM THE DISBURSING OFFICER. APPARENTLY WAS INITIATED ON THE BASIS THAT SECTION 1 OF THE DEPENDENTS ASSISTANCE ACT OF 1950. EACH OF THE ABOVE-DESCRIBED CASES WAS SUBMITTED TO THIS OFFICE FOR A DETERMINATION WHETHER THE PARENT IS DEPENDENT ON THE OFFICER FOR OVER ONE- HALF OF HIS OR HER SUPPORT. WAS SO SUBMITTED PURSUANT TO NAVY DEPARTMENT INSTRUCTIONS (PAGES 5 AND 6.

B-90615, JANUARY 11, 1951, 30 COMP. GEN. 282

QUARTERS - BASIC ALLOWANCE - DEPENDENT PARENTS - DEPENDENCY DETERMINATION AUTHORITY IN VIEW OF SECTION 1 OF THE DEPENDENTS ASSISTANCE ACT OF 1950 TEMPORARILY CHARGING THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 WITH RESPECT TO DETERMINATIONS OF THE DEPENDENCY OF PARENTS OF MEMBERS OF THE UNIFORMED SERVICES AND VESTING AUTHORITY FOR SUCH DETERMINATION IN THE SECRETARY OF THE DEPARTMENT CONCERNED, THE GENERAL ACCOUNTING OFFICE, FOR THE DURATION OF SAID 1950 ACT, MAY NOT MAKE DETERMINATIONS WITH RESPECT TO CREDITING AN OFFICER WITH BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT PARENT; HOWEVER, THE 1950 ACT HAS NO EFFECT ON THE JURISDICTION OF THIS OFFICE TO DETERMINE THE DEPENDENCY OR RELATIONSHIP OF PERSONS OTHER THAN PARENTS CLAIMED BY OFFICERS AS DEPENDENTS.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 11, 1951:

THERE HAVE BEEN RECEIVED IN THIS OFFICE FROM VARIOUS DISBURSING OFFICERS IN THE NAVY (IN SOME INSTANCES VIA THE BUREAU OF SUPPLIES AND ACCOUNTS) A NUMBER OF REQUESTS FOR ADVANCE DECISION AS TO THE LEGALITY OF CREDITING THE PAY ACCOUNTS OF NAVAL OFFICERS WITH BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENT PARENTS BEGINNING AUGUST 1, 1950, OR THEREAFTER. AN EXAMPLE IS A REQUEST RECEIVED DIRECTLY FROM THE DISBURSING OFFICER, U.S. NAVAL HOSPITAL, SAN DIEGO, CALIFORNIA, INVOLVING THE CLAIM OF LIEUTENANT (JG) INA M. MAST, NURSE CORPS, U.S. NAVY, FOR SUCH ALLOWANCE FOR HER DEPENDENT MOTHER BEGINNING AUGUST 1, 1950.

THE CLAIM OF LIEUTENANT (JG) MAST, LIKE OTHER SIMILAR CLAIMS SUBMITTED TO THIS OFFICE, APPARENTLY WAS INITIATED ON THE BASIS THAT SECTION 1 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, ( PUBLIC LAW 771, APPROVED SEPTEMBER 8, 1950), EFFECTIVE AUGUST 1, 1950, TEMPORARILY SUSPENDED THE CONDITION IN SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, TO THE EFFECT THAT A PARENT OF A MEMBER OF THE UNIFORMED SERVICES COULD BE CONSIDERED A DEPENDENT OF SUCH MEMBER ONLY IF ACTUALLY RESIDING "IN THE HOUSEHOLD OF SAID MEMBER.'

EACH OF THE ABOVE-DESCRIBED CASES WAS SUBMITTED TO THIS OFFICE FOR A DETERMINATION WHETHER THE PARENT IS DEPENDENT ON THE OFFICER FOR OVER ONE- HALF OF HIS OR HER SUPPORT, AND WAS SO SUBMITTED PURSUANT TO NAVY DEPARTMENT INSTRUCTIONS (PAGES 5 AND 6, MILITARY PAY INSTRUCTION MEMORANDUM 5, DATED SEPTEMBER 15, 1950). HOWEVER, IT DOES NOT APPEAR THAT THIS OFFICE NOW HAS JURISDICTION TO MAKE SUCH DETERMINATIONS OF DEPENDENCY, OR DETERMINATIONS OF RELATIONSHIP IN CASES OF THIS NATURE INVOLVING CLAIMS BASED ON DEPENDENCY OF PARENTS, IN VIEW OF SECTIONS 1, 10, AND 11 OF THE ABOVE-CITED DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 794, 796, 797, WHICH PROVIDE AS FOLLOWS:

( SEC. 1) THAT FOR THE DURATION OF THIS ACT ( AUGUST 1, 1950, TO APRIL 30, 1953) THAT PART OF THE SECOND SENTENCE OF SECTION 102 (G) OF THE ACT OF OCTOBER 12, 1949 ( PUBLIC LAW 351, EIGHTY-FIRST CONGRESS), WHICH READS "* * * AND ACTUALLY RESIDES IN THE HOUSEHOLD OF SAID MEMBER" IS SUSPENDED: PROVIDED, THAT THE DEPENDENCY OF THE FATHER OR MOTHER AS REQUIRED BY SAID SECTION 102 (G) SHALL BE DETERMINED ON THE BASIS OF AN AFFIDAVIT SUBMITTED BY SUCH FATHER OR MOTHER, AND SUCH OTHER EVIDENCE AS THE SECRETARY CONCERNED MAY DEEM NECESSARY UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, AND NO SUCH FATHER OR MOTHER SHALL BE DEEMED DEPENDENT UNLESS---

(1) THE MEMBER OF THE UNIFORMED SERVICES CLAIMING SUCH DEPENDENCY HAS PROVIDED OVER ONE-HALF OF THE SUPPORT OF SUCH FATHER OR MOTHER FOR SUCH PERIOD OF TIME AS THE SECRETARY CONCERNED MAY PRESCRIBE; OR

(2) IN THE CASE OF CLAIMED DEPENDENCY ARISING BY REASON OF CHANGED CIRCUMSTANCES AFTER THE ENTRANCE OF SUCH MEMBER INTO ACTIVE SERVICE SUBSEQUENT TO THE EFFECTIVE DATE OF THIS ACT, SUCH FATHER OR MOTHER BECOMES IN FACT DEPENDENT UPON SUCH MEMBER FOR OVER ONE-HALF OF HIS OR HER SUPPORT.

SEC. 10. THE SECRETARIES OF THE DEPARTMENTS CONCERNED ARE AUTHORIZED TO PRESCRIBE SUCH REGULATIONS FOR THE ADMINISTRATION OF THIS ACT AS MAY BE DEEMED NECESSARY TO ENABLE THEM TO CARRY OUT THE PROVISIONS OF THIS ACT AND SUCH REGULATIONS SHALL, AS FAR AS PRACTICABLE, BE UNIFORM. ALL WAIVERS AND DETERMINATIONS, INCLUDING DETERMINATIONS OF DEPENDENCY AND RELATIONSHIP SHALL BE MADE BY THE SECRETARY OF THE DEPARTMENT CONCERNED OR SUCH OTHER PERSON OR PERSONS AS HE MAY DESIGNATE, AND THE SECRETARY OF THE DEPARTMENT CONCERNED OR HIS DESIGNEE IS AUTHORIZED TO DELEGATE OR REDELEGATE SUCH AUTHORITY: PROVIDED, THAT THE AUTHORITY GRANTED IN THIS SECTION TO THE SEVERAL SECRETARIES OF THE DEPARTMENTS CONCERNED MAY BY JOINT AGREEMENT BE EXERCISED BY ANY ONE OF THE SECRETARIES FOR ANY OTHER DEPARTMENT OR DEPARTMENTS CONCERNED.

SEC. 11. ANY DETERMINATIONS OR WAIVERS MADE UNDER THIS ACT SHALL BE FINAL AND CONCLUSIVE FOR ALL PURPOSES AND SHALL NOT BE SUBJECT TO REVIEW IN ANY COURT OR BY ANY ACCOUNTING OFFICER OF THE GOVERNMENT, EXCEPT FOR CASES INVOLVING FRAUD OR GROSS NEGLIGENCE. THE SECRETARY OF THE DEPARTMENT CONCERNED MAY AT ANY TIME ON THE BASIS OF NEW EVIDENCE OR FOR OTHER GOOD CAUSE RECONSIDER OR MODIFY ANY SUCH DETERMINATION, AND MAY WAIVE THE RECOVERY OF ANY MONEY ERRONEOUSLY PAID UNDER THIS ACT WHENEVER HE FINDS THAT SUCH RECOVERY WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE. (ITALICS SUPPLIED.)

IT WILL BE NOTED THAT THE ABOVE-QUOTED SECTION 1 TEMPORARILY CHANGES THE PROVISIONS OF THE CAREER COMPENSATION ACT WITH RESPECT TO DETERMINATIONS OF THE DEPENDENCY OF PARENTS OF MEMBERS OF THE UNIFORMED SERVICES AND THAT, WHILE THE SAID SECTION IS IN EFFECT, SUCH DETERMINATIONS ARE AUTHORIZED TO BE MADE ON THE BASIS OF THE PARENT'S AFFIDAVIT "AND SUCH OTHER EVIDENCE AS THE SECRETARY CONCERNED MAY DEEM NECESSARY.'

SINCE THE AMENDED DEFINITION IN SECTION 102 (G) RELATES TO "ANY MEMBER OF THE UNIFORMED VICES," IT IS THE VIEW OF THIS OFFICE THAT THE PROVISIONS OF THE SAID SECTION 1 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, CONSIDERED IN CONJUNCTION WITH THE PROVISIONS OF SECTIONS 10 AND 11, SUPRA, HAVE THE EFFECT OF VESTING IN "THE SECRETARY CONCERNED," OR SUCH PERSON OR PERSONS AS HE MAY DESIGNATE, THE AUTHORITY TO MAKE FINAL AND CONCLUSIVE DETERMINATIONS OF ALL QUESTIONS OF DEPENDENCY AND RELATIONSHIP WHICH MAY ARISE IN CONNECTION WITH PAYMENTS OF BASIC ALLOWANCE FOR QUARTERS TO OFFICERS AS WELL AS OTHER MEMBERS IN THOSE CASES WHERE THE PAYMENT IS BASED ON THE DEPENDENCY OF A PARENT. HOWEVER, THIS OFFICE TAKES THE POSITION THAT INSOFAR AS THE CASES OF OFFICERS ARE CONCERNED THE SAID SECTIONS 10 AND 11 HAVE NO EFFECT ON ITS JURISDICTION RESPECTING DETERMINATIONS OF RELATIONSHIP OR DEPENDENCY OF ALLEGED DEPENDENTS OTHER THAN PARENTS. THE BASIS FOR SUCH POSITION IS THAT (1) WITH RESPECT OF OFFICERS' CASES NO DETERMINATIONS OF DEPENDENCY OR RELATIONSHIP ARE NECESSARY IN CARRYING OUT ANY OF THE PROVISIONS OF THE SAID 1950 ACT, EXCEPTING THE PROVISIONS OF SECTION 1 RELATING TO PARENTS, AND (2) THE ONLY DETERMINATIONS TO WHICH SECTION 10 AND 11 HAVE REFERENCE ARE THOSE NECESSARY TO BE MADE IN CARRYING OUT THE PROVISIONS OF THE SAIS 1950 ACT.

IN ACCORDANCE WITH THE FOREGOING, THE CLAIM OF LIEUTENANT (JG) MAST IS TRANSMITTED HEREWITH FOR APPROPRIATE ACTION. OTHER SIMILAR CASES NOW PENDING OR HEREAFTER RECEIVED IN THIS OFFICE WILL BE TRANSMITTED TO THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS.