B-156579, MAY 12, 1965, 44 COMP. GEN. 713

B-156579, MAY 12, 1965, 44 COMP. GEN. 713

QUARTERS ALLOWANCE - DEPENDENTS - CHILDREN - OCCUPANCY OF QUARTERS ASSIGNED TO ANOTHER MEMBER A NAVY OFFICER WHO, PURSUANT TO A DIVORCE AGREEMENT, CONTRIBUTES TO THE SUPPORT OF HIS CHILDREN WHO LIVE WITH THE MEMBER'S FORMER WIFE AND HER SECOND HUSBAND--- AN AIR FORCE OFFICER--- IN ASSIGNED PUBLIC QUARTERS IS REGARDED AS HAVING HIS DEPENDENT CHILDREN OCCUPYING PUBLIC QUARTERS TO PRECLUDE PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS ON BEHALF OF THE CHILDREN, THEREFORE, QUARTERS ALLOWANCE PAYMENTS MADE TO THE MEMBER AFTER THE MEMBER'S FORMER WIFE WAS REMARRIED MUST BE RECOVERED.

TO MR. C. E. SCHMEDER, DEPARTMENT OF THE NAVY, MAY 12, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 18, 1965, 660 79, 7230, REQUESTING DECISION AS TO WHETHER LIEUTENANT COMMANDER SIGMUND ABRAHAM, JR., USN, IS ENTITLED TO RECEIVE BASIC ALLOWANCE FOR QUARTERS IN BEHALF OF HIS CHILDREN, DAVID H. AND VIRGINIA LEE ABRAHAM, WHILE THEY OCCUPY GOVERNMENT QUARTERS ASSIGNED TO ANOTHER MEMBER. THE REQUEST WAS ASSIGNED SUBMISSION NO. DO-N-838, BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS SHOWN THAT COMMANDER ABRAHAM WAS ON SEA DUTY FROM JANUARY 27, 1962 TO DECEMBER 18, 1963, AND IN A LEAVE AND TRANSIENT STATUS UNTIL JANUARY 6, 1964, WHEN HE REPORTED TO SAN FRANCISCO NAVAL SHIPYARD, SAN FRANCISCO, CALIFORNIA, AND WAS ASSIGNED TO BACHELOR OFFICERS' QUARTERS AT TREASURE ISLAND THE SAME DATE. IT APPEARS THAT HE PAYS $225 PER MONTH FOR THE SUPPORT OF THE CHILDREN PURSUANT TO FINAL DIVORCE DECREE GRANTED BY THE PROBATE COURT OF ALABAMA IN 1959. YOU SAY COMMANDER ABRAHAM WAS CREDITED WITH BASIC ALLOWANCE FOR QUARTERS IN BEHALF OF THE CHILDREN FROM JULY 1, 1963, TO JANUARY 13, 1965. HOWEVER, HIS FORMER WIFE HAS REMARRIED AND SINCE JUNE 21, 1963, THE CHILDREN HAVE BEEN LIVING WITH HER AND THEIR STEPFATHER, CAPTAIN R. C. DRESSEL (APPARENTLY AIR FORCE), AT K. I. SAWYER AIR FORCE BASE, MICHIGAN, IN PUBLIC QUARTERS FURNISHED CAPTAIN DRESSEL IN LIEU OF QUARTERS ALLOWANCE.

SECTION 403 OF TITLE 37, U.S. CODE, PROVIDES THAT EXCEPT AS OTHERWISE PROVIDED BY LAW, A MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS. AN INCREASED ALLOWANCE IS PROVIDED FOR MEMBERS WITH DEPENDENTS. IT FURTHER PROVIDES, HOWEVER, THAT 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.

SECTION 403 OF EXECUTIVE ORDER NO. 11157, DATED JUNE 22, 1964, PROVIDES THAT ANY QUARTERS UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES IN FACT OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES BY A MEMBER AND HIS DEPENDENTS OR BY THE DEPENDENTS OF A MEMBER ON FIELD DUTY OR ON SEA DUTY OR ON DUTY AT A STATION WHERE ADEQUATE QUARTERS FOR HIS DEPENDENTS ARE NOT AVAILABLE, SHALL BE DEEMED TO HAVE BEEN ASSIGNED TO SUCH MEMBER AS APPROPRIATE AND ADEQUATE QUARTERS, AND NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO SUCH MEMBER IN THESE CIRCUMSTANCES, WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE. SIMILAR PROVISIONS WERE CONTAINED IN THE PRECEDING EXECUTIVE ORDER NO. 10204, DATED JANUARY 15, 1951, AS AMENDED. IN CONFORMITY WITH THESE PROVISIONS, PARAGRAPH 044037-2A, ITEMS 2 AND 3, NAVY COMPTROLLER MANUAL, PROVIDES THAT A MEMBER WITH DEPENDENTS IS NOT ENTITLED TO BASIC ALLOWANCE FOR QUARTERS WHEN HIS DEPENDENTS OCCUPY PUBLIC QUARTERS (EVEN THOUGH HE DOES NOT OCCUPY THE SAME QUARTERS AS HIS DEPENDENTS), OR WHEN HIS DEPENDENTS OCCUPY PUBLIC QUARTERS WHILE HE IS ON SEA DUTY. THOSE REGULATIONS PRECLUDE PAYMENT OF A QUARTERS ALLOWANCE TO LIEUTENANT COMMANDER ABRAHAM SUBSEQUENT TO JUNE 20, 1963.

THE RECORD BEFORE US DOES NOT SHOW WHETHER CAPTAIN DRESSEL CLAIMED THESE CHILDREN AS HIS DEPENDENTS FOR PURPOSES OF ASSIGNMENT OF QUARTERS, BUT HE WAS FURNISHED PUBLIC QUARTERS FOR HIMSELF AND WIFE AND AS THE CHILDREN RESIDED THERE WITH THEM SINCE JUNE 21, 1963, IT MUST BE CONSIDERED THAT THEY OCCUPIED PUBLIC QUARTERS. CONSEQUENTLY COMMANDER ABRAHAM WAS ERRONEOUSLY CREDITED WITH BASIC ALLOWANCE FOR QUARTERS IN BEHALF OF THESE CHILDREN FOR THE PERIOD JULY 1, 1963 TO JANUARY 13, 1965, AND CHECK AGE SHOULD BE ENTERED AGAINST HIM FOR THAT PERIOD. THE PAPERS RECEIVED WITH YOUR LETTER WILL BE RETAINED HERE.