B-178979, AUG 31, 1973, 53 COMP GEN 148

B-178979, AUG 31, 1973, 53 COMP GEN 148

FAMILY ALLOWANCES - SEPARATION - FEMALE MEMBERS - ENTITLEMENT TO ALLOWANCE ON THE BASES OF THE SUPREME COURT RULING IN FRONTIERO V. RICHARDSON, DECIDED MAY 14, 1973, TO THE EFFECT THAT THE DIFFERENTIAL TREATMENT ACCORDED MALE AND FEMALE MEMBERS OF THE UNIFORMED SERVICES WITH REGARD TO DEPENDENTS VIOLATES THE CONSTITUTION, AND PUBLIC LAW 93-64, ENACTED JULY 9, 1973, WHICH DELETED FROM 37 U.S.C. 401 THE SENTENCE CAUSING THE DIFFERENTIAL TREATMENT, THE REGULATIONS RELATING TO THE TWO TYPES OF FAMILY SEPARATION ALLOWANCES AUTHORIZED IN 37 U.S.C. 427 SHOULD BE CHANGED TO AUTHORIZE FAMILY SEPARATION ALLOWANCES TO FEMALE MEMBERS FOR CIVILIAN HUSBANDS UNDER THE SAME CONDITIONS AS AUTHORIZED FOR THE CIVILIAN WIVES OF MALE MEMBERS, AND FOR OTHER DEPENDENTS IN THE SAME MANNER AS PROVIDED FOR MALE MEMBERS WITH OTHER DEPENDENTS. SINCE THE FRONTIERO CASE WAS AN ORIGINAL CONSTRUCTION OF THE CONSTITUTIONALITY OF 37 U.S.C. 401 AND 403, PAYMENTS OF THE FAMILY ALLOWANCE MAY BE MADE RETROACTIVELY BY THE SERVICES CONCERNED, SUBJECT TO THE OCTOBER 9, 1940 BARRING ACT, AND THE SUBMISSION OF DOUBTFUL CLAIMS TO THE GENERAL ACCOUNTING OFFICE. QUARTERS ALLOWANCE - GOVERNMENT QUARTERS - HUSBAND AND WIFE SERVICE MEMBERS ALTHOUGH THE FRONTIERO DECISION HAS NO EFFECT ON THE DEPENDENCY STATUS OF SERVICE MEMBERS MARRIED TO EACH OTHER AS PRESCRIBED BY 37 U.S.C. 420, SINCE A MEMBER MAY NOT BE PAID AN INCREASED ALLOWANCE ON ACCOUNT OF A DEPENDENT FOR ANY PERIOD DURING WHICH THE DEPENDENT IS ENTITLED TO BASIC PAY, THE DIFFERENTIAL TREATMENT ACCORDED MALE AND FEMALE MEMBERS IN ASSIGNING QUARTERS REQUIRES AMENDMENT OF DEPARTMENT OF DEFENSE DIRECTIVE TO PRESCRIBE ENTITLEMENT TO BOTH MALE AND FEMALE MEMBERS TO A BASIC ALLOWANCE FOR QUARTERS AT THE WITHOUT DEPENDENT RATE WHEN ADEQUATE PUBLIC QUARTERS FOR DEPENDENTS ARE NOT AVAILABLE, NOTWITHSTANDING THE AVAILABILITY OF ADEQUATE SINGLE QUARTERS; TO REFLECT THAT NEITHER HUSBAND NOR WIFE OCCUPYING GOVERNMENT QUARTERS FOR ANY REASON WHO HAS ONLY THE OTHER SPOUSE TO CONSIDER AS A DEPENDENT IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS IN VIEW OF 37 U.S.C. 420; AND TO PROVIDE THAT WHEN HUSBAND AND WIFE ARE PRECLUDED BY DISTANCE FROM LIVING TOGETHER AND ARE NOT ASSIGNED GOVERNMENT QUARTERS, EACH IS ENTITLED TO A QUARTERS ALLOWANCE AS PRESCRIBED FOR MEMBERS WITHOUT DEPENDENTS. QUARTERS ALLOWANCE - DEPENDENTS - FEMALE MEMBERS - ENTITLEMENT RESTRICTIONS REMOVED - CLAIMS PROCEDURE AS THE FRONTIERO DECISION, DECIDED MAY 14, 1973, IN WHICH THE SUPREME COURT RULED ON THE INEQUALITY BETWEEN MALE AND FEMALE MILITARY MEMBERS WITH REGARD TO QUARTERS ALLOWANCES, WAS AN ORIGINAL CONSTRUCTION OF THE CONSTITUTIONALITY OF 37 U.S.C. 401 AND 403, THE DECISION IS EFFECTIVE AS TO BOTH ACTIVE AND FORMER MEMBERS FROM THE EFFECTIVE DATE OF THE STATUTE, SUBJECT TO THE BARRING ACT OF OCTOBER 9, 1940 (31 U.S.C. 71A). THE DOCUMENTATION REQUIRED FROM FEMALE MEMBERS TO SUPPORT THEIR CLAIMS SHOULD BE SIMILAR TO THAT REQUIRED OF MALE MEMBERS UNDER SIMILAR CIRCUMSTANCES AND SHOULD BE SUFFICIENT TO REASONABLY ESTABLISH THE MEMBER'S ENTITLEMENT TO THE INCREASED ALLOWANCES. ALTHOUGH CLAIMS FOR THE 10-YEAR RETROACTIVE PERIOD MAY BE PROCESSED BY THE SERVICES CONCERNED, SINCE FILING A CLAIM IN THE ADMINISTRATIVE OFFICE DOES NOT MEET THE REQUIREMENTS OF THE BARRING ACT, CLAIMS ABOUT TO EXPIRE SHOULD BE PROMPTLY SUBMITTED TO GAO FOR RECORDING, AFTER WHICH THEY WILL BE RETURNED TO THE SERVICE FOR PAYMENT, DENIAL OR REFERRAL BACK TO GAO FOR ADJUDICATION. DOUBTFUL CLAIMS SHOULD BE TRANSMITTED TO GAO FOR SETTLEMENT. QUARTERS ALLOWANCE - DEPENDENTS - CHILDREN - FEMALE MEMBERS REGULATIONS RELATING TO THE PAYMENT OF BASIC ALLOWANCES FOR QUARTERS THAT REQUIRE THAT A FEMALE MEMBER OF THE MILITARY SERVICE MUST PROVIDE MORE THAN ONE-HALF OF THE SUPPORT FOR HER DEPENDENT CHILD BEFORE SHE MAY RECEIVE PAYMENT OF BASIC ALLOWANCES FOR QUARTERS MAY BE REVISED TO AUTHORIZE PAYMENT OF THE ALLOWANCE FOR A DEPENDENT CHILD OF A FEMALE MEMBER ON THE SAME BASIS AS THAT PRESCRIBED FOR A MALE MEMBER IN VIEW OF THE FACT THAT ALTHOUGH THE FRONTIERO DECISION BY THE SUPREME COURT WAS CONCERNED WITH THE RIGHT OF A FEMALE MEMBER TO RECEIVE ALLOWANCES AND BENEFITS ON BEHALF OF A CIVILIAN HUSBAND, THE RATIONALE AND LANGUAGE OF THE DECISION CONNOTE AN INTENT BY THE COURT THAT THE DECISION SHOULD BE BROADLY APPLIED. QUARTERS ALLOWANCE - LEAVE OR TRAVEL STATUS - UNUSED ACCRUED LEAVE PAYMENTS - SEX DISCRIMINATION REMOVAL SINCE THE ACT OF JULY 9, 1973, PUBLIC LAW 93-64, REPEALED THE PROVISION OF 37 U.S.C. 401 RELATING TO PROOF OF DEPENDENCY BY A FEMALE MEMBER, THE QUARTERS ALLOWANCE PRESCRIBED IN 37 U.S.C. 501(B) FOR INCLUSION IN THE COMPUTATION OF A MALE MEMBER'S UNUSED ACCRUED LEAVE THAT IS PAYABLE AT THE TIME OF HIS DISCHARGE, MAY BE ALLOWED FEMALE MEMBERS ON THE BASIS THEY ARE ENTITLED TO THE SAME TREATMENT ACCORDED MALE MEMBERS WHO ARE NOT NORMALLY REQUIRED TO ESTABLISH THAT THEIR WIVES OR CHILDREN ARE IN FACT DEPENDENT ON THEM FOR OVER ONE-HALF THEIR SUPPORT. THE ALLOWANCE MAY BE PAID RETROACTIVELY BY THE SERVICE CONCERNED, SUBJECT TO THE OCTOBER 9, 1940 BARRING ACT, BUT CLAIMS ABOUT TO EXPIRE SHOULD BE TRANSMITTED TO GAO PURSUANT TO TITLE 4, GAO 7, AS SHOULD DOUBTFUL CLAIMS.

TO THE SECRETARY OF DEFENSE, AUGUST 31, 1973:

THIS REFERS TO LETTER DATED JUNE 20, 1973, FROM THE ACTING ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) IN WHICH DECISIONS ARE REQUESTED ON CERTAIN QUESTIONS WHICH HAVE ARISEN AS A RESULT OF THE RULING OF THE UNITED STATES SUPREME COURT IN THE CASE OF FRONTIERO V. RICHARDSON, NO. 71 -1694, DECIDED MAY 14, 1973. THE QUESTIONS, TOGETHER WITH DISCUSSION PERTAINING THERETO, ARE CONTAINED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTIONS 482-486, ENCLOSED WITH THE LETTER.

COMMITTEE ACTION 482 PRESENTS THE FOLLOWING QUESTIONS:

1. MAY REGULATIONS BE CHANGED, PURSUANT TO SUPREME COURT DECISION NUMBER 71-1694, FRONTIERO V. RICHARDSON, TO AUTHORIZE FAMILY SEPARATION ALLOWANCES TO FEMALE MEMBERS FOR CIVILIAN HUSBANDS UNDER THE SAME CONDITIONS AS PRESENTLY AUTHORIZED MALE MEMBERS FOR CIVILIAN WIVES?

2. IF YOUR ANSWER IS IN THE AFFIRMATIVE, MAY THE REGULATIONS ALSO BE CHANGED TO AUTHORIZE FAMILY SEPARATION ALLOWANCES TO FEMALE MEMBERS FOR OTHER DEPENDENTS IN THE SAME MANNER AS NOW PROVIDED FOR MALE MEMBERS WITH OTHER DEPENDENTS?

3. IN THE EVENT THAT IT IS DETERMINED THAT FAMILY SEPARATION ALLOWANCE PAYMENTS ARE NOW PAYABLE TO FEMALE MEMBERS, ARE SUCH PAYMENTS AUTHORIZED FOR PERIODS BEFORE 14 MAY 1973 (DATE OF DECISION)? IF SO, WHAT RETROACTIVE DATE SHOULD BE USED FOR PROCESSING SUCH CLAIMS AND SHOULD SUCH CLAIMS BE PROCESSED BY THE SERVICES OR THE GENERAL ACCOUNTING OFFICE? SEE COMMITTEE ACTION 484.

THE DISCUSSION PERTAINING TO FAMILY SEPARATION ALLOWANCE CONTAINED IN COMMITTEE ACTION NO. 482 POINTS OUT THAT 37 U.S.C. 427 AUTHORIZES FAMILY SEPARATION ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES WITH DEPENDENTS. THE PURPOSE OF THE ALLOWANCES, IT IS INDICATED, IS TO REIMBURSE A MEMBER FOR THE EXTRA EXPENSES INCURRED AS A RESULT OF SEPARATION OF THE MEMBER FROM HIS FAMILY. THE ABOVE-CITED CODE PROVISION AUTHORIZES TWO TYPES OF ALLOWANCES.

THE FIRST TYPE OF FAMILY SEPARATION ALLOWANCE IS PAYABLE TO A MEMBER AT A PERMANENT DUTY STATION OUTSIDE THE UNITED STATES TO WHICH THE TRANSPORTATION OF HIS DEPENDENTS IS NOT AUTHORIZED, WHEN GOVERNMENT FURNISHED QUARTERS ARE NOT AVAILABLE TO HIM. THE RATE OF THIS ALLOWANCE IS EQUAL TO THE MONTHLY RATE OF QUARTERS ALLOWANCE PAYABLE TO A MEMBER WITHOUT DEPENDENTS.

THE SECOND TYPE OF FAMILY SEPARATION ALLOWANCE IS FIXED AT THE RATE OF $30 PER MONTH AND IS PAYABLE TO A MEMBER WHEN SEPARATED FROM HIS DEPENDENTS FOR MORE THAN 30 DAYS BY REASON OF TEMPORARY DUTY OR WHEN, INCIDENT TO A CHANGE OF PERMANENT STATION, HIS DEPENDENTS ARE NOT AUTHORIZED GOVERNMENT TRANSPORTATION TO THE NEW STATION.

THE DISCUSSION ALSO REFERS TO THE VARIOUS PROVISIONS IN THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL IMPLEMENTING 37 U.S.C. 427, WHICH SET FORTH THE CRITERIA WHICH MUST BE MET BY MEMBERS IN ORDER TO BE ENTITLED TO THE ALLOWANCE.

IT IS NOTED THAT THE COMMITTEE ACTION INDICATES THAT THE QUESTION RULED UPON BY THE SUPREME COURT PERTAINS TO THE RIGHT OF A FEMALE MEMBER OF THE UNIFORMED SERVICES TO CLAIM HER SPOUSE AS A "DEPENDENT" ON EQUAL FOOTING WITH A MALE MEMBER FOR THE PURPOSE OF OBTAINING INCREASED QUARTERS ALLOWANCE AND MEDICAL AND DENTAL BENEFITS UNDER 37 U.S.C. 401, 403 AND 10 U.S.C. 1072, 1076. IT IS STATED THAT THE QUESTION THEREFORE ARISES AS TO WHETHER THE SAID DECISION APPLIES TO FAMILY SEPARATION ALLOWANCE PAYMENTS TO A FEMALE MEMBER WITH A DEPENDENT. IT IS INDICATED THAT A STRICT INTERPRETATION WOULD NOT EXTEND THE APPLICATION OF THE DECISION TO FAMILY SEPARATION ALLOWANCE PAYMENTS. HOWEVER, ON THE OTHER HAND, THAT DECISION MAKES THE PROVISIONS OF 37 U.S.C. 401 RELATIVE TO DEPENDENTS OF A FEMALE MEMBER EQUAL TO THOSE OF MALE MEMBERS, AND CONSEQUENTLY PAYMENTS IN SUCH CASES WOULD APPEAR TO BE AUTHORIZED.

IN THE FRONTIERO CASE THE SUPREME COURT HELD THAT "BY ACCORDING DIFFERENTIAL TREATMENT TO MALE AND FEMALE MEMBERS OF THE UNIFORMED SERVICES FOR THE SOLE PURPOSE OF ACHIEVING ADMINISTRATIVE CONVENIENCE, THE CHALLENGED STATUTES VIOLATE THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT INSOFAR AS THEY REQUIRE A FEMALE MEMBER TO PROVE THE DEPENDENCY OF HER HUSBAND."

CHAPTER 7 OF TITLE 37, U.S. CODE, AUTHORIZES THE PAYMENT OF CERTAIN ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES, AMONG WHICH ARE BASIC ALLOWANCE FOR QUARTERS AND FAMILY SEPARATION ALLOWANCE. SECTION 401 OF TITLE 37 DEFINES THE TERM "DEPENDENT" AS IT IS TO BE APPLIED TO THE VARIOUS ALLOWANCES AUTHORIZED BY CHAPTER 7. SINCE THE COURT IN THE FRONTIERO CASE HELD THAT THE REQUIREMENT STATED IN SECTION 401 - "HOWEVER, A PERSON IS NOT A DEPENDENT OF A FEMALE PERSON UNLESS HE IS IN FACT DEPENDENT ON HER FOR OVER ONE-HALF OF HIS SUPPORT" - WAS UNCONSTITUTIONAL, IT SEEMS CLEAR THAT THE HOLDING MUST BE APPLIED TO ALL THE SECTIONS OF CHAPTER 7 TO WHICH SECTION 401 IS APPLICABLE.

SUBSEQUENT TO RECEIPT OF THE ASSISTANT SECRETARY'S LETTER, PUBLIC LAW 93- 64, JULY 9, 1973, 87 STAT. 147, 37 U.S.C. 401(2), WAS ENACTED AND APPROVED BY THE PRESIDENT WITH AN EFFECTIVE DATE OF JULY 1, 1973. SECTION 103(2) OF THAT ACT AMENDED SECTION 401 OF TITLE 37, U.S. CODE, BY STRIKING OUT THE SENTENCE QUOTED ABOVE RELATING TO DEPENDENTS OF FEMALE MEMBERS. THE LEGISLATIVE HISTORY OF THE ACT INDICATES THAT THE AMENDMENT TO SECTION 401 WAS A DIRECT RESULT OF THE COURT'S RULING IN THE FRONTIERO CASE.

THEREFORE, SINCE THE SUPREME COURT HAS RULED THAT THE DIFFERENTIAL TREATMENT ACCORDED MALE AND FEMALE MEMBERS WITH REGARD TO DEPENDENTS VIOLATES THE CONSTITUTION AND THE CONGRESS HAS AMENDED SECTION 401 OF TITLE 37, DELETING THE SENTENCE CAUSING THE DIFFERENTIAL TREATMENT, IT IS REQUIRED THAT THE REGULATIONS RELATING TO THE FAMILY SEPARATION ALLOWANCES BE AMENDED IN CONSONANCE WITH THE COURT'S RULING AND PUBLIC LAW 93-64. QUESTIONS 1 AND 2 OF COMMITTEE ACTION NO. 482 ARE ANSWERED IN THE AFFIRMATIVE.

WITH REGARD TO THE ANSWER TO QUESTION 3 OF COMMITTEE ACTION NO. 482, SEE THE RESPONSES TO QUESTIONS 2C AND 2D OF COMMITTEE ACTION NO. 484.

COMMITTEE ACTION NO. 483 PRESENTS THE FOLLOWING QUESTIONS FOR DECISION:

1. DOES THE FRONTIERO DECISION HAVE ANY EFFECT ON THE DEPENDENCY STATUS OF SERVICE MEMBERS MARRIED TO EACH OTHER AS PRESCRIBED BY 37 U.S.C. 420?

2. IF THE ANSWER TO THE ABOVE IS AFFIRMATIVE, MAY ONE, BUT NOT BOTH, CLAIM THE OTHER AS A DEPENDENT FOR ALLOWANCE PURPOSES?

3. IF THE ANSWER IS NEGATIVE:

A. WHEN BOTH HUSBAND AND WIFE ARE MEMBERS OF THE UNIFORMED SERVICES AND ARE ASSIGNED TO THE SAME OR ADJACENT MILITARY INSTALLATIONS, ARE BOTH MEMBERS ENTITLED TO BAQ PRESCRIBED FOR A MEMBER WITHOUT DEPENDENTS WHEN PUBLIC QUARTERS FOR DEPENDENTS ARE NOT ASSIGNED, NOTWITHSTANDING THE AVAILABILITY OF ADEQUATE SINGLE QUARTERS FOR ASSIGNMENT TO EITHER OR BOTH?

B. UNDER THE ABOVE CIRCUMSTANCES, WILL BOTH MEMBERS CONTINUE TO BE ENTITLED TO BAQ WHEN SINGLE QUARTERS ARE ACTUALLY OCCUPIED BY ONE OR THE OTHER BUT NOT BOTH, INCLUDING CASES WHERE NAVY MEMBERS ARE INVOLUNTARILY REQUIRED TO OCCUPY QUARTERS ABOARD NAVAL VESSELS?

C. WHEN HUSBAND AND WIFE MEMBERS ARE PRECLUDED BY DISTANCE FROM LIVING TOGETHER, WOULD ENTITLEMENTS IN QUESTIONS 3A. AND B., ABOVE BE THE SAME?

SECTION 420 OF TITLE 37, U.S. CODE, PROVIDES THAT A MEMBER OF A UNIFORMED SERVICE MAY NOT BE PAID AN INCREASED ALLOWANCE UNDER CHAPTER 7, ON ACCOUNT OF A DEPENDENT, FOR ANY PERIOD DURING WHICH THAT DEPENDENT IS ENTITLED TO BASIC PAY UNDER SECTION 204 OF TITLE 37.

THE ABOVE-CITED SECTIONS PRECLUDES THE PAYMENT OF INCREASED ALLOWANCES ON ACCOUNT OF ANY PERSON WHO IS ENTITLED TO BASIC PAY. NO DISTINCTION IS DRAWN BY THE STATUTE WITH REGARD TO MALE OR FEMALE MEMBERS. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE. THEREFORE, QUESTION 2 NEED NOT BE ANSWERED.

WHILE THE FRONTIERO DECISION BY THE SUPREME COURT DOES NOT SPECIFICALLY AFFECT 37 U.S.C. 420, CURRENT REGULATIONS PROMULGATED BY THE DEPARTMENT OF DEFENSE AND IN LINE WITH PRIOR DECISIONS OF THIS OFFICE CONCERNING THE ASSIGNMENT OF HUSBAND AND WIFE MEMBERS TO PUBLIC QUARTERS UNDER 37 U.S.C. 403 NOW APPEAR TO BE QUESTIONABLE IN LIGHT OF THE COURT'S RULING.

IT HAS BEEN THE POLICY OF THE DEPARTMENT OF DEFENSE PRIOR TO THE FRONTIERO DECISION TO ASSIGN A HUSBAND AND WIFE WHO ARE MEMBERS OF A UNIFORMED SERVICE STATIONED AT THE SAME OR ADJACENT MILITARY INSTALLATIONS TO FAMILY TYPE QUARTERS WHEN POSSIBLE. HOWEVER, THE ELIGIBILITY FOR ASSIGNMENT TO PUBLIC QUARTERS OR TO THE PAYMENTS OF BASIC ALLOWANCE FOR QUARTERS RESTED WITH THE MALE MEMBER. THE FEMALE MEMBER WAS NOT ELIGIBLE FOR ASSIGNMENT TO FAMILY QUARTERS OR BASIC ALLOWANCE FOR QUARTERS UNLESS ADEQUATE SINGLE QUARTERS WERE NOT AVAILABLE FOR HER USE.

ENCLOSED WITH THE ACTING ASSISTANT SECRETARY'S LETTER IS A PROPOSED DEPARTMENT OF DEFENSE INSTRUCTION 1338.1, WHICH PRESUMABLY REPLACES THE CURRENT POLICY GUIDELINES REFERRED TO ABOVE.

PARAGRAPH III A OF THE PROPOSED INSTRUCTION IS AS FOLLOWS:

IT IS THE POLICY OF THE DEPARTMENT OF DEFENSE TO ENCOURAGE MAINTENANCE OF THE FAMILY UNIT. WHEN BOTH HUSBAND AND WIFE ARE MEMBERS OF THE UNIFORMED SERVICES BOTH MEMBERS ARE AUTHORIZED THE BASIC ALLOWANCE FOR QUARTERS PRESCRIBED FOR A MEMBER WITHOUT DEPENDENTS WHEN PUBLIC QUARTERS FOR DEPENDENTS ARE NOT ASSIGNED, NOTWITHSTANDING THE AVAILABILITY OF ADEQUATE SINGLE QUARTERS FOR EITHER OR BOTH, OR ACTUAL OCCUPANCY OF SINGLE QUARTERS BY EITHER MEMBER. WHEN BOTH MEMBERS OCCUPY SINGLE QUARTERS FOR WHATEVER REASON, BOTH ARE DENIED THE BASIC ALLOWANCE FOR QUARTERS FOR SUCH PERIOD OF OCCUPANCY.

AS WE POINTED OUT ABOVE IN RESPONSE TO QUESTION 1 OF COMMITTEE ACTION NO. 483, IT IS OUR VIEW THAT THE FRONTIERO DECISION DOES NOT AFFECT THE DEPENDENCY STATUS OF MEMBERS AS PRESCRIBED IN 37 U.S.C. 420. HOWEVER, THE QUESTIONS PRESENTED IN QUESTION 3 OF THE COMMITTEE ACTION NO. 483 DO NOT ACTUALLY RELATE TO INCREASED ALLOWANCES ON BEHALF OF A DEPENDENT RECEIVING BASIC PAY, BUT RATHER TO THE POLICY OF ASSIGNING QUARTERS TO MEMBERS WHO ARE HUSBAND AND WIFE AND THE PAYMENT OF AN ALLOWANCE TO EITHER OR BOTH IN LIEU OF QUARTERS ASSIGNMENT.

IT IS OUR VIEW THAT POLICIES TO BE FOLLOWED BY THE SERVICES IN THE ASSIGNMENT OF QUARTERS IN SUCH CASES IS WITHIN THE PURVIEW OF THE DEPARTMENT OF DEFENSE, AND THE ECONOMIC FEASIBILITY REGARDING QUARTERS ASSIGNMENTS AND THE INTERESTS OF THE SERVICES AND THE MEMBERS CONCERNED WOULD BEST BE FOR DETERMINATION BY THE DEPARTMENT OF DEFENSE. HOWEVER, THE MATTER OF THE PAYMENT OF ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES WHEN ADEQUATE QUARTERS ARE NOT FURNISHED MUST BE DETERMINED UNDER THE PROVISIONS OF 37 U.S.C. 403. SEE, GENERALLY, 52 COMP. GEN. 64 (1972).

QUESTION 3A IS ANSWERED IN THE AFFIRMATIVE, SINCE IT APPEARS TO BE THE PROPOSED POLICY TO ASSIGN FAMILY TYPE QUARTERS TO SUCH MEMBERS WHEN POSSIBLE AND, IN THE ALTERNATIVE, WHEN ADEQUATE QUARTERS ARE NOT AVAILABLE FOR THEM AS A FAMILY UNIT, THEY WOULD EACH BE ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS AT THE WITHOUT DEPENDENT RATE.

QUESTION 3B APPEARS TO BE FOR DETERMINATION SOLELY UNDER THE PROVISIONS OF 37 U.S.C. 403. SUBSECTION (B) OF THAT SECTION PROVIDES THAT A MEMBER WHO IS ASSIGNED TO APPROPRIATE AND ADEQUATE QUARTERS IS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS. THIS IS ALSO THE CASE WHEN A MEMBER WITHOUT DEPENDENTS OCCUPIES PUBLIC QUARTERS FOR ANY REASON. THEREFORE, UNDER THE CIRCUMSTANCES PRESENTED, A HUSBAND OR WIFE WHO OCCUPIES GOVERNMENT QUARTERS FOR ANY REASON AND HAS ONLY THE OTHER SPOUSE FOR CONSIDERATION AS A DEPENDENT IS NOT ENTITLED TO THE BASIC ALLOWANCE FOR QUARTERS UNDER 37 U.S.C. 403, SINCE SECTION 420 OF TITLE 37 PRECLUDES PAYMENT OF AN INCREASED ALLOWANCE ON ACCOUNT OF A DEPENDENT WHO IS ENTITLED TO BASIC PAY. QUESTION 3B IS ANSWERED IN THE NEGATIVE.

WHEN HUSBAND AND WIFE MEMBERS ARE PRECLUDED BY DISTANCE FROM LIVING TOGETHER, FAMILY TYPE QUARTERS OBVIOUSLY WOULD NOT BE ASSIGNED, AND IT WOULD APPEAR REASONABLE TO ACCORD THE SAME TREATMENT TO THESE MEMBERS AS TO ANY MEMBER WITHOUT DEPENDENTS, SINCE THE MAINTENANCE OF A FAMILY UNIT IS PRECLUDED DUE TO DISTANT DUTY STATIONS. IN SUCH CIRCUMSTANCES, THE HUSBAND AND THE WIFE WOULD BE ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS AS PRESCRIBED FOR MEMBERS WITHOUT DEPENDENTS IF THEY ARE NOT ASSIGNED TO GOVERNMENT QUARTERS. QUESTION 3C IS ANSWERED ACCORDINGLY.

IN VIEW OF THE ANSWERS TO THE ABOVE QUESTIONS, THE PROPOSED DEPARTMENT OF DEFENSE DIRECTIVE 1338.1 SHOULD BE AMENDED ACCORDINGLY.

COMMITTEE ACTION NO. 484 PRESENTS THE FOLLOWING QUESTIONS:

1. IS QUARTER ALLOWANCE ENTITLEMENT BY FEMALE SERVICE MEMBERS ON BEHALF OF CIVILIAN SPOUSES, UNDER SUPREME COURT DECISION NO. 71-1694, FRONTIERO V. RICHARDSON ET AL., 14 MAY 1973, FOR RETROACTIVE APPLICATION, AND IF SO, FOR WHAT PERIOD?

2. IF THE ANSWER TO "1" ABOVE IS AFFIRMATIVE:

A. MAY FORMER FEMALE SERVICE MEMBERS, AS WELL AS THOSE STILL IN SERVICE, CLAIM QUARTERS ALLOWANCE ON BEHALF OF CIVILIAN SPOUSES FOR THE RETROACTIVE PERIOD?

B. WHAT TYPE OF SUPPORTING DOCUMENTATION WILL BE REQUIRED? C. SHOULD CLAIMS FOR THE RETROACTIVE PERIOD, REGARDLESS OF THE PERIOD INVOLVED, BE PROCESSED BY THE SERVICES OR BY CLAIMS DIVISION, GAO?

D. IF ALL SUCH CLAIMS ARE TO BE PROCESSED BY THE FINANCE CENTERS, SHOULD THE MAXIMUM 10 YEAR RETROACTIVE PERIOD BE COMPUTED FROM THE DATE OF RECEIPT OF THE CLAIM BY THE SERVICES OR SOME OTHER DATE?

THE SUPREME COURT'S DECISION IN THE FRONTIERO CASE WAS AN ORIGINAL CONSTRUCTION OF THE CONSTITUTIONALITY OF CERTAIN OF THE PROVISIONS OF 37 U.S.C. 401 AND 403 BY THAT COURT. WE FIND NO INDICATION IN THE COURT'S DECISION OF AN INTENTION TO LIMIT THAT DECISION TO A PROSPECTIVE APPLICATION ONLY. SINCE THE COURT RULED THAT INEQUALITY OF TREATMENT AS BETWEEN MALE AND FEMALE MEMBERS WITH REGARD TO ENTITLEMENT AND PAYMENT OF QUARTERS ALLOWANCES FOR THE SOLE PURPOSE OF ACHIEVING ADMINISTRATIVE CONVENIENCE IS A VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT TO THE CONSTITUTION, SUCH A RULING MUST BE REGARDED AS EFFECTIVE FROM THE EFFECTIVE DATE OF THE STATUTE. THEREFORE, THE SUPREME COURT'S CONSTRUCTION OF 37 U.S.C. 401 AND 403 IN THE FRONTIERO CASE MUST BE GIVEN RETROACTIVE APPLICATION. CF. 40 COMP. GEN. 14, 17 (1960) AND 53 COMP. GEN. 94, AUGUST 16, 1973. THE FIRST PART OF QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

CLAIMS ARISING AS A RESULT OF THE FRONTIERO DECISION ARE SUBJECT TO THE 10-YEAR LIMITATION PROVIDED IN THE BARRING ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

(1) EVERY CLAIM OR DEMAND *** AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE *** SHALL BE FOREVER BARRED UNLESS SUCH CLAIM *** SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED.

THEREFORE, CLAIMS WHICH ACCRUED PRIOR TO THE 10-YEAR PERIOD AND NOT RECEIVED IN THIS OFFICE WITHIN THE PERIOD SPECIFIED BY THAT ACT WOULD BE BARRED FROM CONSIDERATION. THE SECOND PART OF QUESTION 1 IS ANSWERED ACCORDINGLY.

REGARDING QUESTION 2A, THE FACT THAT A MEMBER HAS LEFT THE SERVICE WOULD NOT SERVE TO DIVEST HIM OF HIS RIGHT TO AN INCREASED ALLOWANCE TO WHICH HE WAS OTHERWISE ENTITLED WHILE IN THE SERVICE. ACCORDINGLY, QUESTION 2A IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 2B IS ANSWERED BY SAYING THAT THE DOCUMENTATION REQUIRED TO SUPPORT SUCH CLAIMS SHOULD BE SIMILAR TO THAT REQUIRED OF MALE MEMBERS UNDER SIMILAR CIRCUMSTANCES. SUCH DOCUMENTATION SHOULD BE SUFFICIENT TO REASONABLY ESTABLISH THE MEMBER'S ENTITLEMENT TO THE INCREASED ALLOWANCE. SEE IN THIS REGARD 37 U.S.C. 403(B) AND 420, AND CHAPTER 2 OF PART 3 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL.

CLAIMS FOR THE 10-YEAR RETROACTIVE PERIOD MAY BE PROCESSED BY THE SERVICES CONCERNED. HOWEVER, WE HAVE LONG HELD THAT THE FILING OF A CLAIM IN THE ADMINISTRATIVE OFFICE CONCERNED DOES NOT MEET THE REQUIREMENTS OF THE BARRING ACT OF OCTOBER 9, 1940, SUPRA. SEE 32 COMP. GEN. 267 (1952), AND 42 COMP. GEN. 337, 339 (1963). THEREFORE, CLAIMS ON WHICH THE LIMITATION PERIOD PRESCRIBED IN THAT ACT IS ABOUT TO EXPIRE SHOULD BE PROMPTLY TRANSMITTED TO THIS OFFICE FOR RECORDING AFTER WHICH THEY WILL BE RETURNED FOR PAYMENT, DENIAL OR REFERRAL BACK TO THE GENERAL ACCOUNTING OFFICE FOR ADJUDICATION. SEE TITLE 4 GAO 7. ALSO, ANY SUCH CLAIM WHICH IS DOUBTFUL AS TO THE FACTS OR THE LAW SHOULD BE TRANSMITTED HERE FOR SETTLEMENT. QUESTIONS 2C AND 2D ARE ANSWERED ACCORDINGLY.

COMMITTEE ACTION NO. 485 PRESENTS THE FOLLOWING QUESTION:

DOES THE RECENT DECISION RENDERED BY THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF FRONTIERO V. RICHARDSON (NO. 71-1694) REQUIRE OR PERMIT THE UNIFORM SERVICES TO REVISE REGULATIONS TO AUTHORIZE THE PAYMENT OF BASIC ALLOWANCES FOR QUARTERS FOR A DEPENDENT CHILD OF A FEMALE MEMBER ON THE SAME BASIS AS THAT PRESCRIBED FOR A MALE MEMBER?

THE COMMITTEE ACTION DISCUSSION INDICATES THAT CURRENT DEPARTMENT OF DEFENSE REGULATIONS RELATING TO THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS REQUIRE THAT A FEMALE MEMBER OF THE MILITARY SERVICES MUST PROVIDE MORE THAN ONE-HALF OF THE SUPPORT FOR HER DEPENDENT CHILD BEFORE SHE MAY RECEIVE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS ON BEHALF OF SUCH CHILD. IT IS INDICATED THAT THOSE REGULATIONS ARE BASED UPON THAT PORTION OF 37 U.S.C. 401 WHICH STATES, "HOWEVER, A PERSON IS NOT A DEPENDENT OF A FEMALE MEMBER UNLESS HE IS IN FACT DEPENDENT ON HER FOR OVER ONE-HALF OF HIS SUPPORT."

AS IS POINTED OUT IN THE COMMITTEE ACTION DISCUSSION, THE ISSUE IN THE FRONTIERO CASE WAS THE RIGHT OF A FEMALE MEMBER TO RECEIVE ALLOWANCES AND BENEFITS ON BEHALF OF A CIVILIAN HUSBAND; HOWEVER, THE RATIONALE AND LANGUAGE OF THE DECISION CONNOTE AN INTENT BY THE COURT THAT THE DECISION SHOULD BE BROADLY APPLIED. THIS VIEW IS FURTHER SUPPORTED BY OTHER RECENT DECISIONS OF THE SUPREME COURT, CITED IN THE FRONTIERO CASE, STRIKING DOWN AS UNCONSTITUTIONAL STATUTORY SCHEMES WHICH DISCRIMINATE ON THE BASIS OF SEX. SEE STANLEY V. ILLINOIS, 405 U.S. 645 (1972) AND REED V. REED, 404 U.S. 71 (1971).

ACCORDINGLY, IN ANSWER TO THE QUESTION IN COMMITTEE ACTION NO. 485, IT IS OUR VIEW THAT A REVISION OF THE REGULATIONS TO AUTHORIZE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS FOR A DEPENDENT CHILD OF A FEMALE MEMBER ON THE SAME BASIS AS THAT PRESCRIBED FOR A MALE MEMBER IS REQUIRED.

COMMITTEE ACTION NO. 486 PRESENTS THE FOLLOWING QUESTIONS:

1. IS THE APPLICABLE ALLOWANCE PRESCRIBED IN 37 U.S.C. 501(B) FOR A MEMBER WITH DEPENDENTS INCLUDABLE IN THE COMPUTATION OF PAYMENT FOR UNUSED ACCRUED LEAVE IN THE CASE OF A FEMALE MEMBER WHO HAS A DEPENDENT (CIVILIAN HUSBAND OR CHILD) EVEN THOUGH DEPENDENCY ON HER FOR OVER ONE HALF OF THE DEPENDENT'S SUPPORT HAS NOT BEEN ESTABLISHED?

2. IF THE ANSWER IS IN THE AFFIRMATIVE, MAY THE ALLOWANCE BE PAID RETROACTIVELY AND, IF SO, SHOULD SUCH CLAIMS BE SETTLED BY THE SERVICES OR THE GENERAL ACCOUNTING OFFICE. SEE COMMITTEE ACTION 484.

AS THE COMMITTEE ACTION INDICATES, 37 U.S.C.. 501(B) AS IMPLEMENTED BY RULE 4, TABLE 4-4-5 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, PROVIDES THAT, WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE, AN OFFICER WHO HAS ACCRUED LEAVE TO HIS CREDIT AT THE TIME OF HIS DISCHARGE IS ENTITLED TO BE PAID FOR THAT LEAVE ON THE BASIS OF THE BASIC PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED ON THE DATE OF DISCHARGE. SECTION 501(B) AS IMPLEMENTED BY RULE 1, TABLE 4-4 5, OF THE MANUAL, ALSO PROVIDES THAT AN ENLISTED MEMBER IN PAY GRADES E 5 AND ABOVE, WITH DEPENDENTS, WHO HAS ACCRUED LEAVE TO HIS CREDIT AT THE TIME OF HIS DISCHARGE, IS ENTITLED TO BE PAID A QUARTERS ALLOWANCE FOR THAT LEAVE AT THE RATE OF $1.25 PER DAY.

AS INDICATED PREVIOUSLY, SECTION 103(2) OF THE ACT OF JULY 9, 1973, REPEALED THE PROVISION OF 37 U.S.C. 401 RELATING TO PROOF OF DEPENDENCY OF A FEMALE MEMBER.

IN VIEW OF OUR ANSWER TO THE QUESTION POSED IN COMMITTEE ACTION NO. 485 AND SINCE MALE MEMBERS ARE NOT NORMALLY REQUIRED TO ESTABLISH THAT THEIR WIVES OR CHILDREN ARE IN FACT DEPENDENT ON THEM FOR OVER ONE-HALF OF THE DEPENDENTS' SUPPORT, QUESTION 1 OF COMMITTEE ACTION NO. 486 IS ANSWERED IN THE AFFIRMATIVE.

IN VIEW OF OUR ANSWERS TO THE QUESTIONS PRESENTED IN COMMITTEE ACTION NO. 484, QUESTION 2 OF COMMITTEE ACTION NO. 486 IS ANSWERED BY SAYING THAT SUCH ALLOWANCES MAY BE PAID RETROACTIVELY BY THE SERVICE CONCERNED, SUBJECT, HOWEVER, TO THE PROVISIONS OF THE BARRING ACT OF OCTOBER 9, 1940, SUPRA. DOUBTFUL CLAIMS OR CLAIMS UPON WHICH THE PERIOD PRESCRIBED IN THE BARRING ACT IS ABOUT TO EXPIRE SHOULD BE TRANSMITTED TO THIS OFFICE AS INDICATED ABOVE.