B-29503, FEBRUARY 26, 1943, 22 COMP. GEN. 838

B-29503, FEBRUARY 26, 1943, 22 COMP. GEN. 838

RENTAL AND SUBSISTENCE ALLOWANCES - MEMBERS OF THE WOMEN'S RESERVE IN THE NAVAL RESERVE MEMBERS OF THE WOMEN'S RESERVE IN THE NAVAL RESERVE (THE " WAVES") ESTABLISHED BY THE ACT OF JULY 30, 1942, MAY NOT BE PAID INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF DEPENDENTS.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO LT. COMDR. R. E. PRENTICE, U.S. NAVAL RESERVE, FEBRUARY 26, 1943:

CONSIDERATION HAS BEEN GIVEN THE MATTER SUBMITTED IN YOUR LETTER OF OCTOBER 5, 1942, AS FOLLOWS:

SUBJECT: TOVA L. PETERSEN, LT. WV (S), USNR; REQUEST FOR ADVANCE DECISION RE DEPENDENCY OF MOTHER.

REFERENCE:

(A) ACT OF JULY 31, 1894, 28 STAT. 208, AS AMENDED BY SECTION 304,

ACT OF JUNE 10, 1921, 42 STAT. 24

(B) ARTICLE 2302-1 (B) BUREAU OF SUPPLIES AND ACCOUNTS MANUAL.

(C) BUREAU OF SUPPLIES AND ACCOUNTS LETTER, L16-7 (A) ( OLRX),

116-7 (4), DATED SEPT. 9, 1941.

ENCLOSURE: (A) S AND A FORM 201

(B) STANDARD FORM 1037

(C) QUESTIONNAIRE ANSWERED BY OFFICER.

(D) LETTER FROM LT. TOVA L. PETERSEN TO DISBURSING

OFFICER.

1. THE SUBJECT NAMED OFFICER HAS SUBMITTED A REQUEST TO THE UNDERSIGNED, DISBURSING OFFICER, HEADQUARTERS, 12TH NAVAL DISTRICT, THAT CURRENT CREDIT BE MADE IN HER PAY ACCOUNT FOR MONEY ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT MOTHER.

2. INASMUCH AS THERE HAS BEEN NO OFFICIAL DETERMINATION THAT THE MOTHER OF THIS OFFICER IS IN FACT DEPENDENT UPON HER FOR HER CHIEF SUPPORT, ENCLOSURES ARE FORWARDED HEREWITH FOR AN ADVANCE DECISION AS TO WHETHER CREDIT FOR THE ALLOWANCE IN QUESTION MAY BE MADE IN THE CURRENT PAY ACCOUNT OF SUBJECT INDIVIDUAL.

IT APPEARS THAT LIEUTENANT TOVA L. PETERSEN IS A MEMBER OF THE WOMEN'S RESERVE IN THE NAVAL RESERVE (KNOWN AS THE " WAVES") ESTABLISHED BY THE ACT OF JULY 30, 1942, 56 STAT. 730, PUBLIC LAW 689; AND, ASSUMING THAT THE EVIDENCE SUBMITTED SUFFICIENTLY ESTABLISHES THAT HER MOTHER IS IN FACT DEPENDENT ON HER FOR HER CHIEF SUPPORT, THE PRIMARY QUESTION IS WHETHER THE SAID ACT OF JULY 30, 1942, AUTHORIZES OR CONTEMPLATES THE PAYMENT OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES TO SUCH WOMEN MEMBERS OF THE NAVAL RESERVE WITH DEPENDENTS. THAT ACT, AT THE BEGINNING, PROVIDES:

THAT THE NAVAL RESERVE ACT OF 1938, AS AMENDED, IS FURTHER AMENDED BY ADDING AFTER SECTION 401 THEREOF AN ADDITIONAL TITLE AS FOLLOWS:

" TITLE V--- WOMEN'S RESERVE

"SEC. 501. A WOMEN'S RESERVE IS HEREBY ESTABLISHED WHICH SHALL BE A BRANCH OF THE NAVAL RESERVE AND SHALL BE ADMINISTERED UNDER THE SAME PROVISIONS IN ALL RESPECTS (EXCEPT AS MAY BE NECESSARY TO ADAPT SAID PROVISIONS TO THE WOMEN'S RESERVE, OR AS SPECIFICALLY PROVIDED HEREIN) AS THOSE CONTAINED IN THIS ACT OR WHICH MAY HEREAFTER BE ENACTED WITH RESPECT TO THE VOLUNTEER RESERVE.'

THUS IT WAS RECOGNIZED AT THE OUTSET, BY THE EXPRESS EXCEPTION MADE IN SECTION 501, THAT PROVISIONS FOR MALE MEMBERS OF THE NAVAL RESERVE ARE NOT TO BE REGARDED AS APPLICABLE TO THE WOMEN'S RESERVE WHERE SUCH PROVISIONS FOR MALE MEMBERS ARE ESSENTIALLY OF A CHARACTER NOT REASONABLY ADAPTABLE TO WOMEN MEMBERS BY REASON OF INHERENT DIFFERENCES IN THEIR STATUS AND CONDITIONS OF SERVICE.

IN DECISION OF OCTOBER 29, 1942, 22 COMP. GEN. 406, THERE WAS CONSIDERED THE QUESTION WHETHER A FEMALE NURSE OF THE NAVY WAS ENTITLED TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES FOR DEPENDENTS BY VIRTUE OF THE PROVISION IN SECTION 13 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, 56 STAT. 366, PUBLIC LAW 607, THAT---

* * * NURSES SHALL BE ENTITLED TO THE MONEY ALLOWANCES FOR SUBSISTENCE AND FOR RENTAL OF QUARTERS AS ESTABLISHED BY SECTIONS 5 AND 6 OF THIS ACT FOR OFFICERS RECEIVING THE PAY OF THE FIRST PERIOD.

WHILE THIS LANGUAGE DOES NOT EXPRESSLY RESTRICT THE ALLOWANCES TO BE PAID TO NURSES TO THOSE OF OFFICERS WITHOUT DEPENDENTS, AND WHILE SECTIONS 5 AND 6, 56 STAT. 361, REFERRED TO, PROVIDE FOR INCREASED ALLOWANCE OFFICERS WITH DEPENDENTS, IT WAS CONCLUDED THAT A NURSE WAS NOT ENTITLED TO SUCH DEPENDENCY ALLOWANCES. IT WAS SAID IN THAT DECISION:

FOR THE PURPOSES OF SECTIONS 5 AND 6 "DEPENDENTS" ARE DEFINED IN SECTION 4 TO "INCLUDE AT ALL TIMES AND IN ALL PLACES A LAWFUL WIFE AND UNMARRIED CHILDREN UNDER TWENTY-ONE YEARS OF AGE. IT SHALL ALSO INCLUDE THE FATHER OR MOTHER OF THE PERSON CONCERNED PROVIDED HE OR SHE IS IN FACT DEPENDENT ON SUCH PERSON FOR HIS OR HER CHIEF SUPPORT.'

YOUR SUBMISSION RAISES THE QUESTION WHETHER A NURSE IN THE NURSE CORPS (FEMALE) OF THE NAVY CAN IN ANY CIRCUMSTANCES BE ENTITLED TO ALLOWANCES AS WITH DEPENDENTS UNDER SECTIONS 5 AND 6 OF THE ACT. OFFICERS OF THE ARMED SERVICES ARE MEN, AND SECTION 4 RECOGNIZES DEPENDENTS AS A LAWFUL WIFE, CHILD OR CHILDREN AND THE FATHER OR MOTHER OF THE OFFICER, PROVIDED THAT HE OR SHE IS IN FACT DEPENDENT ON THE PERSON CLAIMING THE ALLOWANCES. THIS RECOGNIZES THAT MEN WILL BECOME THE HEADS OF FAMILIES, THAT THEY MAY HAVE A WIFE AND CHILDREN, AND THAT IN SOME CASES OFFICERS WILL, OF NECESSITY, PROVIDE FOR A FATHER OR MOTHER WHO HAS NO OTHER MEANS OF SUPPORT. OF COURSE, A NURSE (FEMALE) CAN NOT HAVE A LAWFUL WIFE. ONLY IN EXCEPTIONAL AND UNUSUAL CASES WILL A NURSE IN THE NURSE CORPS OF THE NAVY BE THE MOTHER OF A CHILD OR CHILDREN, AND, THEREFORE, FOR PRACTICAL PURPOSES, THE QUESTION IS WHETHER SHE CAN SECURE ADDITIONAL ALLOWANCES IF SHE HAS A FATHER OR MOTHER IN FACT DEPENDENT ON HER FOR HIS OR HER CHIEF SUPPORT. THE PROVISION WAS MADE PRIMARILY FOR OFFICERS WHO ORDINARILY WOULD BE THE HEADS OF FAMILIES AND WHO WOULD REQUIRE THE INCREASED ALLOWANCES, FOR EXAMPLE, THE SUBSISTENCE ALLOWANCE IS INCREASED WHEN THE OFFICER IS DRAWING THE BASE PAY OF THE FOURTH OR FIFTH PERIOD, THAT IS WHEN THE FAMILY USUALLY CONSISTS OF CHILDREN OF HIGH SCHOOL OR COLLEGE AGES AND IS REDUCED WHEN THE OFFICER IS DRAWING THE PAY OF THE SIXTH PERIOD. * * *

IT MIGHT HAVE BEEN POINTED OUT FURTHER THAT THE INCLUSION IN THE DEFINITION OF DEPENDENTS OF UNMARRIED CHILDREN UNDER TWENTY-ONE YEARS OF AGE "AT ALL TIMES AND IN ALL PLACES" CLEARLY SHOWS THAT THERE WAS BEING DEFINED THE DEPENDENTS OF MALE MEMBERS OF THE MILITARY SERVICES AND NOT THE DEPENDENTS OF FEMALE MEMBERS. WHILE UNMARRIED CHILDREN UNDER TWENTY ONE YEARS OF AGE MAY, WITH GOOD REASON, CONCLUSIVELY BE PRESUMED TO BE DEPENDENT ON THEIR FATHERS AT ALL TIMES AND IN ALL PLACES, THAT OBVIOUSLY WOULD NOT BE TRUE AS TO THEIR MOTHERS. CHILDREN MAY BE, AND OFTEN ARE, DEPENDENT ON THEIR MOTHER FOR SUPPORT, BUT AS THE PRIMARY DUTY OF SUPPORT IS ON THE FATHER, THERE WOULD BE NO THOUGHT OF CONCLUSIVELY PRESUMING CHILDREN TO BE DEPENDENT ON THEIR MOTHERS AT ALL TIMES AND IN ALL PLACES MERELY BY VIRTUE OF THE RELATIONSHIP. THIS SEEMS TO SHOW, CLEARLY ENOUGH, THAT IN DEFINING DEPENDENTS IN SECTION 4 OF THE ACT, 56 STAT. 361, FOR WHOM ADDITIONAL ALLOWANCES SHOULD BE PAID, THE CONGRESS WAS LEGISLATING WITH RESPECT TO DEPENDENTS OF MALE MEMBERS OF THE MILITARY SERVICES, AND NOT TO THE POSSIBLE DEPENDENTS OF FEMALE MEMBERS OF SUCH SERVICES, AND DID NOT INTEND THEREBY TO AUTHORIZE THE PAYMENT OF DEPENDENCY ALLOWANCE TO FEMALE MEMBERS.

THAT SUCH INTERPRETATION BY THE SAID DECISION OF OCTOBER 29, 1942, OF THE PROVISIONS OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, WITH RESPECT TO THE PAYMENT OF DEPENDENCY ALLOWANCES TO NURSES, WAS NOT CONTRARY TO THE INTENTION OF THE CONGRESS IN SUCH RESPECTS IS SHOWN BY THE SUBSEQUENT ENACTMENT DURING THE SAME SESSION OF THE ACT OF DECEMBER 22, 1942, 56 STAT. 1072, PUBLIC LAW 828, INCREASING TEMPORARILY THE PAY AND ALLOWANCES OF MEMBERS OF THE ARMY NURSE CORPS AND THE NAVY NURSE CORPS. SECTION ONE OF THAT ACT EXPRESSLY PROVIDES:

THAT HEREAFTER, DURING THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER, THE MEMBERS OF THE ARMY NURSE CORPS SHALL HAVE RELATIVE RANK AND RECEIVE PAY AND MONEY ALLOWANCES FOR SUBSISTENCE AND RENTAL OF QUARTERS, AND MILEAGE AND OTHER TRAVEL ALLOWANCES, AS NOW OR HEREAFTER PROVIDED BY LAW, FOR COMMISSIONED OFFICERS, WITHOUT DEPENDENTS, OF THE REGULAR ARMY IN THE SIXTH TO THE FIRST PAY PERIODS, RESPECTIVELY. (ITALICS SUPPLIED.) ALSO, SECTION 7 OF SAID ACT, 56 STAT. 1074, PROVIDES:

THAT HEREAFTER, DURING THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER, THE SUPERINTENDENT AND ALL OTHER MEMBERS OF THE NAVY NURSE CORPS SHALL HAVE RELATIVE RANK AND BE ENTITLED TO RECEIVE THE SAME PAY, AND MONEY ALLOWANCES FOR SUBSISTENCE AND RENTAL OF QUARTERS, AND MILEAGE AND OTHER TRAVEL ALLOWANCES AS ARE AUTHORIZED BY THIS ACT FOR CORRESPONDING GRADES AND RELATIVE RANKS IN THE ARMY NURSE CORPS. * * *

THUS, ANY POSSIBLE DOUBT IN THE MATTER, SO FAR AS ARMY AND NAVY NURSES ARE CONCERNED, HAS BEEN REMOVED BY THE EXPRESS PROVISIONS OF THE SAID ACT OF DECEMBER 22, 1942.

LIKEWISE, THE ACT OF OCTOBER 26, 1942, 56 STAT. 988, PUBLIC LAW 761, AMENDING THE ACT OF MAY 14, 1942, PUBLIC LAW 554, ESTABLISHING A WOMEN'S ARMY AUXILIARY CORPS--- THE " WAACS"--- FOR SERVICE WITH THE ARMY OF THE UNITED STATES, PROVIDES FOR THE PAYMENT OF PAY AND ALLOWANCES TO MEMBERS OF SUCH CORPS AT THE RATES PROVIDED BY LAW FOR CORRESPONDING RANKS AND GRADES OF COMMISSIONED OFFICERS AND ENLISTED MEN OF THE REGULAR ARMY "WITHOUT DEPENDENTS.'

IN THE LIGHT OF THE ABOVE PROVISIONS, THIS OFFICE WOULD NOT BE JUSTIFIED IN HOLDING THAT THE CONGRESS, WITHOUT EXPRESSLY SO PROVIDING, INTENDED THAT MEMBERS OF THE WOMEN'S RESERVE IN THE NAVY SHOULD BE PAID DEPENDENCY ALLOWANCES. TO SO HOLD WOULD BE TO ATTRIBUTE TO THE CONGRESS A PURPOSE, FOR NO APPARENT REASON, TO CREATE A DISPARITY AND TO DISCRIMINATE AGAINST THE MEMBERS OF THE SIMILAR ARMY ORGANIZATION, AS WELL AS AGAINST THE MEMBERS OF BOTH THE ARMY AND NAVY NURSE CORPS, IN THAT IMPORTANT RESPECT. THERE IS NOTHING IN THE SAID ACT OF JULY 30, 1942, ESTABLISHING THE WOMEN'S RESERVE IN THE NAVAL RESERVE, OR IN ITS LEGISLATIVE HISTORY, COMPELLING ANY SUCH CONCLUSION. ON THE CONTRARY, ANY RIGHT OF MEMBERS OF THE WOMEN'S RESERVE UNDER SUCH ACT TO THE DEPENDENCY ALLOWANCES IN QUESTION DEPENDS, IN ANY EVENT, ON THE DEFINITION OF DEPENDENTS IN SECTION 4 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, AND, AS DISCUSSED ABOVE, THAT IS A DEFINITION OF DEPENDENTS OF MALE MEMBERS OF THE MILITARY SERVICES AND WAS NOT MADE WITH THE DEPENDENTS OF WOMEN IN MIND OR AS INTENDED TO INCLUDE THEM. AT LEAST, IN THE ABSENCE OF ANY CLEAR INDICATION OF LEGISLATIVE INTENT THAT SUCH ALLOWANCES SHOULD BE PAID, AND IN THE LIGHT OF THE CITED STATUTES IN PARI MATERIA DENYING SUCH PAYMENTS TO NURSES AND THE " WAACS," THIS OFFICE WOULD NOT BE WARRANTED IN APPROVING THE PAYMENT OF SUCH DEPENDENCY ALLOWANCES TO MEMBERS OF THE WOMEN'S RESERVE.

ACCORDINGLY, THE QUESTION SUBMITTED BY YOU IS ANSWERED IN THE NEGATIVE.