B-178979, FEB 1, 1974, 53 COMP GEN 539

B-178979, FEB 1, 1974, 53 COMP GEN 539

QUARTERS ALLOWANCE - FEMALE MEMBERS - ENTITLEMENT TO ALLOWANCE - STATUTE OF LIMITATION UNDER THE RULING IN FRONTIERO V. UNITED STATES, 411 U.S. 677 (1973), THAT CERTAIN PORTIONS OF 37 U.S.C. 401 AND 403, THE STATUTORY PROVISIONS THAT GOVERN BASIC ALLOWANCE FOR QUARTERS (BAQ) ENTITLEMENT, ARE CONSTITUTIONAL, THE DEPARTMENT OF DEFENSE MAY NOT DENY BAQ PAYMENTS TO CURRENT OR FORMER FEMALE SERVICE MEMBERS WHO OTHERWISE QUALIFY FOR BAQ PAYMENTS FOR PERIODS ANTEDATING SEPTEMBER 13, 1973, THE ISSUANCE DATE OF REVISED DOD INSTRUCTIONS. HOWEVER, CLAIMS WHICH ACCRUED MORE THAN 10 YEARS PRIOR TO RECEIPT IN THE GENERAL ACCOUNTING OFFICE ARE BARRED FROM CONSIDERATION BY THE ACT OF OCTOBER 9, 1940, 31 U.S.C. 71A.

TO THE SECRETARY OF DEFENSE, FEBRUARY 1, 1974:

FURTHER REFERENCE IS MADE TO A LETTER DATED OCTOBER 11, 1973, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING AN ADVANCE DECISION REGARDING THE ENTITLEMENT OF A FEMALE MEMBER OF THE UNIFORMED SERVICES TO A BASIC ALLOWANCE FOR QUARTERS UNDER THE PROVISIONS OF 37 U.S.C. 403 IN THE DESCRIBED CIRCUMSTANCES. THE QUESTION IS SET FORTH AND DISCUSSED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 496, ATTACHED TO THE LETTER.

THE QUESTION PRESENTED IS AS FOLLOWS:

IS A FEMALE MEMBER ENTITLED TO BASIC ALLOWANCE FOR QUARTERS, AT THE WITHOUT DEPENDENT RATE, UNDER THE FRONTIERO DECISION FOR PERIODS BEFORE 13 SEPTEMBER 1973, SUBJECT TO THE STATUTE OF LIMITATIONS (31 U.S.C. 71A), WHEN THE FOLLOWING CONDITIONS EXISTED:

A. SHE WAS MARRIED TO A SERVICE MEMBER AND HAD NO DEPENDENTS,

B. SHE AND HER HUSBAND WERE ASSIGNED TO THE SAME STATION OR ADJACENT STATIONS,

C. FAMILY-TYPE GOVERNMENT QUARTERS WERE NOT FURNISHED,

D. SINGLE GOVERNMENT QUARTERS WERE EITHER AVAILABLE FOR ASSIGNMENT OR ACTUALLY ASSIGNED TO HER, AND

E. SHE ACTUALLY RESIDED OFF STATION WITH HER HUSBAND?

THE DISCUSSION IN THE COMMITTEE ACTION, PERTAINING TO ELIGIBILITY FOR THE BASIC ALLOWANCE FOR QUARTERS, NOTES THAT ALTHOUGH IT HAS ALWAYS BEEN THE POLICY OF THE DEPARTMENT OF DEFENSE TO ASSIGN A HUSBAND AND WIFE, WHO ARE BOTH MEMBERS OF THE UNIFORMED SERVICES STATIONED AT THE SAME OR ADJACENT MILITARY INSTALLATIONS AND WHO HAVE NO OTHER DEPENDENTS, TO FAMILY-TYPE QUARTERS WHEN POSSIBLE, THE ELIGIBILITY FOR ASSIGNMENT, UNDER 37 U.S.C. 403 AND DOD INSTRUCTION 1338.1, JANUARY 30, 1964, TO PUBLIC QUARTERS OR TO PAYMENT OF BASIC ALLOWANCE IN LIEU THEREOF RESTED WITH THE MALE MEMBER. THE FEMALE MEMBER IN A PAY GRADE BELOW 0-4 COULD NOT CLAIM HER MEMBER HUSBAND AS A "DEPENDENT" AND WAS THEREFORE NOT ENTITLED TO A BASIC ALLOWANCE IF QUARTERS FOR MEMBERS WITHOUT DEPENDENTS WERE AVAILABLE FOR HER USE.

IN THIS CONNECTION, IT IS TO BE OBSERVED THAT THE DEPARTMENT OF DEFENSE INSTRUCTION 1338.1, JANUARY 30, 1964, PROVIDED IN PERTINENT PART:

III. POLICY

A. 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 AND ARE ASSIGNED TO THE SAME OR ADJACENT MILITARY INSTALLATIONS, THE MALE MEMBER IS AUTHORIZED BASIC ALLOWANCE FOR QUARTERS PRESCRIBED FOR A MEMBER WITHOUT DEPENDENTS WHEN PUBLIC QUARTERS FOR DEPENDENTS ARE NOT AVAILABLE, NOTWITHSTANDING THE AVAILABILITY OF SINGLE QUARTERS.

C. WHEN BOTH HUSBAND AND WIFE ARE MEMBERS OF THE UNIFORMED SERVICES WITH NO OTHER DEPENDENTS AND ARE STATIONED AT THE SAME OR ADJACENT MILITARY INSTALLATIONS, THE FOLLOWING PROVISIONS APPLY:

2. BOTH OFFICER OR BOTH ENLISTED. ELIGIBILITY FOR ASSIGNMENT TO PUBLIC QUARTERS FOR DEPENDENTS OR TO THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS PRESCRIBED FOR A MEMBER WITHOUT DEPENDENTS IN LIEU THEREOF RESTS WITH THE MALE MEMBER. THE FEMALE MEMBER IS NOT ELIGIBLE FOR ASSIGNMENT TO PUBLIC QUARTERS FOR DEPENDENTS NOR IS SHE ENTITLED TO THE BASIC ALLOWANCE FOR QUARTERS PRESCRIBED FOR A MEMBER WITHOUT DEPENDENTS UNLESS QUARTERS FOR MEMBERS WITHOUT DEPENDENTS ARE NOT AVAILABLE FOR HER OCCUPANCY. WHERE QUARTERS ARE AVAILABLE FOR HER OCCUPANCY, THE FEMALE MEMBER WILL NEVERTHELESS BE PERMITTED TO RESIDE WITH HER HUSBAND BUT WILL NOT BE ENTITLED TO THE PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS PRESCRIBED FOR A MEMBER WITHOUT DEPENDENTS, UNLESS SHE IS IN A PAY GRADE ABOVE 0-3 AND PUBLIC QUARTERS ARE NOT ASSIGNED FOR THEIR JOINT OCCUPANCY.

THE COMMITTEE ACTION DISCUSSION FURTHER NOTES THAT, BASED ON ANSWERS IN OUR DECISION 53 COMP. GEN. 148 (1973) - WHICH IN PART RESPONDED TO CERTAIN QUESTIONS POSED IN COMMITTEE ACTION NO. 483, PARTICULARLY QUESTION 3A OF THAT COMMITTEE ACTION - THAT AROSE FROM THE SUPREME COURT'S RULING IN FRONTIERO V. RICHARDSON, 411 U.S. 677 (1973), THE DEPARTMENT OF DEFENSE REVISED ITS POLICY RELATIVE TO ASSIGNMENT OF QUARTERS TO MARRIED SERVICE MEMBERS, EFFECTIVE SEPTEMBER 13, 1973, AND EXTENDED ELIGIBILITY FOR ASSIGNMENT TO FAMILY QUARTERS, IF OTHERWISE APPROPRIATE, TO EITHER MEMBER, AS JOINTLY DECIDED BY BOTH OF THEM. THE REVISED POLICY ALSO PROVIDES THAT BASIC ALLOWANCE FOR QUARTERS IS PAYABLE TO A FEMALE MEMBER WHEN SHE IS AUTHORIZED TO RESIDE OFF STATION WITH HER HUSBAND, NOTWITHSTANDING THE AVAILABILITY OF SINGLE-TYPE QUARTERS FOR HER OCCUPANCY.

THE DISCUSSION GOES ON TO SAY THAT THE INSTRUCTIONS ISSUED BY THE MILITARY SERVICES IN IMPLEMENTATION OF THE RULING IN THE FRONTIERO CASE AND OUR DECISION OF AUGUST 31, 1973, AUTHORIZE PAYMENTS TO QUALIFIED FEMALE MEMBERS ON AND AFTER SEPTEMBER 13, 1973, THE EFFECTIVE DATE OF THE REVISED POLICY REFERRED TO ABOVE. THE COMMITTEE ACTION EXPRESSES DOUBT, HOWEVER, AS TO WHETHER DOD INSTRUCTION 1338.1, DATED JANUARY 30, 1964, CAN LEGALLY PROHIBIT PAYMENTS OF BASIC ALLOWANCE FOR QUARTERS TO A QUALIFIED FEMALE MEMBER FOR PERIODS PRIOR TO SEPTEMBER 13, 1973, AND STATES THAT A DENIAL OF RETROACTIVE PAYMENTS WOULD APPEAR TO BE IN CONTRAVENTION OF THE LAW AUTHORIZING BASIC ALLOWANCES FOR QUARTERS, AS CONSTRUED BY THE UNITED STATES SUPREME COURT IN THE FRONTIERO CASE.

ENTITLEMENT OF MEMBERS OF THE UNIFORMED SERVICES TO BASIC ALLOWANCE FOR QUARTERS IS AUTHORIZED UNDER THE PROVISIONS OF 37 U.S.C. 403 WHICH PROVIDE, IN PART, THAT WHERE A MEMBER IN A PAY GRADE BELOW 0-4 IS ASSIGNED TO QUARTERS "ADEQUATE FOR HIMSELF, AND HIS DEPENDENTS, IF WITH DEPENDENTS," HE SHALL NOT BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR QUARTERS. SECTION 401 OF TITLE 37 FORMERLY DEFINED "DEPENDENT" WITH RESPECT TO A MEMBER OF A UNIFORMED SERVICE TO INCLUDE HIS SPOUSE BUT, IN THE CASE OF A FEMALE MEMBER, PROVIDED THAT "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." NO COMPARABLE TEST WAS REQUIRED OF A MALE MEMBER CLAIMING HIS WIFE AS A DEPENDENT.

ON MAY 14, 1973, IN THE FRONTIERO DECISION, SUPRA, THE SUPREME COURT STRUCK DOWN AS UNCONSTITUTIONAL THOSE PORTIONS OF 37 U.S.C. 401 AND 403 WHICH PERMITTED A SERVICEMAN TO CLAIM HIS WIFE AS A DEPENDENT WITHOUT REGARD TO WHETHER SHE WAS IN FACT DEPENDENT UPON HIM FOR ANY PART OF HER SUPPORT BUT DENIED A SERVICE WOMAN THE PRIVILEGE TO CLAIM HER HUSBAND AS A DEPENDENT UNLESS HE WAS IN FACT DEPENDENT UPON HER FOR OVER ONE-HALF OF HIS SUPPORT.

ON JULY 9, 1973, IN RESPONSE TO THE FRONTIERO DECISION, CONGRESS ENACTED PUBLIC LAW 93-64, 87 STAT. 147, WHICH DELETED THE SUPPORT TEST FOR DEPENDENTS OF FEMALE MEMBERS.

NEITHER THE SUPREME COURT NOR THE CONGRESS HAD SPECIFICALLY CONSIDERED THE ISSUE OF RETROACTIVITY. HOWEVER, IN OUR DECISION 53 COMP. GEN. 148, SUPRA, WE HELD THAT THE SUPREME COURT'S CONSTRUCTION OF 37 U.S.C. 401 AND 403 MUST BE GIVEN RETROACTIVE APPLICATION, STATING THEREIN THAT:

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.

IN LINE WITH THE ABOVE-QUOTED PART OF OUR DECISION OF AUGUST 31, 1973, IT IS OUR VIEW THAT THE DEPARTMENT OF DEFENSE MAY NOT DENY RETROACTIVE PAYMENTS OF BASIC ALLOWANCE FOR QUARTERS FOR PERIODS WHICH ANTEDATE SEPTEMBER 13, 1973, TO A CURRENT OR FORMER FEMALE MEMBER OF THE UNIFORMED SERVICES OTHERWISE ENTITLED TO THESE PAYMENTS.

RETROACTIVE ENTITLEMENT TO SUCH PAYMENTS IS SUBJECT, HOWEVER, TO THE 10- YEAR LIMITATION PROVIDED IN THE BARRING ACT OF OCTOBER 9, 1940, CH. 788, 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.

SEPARATE CLAIMS FOR PAST PAYMENTS OF BASIC ALLOWANCE FOR QUARTERS, IN CASES SUCH AS HERE INVOLVED, ACCRUE EACH TIME AN OTHERWISE QUALIFIED FEMALE MEMBER RECEIVES AN INSUFFICIENT PAYMENT OR FAILS TO RECEIVE ANY PAYMENT. HENCE, TO BE CONSIDERED FOR PAYMENT BY THIS OFFICE EACH SUCH CLAIM MUST BE RECEIVED HERE WITHIN 10 FULL YEARS FROM THE DATE IT ACCRUES. IT IS TO BE NOTED THAT SUCH CLAIMS 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 ID. 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.

ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE AFFIRMATIVE, SUBJECT TO THE CONDITIONS HEREIN STATED.