B-161261, AUG 27, 1973, 53 COMP GEN 116

B-161261, AUG 27, 1973, 53 COMP GEN 116

MILITARY PERSONNEL - DISCRIMINATION - BETWEEN THE SEXES - REMOVAL THE DISTINCTION BETWEEN THE DEPENDENTS OF MALE AND FEMALE MEMBERS OF THE UNIFORMED SERVICES HAVING BEEN REMOVED BY THE SUPREME COURT OF THE UNITED STATES IN FRONTIERO V. RICHARDSON, DECIDED MAY 14, 1973, AND BY THE ENACTMENT OF PUBLIC LAW 93-64, EFFECTIVE JULY 1, 1973, THE LANGUAGE IN PARAGRAPH M1150-9 OF THE JOINT TRAVEL REGULATIONS (JTR) READING "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," MAY BE DELETED AND MADE EFFECTIVE AS OF THE DATE OF THE DECISION, MAY 14, 1973. ALSO RECOMMENDED IS THE AMENDMENT OF PARAGRAPH M7151-2 BY DELETING REFERENCE TO LAWFUL "WIFE" AND SUBSTITUTING THE WORD "SPOUSE," BUT SINCE THE USE OF THE TERM "DEPENDENT" IN PARAGRAPHS M7151-2 AND M7107 OF THE JTR IS NOT DISCRIMINATORY IN THE LIGHT OF THE FRONTERIO DECISION, NO CHANGE IN THE LANGUAGE OF THE PARAGRAPHS IS REQUIRED.

TO THE SECRETARY OF THE NAVY, AUGUST 27, 1973:

REFERENCE IS MADE TO LETTER DATED JUNE 28, 1973, FROM THE ASSISTANT SECRETARY OF THE NAVY, MANPOWER AND RESERVE AFFAIRS, REQUESTING A DECISION AS TO WHETHER THE DEFINITION OF A DEPENDENT IN PARAGRAPH M1150 9 OF THE JOINT TRAVEL REGULATIONS PROPERLY MAY BE AMENDED IN REGARD TO A DEPENDENT OF A FEMALE MEMBER OF THE UNIFORMED SERVICES. THIS REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 73-32 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IN HIS LETTER THE ASSISTANT SECRETARY REFERS TO THE DECISION OF THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF FRONTIERO V. RICHARDSON, NO. 71-1694, DECIDED MAY 14, 1973, WHICH HELD THAT THE PROVISIONS OF 37 U.S.C. 401, 403, AND 10 U.S.C. 1072, 1076, REQUIRING A FEMALE MEMBER TO PROVE THE DEPENDENCY OF HER HUSBAND FOR BASIC ALLOWANCE FOR QUARTERS PURPOSES AND FOR HIS MEDICAL AND DENTAL BENEFITS, WHICH REQUIREMENT IS NOT IMPOSED ON A MALE MEMBER, WERE SO UNJUSTIFIABLY DISCRIMINATORY AS TO VIOLATE THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.

THE ASSISTANT SECRETARY ALSO STATES THAT PORTIONS OF THE JOINT TRAVEL REGULATIONS (JTR) WHICH PROVIDE FOR THE PAYMENT OF OTHER ALLOWANCES BASED ON DEPENDENCY ARE PREDICATED ON SECTIONS OF CHAPTER 7 (ALLOWANCES) OF 37 U.S.C. OTHER THAN THOSE WHICH WERE BEFORE THE COURT. FOR THE PURPOSES OF THOSE REGULATIONS, IT IS STATED THAT THE DEFINITION OF DEPENDENT CONTAINED IN 37 U.S.C. 401 (WHICH APPEARS IN CHAPTER 7) HAS BEEN CONSIDERED TO BE CONTROLLING OF MOST ENTITLEMENTS CONTAINED IN THE JTR FOR DEPENDENT TRAVEL PURPOSES, FOR STATION ALLOWANCES OUTSIDE THE 48 CONTIGUOUS UNITED STATES AND THE DISTRICT OF COLUMBIA, AND FOR DISLOCATION ALLOWANCES. CONSEQUENTLY, IT IS EXPLAINED THAT THE SENSE OF 37 U.S.C. 401 HAS BEEN USED AS THE BASIS OF THE DEFINITION OF DEPENDENTS CONTAINED IN THE JTR, PARAGRAPH M1150-9, EXCEPT AS DEFINED IN PARAGRAPHS M7107-1 AND M7151-2.

IT IS FURTHER STATED BY THE ASSISTANT SECRETARY THAT BASED ON THE BELIEF THAT THE SUPREME COURT DECISION DISCUSSED ABOVE APPLIES FULL FORCE TO THE JTR ENTITLEMENTS PRESCRIBED UNDER THE AUTHORITY OF CHAPTER 7 OF TITLE 37, U.S. CODE, IT IS INTENDED TO AMEND THE REGULATIONS BY REMOVING, EFFECTIVE MAY 14, 1973, FROM PARAGRAPH M1150-9 SO MUCH THEREOF AS READS: "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."

IT IS STATED THAT THIS ACTION WILL PROVIDE DEPENDENTS OF FEMALE MEMBERS ALL OF THE ENTITLEMENTS PROVIDED FOR DEPENDENTS OF MALE MEMBERS, EXCEPT THOSE COVERED BY PARAGRAPHS M7107-1 AND M7151-2, JTR, WITHOUT A SHOWING OF SUPPORT.

OUR DECISION AS TO THE PROPRIETY OF THE PROPOSED ACTION IS REQUESTED. ADDITIONALLY, THE ASSISTANT SECRETARY INDICATES THAT THE DEFINITIONS OF THE TERM "DEPENDENT" CONTAINED IN PARAGRAPH M7107-1 OF THE REGULATIONS, USED ONLY TO DETERMINE ENTITLEMENT OUTSIDE THE UNITED STATES FOR MEDICAL CARE, AND THE DEFINITION CONTAINED IN PARAGRAPH M7151-2, INCIDENT TO ENTITLEMENTS UNDER PART D, CHAPTER 7, OF THE JTR, ARE BELIEVED NOT TO BE AFFECTED BY THE FRONTIERO DECISION, BUT OUR OPINION REGARDING THESE DEFINITIONS ALSO IS REQUESTED.

SINCE RECEIPT OF THE ASSISTANT SECRETARY'S LETTER THERE HAS BEEN ENACTED THE ACT OF JULY 9, 1973, PUBLIC LAW 93-64, 87 STAT. 148, 37 U.S.C. 401(2), WHICH, AMONG OTHER THINGS, AMENDS SECTION 401 OF TITLE 37, U.S. CODE, BY STRIKING OUT THE FIRST SENTENCE AFTER CLAUSE (3) THEREOF WHICH READS, "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." CLEARLY, SUCH DISTINCTION BETWEEN THE DEPENDENTS OF MALE AND FEMALE MEMBERS IS REMOVED EFFECTIVE JULY 1, 1973, UNDER THE TERMS OF THAT LAW.

SINCE PARAGRAPH M1150-9 OF THE JTR DEFINES A DEPENDENT OF A MEMBER TO INCLUDE THE HUSBAND OF A FEMALE MEMBER ONLY IF HE IS IN FACT DEPENDENT UPON HER FOR OVER ONE-HALF OF HIS SUPPORT, A REQUIREMENT SIMILAR TO THAT CONTAINED IN 37 U.S.C. 401 PRIOR TO JULY 1, 1973, UPON WHICH THE PRESENT DEFINITION IN PARAGRAPH M1150-9 APPARENTLY IS BASED, IT APPEARS THAT THE STANDARD FOR THE DETERMINATION OF DEPENDENCY OF A FEMALE MEMBER'S SPOUSE CONTAINED THEREIN WOULD LIKEWISE BE CONSIDERED AS VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT TO THE CONSTITUTION, PRIOR TO THE DATE OF ENACTMENT OF PUBLIC LAW 93-64, SUPRA. ACCORDINGLY, WE HAVE NO OBJECTION TO DELETING THAT PART OF PARAGRAPH M1150-9 OF THE REGULATION AS PROPOSED.

IT MAY BE NOTED THAT SINCE THERE NOW SHOULD BE NO DISTINCTION IN THE DEFINITION OF DEPENDENT AS CONTAINED IN JTR PARAGRAPH M1150-9, SUBPARAGRAPH 1 THEREOF ALSO SHOULD BE AMENDED TO READ, "1. HIS OR HER SPOUSE."

PARAGRAPH M7107 OF THE REGULATIONS (TRANSPORTATION OF DEPENDENTS OUTSIDE THE UNITED STATES FOR MEDICAL CARE) PROVIDES IN SUBPARAGRAPH 1 THAT "THE TERM 'DEPENDENT' MEANS A PERSON WHO HAS AN ACTIVE DUTY MEMBER SPONSOR AND WHO HAS BEEN AUTHORIZED MEDICAL CARE IN A UNIFORMED SERVICE MEDICAL TREATMENT FACILITY WITHOUT REIMBURSEMENT BY THE SECRETARY OF THE SERVICE CONCERNED OR HIS DESIGNATED REPRESENTATIVE." SINCE THE TERM "DEPENDENT" IS THERE DEFINED TO INCLUDE A PERSON WHO HAS AN ACTIVE DUTY MEMBER SPONSOR, AND NO DISTINCTION IS MADE BETWEEN MALE AND FEMALE SPONSORS OR THEIR SPOUSES, THE PROVISION WOULD NOT APPEAR TO BE OBJECTIONABLE IN VIEW OF THE FRONTIERO DECISION.

PARAGRAPH M7151-2 OF THE JTR PROVIDES, IN PERTINENT PART, THAT THE TERM "DEPENDENT" AS USED IN PART D OF CHAPTER 7 (TRAVEL OF DEPENDENTS UPON THE MEMBER'S BEING OFFICIALLY REPORTED AS DEAD, INJURED, ABSENT FOR A PERIOD OF MORE THAN 29 DAYS IN A MISSING STATUS, OR UPON DECEASE) INCLUDES A "LAWFUL WIFE." THIS REGULATION AS IT PERTAINS TO A MEMBER WHO DIES WHILE ENTITLED TO BASIC PAY, IS BASED ON 37 U.S.C. 406(F) WHICH PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED, TRANSPORTATION FOR DEPENDENTS OF A MEMBER IS AUTHORIZED IF HE DIES WHILE ENTITLED TO BASIC PAY UNDER CHAPTER 3 OF TITLE 37. AS SECTION 406(F) IS INCLUDED IN CHAPTER 7 OF TITLE 37, THE DEFINITION CONTAINED IN SECTION 401 THEREOF IS CONTROLLING AND WOULD INCLUDE AS A DEPENDENT THE SPOUSE OF A MEMBER REGARDLESS OF SEX IN ACCORD WITH OUR PRIOR COMMENTS REGARDING THIS PROVISION.

THE PROVISION FOR DEPENDENT TRAVEL IN OTHER CIRCUMSTANCES ENUMERATED IN PART D OF CHAPTER 7 OF THE JTR, APPARENTLY IS BASED ON AUTHORITY CONTAINED IN CHAPTER 10, SECTION 554 OF TITLE 37, U.S.C. SECTION 551(1)(A) OF THAT CHAPTER DEFINES A DEPENDENT WITH RESPECT TO A MEMBER OF A UNIFORMED SERVICE TO MEAN "HIS WIFE." IT IS OUR OPINION THAT THE OBJECTION RAISED IN THE FRONTIERO DECISION REGARDING UNJUSTIFIABLE DISCRIMINATION AGAINST FEMALE MEMBERS ALSO WOULD BE FOR APPLICATION TO A DEFINITION OF DEPENDENCY WHICH EXCLUDES THE HUSBAND OF A FEMALE MEMBER. CONSEQUENTLY, WE BELIEVE THAT PARAGRAPH M7151-2 OF THE JTR SHOULD BE AMENDED TO DELETE REFERENCE TO LAWFUL "WIFE" AND THAT THE WORD "SPOUSE" BE SUBSTITUTED THEREFOR.

IN CONNECTION WITH THE EFFECTIVE DATE OF MAY 14, 1973, PROPOSED FOR THE REGULATION CHANGE UNDER CONSIDERATION, WE HAVE NO OBJECTION AT THIS TIME TO SUCH DATE. HOWEVER, WE HAVE BEFORE US FOR CONSIDERATION THE QUESTION OF RETROACTIVE ENTITLEMENT TO CERTAIN OTHER ALLOWANCES, SUCH AS BASIC ALLOWANCE FOR QUARTERS, ETC., OF FEMALE MEMBERS OF THE UNIFORMED SERVICES PRIOR TO MAY 14, 1973, THE DATE ON WHICH THE FRONTIERO CASE WAS DECIDED.

IT IS ALSO SUGGESTED THAT IN VIEW OF THE SENSE OF THE SUPREME COURT DECISION, THE TERMS "HE" OR "HIS" AS USED IN THE REGULATIONS SHOULD BE CHANGED TO INCLUDE "SHE" OR "HER" AS APPROPRIATE.