B-127298, MAY 17, 1960

B-127298, MAY 17, 1960

TO LIEUTENANT COLONEL J. L. CLANCY, GS (FC), FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

BY 14TH INDORSEMENT DATED APRIL 11, 1960 (ASSIGNED D.O. NO. 493 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE), THE CHIEF, FIELD DIVISION, OFFICE OF THE CHIEF OF FINANCE, U.S. ARMY, INDIANAPOLIS 49, INDIANA, FORWARDED YOUR LETTER DATED MARCH 24, 1960, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON A MILITARY PAY VOUCHER (DA FORM 2139) ENCLOSED WITH YOUR LETTER, IN FAVOR OF MAJOR MARY D. CLARK, N-755, ARMY NURSE CORPS, FOR INCREASED BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITH A DEPENDENT HUSBAND FOR THE PERIOD COMMENCING FEBRUARY 12, 1957.

IN OUR DECISIONS OF MAY 16, 1956, AND FEBRUARY 12, 1957, B-127298, CONCERNING MAJOR CLARK'S CLAIM FOR INCREASED BASIC ALLOWANCE FOR QUARTERS, PAYMENT WAS NOT AUTHORIZED, SINCE THE MEDICAL REPORTS FURNISHED DID NOT WARRANT THE CONCLUSION THAT HER HUSBAND, CLARENCE W. CLARK, WAS INCAPABLE OF SELF-SUPPORT AND THUS WAS A DEPENDENT OF HIS WIFE WITHIN THE MEANING OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804. COMP. GEN. 364.

WITH HER CURRENT APPLICATION FOR THE ALLOWANCE CLAIMED, THERE IS SUBMITTED A STATEMENT DATED FEBRUARY 18, 1960, FROM DR. WARREN V. HUBER, VETERANS ADMINISTRATION HOSPITAL, DENVER, COLORADO, STATING THAT CLARENCE W. CLARK HAS BEEN UNDER HIS NEUROLOGICAL CARE INTERMITTENTLY SINCE NOVEMBER 1955, AND LISTING SUBSTANTIALLY THE SAME MEDICAL SYMPTOMS CONSIDERED IN OUR PRIOR DECISIONS WITH THE FURTHER STATEMENT THAT "AS A RESULT OF THIS CONDITION MR. CLARK IS TOTALLY DISABLED AND NOT EMPLOYABLE.' THERE IS ALSO SUBMITTED THE OFFICER'S APPLICATION FOR BASIC ALLOWANCE FOR QUARTERS FOR MEMBERS WITH DEPENDENTS CERTIFICATE (DD FORM 137), DATED MARCH 22, 1960, COVERING THE PERIOD FROM FEBRUARY 12, 1957, TO THE PRESENT TIME. SHE CERTIFIES THEREIN THAT HER HUSBAND'S LIVING EXPENSES ARE $360 PER MONTH; THAT HIS INCOME FROM OTHER SOURCES, OTHER THAN HER CONTRIBUTIONS, IS $169.75 PER MONTH; AND THAT THE MONTHLY AMOUNT OF HER CONTRIBUTIONS TOWARD HIS LIVING EXPENSES IS $190 PER MONTH. FROM THE ENCLOSURES SUBMITTED IT APPEARS THAT THE $169.75 PER MONTH REPRESENTS PAYMENTS MADE TO HER HUSBAND BY THE SOCIAL SECURITY ADMINISTRATION--- $91 PER MONTH, AND VETERANS ADMINISTRATION BENEFITS--- $78.75 PER MONTH.

SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, AUTHORIZES THE PAYMENT OF AN INCREASED BASIC ALLOWANCE FOR QUARTERS TO MEMBERS OF THE UNIFORMED SERVICES ON ACCOUNT OF A DEPENDENT. THE TERM "DEPENDENT" IS DEFINED IN SECTION 102 (G) OF THE ACT, 63 STAT. 804, WHICH PROVIDES, IN MATERIAL PART---

"* * * THAT IN THE CASE OF FEMALE MEMBERS OF THE UNIFORMED SERVICES, THE TERM "DEPENDENT" SHALL INCLUDE A HUSBAND IN ADDITION TO THOSE PERSONS OTHERWISE DEFINED AS DEPENDENTS IN THIS SUBSECTION, BUT ONLY WHEN SUCH HUSBAND, OR CHILDREN, AS DEFINED ABOVE, ARE IN FACT DEPENDENT UPON SAID FEMALE FOR OVER HALF OF HIS OR HER SUPPORT.'

AN EXAMINATION OF THE RECORDS BEFORE US SHOWS THAT IN PRIOR APPLICATIONS FOR THE SAME ALLOWANCE INVOLVED HEREIN, MAJOR CLARK SUBMITTED DEPENDENCY CERTIFICATES (DD FORM 137-1), DATED FEBRUARY 7 AND OCTOBER 12, 1956, IN WHICH SHE CERTIFIED THAT HER HUSBAND'S ACTUAL LIVING EXPENSES AVERAGED $150 PER MONTH; THAT HIS INCOME FROM ALL SOURCES, OTHER THAN HER CONTRIBUTIONS, AVERAGED $35 PER MONTH; AND THAT HER CONTRIBUTIONS TOWARD HIS ACTUAL LIVING EXPENSES AVERAGED $150 PER MONTH. IN HER PRESENT CERTIFICATE, DATED MARCH 22, 1960, STATED TO BE EFFECTIVE FEBRUARY 12, 1957, FOUR MONTHS AFTER SHE EXECUTED HER LAST CERTIFICATE OF OCTOBER 12, 1956, SHE CERTIFIES THAT HER HUSBAND'S MONTHLY LIVING EXPENSES ARE $360 PER MONTH; THAT HIS INCOME FROM OTHER SOURCES IS $169.75 PER MONTH; AND THAT THE MONTHLY AMOUNT OF HER CONTRIBUTION TOWARD HIS ACTUAL LIVING EXPENSES IS $190 PER MONTH. NO EXPLANATION IS FURNISHED FOR THE MARKED INCREASE IN THE MONTHLY LIVING EXPENSES FOR HER HUSBAND FROM $150 PER MONTH IN OCTOBER 1956 TO $360 PER MONTH COMMENCING FEBRUARY 1957.

ASIDE FROM ANY CONSIDERATION AS TO THE DEPENDENCY OF HER HUSBAND ON ACCOUNT OF PHYSICAL OR MENTAL INFIRMITY, DOUBT EXISTS AS TO THE ACTUAL MONTHLY LIVING EXPENSES OF MR. CLARK, AND WHETHER IN FACT HE IS DEPENDENT UPON MAJOR CLARK FOR OVER HALF OF HIS SUPPORT. IN THE ABSENCE OF AN ITEMIZATION IN AFFIDAVIT FORM SHOWING MR. CLARK'S MONTHLY LIVING EXPENSES FOR THE PERIOD COVERED BY THE CLAIM, THAT IS, FROM FEBRUARY 12, 1957, TO THE PRESENT TIME, AND THE REASON FOR THE SUBSTANTIAL INCREASE IN HER HUSBAND'S MONTHLY LIVING EXPENSES FROM $150 PER MONTH TO $360 PER MONTH AS SHOWN IN THE DEPENDENCY CERTIFICATES SUBMITTED, IT MAY NOT BE CONCLUDED AT THIS TIME THAT MAJOR CLARK'S HUSBAND IS IN FACT DEPENDENT UPON HER FOR OVER HALF OF HIS SUPPORT WITHIN THE CONTEMPLATION OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949. IN THIS CONNECTION, IT MAY BE STATED THAT THE ACT THAT AN OFFICER'S CONTRIBUTION IS IN EXCESS OF AN ALLEGED DEPENDENT'S INDEPENDENT INCOME DOES NOT OF ITSELF ESTABLISH THAT THE DEPENDENT IS ACTUALLY DEPENDENT ON THE OFFICER FOR CHIEF SUPPORT, BUT IT MUST BE SHOWN THAT THE OFFICER'S CONTRIBUTION WAS REQUIRED FOR THE DEPENDENT'S CHIEF SUPPORT. WHITING V. UNITED STATES, 80 C.CLS. 662; ODLIN V. UNITED STATES, 74 C.CLS. 633, 638.

ACCORDINGLY, BASED ON THE PRESENT RECORD, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE MILITARY PAY VOUCHER WHICH, TOGETHER WITH THE OTHER PAPERS SUBMITTED WITH YOUR LETTER, WILL BE RETAINED HERE.