B-161261, JUN. 7, 1967

B-161261, JUN. 7, 1967

TO FINANCE AND ACCOUNTING OFFICER:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 23, 1967, YOUR REFERENCE MEDEC-CFA LAYNE, DOROTHEA V., M 000 563, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF PAYMENT ON A VOUCHER IN FAVOR OF MAJOR DOROTHEA V. LAYNE IN THE AMOUNT OF $161.99, WHICH REPRESENTS THE DIFFERENCE BETWEEN BASIC ALLOWANCE FOR QUARTERS AS AN OFFICER WITHOUT DEPENDENTS AND AS AN OFFICER WITH DEPENDENTS (HUSBAND) FOR THE PERIOD AUGUST 17, 1966, TO FEBRUARY 28, 1967. YOUR REQUEST WAS FORWARDED TO THIS OFFICE BY THE OFFICE OF THE CHIEF OF FINANCE UNDER D.O. NUMBER A 948 ASSIGNED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SECTION 403 OF TITLE 37, U.S. CODE, PROVIDES FOR PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO MEMBERS OF THE UNIFORMED SERVICES, THE RATE BEING GREATER FOR A MEMBER WITH DEPENDENTS. FOR THE PURPOSES OF QUALIFICATION FOR THIS ALLOWANCE, THE TERM "DEPENDENT" IS DEFINED IN 37 U.S.C. 401 AS INCLUDING THE SPOUSE OF SUCH A MEMBER SUBJECT TO THE FURTHER CONDITION 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.'

IN ORDER FOR A HUSBAND TO BE REGARDED AS "IN FACT DEPENDENT" ON HIS WIFE WHO IS A MEMBER OF A UNIFORMED SERVICE, THIS OFFICE HAS CONSISTENTLY HELD THAT THE HUSBAND MUST BE INCAPABLE OF SELF-SUPPORT DUE TO A PHYSICAL OR MENTAL INCAPACITY AND THAT THE EVIDENCE SUBMITTED MUST SUPPORT BOTH DEPENDENCY AND INCAPACITY. SEE 32 COMP. GEN. 364 AND B-148561 DATED APRIL 20, 1962.

THE INFORMATION SUBMITTED INDICATES THAT THE MEMBER'S HUSBAND, CECIL W. LAYNE, SUFFERS FROM SEVERE OBLITERATIVE ARTERIOSCLEROTIC DISEASE, WITH SPECIFIC REFERENCE MADE TO THE FACT THAT HE HAS BEEN COMPLETELY DISABLED AND UNABLE TO WORK SINCE NOVEMBER 8, 1966, WHEN HE HAD A COMPLETE OCCLUSION OF THE RIGHT FEMORAL ARTERY AND THAT THE MEMBER IS CONTRIBUTING OVER ONE-HALF OF HIS MONTHLY LIVING EXPENSES.

WHILE THERE APPEARS TO BE SUFFICIENT EVIDENCE TO SUPPORT MR. LAYNE'S DEPENDENCY ON THE OFFICER FOR HIS CHIEF SUPPORT, THE RECORD IS UNCLEAR AS TO THE TOTAL PERIOD OF TIME DURING WHICH HE WAS PHYSICALLY INCAPABLE OF SELF-SUPPORT. CLAIM IS SUBMITTED FOR THE PERIOD BEGINNING AUGUST 17, 1966. A CERTIFICATE BY AN ARMY MEDICAL OFFICER, HOWEVER, CERTIFIES HIS COMPLETE DISABILITY AND INCAPABILITY TO BE GAINFULLY EMPLOYED ONLY FOR THE PERIOD BEGINNING NOVEMBER 8, 1966. WE HAVE BEEN ADVISED THAT THERE IS NO DOCUMENTED EVIDENCE PRESENTLY AVAILABLE TO ESTABLISH SUCH INCAPACITY PRIOR TO THAT DATE. CONSEQUENTLY, ON THE BASIS OF THE RECORD BEFORE US, THIS OFFICE MAY NOT AUTHORIZE PAYMENT TO MAJOR LAYNE OF AN INCREASED QUARTERS ALLOWANCE ON ACCOUNT OF HER HUSBAND FOR ANY PART OF THE PERIOD PRIOR TO NOVEMBER 8, 1966. PAYMENT ON THE VOUCHER IS NOT AUTHORIZED AND WILL BE RETAINED HERE.

SINCE IT APPEARS THAT HER HUSBAND HAS BEEN INCAPACITATED AND UNABLE TO SUPPORT HIMSELF AFTER NOVEMBER 7, 1966, THE MEMBER MAY BE CONSIDERED AS HAVING A DEPENDENT HUSBAND WITHIN THE MEANING OF THE STATUTE AND PAYMENT OF AN INCREASED BASIC ALLOWANCE FOR QUARTERS IS AUTHORIZED FOR THE PERIOD SUBSEQUENT TO THAT DATE. PAYMENT MAY BE CONTINUED SO LONG AS IT IS SHOWN BY COMPETENT MEDICAL EVIDENCE THAT THE HUSBAND REMAINS UNABLE TO RESUME GAINFUL EMPLOYMENT DUE TO PHYSICAL DISABILITY. THIS DECISION, OR A COPY, SHOULD BE INCLUDED IN THE ACCOUNT WHERE CREDIT FOR PAYMENT UNDER THE DECISION IS FIRST CLAIMED. THE FOREGOING CONCLUSION DOES NOT PRECLUDE FURTHER CONSIDERATION OF MAJOR LAYNE'S CLAIM FOR THE PERIOD PRIOR TO NOVEMBER 8, 1966, UPON THE SUBMISSION OF ADDITIONAL EVIDENCE CONCERNING HER HUSBAND'S PHYSICAL CONDITION IN RELATION TO HIS EMPLOYABILITY DURING THAT PERIOD.