B-122740, JUNE 8, 1955, 34 COMP. GEN. 661

B-122740, JUNE 8, 1955, 34 COMP. GEN. 661

QUARTERS ALLOWANCE - DEPENDENTS - HUSBAND AND WIFE IN UNIFORMED SERVICES AN OFFICER WHO WITH HIS WIFE, ALSO A MEMBER OF THE UNIFORMED SERVICES, JOINTLY OCCUPY PUBLIC QUARTERS DESIGNATED AS DEPENDENT OR FAMILY-TYPE QUARTERS IS PRECLUDED FROM RECEIVING BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF HUSBAND'S DEPENDENT CHILDREN WHO ARE IN THE CUSTODY OF OFFICER'S FORMER WIFE.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO LIEUTENANT COLONEL R. A. METZGER, DEPARTMENT OF DEFENSE, JUNE 8, 1955:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 3, 1955, AND ENCLOSURES, CONCERNING THE ACTION TAKEN ON YOUR CLAIM FOR AN INCREASED BASIC ALLOWANCE FOR QUARTERS AS AN OFFICER WITH DEPENDENTS (LEGITIMATE CHILDREN) DURING THE PERIOD MAY 14, 1952, TO FEBRUARY 16, 1953, WHILE STATIONED ON OKINAWA.

THE RECORD SHOWS THAT ON JUNE 2, 1952, BY ORDER OF THE COMMANDING GENERAL, RYUKYUS COMMAND, APO 331, YOU WERE ASSIGNED " GOVERNMENT DEPENDENT QUARTERS NO. 1482, SUKIRAN AREA" EFFECTIVE MAY 14, 1952, WHICH YOU OCCUPIED WITH YOUR WIFE, CAPTAIN HOPE METZGER, L-174, WAC. THIS ASSIGNMENT WAS TERMINATED EFFECTIVE FEBRUARY 16, 1953, AND, APPARENTLY, YOU AND YOUR WIFE WERE ASSIGNED ADJOINING ROOMS IN BOQ NO. 10, EFFECTIVE FEBRUARY 17, 1953. ON THE BASIS THAT MARRIED MEMBERS OF THE UNIFORMED SERVICES ASSIGNED GOVERNMENT FAMILY QUARTERS ARE NOT ENTITLED TO AN INCREASED BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF OTHER DEPENDENTS, YOU WERE REQUIRED TO REFUND THE INCREASED BASIC ALLOWANCE FOR QUARTERS CREDITED TO YOUR ACCOUNT FOR THE PERIOD MAY 14, TO OCTOBER 30, 1952, AND YOU WERE NOT CREDITED WITH THE ALLOWANCE FOR THE PERIOD OCTOBER 31, 1952, TO FEBRUARY 16, 1953.

YOUR LETTER IS TO THE EFFECT THAT YOUR WIFE, BEING A MEMBER OF THE UNIFORMED SERVICES, SHOULD NOT BE CONSIDERED A DEPENDENT, AND THAT YOU SHOULD BE PAID THE INCREASED ALLOWANCES BECAUSE YOU HAVE TWO DEPENDENT CHILDREN WHO ARE IN THE CUSTODY OF YOUR FORMER WIFE TO WHOM YOU PAY $220 A MONTH FOR THEIR SUPPORT. YOU SAY THAT DURING THE PERIOD COVERED BY YOUR CLAIM YOU AND YOUR WIFE LIVED AS BACHELOR OFFICERS IN A QUONSET HUT SIMILAR TO QUARTERS ASSIGNED TO AND SHARED BY TWO MALE BACHELOR OFFICERS. ALSO, YOU SAY THAT THE ASSIGNMENT TO YOU OF QUARTERS NO. 1482, SUKIRAN, WAS NEVER INTENDED TO DEPRIVE YOU OF THE INCREASED BASIC ALLOWANCE FOR QUARTERS YOU HAD BEEN RECEIVING ON ACCOUNT OF YOUR TWO CHILDREN WHO WERE PREVENTED FROM OCCUPYING GOVERNMENT QUARTERS BECAUSE OF A COURT ORDER AWARDING THEIR CUSTODY TO THEIR MOTHER AND, FURTHER, THAT OKINAWA WAS NOT A FIT PLACE FOR DEPENDENTS.

SECTION 302 (B) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, PROVIDES THAT NO BASIC ALLOWANCE FOR QUARTERS SHALL "ACCRUE TO MEMBERS OF THE UNIFORMED SERVICES ASSIGNED TO GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES, APPROPRIATE TO THEIR RANK, GRADE OR RATING AND ADEQUATE FOR THEMSELVES AND DEPENDENTS, IF WITH DEPENDENTS.' SECTION 102 (G) OF THE ACT, 63 STAT. 804, PROVIDES THAT NO MEMBER SHALL BE PAID INCREASED ALLOWANCES ON ACCOUNT OF A DEPENDENT WHO IS ALSO IN THE SERVICE AND ENTITLED TO BASIC PAY.

IN A MEMORANDUM DATED MARCH 2, 1951, ADDRESSED TO THE SECRETARIES OF THE ARMY, NAVY, AND AIR FORCE BY THE PERSONNEL POLICY BOARD OF THE DEPARTMENT OF DEFENSE, IN FORCE DURING THE PERIOD MARCH 2, 1951, TO APRIL 16, 1954, THERE WERE STATED IN DETAIL PROVISIONS GOVERNING PAYMENT OF BASIC ALLOWANCE FOR QUARTERS FOR VARIOUS COMBINATIONS OF MARRIAGE AND DEPENDENCY, IN PART, AS FOLLOWS:

3. MARRIAGES WHERE BOTH PARTIES CONCERNED ARE MEMBERS OF THE UNIFORMED SERVICES AND EITHER OR BOTH HAVE DEPENDENTS OTHER THAN SPOUSE. IN ALL CASES, ENTITLEMENT TO MARRIED QUARTERS RESTS WITH EITHER OR BOTH AND EITHER OR BOTH MAY BE ENTITLED TO BASIC ALLOWANCE FOR QUARTERS PROVIDED FOR MEMBERS WITH DEPENDENTS, WHEN NOT ASSIGNED QUARTERS, DEPENDING ON DEPENDENCY STATUS OF EACH OF THE MEMBERS. ( ITALICS SUPPLIED.)

UNDER THESE PROVISIONS A MEMBER OF THE UNIFORMED SERVICES IS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS FOR ANY DEPENDENT WHEN ASSIGNED ADEQUATE GOVERNMENT QUARTERS FOR HIMSELF AND HIS DEPENDENTS. IN A CASE WHERE A MEMBER AND HIS WIFE ARE BOTH IN THE SERVICE AND EACH IS ASSIGNED SINGLE QUARTERS, IT IS CONTEMPLATED THAT EACH MEMBER MAY RECEIVE OR CONTINUE TO RECEIVE A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF DEPENDENT CHILDREN IF OTHERWISE ENTITLED. HOWEVER, WHERE EITHER MEMBER IS ASSIGNED FAMILY TYPE QUARTERS, AND BOTH MEMBERS OCCUPY THE QUARTERS, THE QUARTERS ARE CONSIDERED AS BEING ASSIGNED TO THEM JOINTLY AND SEVERALLY AND AS ADEQUATE FOR THEMSELVES AND ALL DEPENDENTS OF EITHER OF THEM. THIS IS THE VIEW OF THE UNIFORMED SERVICES AS IS EVIDENCED BY DEPARTMENT OF DEFENSE INSTRUCTIONS NO. 1338.1, DATED APRIL 16, 1954, WHICH RESCINDED THE DIRECTIVE OF MARCH 2, 1951, AND PROMULGATED SIMILAR PROVISIONS BUT SPECIFICALLY ADDED THE PROVISION THAT WHEN PUBLIC QUARTERS ARE JOINTLY OCCUPIED BY MARRIED MEMBERS, EITHER OR BOTH OF WHOM HAVE DEPENDENTS OTHER THAN SPOUSE, NEITHER MEMBER WILL BE ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS PRESCRIBED FOR THE DEPENDENTS EVEN THOUGH THE DEPENDENTS DO NOT RESIDE IN THE QUARTERS.

THE QUARTERS ASSIGNED TO YOU WERE DESIGNATED "DEPENDENT" QUARTERS AND WERE JOINTLY OCCUPIED BY YOU AND YOUR WIFE. THERE IS NOTHING IN THE RECORD TO SUPPORT YOUR CONTENTION THAT THE QUARTERS ASSIGNED TO YOU AND OCCUPIED BY YOU AND YOUR WIFE WERE OTHER THAN "DEPENDENT" QUARTERS. THE CONTRARY, THE CONCLUSION IS REQUIRED THAT THE QUARTERS ASSIGNED TO YOU WERE IN FACT "DEPENDENT" OR ,FAMILY TYPE" QUARTERS SINCE THE RECORD SHOWS THAT YOUR SUBSEQUENT ASSIGNMENT TO QUARTERS WHICH APPARENTLY WERE, IN FACT, BACHELOR OFFICER QUARTERS INVOLVED TERMINATION OF YOUR ASSIGNMENT TO QUARTERS NO. 1482, SUKIRAN.

ACCORDINGLY, THERE IS NO PROPER BASIS FOR THE PAYMENT TO YOU OF A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF DEPENDENT CHILDREN DURING THE PERIOD INVOLVED, AND THE DISALLOWANCE OF YOUR CLAIM MUST BE SUSTAINED.