B-126401, FEB. 15, 1956

B-126401, FEB. 15, 1956

TO MAJOR KATHRYN D. CLEVELAND, TC, L 61:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 28, 1955, CONCERNING OUR SETTLEMENT DATED NOVEMBER 4, 1955, WHICH DENIED YOUR CLAIM FOR ADJUSTMENT IN PAY AND QUARTERS ALLOWANCE BECAUSE OF YOUR DEPENDENT MOTHER FROM OCTOBER 1, 1949, TO JULY 7, 1950. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT YOUR PAY RECORDS SHOW THAT YOU WERE PROPERLY PAID FOR THE PERIOD INVOLVED. FOR THE FIRST PART OF THE PERIOD, OCTOBER 1, 1949, THROUGH FEBRUARY 2, 1950, YOU WERE PAID AT THE RATES IN EFFECT ON SEPTEMBER 30, 1949, UNDER THE SAVED PAY PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, THE AMOUNT PAID INCLUDING RENTAL ALLOWANCE ON ACCOUNT OF YOUR DEPENDENT MOTHER, PAYMENT ON THAT BASIS EXCEEDING THE AMOUNT WHICH YOU WOULD HAVE RECEIVED UNDER THE 1949 ACT. FOR THE REMAINDER OF THE PERIOD, BEGINNING FEBRUARY 3, 1950, THE DATE ON WHICH YOU WERE PROMOTED TO MAJOR, YOU WERE PAID AT THE RATE PROVIDED IN THE 1949 ACT FOR YOUR PAY GRADE AND LENGTH OF SERVICE, BUT WERE NOT ENTITLED TO QUARTERS ALLOWANCE ON ACCOUNT OF YOUR DEPENDENT MOTHER BECAUSE SHE DID NOT RESIDE IN YOUR HOUSEHOLD.

YOU SAY THAT YOUR MOTHER HAS BEEN A DEPENDENT IN THE OFFICIAL RECORDS EVER SINCE YOU ENTERED THE ARMY IN 1942 AND THAT THERE WAS NO CHANGE IN HER STATUS WHEN THE CAREER COMPENSATION ACT OF 1949 BECAME EFFECTIVE. YOU STATE THAT IT WAS FOR THE CONVENIENCE OF THE GOVERNMENT THAT YOUR DEPENDENT MOTHER DID NOT RESIDE IN YOUR HOUSEHOLD IN JAPAN WHERE YOU WERE THEN STATIONED AND THAT ALTHOUGH YOU REQUESTED TRAVEL OF YOUR MOTHER TO JAPAN, SHE WAS NOT PERMITTED BY ARMY REGULATIONS TO JOIN YOU UNTIL JUNE 1950 AND GOVERNMENT QUARTERS WERE NOT ASSIGNED UNTIL JULY 7, 1950. YOU FURTHER SAY THAT THE SUBSEQUENT RECOGNITION OF THE PROBLEMS CREATED BY THE CAREER COMPENSATION ACT OF 1949 IN CONNECTION WITH PAYMENT OF ALLOWANCES ON ACCOUNT OF DEPENDENT PARENTS AND THE PASSAGE OF THE DEPENDENTS ASSISTANCE ACT OF 1950 TO CHANGE THE PROVISIONS WITH REGARD TO PAYMENT OF SUCH ALLOWANCES ARE FURTHER REASONS FOR YOUR LACK OF UNDERSTANDING OF THE ACTION TAKEN ON YOUR CLAIM.

UNDER SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, MEMBERS OF THE UNIFORMED SERVICES WERE ENTITLED, UNDER CERTAIN CONDITIONS, TO A BASIC ALLOWANCE FOR QUARTERS, THE APPLICABLE RATE IN EACH INSTANCE DEPENDING UPON THE MEMBER'S GRADE OR RANK AND WHETHER HE WAS WITH OR WITHOUT DEPENDENTS. SECTION 102 (G) OF THE ACT, 63 STAT. 804, DEFINED THE TERM DEPENDENT" AS INCLUDING---

"* * * THE FATHER OR MOTHER OF SUCH MEMBER, PROVIDED HE OR SHE IS IN FACT DEPENDENT ON SUCH MEMBER FOR OVER HALF OF HIS OR HER SUPPORT AND ACTUALLY RESIDES IN THE HOUSEHOLD OF SAID MEMBER. * * *"

IN DECISION OF DECEMBER 19, 1949, B-90278, 29 COMP. GEN. 280, TO THE SECRETARY OF THE ARMY, IT WAS STATED (PAGE 284/---

"THE ALLOWANCE IS NOT PAYABLE PRIMARILY ON ACCOUNT OF THE DEPENDENCY OF THE PARENT, BUT THE STATUTORY OBJECT APPARENTLY IS ONLY TO PROVIDE A MEMBER WITH AN ALLOWANCE WHERE NECESSARY TO OBTAIN QUARTERS FOR HIMSELF AND HIS DEPENDENT PARENT AT, OR CONVENIENT TO, HIS PERMANENT STATION IN CASES WHERE THE GOVERNMENT IS UNABLE TO FURNISH HIM WITH FAMILY QUARTERS AT SUCH STATION. IF THE PARENT IS NOT AT THE MEMBER'S PERMANENT STATION THERE WOULD BE NO OCCASION FOR HIM TO DEMAND PUBLIC FAMILY QUARTERS AT SUCH STATION FOR HIMSELF AND PARENT AND, HENCE, NO OCCASION FOR AN ALLOWANCE TO OBTAIN QUARTERS NEARBY FOR HIMSELF AND PARENT IN LIEU OF PUBLIC FAMILY QUARTERS THEREAT. TO HOLD OTHERWISE WOULD BE TO PLACE THE ALLOWANCE PRIMARILY ON THE BASIS OF DEPENDENCY AND NOT ON ANY NEED FOR FAMILY QUARTERS AT THE MEMBER'S PERMANENT STATION, WHICH THE GOVERNMENT NORMALLY PROVIDES. THE LAW MAKES NO EXCEPTION IN CASES WHERE IT IS IMPOSSIBLE OR IMPRACTICABLE FOR THE PARENT TO RESIDE IN THE MEMBER'S HOUSEHOLD, IRRESPECTIVE OF LOCATION, BECAUSE OF AGE, PHYSICAL CONDITION, CLIMATE, LIVING CONDITIONS, INCOMPATIBILITY, HIGH COST OF LIVING, OR DIFFICULTY IN SECURING HOUSING ACCOMMODATIONS. IT IS QUITE CLEAR THAT TO PERMIT EXCEPTIONS TO BE MADE IN SUCH CASES WOULD BE VIRTUALLY TO DISREGARD THE PURPOSE OF THE EXPRESS STATUTORY REQUIREMENT OF ACTUAL RESIDENCE IN THE MEMBER'S HOUSEHOLD. * * *"

IN THE DECISION IT WAS POINTED OUT THAT THE LEGISLATIVE HISTORY OF SUCH PROVISION CLEARLY INDICATED THAT THE PROVISION WAS EXPRESSLY DESIGNED TO PRECLUDE THE PAYMENT OF INCREASED QUARTERS ALLOWANCE ON ACCOUNT OF A DEPENDENT PARENT IN CASES WHERE THE MEMBER PROCURED PRIVATE QUARTERS AT HIS OWN EXPENSE BUT HIS PARENT DID NOT ACTUALLY RESIDE WITH HIM IN SUCH QUARTERS AS A MEMBER OF HIS HOUSEHOLD, AND, PARTICULARLY, TO PRECLUDE PAYMENT OF INCREASED QUARTERS ALLOWANCE ON ACCOUNT OF A DEPENDENT PARENT IN CASES WHERE THE MEMBER WAS FURNISHED QUARTERS FOR HIMSELF BUT NOT FOR HIS PARENT AT HIS PERMANENT POST OR STATION. THE CASES CONSIDERED IN THE DECISION INCLUDED THE CASE OF PERSONNEL WHO, UNDER ORDERS FOR PERMANENT CHANGE OF STATION, WERE ORDERED OVERSEAS, WHERE QUARTERS WERE NOT IMMEDIATELY AVAILABLE FOR DEPENDENTS OF MILITARY PERSONNEL, AND SUCH DEPENDENTS WERE NOT PERMITTED TO JOIN THE MEMBER OF THE SERVICE FOR AN EXTENDED PERIOD AND IT WAS CONCLUDED THAT A MEMBER OF THE UNIFORMED SERVICES WOULD NOT BE ENTITLED TO AN INCREASED BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT PARENT UNDER SUCH CONDITIONS. IT WAS NOTED THAT WHILE SECTION 302 (D) OF THE ACT PROVIDED THAT NO MEMBER ASSIGNED TO GOVERNMENT QUARTERS SHOULD BE DENIED HIS BASIC ALLOWANCE FOR QUARTERS IF, BY REASON OF ORDERS OF COMPETENT AUTHORITY, HIS DEPENDENTS WERE PREVENTED FROM OCCUPYING SUCH QUARTERS, A PARENT DID NOT COME WITHIN SUCH PROVISION BECAUSE, UNDER SECTION 102 (G) A PARENT WAS NOT A DEPENDENT FOR QUARTERS ALLOWANCE PURPOSES UNLESS HE OR SHE ACTUALLY RESIDED IN THE HOUSEHOLD OF THE MEMBER.

SECTION 1 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 794, TEMPORARILY SUSPENDED THE REQUIREMENT CONTAINED IN SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949 THAT A PARENT MUST ACTUALLY RESIDE IN THE HOUSEHOLD OF THE MEMBER OF THE UNIFORMED SERVICES IN ORDER TO BE CONSIDERED A "DEPENDENT" FOR QUARTERS ALLOWANCE PURPOSES. SECTION 15 PROVIDED THAT THE ACT SHOULD BE EFFECTIVE FROM AUGUST 1, 1950, EXCEPT AS TO CERTAIN ALLOTMENT REQUIREMENTS. HENCE, IT DID NOT AFFECT OR MODIFY THE RIGHTS OF PERSONNEL PAID UNDER THE STATUTORY PROVISIONS IN EFFECT PRIOR TO AUGUST 1, 1950.