B-127460, MAY 9, 1956, 35 COMP. GEN. 636

B-127460, MAY 9, 1956, 35 COMP. GEN. 636

QUARTERS ALLOWANCES - DEPENDENTS - RESIDENCE REQUIREMENTS A MEMBER OF THE UNIFORMED SERVICES WHO LIVES WITH HIS MOTHER IN A HOME WHICH IS OWNED BY HER AND IN WHICH THE MEMBER MAY HAVE AN EQUITABLE INTEREST MAY NOT BE REGARDED AS FURNISHING QUARTERS FOR HIS DEPENDENT MOTHER TO BE ENTITLED TO AN INCREASED BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT PARENT WHO ACTUALLY RESIDES IN HIS HOUSEHOLD.

TO T. W. BEVANS, DEPARTMENT OF THE NAVY, MAY 9, 1956:

BY LETTER DATED MARCH 27, 1956, JAG:II:2:JRS, THE JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED YOUR LETTER OF JANUARY 24, 1956, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF CREDITING VALERY NICHOLAS VINET, 363 84 22, BUL1, USNR, WITH AN INCREASED BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT PARENT, WHILE ON ACTIVE DUTY TRAINING FROM APRIL 17 THROUGH 30, 1955.

UNDER THE PROVISIONS OF SECTION 7 OF THE DEPENDENTS ASSISTANT ACT OF 1950, 64 STAT. 796, 50 U.S.C. APP. 2207, ENLISTED MEMBERS OF THE UNIFORMED SERVICES ON TRAINING DUTY ARE RESTRICTED TO THE BASIC ALLOWANCE FOR QUARTERS PRESCRIBED IN SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, AS ORIGINALLY ENACTED, 63 STAT. 812, 37 U.S.C. 252. AS SO ENACTED, SECTION 102 (G) OF THE 1949 ACT, 63 STAT. 804, 37 U.S.C. 231, DEFINES THE TERM "DEPENDENT," FOR THE PURPOSES OF THE ACT, 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.'

IT APPEARS FROM THE PAPERS ACCOMPANYING YOUR LETTER THAT IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT THE MOTHER IS IN FACT DEPENDENT UPON THE ENLISTED MEMBER FOR OVER HALF OF HER SUPPORT. ON THE QUESTION OF WHETHER HIS MOTHER ( EMILY VINET) ACTUALLY RESIDED IN HIS HOUSEHOLD, THE ENLISTED MEMBER STATES IN HIS APPLICATION FOR DEPENDENT'S ALLOWANCE:

THE HOUSE IS BEING OCCUPIED ONLY BY MYSELF (RESERVIST) AND MY MOTHER (MEMBER FOR WHOM ALLOWANCE IS BEING CLAIMED). THE SUBJECT HOUSE IS PARTLY OWNED BY ME. THE HOUSE BELONGS TO MOTHER AND NINE CHILDREN. THE HOUSE IS LISTED IN MRS. EMILY VINET'S NAME.

IN VIEW OF THE LIVING ARRANGEMENTS DISCLOSED BY THE ENLISTED MEMBER, IT WOULD APPEAR THAT THE PREMISES OCCUPIED BY HIM AND HIS MOTHER ARE AT LEAST AS MUCH THE HOUSEHOLD OF THE MOTHER AS THAT OF THE ENLISTED MEMBER, SINCE HIS CONTROL OF THE PREMISES IS AT LEAST NO GREATER THAN THAT OF THE MOTHER, AND THAT AT BEST THEY ARE MERELY MAINTAINING A COMMON HOUSEHOLD. ALSO, THE TITLE TO THE PREMISES BEING IN THE MOTHER'S NAME DENOTES ACTUAL OWNERSHIP AND CONTROL OF THE PREMISES AND THE RIGHT TO DETERMINE WHO MAY OR MAY NOT OCCUPY SUCH PREMISES. A SON LIVING WITH HIS PARENT IN A HOUSE OWNED OR CONTROLLED BY THE PARENT DOES NOT SUPPLANT THE PARENT AS HEAD OF SUCH HOUSEHOLD BY CONTRIBUTIONS TOWARD THE HOUSEHOLD EXPENSES AND SUCH CONTRIBUTIONS, NO MATTER HOW GENEROUS OR NEEDED, MAY NOT BE REGARDED AS MAKING THE HOUSEHOLD THAT OF THE SON, WITHIN THE CONTEMPLATION OR PURPOSE OF THE STATUTE.

IN THE PRESENT CASE, IT WOULD APPEAR THAT THE ENLISTED MEMBER DID NOT PROVIDE QUARTERS FOR HIS ALLEGED DEPENDENT MOTHER, BUT THAT THE MOTHER FURNISHED HER OWN QUARTERS IN A HOUSE OWNED BY HER IN WHICH THE ENLISTED MEMBER MAY HAVE SOME EQUITABLE INTEREST. ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, PAYMENT TO THE ENLISTED MEMBER OF AN INCREASED BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT MOTHER FOR THE PERIOD APRIL 17 THROUGH 30, 1955, IS NOT AUTHORIZED, IT NOT BEING ESTABLISHED THAT THE MOTHER ACTUALLY RESIDED IN HIS HOUSEHOLD AS REQUIRED BY THE STATUTE SO AS TO CONSTITUTE THE MOTHER A "DEPENDENT" FOR SUCH PURPOSE.