B-130950, MARCH 26, 1957, 36 COMP. GEN. 675

B-130950, MARCH 26, 1957, 36 COMP. GEN. 675

MILITARY PERSONNEL - MEDICAL CARE - DEPENDENTS - RESIDENCE REQUIREMENTS ALTHOUGH THE COMPTROLLER GENERAL DOES NOT HAVE JURISDICTION TO RENDER A DECISION ON THE RESIDENCY REQUIREMENT OF DEPENDENT PARENTS OR PARENTS' IN- LAW OF MEMBERS OF THE UNIFORMED SERVICES FOR ENTITLEMENT TO BENEFITS UNDER THE DEPENDENTS' MEDICAL CARE ACT, BECAUSE DETERMINATIONS OF DEPENDENCY BY SECRETARY OF DEFENSE AND SECRETARY OF HEALTH, EDUCATION AND WELFARE ARE FINAL AND CONCLUSIVE, NEVERTHELESS, THE RESTRICTIVE USE OF THE WORD "HOUSEHOLD," AS USED IN THE ACT TO PRECLUDE BENEFITS TO A DEPENDENT PARENT WHO IS TEMPORARILY ABSENT FROM THE MEMBER'S HOUSEHOLD UNDERGOING PROLONGED HOSPITALIZATION, IS NOT REQUIRED; HOWEVER, A PARENT WHO IS WHOLLY SUPPORTED FINANCIALLY BY THE MEMBER BUT LIVES APART IS NOT A DEPENDENT UNDER THE ACT.

TO THE SECRETARY OF DEFENSE, MARCH 26, 1957:

REFERENCE IS MADE TO A LETTER DATED MARCH 2, 1957, FROM THE DEPUTY ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING OUR ADVICE ON QUESTIONS STATED TO HAVE ARISEN WITH RESPECT TO THE TERM "DEPENDENT," AS PERTAINING TO MEDICAL CARE FOR DEPENDENT PARENTS OR PARENTS-IN-LAW, IN THE IMPLEMENTATION OF THE DEPENDENTS' MEDICAL CARE ACT, APPROVED JUNE 7, 1956, 70 STAT. 250, 37 U.S.C. 401 NOTE.

SECTION 103 (A) OF THAT ACT, 37 U.S.C. 403 (A), PROVIDES THAT UPON REQUEST, AVAILABLE MEDICAL CARE IN FACILITIES OF THE UNIFORMED SERVICES SHALL BE GIVEN TO DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES OR OF DEPENDENTS OF PERSONS WHO DIED WHILE MEMBERS OF THE UNIFORMED SERVICES. SECTION 102 (A) (4), 37 U.S.C. 402 (A) (4), DEFINES THE TERM "DEPENDENT" FOR PURPOSES OF THE ACT TO INCLUDE, AMONG OTHERS, ANY PERSON BEARING THE RELATIONSHIP OF---

(F) A PARENT OR PARENT-IN-LAW, IF THE SAID PARENT OR PARENT-IN-LAW IS, OR WAS AT THE TIME OF THE MEMBER'S OR RETIRED MEMBER'S DEATH, IN FACT DEPENDENT ON THE SAID MEMBER OR RETIRED MEMBER FOR OVER ONE-HALF OF HIS SUPPORT AND IS, OR WAS AT THE TIME OF THE MEMBER'S OR RETIRED MEMBER'S DEATH, ACTUALLY RESIDING IN THE HOUSEHOLD OF THE SAID MEMBER OR RETIRED MEMBER;

SECTION 304 OF THE ACT, 37 U.S.C. 404, PROVIDES AS FOLLOWS:

ALL DETERMINATIONS MADE UNDER THIS ACT BY THE SECRETARY OF DEFENSE OR THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE WITH RESPECT TO DEPENDENCY SHALL BE CONCLUSIVE FOR ALL PURPOSES AND SHALL NOT BE SUBJECT TO REVIEW IN ANY COURT OR BY ANY ACCOUNTING OFFICER OF THE GOVERNMENT, EXCEPT FOR CASES INVOLVING FRAUD OR GROSS NEGLIGENCE. SUCH DETERMINATIONS MAY AT ANY TIME BE RECONSIDERED OR MODIFIED ON THE BASIS OF NEW EVIDENCE OR FOR OTHER GOOD CAUSE.

REFERENCE IS MADE TO OUR DECISIONS (CITING 29 COMP. GEN. 280, ID. 376, ID. 442, 30 COMP. GEN. 260, 31 COMP. GEN. 141) CONSTRUING PROVISIONS IN SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 231 (G), APPEARING WITHIN THE DEFINITION OF THE TERM "DEPENDENT," AS USED IN THAT ACT, WHICH ARE SIMILAR TO THOSE IN SECTION 102 (A) (4) (F) OF THE DEPENDENTS' MEDICAL CARE ACT, QUOTED ABOVE, 37 U.S.C. 402 (A) (4) (F), IN WHICH THE PHRASE "ACTUALLY RESIDES IN THE HOUSEHOLD OF SAID MEMBER" WAS HELD TO CONTEMPLATE THE SITUATION WHERE THE DEPENDENT PARENT PHYSICALLY RESIDES IN THE HOUSEHOLD OF THE MEMBER OR, IN OTHER WORDS, ACTUALLY RESIDES WITH THE MEMBER IN THE HOUSE HE MAINTAINS FOR HIMSELF AND THOSE LIVING WITH HIM. IT IS SUGGESTED THAT ALTHOUGH THE LANGUAGE IN THE TWO ACTS IS SIMILAR, THE PURPOSE OF ITS USE DIFFERS--- THE LANGUAGE IN THE CAREER COMPENSATION ACT OF 1949, DEALING WITH INCREASED QUARTERS ALLOWANCES ON ACCOUNT OF DEPENDENTS, BEING INTENDED AS A DEVICE TO EFFECT RESTRICTION OF THE PAYMENT OF THOSE ALLOWANCES, WHILE THAT IN THE DEPENDENTS' MEDICAL CARE ACT IS INTENDED TO BE BENEFICIAL LEGISLATION--- AND THAT THE ADOPTION OF THE STRICT CONSTRUCTION REFERRED TO IN OUR DECISIONS IN THE IMPLEMENTATION OF THE DEPENDENTS' MEDICAL CARE ACT THEREFORE WOULD ACHIEVE A RESULT THAT WOULD, IN MANY CASES, BE FOREIGN TO THE PURPOSE OF THE LEGISLATION. IT SEEMS CLEAR THAT SINCE THE RESIDENCY REQUIREMENT CONTAINED IN SUBPARAGRAPH (F), QUOTED ABOVE, IS AN ELEMENT TO BE CONSIDERED IN DETERMINING THE DEPENDENCY OF A PARENT OR PARENT-IN-LAW, DETERMINATIONS BY THE SECRETARY OF DEFENSE OR THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE AS TO THAT ELEMENT WOULD BE DETERMINATIONS RELATING TO DEPENDENCY WITHIN THE MEANING OF THE QUOTED SECTION 304. UNDER THE PROVISIONS OF THAT SECTION SUCH DETERMINATIONS ARE FINAL AND CONCLUSIVE AND THUS IT IS OUR VIEW THAT WE HAVE NO JURISDICTION TO RENDER AN AUTHORITATIVE DECISION ON THE QUESTIONS YOU PRESENT. HOWEVER, SOME GENERAL COMMENTS MAY BE HELPFUL.

THE DECISIONS TO WHICH YOU REFER STATE OUR CONCLUSIONS AS TO THE MEANING AND INTENT OF THE LANGUAGE IN SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949 AS TO THE RESIDENCY RESTRICTION IN THE CASE OF DEPENDENT PARENTS. THOSE DECISIONS WERE BASED UPON A CONSIDERATION NOT ONLY OF THE GENERALLY ACCEPTED MEANING OF THE WORD "HOUSEHOLD" BUT ALSO UPON THE MEANING AND INTENT OF THE PROVISION AS CLEARLY AND UNMISTAKABLY SET FORTH IN ITS LEGISLATIVE HISTORY. WHILE THE CONGRESS INCLUDED WITHIN THE LANGUAGE OF SECTION 120 (A) (4) (F) OF THE DEPENDENTS' MEDICAL CARE ACT THE SIMILARLY WORDED RESIDENCY RESTRICTION PERTAINING TO DEPENDENT PARENTS, THE PURPOSE OF THE TWO ACTS, AS YOU SUGGEST, IS NOT THE SAME AND TO ASSUME THAT THE WORD "HOUSEHOLD" AS USED IN THE LATER ACT WAS INTENDED IN THE SAME RESTRICTIVE SENSE AS THAT WORD WAS USED IN THE PRIOR ACT WOULD IN OUR OPINION BE INAPPROPRIATE IN SOME CASES. FOR EXAMPLE, TO CONCLUDE THAT AN OTHERWISE DEPENDENT PARENT LOSES THAT STATUS BECAUSE SHE IS TEMPORARILY ABSENT FROM THE MEMBER'S HOUSEHOLD UNDERGOING PROLONGED HOSPITALIZATION, WOULD BE INCONSISTENT WITH THE PRIME PURPOSE OF THE DEPENDENTS' MEDICAL CARE ACT. COMPARE 29 COMP. GEN. 280. ON THE OTHER HAND, THE RESIDENCY REQUIREMENT MAY NOT BE OVERLOOKED OR CONSTRUED AS INAPPLICABLE OR SURPLUSAGE MERELY BECAUSE THAT RESTRICTION IN A PARTICULAR CASE WOULD SEEM TO RESULT IN A HARDSHIP OR INEQUITY. THUS, A PARENT WHOLLY SUPPORTED FINANCIALLY BY A MEMBER BUT WHO, BECAUSE OF INFIRMITIES LIVES APART FROM HIM, PERHAPS IN A "HOME," OR WITH OTHER RELATIVES MAY NOT BE CONSIDERED HIS DEPENDENT UNDER THE DEPENDENTS' MEDICAL CARE ACT INASMUCH AS SHE DOES NOT RESIDE IN THE MEMBER'S HOUSEHOLD. WHILE OUR PRIOR DECISIONS MAY BE HELPFUL AS A GUIDE IN THE ADMINISTRATION OF THE ACT HERE INVOLVED, WE ARE OF THE OPINION THAT, UNDER THE AUTHORITY GRANTED TO THE SECRETARIES NAMED TO MAKE CONCLUSIVE DETERMINATIONS OF DEPENDENCY, THOSE SECRETARIES MAY ISSUE REASONABLE REGULATIONS AS TO WHEN A PARENT OR PARENT-IN-LAW MAY BE CONSIDERED AS ACTUALLY RESIDING IN THE HOUSEHOLD OF THE MEMBER, AND WE WILL NOT BE REQUIRED TO OBJECT TO OTHERWISE PROPER PAYMENTS MADE UNDER SUCH REGULATIONS.