B-154312, JUN. 25, 1964

B-154312, JUN. 25, 1964

TO MAJOR A. R. OTTE:

WE HAVE RECEIVED FROM THE ALLOTMENTS AND DEPOSITS OPERATIONS, FINANCE CENTER, INDIANAPOLIS, INDIANA, YOUR LETTER OF APRIL 14, 1964, REQUESTING THAT A DETERMINATION BE MADE WHETHER, ON THE BASIS OF THE INFORMATION SUBMITTED, CAPTAIN EDWARD M. RAS, DC. 05013451, HAS A DEPENDENT FOR BASIC ALLOWANCE FOR QUARTERS PURPOSES.

IN HIS CLAIM FOR BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD COMMENCING JULY 25, 1962--- THE DATE HE APPARENTLY REPORTED FOR ACTIVE DUTY--- CAPTAIN RAS LISTS AS HIS DEPENDENTS, DOROTHY V. RAS AS HIS WIFE AND ROBERT RAS AS HIS SON. HE CERTIFIES THAT HE WAS MARRIED IN JAMAICA, NEW YORK, ON JULY 23, 1960, AND THAT HIS SON WAS BORN IN MAY 1961. IN A STATEMENT ATTACHED TO HIS CLAIM, CAPTAIN RAS STATES, IN SUBSTANCE, THAT WHEN HE REPORTED AT FORT SAM HOUSTON, SAN ANTONIO, TEXAS, ON JULY 25, 1962, AND MADE INQUIRY ABOUT ENTITLEMENT TO A BASIC ALLOWANCE FOR QUARTERS, HE EXPLAINED THAT HE WAS MARRIED IN JULY 1960; THAT SINCE NOVEMBER 1960, HE HAS BEEN "SEPARATED" FROM HIS WIFE; THAT NO LEGAL ACTION HAS BEEN TAKEN TO OBTAIN A DIVORCE OR SEPARATION; AND THAT IN ACCORDANCE WITH A DOMESTIC RELATIONS COURT ORDER, HE HAS CONTRIBUTED $25 A WEEK FOR THE SUPPORT OF HIS DEPENDENTS. IN THE LIGHT OF THIS INFORMATION, CAPTAIN RAS STATES THAT HE WAS ADVISED THAT BEFORE HE COULD CLAIM A QUARTERS ALLOWANCE AS AN OFFICER WITH DEPENDENTS, HE WOULD HAVE TO SHOW THAT HE WAS CONTRIBUTING 50 PERCENT OR MORE FOR THE SUPPORT OF HIS WIFE AND CHILD SINCE THEY WERE "SEPARATED.'

PURSUANT TO THE PERTINENT PROVISIONS OF SECTION 403 OF TITLE 37, U.S.C. A MEMBER OF THE UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY IS ENTITLED TO AN INCREASED BASIC ALLOWANCE FOR QUARTERS FOR HIS DEPENDENTS WHEN NOT ASSIGNED TO APPROPRIATE GOVERNMENT QUARTERS. SUBSTANTIALLY SIMILAR PROVISIONS HAVE BEEN CONTAINED IN THE MILITARY PAY AND ALLOWANCE LAWS SINCE 1922, THEIR BASIC PURPOSE BEING TO AT LEAST PARTIALLY REIMBURSE THE MEMBERS CONCERNED FOR THE EXPENSE OF PROVIDING PRIVATE QUARTERS FOR THEIR DEPENDENTS, WHERE GOVERNMENT QUARTERS ARE NOT AVAILABLE, AND NOT TO GRANT THE HIGHER ALLOWANCE AS A BONUS MERELY FOR THE TECHNICAL STATUS OF BEING MARRIED OR A PARENT.

WHILE, UNDER THE NORMAL RELATIONSHIP OF HUSBAND AND FATHER, PROOF OF DEPENDENCY IS NOT GENERALLY REQUIRED TO ESTABLISH A RIGHT TO THE HIGHER BASIC QUARTERS ALLOWANCE ON ACCOUNT OF A MEMBER'S WIFE OR CHILD, THAT GENERAL RULE IS NOT FREE FROM EXCEPTIONS AND HAS NOT BEEN VIEWED AS APPLICABLE IN CERTAIN CASES. IN THE LIGHT OF THE BASIC PURPOSE OF THE STATUTE, WE HAVE CONSISTENTLY HELD THAT IN THE ABSENCE OF A SHOWING OF CONTRIBUTIONS BY THE OFFICER TO THE SUPPORT OF HIS WIFE OR CHILDREN, ENTITLEMENT TO INCREASED QUARTERS ALLOWANCE AS FOR AN OFFICER WITH DEPENDENTS IS NOT AUTHORIZED WHERE THE MEMBER IS SEPARATED FROM HIS WIFE AND HAS BEEN ABSOLVED OF RESPONSIBILITY TO SUPPORT HER. SEE 26 COMP. GEN. 514; 33 ID. 308. COMPARE 24 COMP. GEN. 88, AND ROBEY V. UNITED STATES, 71 CT.CL. 561. A SIMILAR EXCEPTION EXISTS IN THE CASE OF A CHILD IN LIKE CIRCUMSTANCES. 23 COMP. GEN. 71; 38 ID. 89; B-49908, JUNE 19, 1945; B- 118470, AUGUST 19, 1954. COMPARE 34 COMP. GEN. 378.

WHILE THE PROVISIONS OF THE "DOMESTIC RELATIONS COURT ORDER" REFERRED TO BY CAPTAIN RAS WERE NOT INDICATED, IT APPEARS FROM HIS REPRESENTATIONS THAT THE REQUIRED $25 A WEEK PAYMENTS ARE BEING MADE FOR THE SUPPORT OF EITHER HIS WIFE OR CHILD, OR BOTH, AND THAT HE HAS NOT BEEN ABSOLVED OF THE RESPONSIBILITY TO SUPPORT THEM. ASSUMING THE OFFICER'S STATEMENT CAN BE VERIFIED THAT HE HAS CONTRIBUTED REGULARLY TO THEIR SUPPORT SINCE JULY 25, 1962, PURSUANT TO SUCH A COURT ORDER, A COPY OF WHICH SHOULD BE PROPERLY AUTHENTICATED AND FILED WITH THE ACCOUNTS, PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITH DEPENDENTS IS AUTHORIZED, RETROACTIVELY TO JULY 25, 1962, IF OTHERWISE CORRECT. SEE B-142842, JUNE 16, 1960, AND COMPARE 42 COMP. GEN. 642.

THIS DECISION, OR A COPY THEREOF, SHOULD BE INCLUDED IN THE ACCOUNT WHEREIN CREDIT IS FIRST CLAIMED FOR THE ALLOWANCE ON AND AFTER JULY 25, 1962. THE ENCLOSURES FORWARDED WITH YOUR LETTER ARE RETURNED.