B-159386, JUN. 30, 1966

B-159386, JUN. 30, 1966

TO LIEUTENANT R. A. MATTHEWS, DO, USN:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 10, 1966, YOUR REFERENCE CODE CRD, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF CREDITING THE PAY ACCOUNT OF ENSIGN ANNA FEDORA, 690105W, WITH BASIC ALLOWANCE FOR QUARTERS AS AN OFFICER WITH A DEPENDENT HUSBAND EFFECTIVE APRIL 22, 1966. YOUR REQUEST HAS BEEN FORWARDED TO THIS OFFICE BY THE COMPTROLLER OF THE NAVY AND HAS BEEN ASSIGNED SUBMISSION NUMBER DO-N-910 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SECTION 403 OF TITLE 37, U.S. CODE, PROVIDES FOR PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO MEMBERS OF THE UNIFORMED SERVICES. FOR THE PURPOSES OF QUALIFICATION FOR THIS ALLOWANCE, THE TERM "DEPENDENT" IS DEFINED IN 37 U.S.C. 401 AS INCLUDING---

"/1) HIS SPOUSE;

HOWEVER, A PERSON IS NOT A DEPENDENT OF A FEMALE MEMBER UNLESS HE IS IN FACT DEPENDENT ON HER FOR OVER ONE-HALF OF HIS SUPPORT. * * *.'

IN ORDER FOR A HUSBAND TO BE REGARDED AS "IN FACT DEPENDENT" ON HIS WIFE IN A UNIFORMED SERVICE, THIS OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT THE HUSBAND MUST BE INCAPABLE OF SELF-SUPPORT DUE TO A PHYSICAL OR MENTAL INCAPACITY, SEE 32 COMP. GEN. 364, AND THE EVIDENCE SUBMITTED MUST SUPPORT BOTH DEPENDENCY AS WELL AS SUCH INCAPACITY. SEE B-148561, DATED APRIL 20, 1962.

THE INFORMATION SUBMITTED IN THE PRESENT CASE INDICATES THAT THE MEMBER'S HUSBAND, WILLIAM HARRISON RIANHARD, USNR, WAS PLACED ON THE TEMPORARY DISABILITY RETIREMENT LIST EFFECTIVE APRIL 22, 1966, WITH A DISABILITY RATING OF 100 PERCENT.

WHILE HIS DISABILITY RATING AND THE NATURE OF HIS DISABILITY INDICATE THE POSSIBILITY THAT HE IS INCAPABLE OF SELF-SUPPORT, NEVERTHELESS THE MERE FACT THAT MR. RIANHARD WAS FOUND TO BE 100 PERCENT DISABLED FOR THE PURPOSE OF ACTIVE NAVAL SERVICE AND WAS PLACED ON THE TEMPORARY DISABILITY RETIREMENT LIST, DOES NOT IN ITSELF ESTABLISH THAT HE IS ACTUALLY DEPENDENT ON THE MEMBER AND UNABLE TO BE GAINFULLY EMPLOYED. CERTIFICATION BY HIS ATTENDING PHYSICIAN HAS BEEN FURNISHED AS TO THE PERMANENCY OF HIS INCAPACITY AND HIS EMPLOYMENT LIMITATIONS. HENCE, ON THE BASIS OF THE PRESENT RECORD WE CANNOT CONCLUDE THAT THE MEMBER'S HUSBAND IS DEPENDENT UPON HER WITHIN THE MEANING OF THE STATUTE AND PAYMENT OF BASIC ALLOWANCE FOR QUARTERS IN HER CASE IS NOT AUTHORIZED. THIS DECISION, HOWEVER, DOES NOT PRECLUDE FURTHER CONSIDERATION OF ENSIGN FEDORA'S CLAIM UPON THE SUBMISSION OF ADDITIONAL EVIDENCE AS TO HER HUSBAND'S CONDITION AND HIS EMPLOYMENT POSSIBILITIES.