B-161261, JUL 3, 1972, 52 COMP GEN 1

B-161261, JUL 3, 1972, 52 COMP GEN 1

QUARTERS ALLOWANCE - DEPENDENTS - HUSBAND'S DEPENDENCY - STATUS FOR ENTITLEMENT TO QUARTERS IN VIEW OF SECTION 703 OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED (42 U.S.C. 2000E-2), WHICH PROHIBITS JOB DISCRIMINATION BASED ON SEX, 32 COMP. GEN. 364 AND OTHER SIMILAR DECISIONS HOLDING THAT A FEMALE MEMBER OF THE UNIFORMED SERVICES, IN ORDER TO RECEIVE AN INCREASED ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT HUSBAND UNDER 37 U.S.C. 403, MUST NOT ONLY MEET THE TEST PRESCRIBED BY 37 U.S.C. 401 THAT HER HUSBAND IS DEPENDENT UPON HER FOR OVER ONE-HALF HIS SUPPORT BUT THAT HE ALSO MUST BE INCAPABLE OF SELF-SUPPORT DUE TO A PHYSICAL OR MENTAL INCAPACITY, WILL NO LONGER BE FOR APPLICATION PROSPECTIVELY AS TO INCAPACITY. HOWEVER, THE 1964 ACT DOES NOT OVERCOME THE DIFFERENT DEPENDENCY STANDARDS PRESCRIBED BY STATUTE FOR MALE AND FEMALE MEMBERS AND, THEREFORE, UNTIL REMEDIAL LEGISLATION IS ENACTED, 37 U.S.C. 401 CONTROLS, AND A FEMALE MEMBER MUST CONTINUE TO ESTABLISH THAT HER SPOUSE IS DEPENDENT UPON HER FOR HALF OF HIS SUPPORT TO ENTITLE HER TO AN INCREASED QUARTERS ALLOWANCE.

TO THE SECRETARY OF DEFENSE, JULY 3, 1972:

THERE HAVE COME TO OUR ATTENTION CERTAIN INEQUITIES WHICH APPEAR TO HAVE RESULTED FROM OUR HOLDING IN 32 COMP. GEN. 364(1953) CONCERNING THE DEPENDENCY REQUIREMENT APPLICABLE TO FEMALE MEMBERS OF THE UNIFORMED SERVICES CLAIMING A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT HUSBAND.

IN 32 COMP. GEN. 364, IT WAS HELD THAT A FEMALE OFFICER OF THE UNIFORMED SERVICES WHO VOLUNTARILY ASSUMES THE SUPPORT OF HER HUSBAND IN ORDER TO PERMIT HIM TO ATTEND COLLEGE, ALTHOUGH HE IS PHYSICALLY AND MENTALLY CAPABLE OF SELF-SUPPORT, DOES NOT HAVE A HUSBAND WHO IS "IN FACT DEPENDENT" UPON HER FOR OVER HALF OF HIS SUPPORT WITHIN THE MEANING AND INTENT OF THE APPLICABLE STATUTORY PROVISIONS.

SECTION 403 OF TITLE 37, U.S. CODE, PROVIDES FOR PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO MEMBERS OF THE UNIFORMED SERVICES, THE RATE BEING GREATER FOR A MEMBER WITH DEPENDENTS. FOR THE PURPOSE OF QUALIFICATION FOR THIS ALLOWANCE, THE TERM "DEPENDENT" IS DEFINED IN 37 U.S.C. 401 AS INCLUDING THE SPOUSE OF SUCH MEMBER SUBJECT TO THE FURTHER CONDITION THAT "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 *** FOR OVER ONE-HALF OF HIS SUPPORT" ON HIS WIFE WHO IS A MEMBER OF A UNIFORMED SERVICE, THIS OFFICE HAS CONSISTENTLY HELD THAT THE HUSBAND MUST BE INCAPABLE OF SELF-SUPPORT DUE TO A PHYSICAL OR MENTAL INCAPACITY OR FOR OTHER REASON, AND THAT THE EVIDENCE SUBMITTED MUST SUPPORT BOTH DEPENDENCY AND INCAPACITY. SEE 45 COMP. GEN. 163(1965); 32 COMP. GEN. 364(1953). BASICALLY, OUR DECISION IN 32 COMP. GEN. 364(1953) WAS PREDICATED ON WHAT HAS BEEN THE TRADITIONAL CONCEPT THAT A WIFE IS DEPENDENT ON HER HUSBAND EXCEPT IN THOSE FEW CASES WHERE HE IS UNABLE TO WORK WHEN IT IS RECOGNIZED THAT IN SUCH SPECIAL CIRCUMSTANCES HE MAY, IN FACT, BE DEPENDENT ON HER.

SECTION 703(A) OF THE CIVIL RIGHTS ACT OF 1964, 78 STAT. 255, AS AMENDED, 42 U.S.C. 2000E-2, PROHIBITS JOB DISCRIMINATION BASED ON SEX IN ALL ASPECTS OF EMPLOYMENT, EXCEPT THAT EMPLOYMENT ON THE BASIS OF SEX IS NOT PROHIBITED IF IT IS A BONA FIDE OCCUPATIONAL QUALIFICATION REASONABLY NECESSARY TO THE NORMAL OPERATION OF A PARTICULAR BUSINESS OR ENTERPRISE. IN ENACTING THE BAN ON DISCRIMINATION BASED ON SEX THE CONGRESS INTENDED TO BRING TO AN END PRESCRIBED DISCRIMINATORY PRACTICES AGAINST FEMALE EMPLOYEES BASED ON STEREOTYPED CHARACTERIZATIONS OF THE SEXES. EVEN CHARACTERIZATIONS OF THE PROPER DOMESTIC ROLES OF THE SEXES WERE NOT TO SERVE AS PREDICATES FOR RESTRICTING EMPLOYMENT OPPORTUNITY. SEE THE CONCURRING OPINION OF MR. JUSTICE MARSHALL IN PHILLIPS V. MARTIN MARIETTA CORP., 400 U.S. 542, 545(1971). SEE ALSO THE FINAL PROVISO IN SECTION 701(B) OF THE 1964 ACT, 42 U.S.C. 200EB).

WE HAVE REEXAMINED OUR DECISION IN 32 COMP GEN. 364 AND OTHER SIMILAR DECISIONS IN THE LIGHT OF PRESENT DAY DEVELOPMENTS IN THE LAW. WE HAVE CONCLUDED THAT THE DEPENDENCY CONCEPTS APPLICABLE TO THE TRADITIONAL FAMILY AND FUNDAMENTAL TO OUR PRIOR DECISIONS ARE NO LONGER FOR APPLICATION UNDER PRESENT STANDARDS. WE NOW BELIEVE THAT UNDER THE LAW AS PRESENTLY CONSTITUTED A FEMALE MEMBER OF THE ARMED FORCES SHOULD BE CREDITED, IF OTHERWISE PROPER, WITH INCREASED ALLOWANCES ON ACCOUNT OF A DEPENDENT HUSBAND UPON A SHOWING THAT HE IS IN FACT DEPENDENT ON HER FOR OVER ONE-HALF OF HIS SUPPORT, NOTWITHSTANDING HE IS PHYSICALLY AND MENTALLY CAPABLE OF SELF-SUPPORT.

EFFECT MUST BE GIVEN, HOWEVER, TO THE DIFFERENT DEPENDENCY STANDARDS PRESCRIBED BY STATUTE THAT ARE APPLICABLE IN DETERMINING THE QUARTERS ALLOWANCES TO WHICH MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED. UNDER THOSE PROVISIONS THE WIFE OF A MALE MEMBER IS REGARDED AS HIS DEPENDENT WITHOUT MEETING ANY TEST OF DEPENDENCY WHILE A FEMALE MEMBER IS ENTITLED TO INCREASED QUARTERS ALLOWANCE ON ACCOUNT OF A HUSBAND ONLY IF SHE ESTABLISHES THAT HER HUSBAND IS IN FACT DEPENDENT ON HER FOR OVER ONE-HALF OF HIS SUPPORT. THE CIVIL RIGHTS ACT OF 1964 DOES NOT ALTER THIS STATUTORY DISTINCTION PERTAINING TO MILITARY PERSONNEL.

AND, IT IS WELL SETTLED THAT WHERE CONGRESS HAS EXPRESSLY LEGISLATED IN RESPECT TO A GIVEN MATTER, THAT EXPRESS LEGISLATION MUST CONTROL, IN THE ABSENCE OF SUBSEQUENT LEGISLATION EQUALLY EXPRESS, AND IS NOT OVERTHROWN BY ANY MERE INFERENCES OR IMPLICATIONS TO BE FOUND IN SUCH SUBSEQUENT LEGISLATION. ROSENCRANS V. UNITED STATES, 165 U.S. 257(1897).

MOREOVER, IT HAS BEEN RECOGNIZED THAT REMEDIAL LEGISLATION WILL BE REQUIRED TO GRANT FEMALE MEMBERS THE SAME RIGHTS AS MALE MEMBERS. H.R. 4954, H.R. 2580 AND H.R. 2335, 92D CONGRESS, 1ST SESSION, WOULD, AMONG OTHER THINGS, AMEND SECTION 401 OF TITLE 37, U.S. CODE, TO AUTHORIZE QUARTERS ALLOWANCE ON ACCOUNT OF A HUSBAND OF A FEMALE MEMBER ON THE SAME BASIS AS IT IS AUTHORIZED ON ACCOUNT OF THE WIFE OF A MALE MEMBER. SEE ALSO H.R. 8758 AND H.R. 8759, INTRODUCED ON MAY 26, 1971. NO ACTION HAS BEEN TAKEN ON THESE BILLS. UNLESS AND UNTIL LEGISLATION SIMILAR TO THE BILLS CITED ABOVE IS ENACTED INTO LAW WE ARE OF THE OPINION THAT THERE IS NO AUTHORITY IN THE LAW TO AUTHORIZE TO A FEMALE MEMBER INCREASED QUARTERS ALLOWANCE ON ACCOUNT OF A DEPENDENT HUSBAND UNLESS IT IS ESTABLISHED THAT HE IS DEPENDENT UPON HER FOR OVER ONE HALF OF HIS SUPPORT.

THE QUESTION OF THE RIGHT OF A FEMALE MEMBER OF THE UNIFORMED SERVICES TO A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT HUSBAND WAS CONSIDERED BY THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA IN THE CASE OF SHARRON A. FRONTIERO AND JOSEPH FRONTIERO V. MELVIN R. LAIRD AS SECRETARY OF DEFENSE, ET AL., CIVIL ACTION NO. 3232-N, WHICH WAS DECIDED ON APRIL 5, 1972. THE COURT FOUND FROM THE FACTS OF RECORD THAT THE HUSBAND WAS NOT DEPENDENT ON THE FEMALE OFFICER FOR MORE THAN ONE -HALF OF HIS SUPPORT. THE HUSBAND'S LIVING EXPENSES TOTAL APPROXIMATELY $354 A MONTH AND HE RECEIVES $205 A MONTH IN VETERANS' BENEFITS. THE COURT WENT ON TO UPHOLD THE CONSTITUTIONALITY OF 37 U.S.C. 401. UNDERSTAND THE PLAINTIFFS HAVE APPEALED THE DECISION TO THE UNITED STATES SUPREME COURT.

A DECISION CHANGING A PRIOR CONSTRUCTION OF A STATUTE GENERALLY IS PROSPECTIVE ONLY. 27 COMP. GEN. 686, 688(1948); 36 COMP. GEN. 84(1956). THEREFORE, EFFECTIVE THIS DATE, WE HOLD THAT A FEMALE MEMBER OF THE UNIFORMED SERVICES MAY BE CONSIDERED AS HAVING A DEPENDENT HUSBAND WITHIN THE MEANING OF 37 U.S.C. 401 WHERE THERE IS SUFFICIENT EVIDENCE TO ESTABLISH HIS DEPENDENCE ON HER FOR MORE THAN ONE-HALF OF HIS SUPPORT WITHOUT REGARD TO THE HUSBAND'S MENTAL OR PHYSICAL CAPABILITY TO SUPPORT HIMSELF.

ACCORDINGLY, THE DECISION IN 32 COMP. GEN. 364(1953) AND OTHER SIMILAR DECISIONS WILL NO LONGER BE FOR APPLICATION EXCEPT AS TO PERIODS PRIOR TO THE DATE OF THIS DECISION.