B-168008, NOV. 5, 1969

B-168008, NOV. 5, 1969

QUARTERS ALLOWANCE--DEPENDENTS--PROOF OF DEPENDENCY--AFTER SEPARATION FROM SERVICE IN ORDER TO RECEIVE CREDIT FOR BASIC ALLOWANCE FOR QUARTERS AS MEMBER WITH DEPENDENTS, BACHELOR OFFICER WHO ACQUIRES DEPENDENT WIFE BY LEGAL MARRIAGE MUST EXECUTE DEPENDENCY CERTIFICATE WHICH MUST BE APPROVED BY DISBURSING OFFICER AND MEMBER OF NAVY CATHOLIC CHAPLAIN CORPS WHO CHOSE FOR PERSONAL REASONS NOT TO CLAIM WIFE AS DEPENDENT AND GOVERNMENT'S ACTIONS WERE BASED ON BELIEF THAT MEMBER RETAINED BACHELOR STATUS IS DENIED CLAIM FOR ADDITIONAL BASIC QUARTERS ALLOWANCE FOR DEPENDENT WIFE FILED AFTER SEPARATION FROM SERVICE SINCE CLAIM IS BASED ON CONTRADICTORY FACTS TOO DOUBTFUL FOR ALLOWANCE AND WHERE DOUBT EXISTS IT IS DUTY OF ACCOUNTING OFFICERS TO DISALLOW CLAIM AND LEAVE CLAIMANT TO HIS REMEDY IN COURTS.

TO MR. CASIMIR A. DERENGOWSKI:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 14, 1969, IN EFFECT REQUESTING REVIEW OF SETTLEMENT OF OUR CLAIMS DIVISION DATED AUGUST 7, 1969, WHICH DISALLOWED YOUR CLAIM FOR THE DIFFERENCE BETWEEN BASIC ALLOWANCE FOR QUARTERS AS AN OFFICER OF THE NAVY WITH DEPENDENTS AND THAT RECEIVED AS AN OFFICER WITHOUT DEPENDENTS FROM NOVEMBER 23, 1966, THROUGH SEPTEMBER 23, 1968, AND FOR 47 DAYS UNUSED ACCRUED LEAVE.

THE RECORDS SHOW THAT DURING THE PERIOD OF YOUR CLAIM YOU SERVED IN THE UNITED STATES NAVY AS A MEMBER OF THE CATHOLIC CHAPLAIN CORPS AS LIEUTENANT AND LIEUTENANT COMMANDER; THAT YOU MARRIED ELIZABETH KATHERINE LUNDY ON NOVEMBER 23, 1966; AND THAT YOU RESIGNED YOUR COMMISSION ON SEPTEMBER 23, 1968. YOU WERE CREDITED WITH BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITHOUT DEPENDENTS FOR THE PERIOD NOVEMBER 23, 1966, THROUGH JANUARY 6, 1967, AND DECEMBER 15, 1967, THROUGH SEPTEMBER 23, 1968, AND FOR 47 DAYS UNUSED ACCRUED LEAVE. YOU WERE ASSIGNED BACHELOR OFFICER QUARTERS AT MIDWAY ISLAND FROM JANUARY 7, 1967, TO DECEMBER 13, 1967, AND YOU RECEIVED NO CREDIT FOR BASIC ALLOWANCE FOR QUARTERS DURING THAT PERIOD.

IN SUPPORT OF YOUR CLAIM DATED SEPTEMBER 25, 1968, YOU SUBMITTED A DEPENDENCY CERTIFICATE, NAVCOMPT FORM 2040, ALSO DATED SEPTEMBER 25, 1968, TOGETHER WITH A PHOTO COPY OF YOUR MARRIAGE CERTIFICATE, CERTIFYING THAT YOUR WIFE, KATHERINE E. DERENGOWSKI, WAS YOUR DEPENDENT FROM THE DATE OF YOUR MARRIAGE ON NOVEMBER 23, 1966, TO THE DATE OF YOUR RESIGNATION. YOU STATED THAT YOUR STATUS WAS NOT CHANGED IN YOUR SERVICE RECORD FROM SINGLE TO MARRIED "DUE TO RELUCTANCE OF CHURCH OF CONTRACTING PARTIES TO RECOGNIZE LICEITY OF CONTRACT" AND THAT "CERTAIN CONDITIONS, SINCE ELAPSED, PREVENTING (PREVENTED) ME FROM SUBMITTING THIS CLAIM EARLIER.' YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT THERE IS NO AUTHORITY FOR FAVORABLE CONSIDERATION OF YOUR CLAIM FOR BASIC ALLOWANCE FOR QUARTERS FILED SUBSEQUENT TO YOUR SEPARATION FROM THE SERVICE.

SECTION 405, TITLE 37, U.S. CODE, PROVIDES, WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE, THAT A MEMBER OF THE UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS AT THE MONTHLY RATES THERE SET FORTH ACCORDING TO THE PAY GRADE TO WHICH HE IS ASSIGNED OR DISTRIBUTED FOR BASIC PAY PURPOSES. HOWEVER, NO ENTITLEMENT ARISES IF A MEMBER IS ASSIGNED QUARTERS ADEQUATE FOR HIMSELF AND HIS DEPENDENTS, IF WITH DEPENDENTS. SUBSECTION (G) OF THAT SECTION AUTHORIZES THE PRESIDENT TO PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THE SECTION. EXECUTIVE ORDER NO. 11157, JUNE 22, 1964, AS AMENDED, PROVIDES IN SECTION 407 THAT THE SECRETARY CONCERNED, WITH RESPECT TO PERSONNEL OF THE UNIFORMED SERVICES WITHIN HIS DEPARTMENT, IS AUTHORIZED TO PRESCRIBE SUCH SUPPLEMENTARY REGULATIONS NOT INCONSISTENT WITH THAT ORDER AS HE DEEMS NECESSARY OR DESIRABLE FOR CARRYING OUT THE PRESIDENT'S REGULATIONS.

FOOTNOTE 2 TO TABLE 3-2-8, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE ENTITLEMENTS MANUAL, PROVIDES THAT THE NAVY CONSIDERS THAT BASIC ALLOWANCE FOR QUARTERS IS FOR CURRENT SUPPORT AND THAT FAVORABLE CONSIDERATION WILL NOT BE GIVEN TO CLAIMS FILED AFTER SEPARATION.

PAYMENT OF BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A WIFE IS NOT ACCOMPLISHED WITHOUT SOME ACTION ON AN OFFICER'S PART. IF A BACHELOR NAVAL OFFICER ACQUIRES A DEPENDENT WIFE BY A LEGAL MARRIAGE, HE IS REQUIRED TO CONTEMPORANEOUSLY EXECUTE A DEPENDENCY CERTIFICATE WHICH MUST BE APPROVED BY THE DISBURSING OFFICER IN ORDER TO RECEIVE CREDIT FOR BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITH DEPENDENTS. SUCH ACTION IS NECESSARY IN ORDER THAT A CURRENT DETERMINATION MAY BE MADE AS TO THE AVAILABILITY AND ASSIGNMENT OF ADEQUATE QUARTERS FOR THE MEMBER AND HIS DEPENDENTS. SUCH NEW DEPENDENCY STATUS ALSO MAY INFLUENCE THE MEMBER'S FUTURE MILITARY ASSIGNMENTS. THE CONCEALMENT OF YOUR MARRIAGE PREVENTED THE APPROPRIATE NAVY OFFICIALS FROM CONSIDERING THESE MATTERS.

WHERE, AS IN YOUR CASE, YOU CHOSE FOR PERSONAL REASONS, NOT TO CLAIM YOUR WIFE AS A DEPENDENT AND THE GOVERNMENT'S ACTIONS WERE BASED ON THE BELIEF THAT YOU RETAINED YOUR BACHELOR STATUS, A CLAIM BASED ON CONTRADICTORY FACTS IS TOO DOUBTFUL FOR ALLOWANCE.

WHEN A CASE ARISES WITH RESPECT TO WHICH THERE IS NO CONTROLLING JUDICIAL PRECEDENT AND AS TO WHICH SUBSTANTIAL DOUBT EXISTS AS TO THE ACTION A COURT OF COMPETENT JURISDICTION MIGHT TAKE, IT IS REGARDED AS THE DUTY OF THE ACCOUNTING OFFICERS TO DISALLOW THE CLAIM AND LEAVE THE CLAIMANT TO HIS REMEDY IN THE COURTS. SEE LONGWILL V UNITED STATES, 17 CT. CL. 288, 291 (1881) AND CHARLES V UNITED STATES, 19 CT. CL. 316, 319 (1884).