B-169241, JUN. 4, 1970

B-169241, JUN. 4, 1970

QUARTERS ALLOWANCE--GOVERNMENT QUARTERS--EFFECT OF OCCUPANCY ON ALLOWANCE ENTITLEMENT--DEPENDENTS OCCUPANCY AFTER DIVORCE MEMBER WHOSE WIFE OBTAINED DIVORCE AND CUSTODY OF CHILDREN IS NOT ENTITLED TO BASIC ALLOWANCE FOR QUARTERS, SUCH ALLOWANCE BEING PROVIDED ONLY WHEN MEMBER OR DEPENDENTS ARE NOT FURNISHED GOVT. QUARTERS AND FACT THAT RENTAL PAYMENT ON WIFE'S QUARTERS WAS VOLUNTARILY MADE UNDER FEELING OF LEGAL OBLIGATION (NOT BEING REQUIRED BY COURT ORDER), PAYMENT WAS WITHOUT LEGAL EFFECT TO ENTITLE MEMBER TO BASIC ALLOWANCE FOR QUARTERS SINCE WIFE SECURED FAMILY-TYPE GOVT. QUARTERS BASED ON HER STATUS AS SCHOOL TEACHER AT BASE AND PAYMENT OF RENT WAS NOT REQUIRED.

TO MAJOR JOSEPH F. STINE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 14, 1970, REQUESTING REVIEW OF THE SETTLEMENT OF OUR CLAIMS DIVISION DATED DECEMBER 3, 1969, WHICH DISALLOWED YOUR CLAIM FOR BASIC ALLOWANCE FOR QUARTERS AS AN OFFICER WITH DEPENDENTS FOR THE PERIOD SEPTEMBER 8, 1967, THROUGH DECEMBER 31, 1968.

OUR FILE SHOWS THAT ON AUGUST 9, 1967, IN AN ACTION INSTITUTED BY YOUR WIFE, THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY, VIRGINIA, ENTERED A DECREE DIRECTING THAT YOUR WIFE RETAIN CUSTODY OF YOUR THREE CHILDREN AND THAT YOU PAY $200 EVERY TWO WEEKS FOR THE SUPPORT OF YOUR WIFE AND CHILDREN DURING THE PENDENCY OF THAT SUIT. ON SEPTEMBER 8, 1967, AT YOUR REQUEST, YOU WERE FORMALLY DISPOSSESSED FROM THE GOVERNMENT FAMILY QUARTERS THAT HAD BEEN ASSIGNED TO YOU IN 1965. APPARENTLY YOU WERE NOT CREDITED WITH A BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITH DEPENDENTS UNTIL A LATER DATE.

SHORTLY BEFORE THIS TIME, YOUR WIFE, WHO WAS EMPLOYED AS A SCHOOL TEACHER IN THE MARINE CORPS SCHOOLS SYSTEM, QUANTICO, VIRGINIA, MADE ARRANGEMENTS FOR AND OBTAINED PERMISSION TO OCCUPY GOVERNMENT QUARTERS FOR HERSELF AND YOUR CHILDREN, EXECUTING A LEASE IN HER OWN NAME, WHEREIN SHE AGREED TO PAY OFFICIALLY ESTABLISHED RENT AND OTHER CHARGES FOR SUCH QUARTERS. IS ASSUMED THAT YOU WERE NOT CREDITED WITH A BASIC ALLOWANCE FOR QUARTERS UNTIL JULY 1968, SINCE IN A LETTER TO THE DISBURSING OFFICER DATED FEBRUARY 13, 1969, YOU STATED THAT "UPON RECEIPT OF THE CASH BAQ ALLOWANCE FOR THE PERIOD 8SEP67 THRU 30JUN68 (I) MADE A CASH PAYMENT FOR RENTAL DUE" ON THE QUARTERS OCCUPIED BY YOUR WIFE AND CHILDREN. SUCH PAYMENT WAS ACCOMPLISHED ON JULY 8, 1968, IN THE AMOUNT OF $1,190.45.

THE FILE FURTHER SHOWS THAT SOMETIME AFTER YOU MADE THE ABOVE PAYMENT, APPROPRIATE AUTHORITY AT THE BASE DETERMINED THAT THE RENTAL AGREEMENT MADE BETWEEN REPRESENTATIVES OF THE COMMAND AND YOUR WIFE FOR AN AMOUNT LESS THAN THE BASIC ALLOWANCE FOR QUARTERS CREDIT WHICH YOU RECEIVED, WAS WITHOUT AUTHORITY. AS A RESULT, IT WAS ADMINISTRATIVELY DETERMINED THAT THE CREDIT GIVEN YOU FOR BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITH DEPENDENTS WAS NOT PROPER SINCE YOU WERE BEING CREDITED WITH SUCH ALLOWANCE ON BEHALF OF DEPENDENTS WHO WERE OCCUPYING ADEQUATE GOVERNMENT FAMILY-TYPE QUARTERS. YOUR PAY ACCOUNT HAS BEEN CHECKED FOR $1,096.51, THAT SUM BEING THE DIFFERENCE BETWEEN BAQ OF $2,286.96 CREDITED FOR THE PERIOD HERE INVOLVED AND PAYMENT OF $1,190.45 MADE BY YOU ON JULY 8, 1968.

YOU STATE THAT YOU WERE NOT ASSIGNED TO ANY QUARTERS OR TO A HOUSING FACILITY DURING THE PERIOD OF YOUR CLAIM AND CONTEND THAT IN THE CIRCUMSTANCES SUBSECTION 403(A) OF TITLE 37, U.S. CODE, IS THE ONLY PROVISION OF LAW WHICH IS APPLICABLE IN DETERMINING YOUR ENTITLEMENT IN THIS CASE.

SECTION 403 OF TITLE 37, U.S.C. PROVIDES IN PERTINENT PART:

"(A) EXCEPT AS OTHERWISE PROVIDED BY THIS SECTION OR BY ANOTHER LAW, A MEMBER OF A UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS. *** .

"(B) EXCEPT AS OTHERWISE PROVIDED BY LAW, A MEMBER OF A UNIFORMED SERVICE WHO IS ASSIGNED TO QUARTERS OF THE UNITED STATES OR A HOUSING FACILITY UNDER THE JURISDICTION OF A UNIFORMED SERVICE, APPROPRIATE TO HIS GRADE, RANK, OR RATING AND ADEQUATE FOR HIMSELF, AND HIS DEPENDENTS, IF WITH DEPENDENTS, IS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS. *** .

"(G) THE PRESIDENT MAY PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THIS SECTION *** .

IN CONJUNCTION WITH THE ABOVE-QUOTED PROVISIONS OF LAW AND SECTION 402 OF EXECUTIVE ORDER NO. 11157, JUNE 22, 1964, PARAGRAPH 30221, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL, WAS PROMULGATED AND PROVIDES IN PERTINENT PART:

"A. * * * A MEMBER WITH DEPENDENTS WHO IS ENTITLED TO BASIC PAY IS ENTITLED TO BAQ AT THE RATES PRESCRIBED FOR MEMBERS WITH DEPENDENTS WHEN:

"(2) ADEQUATE GOVERNMENT QUARTERS ARE NOT FURNISHED FOR HIS DEPENDENTS

BASIC ALLOWANCE FOR QUARTERS IS INTENDED TO PROVIDE AN OFFICER WITH A MONEY ALLOWANCE WHICH HE MAY USE IN PROVIDING QUARTERS OF HIS OWN WHEN HE OR HIS DEPENDENTS ARE NOT FURNISHED QUARTERS BY THE GOVERNMENT. IF SUCH AN OFFICER HAS DEPENDENTS WITHIN THE MEANING OF THE LAW AND IF ADEQUATE QUARTERS ARE PROVIDED ON THAT BASIS, NO RIGHT TO AN ALLOWANCE IN LIEU OF QUARTERS ARISES. SINCE IT WAS OFFICIALLY DETERMINED THAT YOUR WIFE AND DEPENDENT CHILDREN OCCUPIED ADEQUATE AND APPROPRIATE GOVERNMENT QUARTERS, THE MARINE CORPS PROPERLY CONCLUDED THAT YOU WERE NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS ON THEIR ACCOUNT.

WHILE IT MAY BE THAT YOUR WIFE SECURED FAMILY-TYPE GOVERNMENT QUARTERS BASED UPON HER STATUS AS A SCHOOL TEACHER AT THE BASE, IT APPEARS THAT SHE WAS NOT REQUIRED TO PAY RENT ON SUCH QUARTERS SINCE THE ADVANCE PAYMENT OF RENTAL AND UTILITIES MADE BY HER IN THE AMOUNT OF $264.47 WAS REFUNDED TO HER ON A VOUCHER PAID BY THE MARINE CORPS SCHOOLS AT QUANTICO ON NOVEMBER 1, 1967.

WHEN YOU RECEIVED PAYMENT OF QUARTERS ALLOWANCE IN JULY 1968, YOUR DEPENDENTS HAD OCCUPIED ADEQUATE GOVERNMENT QUARTERS SINCE SEPTEMBER 8, 1967, WITHOUT BEING REQUIRED TO PAY ANY RENT. A RIGHT TO A BASIC ALLOWANCE FOR QUARTERS DOES NOT ACCRUE UNDER SUCH CIRCUMSTANCES. WHILE YOU MAY HAVE FELT A LEGAL OBLIGATION TO PAY SUCH RENT, THE COURT DECREE OF AUGUST 9, 1967, DID NOT REQUIRE YOU TO DO SO AND THERE IS NOTHING IN THE RECORD TO SHOW THAT YOUR WIFE WOULD HAVE INCURRED ANY ADDITIONAL OBLIGATION IF YOU HAD FAILED TO MAKE THAT PAYMENT. APPARENTLY, NEITHER YOU NOR YOUR WIFE PAID ANY RENT FOR THE PERIOD JULY 1 TO DECEMBER 31, 1968.

IN THE CIRCUMSTANCES, IT IS OUR VIEW THAT THE ACCEPTANCE BY THE FINANCE OFFICER AT THE MARINE CORPS SCHOOLS OF THE PAYMENT OF $1,190.45, OSTENSIBLY AS RENT, WAS WITHOUT LEGAL EFFECT TO ENTITLE YOU TO A BASIC ALLOWANCE FOR QUARTERS DURING THE PERIOD OF YOUR CLAIM.