B-174632, JAN 18, 1972, 51 COMP GEN 413

B-174632, JAN 18, 1972, 51 COMP GEN 413

QUARTERS ALLOWANCE - DEPENDENTS - HUSBAND AND WIFE BOTH MEMBERS OF ARMED SERVICES A FEMALE OFFICER WHO MARRIED ANOTHER OFFICER RECEIVING A BASIC ALLOWANCE FOR QUARTERS (BAQ) ON ACCOUNT OF CHILDREN FROM A PREVIOUS MARRIAGE UNTIL HIS SEPARATION FROM THE SERVICE ON JUNE 7, 1971, IS NOT ENTITLED TO THE ALLOWANCE FROM THE DATE OF THE BIRTH OF A SON TO THE MARRIAGE ON MARCH 14, 1971, UNTIL HER HUSBAND LEFT THE SERVICE, FOR ALTHOUGH UNDER RULE 12, TABLE 3-2-4, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL WHEN BOTH MEMBERS ARE ASSIGNED TO THE SAME OR ADJACENT BASES OR SHORE STATIONS AND THE MALE MEMBER HAS DEPENDENTS OTHER THAN A WIFE AND THE FEMALE MEMBER HAS DEPENDENTS "IN HER OWN RIGHT" - PARENTS AND CHILDREN UNDER 21 FROM ANOTHER MARRIAGE - AND FAMILY TYPE QUARTERS ARE NOT ASSIGNED FOR JOINT OCCUPANCY, BOTH ARE ENTITLED TO RECEIVE BAQ, THE CHILD BORN OF THE MARRIAGE OF THE TWO OFFICERS MUST BE REGARDED AS THE FATHER'S DEPENDENT TO PREVENT DUAL BAQ PAYMENTS.

TO MAJOR R. J. BRANNIAN, DEPARTMENT OF THE AIR FORCE, JANUARY 18, 1972:

WE REFER FURTHER TO YOUR LETTER DATED SEPTEMBER 27, 1971, WITH ATTACHMENTS, FORWARDED HERE BY LETTER OF NOVEMBER 8, 1971, FROM THE OFFICE OF THE DEPUTY ASSISTANT COMPTROLLER FOR ACCOUNTING AND FINANCE, HEADQUARTERS, UNITED STATES AIR FORCE (DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE NUMBER DO-AF-1138), IN WHICH YOU REQUEST AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF BASIC ALLOWANCE FOR QUARTERS (BAQ) TO CAPTAIN DONNA D. MAIORCA, USAF, AS AN OFFICER WITH A DEPENDENT FOR THE PERIOD FROM MARCH 14 TO JUNE 7, 1971.

CAPTAIN DONNA D. MAIOREA IS MARRIED TO JOHN MAIORCA, WHO SERVED AS CAPTAIN, USAF, UNTIL HIS SEPARATION FROM THE SERVICE ON JUNE 7, 1971, AND WHO UNTIL THEN RECEIVED BAQ WITH DEPENDENTS ON ACCOUNT OF HIS CHILDREN OF A PREVIOUS MARRIAGE. ON MARCH 14, 1971, DONALD S. MAIORCA WAS BORN TO MRS. MAIORCA WHO SUBSEQUENTLY MADE APPLICATION FOR BAQ AS AN OFFICER WITH A DEPENDENT BASED ON HER SON'S DEPENDENCY FROM HIS DATE OF BIRTH, MARCH 14, 1971, UNTIL JUNE 7, 1971, THE DATE HER HUSBAND LEFT THE AIR FORCE. DURING THIS PERIOD THE FAMILY, INCLUDING DONALD, RESIDED IN NON- GOVERNMENTAL QUARTERS. SINCE HER HUSBAND'S SEPARATION FROM THE SERVICE CAPTAIN DONNA D. MAIORCA HAS RECEIVED BAQ WITH DEPENDENTS BASED UPON HER HUSBAND'S UNEMPLOYMENT.

YOU SAY THAT THE MEMBER'S CLAIM WAS DENIED BECAUSE HER HUSBAND ALREADY WAS IN RECEIPT OF BAQ AS AN OFFICER WITH DEPENDENTS, BASED ON HIS CHILDREN OF A FORMER MARRIAGE. IN THE FORWARDING LETTER IT IS INDICATED THAT WHILE DEPARTMENT OF DEFENSE POLICY IS THAT THE RIGHT TO BAQ NORMALLY RESTS WITH THE MALE MEMBER, THIS POLICY APPLIES TO BAQ ENTITLEMENT (MEMBERS WITH DEPENDENTS) WHEN BOTH HUSBAND AND WIFE ARE MEMBERS OF THE UNIFORMED SERVICES AND THEY HAVE NO OTHER DEPENDENTS.

SECTION 403(A) OF TITLE 37, U.S.C. STATES THAT EXCEPT AS OTHERWISE PROVIDED BY LAW, A MEMBER OF A UNIFORMED SERVICE ENTITLED TO BASIC PAY IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS. SUBSECTION (G) PROVIDES THAT THE PRESIDENT MAY PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THIS SECTION.

IN ACCORDANCE WITH SECTION 407 OF EXECUTIVE ORDER NO. 11157, JUNE 22, 1964, AS AMENDED, DEPARTMENT OF DEFENSE INSTRUCTION 1338.1, JANUARY 30, 1964, ESTABLISHES POLICY WITH RESPECT TO ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS. IN ADDITION TO PROVISION FOR CIRCUMSTANCES WHERE BOTH HUSBAND AND WIFE ARE OFFICERS OR ENLISTED MEMBERS WHO HAVE NO OTHER DEPENDENTS AND ARE STATIONED AT THE SAME OR ADJACENT MILITARY INSTALLATIONS (PAR. IIIC2), THE FOLLOWING PROVISION APPEARS IN THE INSTRUCTIONS:

D. WHEN BOTH PARTIES CONCERNED ARE MEMBERS OF THE UNIFORMED SERVICES AND EITHER OR BOTH HAVE DEPENDENTS OTHER THAN SPOUSE, THE ASSIGNMENT TO PUBLIC QUARTERS FOR DEPENDENTS RESTS WITH EITHER OR BOTH AND EITHER OR BOTH MAY BE ENTITLED TO THE BASIC ALLOWANCE FOR QUARTERS PRESCRIBED FOR MEMBERS WITH DEPENDENTS WHEN NOT ASSIGNED PUBLIC QUARTERS, DEPENDING ON DEPENDENCY STATUS OF EACH OF THE MEMBERS. ***

THIS INSTRUCTION IS IMPLEMENTED IN RULE 12, TABLE 3-2-4, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL (DODPM), WHICH PROVIDES THAT WHEN BOTH MEMBERS ARE ASSIGNED TO THE SAME OR ADJACENT BASES OR SHORE STATIONS AND THE MALE MEMBER HAS DEPENDENTS OTHER THAN WIFE AND THE FEMALE MEMBER HAS DEPENDENTS IN HER OWN RIGHT, AND FAMILY TYPE QUARTERS ARE NOT ASSIGNED FOR JOINT OCCUPANCY, THEN THE MALE MEMBER IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITH DEPENDENTS AND THE FEMALE MEMBER IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITH DEPENDENTS.

SINCE DURING THE PERIOD FROM MARCH 14 TO JUNE 7, 1971, CAPTAIN JOHN MAIORCA HAD DEPENDENTS OTHER THAN HIS WIFE (HIS TWO CHILDREN OF A PRIOR MARRIAGE), AND CAPTAIN DONNA D. MAIORCA HAS CLAIMED BAQ WITH DEPENDENTS BECAUSE OF THE BIRTH OF HER CHILD ON MARCH 14, 1971, IT APPEARS THAT HER ENTITLEMENT TO THE ALLOWANCE MUST BE DETERMINED BY REFERENCE TO RULE 12, TABLE 3-2-4, DODPM.

THE MANUAL, IN ACCORD WITH SECTION 401, TITLE 37, U.S.C. DEFINES THE TERM "DEPENDENT" TO INCLUDE A MEMBER'S UNMARRIED LEGITIMATE CHILD WHO IS UNDER 21 YEARS OF AGE. HOWEVER, A CHILD IS NOT CONSIDERED TO BE THE DEPENDENT OF A FEMALE MEMBER UNLESS THE CHILD IS IN FACT DEPENDENT UPON HER FOR OVER ONE-HALF OF HIS SUPPORT. PARS. 30224 AND 30242B, AND GLOSSARY OF TERMS, DODPM.

RULE 12, TABLE 3-2-4, DODPM, IN SPECIFYING THAT THE FEMALE MEMBER HAVE DEPENDENTS "IN HER OWN RIGHT," AND NOT THAT SHE MERELY HAVE DEPENDENTS, INDICATES THE INTENTION TO DISTINGUISH BETWEEN THOSE PERSONS WHO MAY BE DEPENDENTS BOTH OF HERSELF AND HER HUSBAND BY VIRTUE OF THEIR MARRIAGE, AND THOSE INDIVIDUALS WHO MAY BE CONSIDERED HER DEPENDENTS, ONLY. IT IS OUR VIEW, THEREFORE, THAT THE FEMALE MEMBER'S PARENTS OR HER CHILDREN OF A MARRIAGE TO SOMEONE OTHER THAN THE MALE MEMBER, WOULD, IF THEY OTHERWISE QUALIFY, BE DEPENDENTS IN HER OWN RIGHT, BUT THAT CHILDREN OF HER MARRIAGE TO THE MALE MEMBER MAY NOT BE SO REGARDED. TO HOLD OTHERWISE WOULD IN SOME INSTANCES PERMIT A WIFE TO RECEIVE BAQ FOR DEPENDENTS ON ACCOUNT OF A DEPENDENT OF HER HUSBAND EVEN THOUGH THE HUSBAND IS ALREADY IN RECEIPT OF QUARTERS ALLOWANCE FOR DEPENDENTS.

AS DONALD S. MAIORCA IS THE LEGITIMATE CHILD OF CAPTAIN JOHN MAIORCA, AND IS UNDER AGE 21, HE IS A DEPENDENT OF THE MALE MEMBER WITHIN THE CITED DEFINITION OF A MILITARY DEPENDENT AND THIS CHILD MAY NOT BE CONSIDERED HIS MOTHER'S DEPENDENT IN HER OWN RIGHT FOR THE PURPOSE OF ENTITLEMENT UNDER RULE 12, TABLE 3-2-4, DODPM. IT IS OUR OPINION, THEREFORE, THAT PAYMENT TO CAPTAIN DONNA D. MAIORCA OF A BASIC ALLOWANCE FOR QUARTERS AS AN OFFICER WITH DEPENDENTS IS NOT AUTHORIZED FOR THE PERIOD FROM MARCH 14 TO JUNE 7, 1971, AND THE OFFICER'S APPLICATION WILL BE RETAINED HERE.