B-198166.OM, L/M, JUN 6, 1980

B-198166.OM, L/M, JUN 6, 1980

DIGEST: CAPTAIN MARTHA J. SPRINGER, MSC, USN - B-198166-O.M.

ASSOCIATE DIRECTOR, FGMSD - CLAIMS GROUP (ROOM 5858):

RETURNED IS CLAIMS FILE Z-2734908 PERTAINING TO THE CLAIM OF CAPTAIN MARTHA J. SPRINGER FOR REIMBURSEMENT OF CERTAIN HEALTH INSURANCE PREMIUMS.

CAPTAIN MARTHA J. SPRINGER, MEDICAL SERVICES CORPS, USN, SUBMITTED A CLAIM FOR REIMBURSEMENT FOR PREMIUMS PAID ON A MAJOR MEDICAL EXPENSE POLICY FOR HER HUSBAND FOR THE PERIOD 1967-72. DURING THE PERIOD FOR WHICH THE CLAIM IS MADE, CAPTAIN SPRINGER'S HUSBAND WAS DENIED ELIGIBILITY UNDER THE CIVILIAN HEALTH AND MEDICAL PROGRAM OF THE UNIFORMED SERVICES (CHAMPUS), AS WELL AS TREATMENT IN KIND, UNDER THE PROVISIONS OF 10 U.S.C. 1072(2)(C) BECAUSE HE WAS A CIVILIAN SPOUSE OF A FEMALE MEMBER OF THE UNIFORMED SERVICES. AT THE SAME TIME MEDICAL TREATMENT WAS AVAILABLE TO ALL FEMALE SPOUSES OF MALE MEMBERS OF THE UNIFORMED SERVICES. IT IS CLAIMED BY CAPTAIN SPRINGER THAT THE DECISION IN FRONTIERO V. RICHARDSON, 411 U.S. 677 (1973), PROVIDES THE BASIS FOR REIMBURSEMENT TO HER OF THE HEALTH INSURANCE PREMIUMS PAID BY HER FOR MEDICAL COVERAGE OF HER HUSBAND PRIOR TO THE FRONTIERO DECISION.

CHAPTER 55 OF TITLE 10, U.S.C. PROVIDES THE STATUTORY AUTHORITY FOR A UNIFORM PROGRAM OF MEDICAL AND DENTAL CARE FOR MEMBERS AND CERTAIN FORMER MEMBERS OF THOSE SERVICES AND FOR THEIR DEPENDENTS. SECTION 1072(2)(C) OF CHAPTER 55 PROVIDES THAT:

"(2) 'DEPENDENT', WITH RESPECT TO A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE, MEANS -

"(C) THE HUSBAND, IF HE IS IN FACT DEPENDENT ON THE MEMBER OR FORMER MEMBER FOR OVER ONE-HALF OF HIS SUPPORT;"

ON MAY 14, 1973, IN FRONTIERO V. RICHARDSON, THE UNITED STATES SUPREME COURT RULED, AMONG OTHER THINGS, THAT THE RESTRICTIONS IN 10 U.S.C. 1072 AND 1076 INSOFAR AS THEY REQUIRE ANY PROOF OF DEPENDENCY OF HUSBANDS OF FEMALE MEMBERS NOT REQUIRED OF WIVES OF MALE MEMBERS VIOLATE THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.

THUS, THE HUSBAND OF A FEMALE MEMBER WAS DETERMINED TO BE ELIGIBLE FOR MEDICAL AND DENTAL CARE UPON THE SAME BASIS AS THE WIFE OF A MALE MEMBER. HOWEVER, THE SUPREME COURT IN THE FRONTIERO CASE DID NOT SPECIFICALLY CONSIDER THE ISSUE OF RETROACTIVITY. IN OUR DECISION 53 COMP.GEN. 143 (1973), WE HELD THAT THE SUPREME COURT'S SIMILAR CONSTRUCTION OF 37 U.S.C. 401 AND 403 IN THE FRONTIERO CASE MUST BE GIVEN RETROACTIVE APPLICATION. IT IS OUR VIEW THAT THE SAME RULE APPLIES TO THE CONSTRUCTION OF 10 U.S.C. 1072 AND 1076. THEREFORE, IF A FEMALE MEMBER OR FORMER MEMBER PRODUCES EVIDENCE OF PAYMENT FOR MEDICAL SERVICES FOR HER SPOUSE THAT WOULD OTHERWISE HAVE BEEN COVERED EITHER IN A MILITARY FACILITY OR UNDER CHAMPUS PRIOR TO THE DECISION IN FRONTIERO, HER CLAIM MUST BE HONORED IF OTHERWISE CORRECT AND NOT BARRED BY THE ACT OF OCTOBER 9, 1940, AS AMENDED, 31 U.S.C. 71A (1976). FOR MEMBERS ON ACTIVE DUTY IN THE MILITARY SERVICE, THE LIMITATIONS OF THE BARRING ACT DO NOT BEGIN TO RUN UNTIL THE MEMBER'S ACTIVE MILITARY SERVICE IS TERMINATED. 50 U.S.C. APPENDIX 525 (1976) AND B-186091, AUGUST 10, 1976; B-178979, DECEMBER 24, 1974. SINCE CAPTAIN SPRINGER APPEARS TO HAVE BEEN ON ACTIVE DUTY CONTINUOUSLY SINCE HER CLAIM FIRST ACCRUED, IT IS NOT BARRED BY 31 U.S.C. 71A.

SINCE CAPTAIN SPRINGER WAS APPARENTLY DENIED MEDICAL CARE FOR HER HUSBAND, SHE MAY BE REIMBURSED FOR THE EXPENSES OF HER HUSBAND'S MEDICAL CARE WHICH IS AUTHORIZED TO BE PROVIDED IN KIND OR UNDER CHAMPUS. SEE 10 U.S.C. 1077 AND 1079. IN THIS CASE THE CLAIM PRESENTED IS FOR HEALTH INSURANCE PREMIUMS IN THE TOTAL AMOUNT OF $474.51 FOR THE MEMBER'S HUSBAND'S HEALTH INSURANCE FOR 6 YEARS (1967 72). SHE CLAIMS THAT THAT EXPENSE WOULD NOT HAVE BEEN INCURRED HAD HER HUSBAND BEEN FURNISHED MEDICAL CARE AS HER DEPENDENT.

IT IS OUR VIEW THAT CAPTAIN SPRINGER'S CLAIM FOR REIMBURSEMENT OF MEDICAL INSURANCE PREMIUMS IS ANALOGOUS TO THAT OF THE ARMY OFFICERS WHO WERE DENIED MEDICAL COVERAGE DURING THE TIME THEY WERE ILLEGALLY SEPARATED. UPON RESTORATION TO ACTIVE DUTY STATUS THROUGH ADMINISTRATIVE RECORDS CORRECTION THE INDIVIDUALS ARE ENTITLED TO CREDIT FOR MEDICAL COSTS THEY WOULD NOT HAVE INCURRED HAD THEY REMAINED ON ACTIVE DUTY.

WHILE NOT MENTIONED IN THE DECISION THE SETTLEMENT IN B-195129, APRIL 28, 1980, INCLUDED CREDIT OF $276.99 AS A REIMBURSEMENT OF HEALTH INSURANCE PREMIUMS OF AN ARMY OFFICER WHO WAS SEPARATED FROM BUT LATER RETROACTIVELY RESTORED TO ACTIVE DUTY STATUS THROUGH ADMINISTRATIVE MILITARY RECORDS CORRECTIONS. ALSO, IN B-196688, FEBRUARY 15, 1980, A CREDIT OF $433.32 AS A REIMBURSEMENT OF HEALTH INSURANCE PREMIUMS WAS INCLUDED IN THE APPROVED SETTLEMENT.

ACCORDINGLY, THE CLAIM MAY BE ALLOWED FOR THE AMOUNT CLAIMED IF OTHERWISE CORRECT.