B-199113.OM, FEB 2, 1981

B-199113.OM, FEB 2, 1981

PRECIS-UNAVAILABLE

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

RETURNED. WE NOTE FROM MATERIAL CONTAINED IN THE FILE THAT YOU HAVE ALREADY REACHED THE CONCLUSION THAT THIS CLAIM FOR CONTINUING QUARTERS ALLOWANCE PAYMENTS FOR PERIODS AFTER AUGUST 20, 1976, SHOULD BE ALLOWED. WE AGREE. WE ALSO AGREE THAT CLAIMS INVOLVING CONTINUING PAYMENTS SHOULD NO LONGER BE REFERRED HERE ON A ROUTINE BASIS.

SECTION 403 OF TITLE 37, U.S.C. IN GENERAL AUTHORIZES PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS TO A SERVICE MEMBER WHO IS NOT ASSIGNED RENT-FREE GOVERNMENT QUARTERS "ADEQUATE FOR HIMSELF, AND HIS DEPENDENTS." THE BASIC ALLOWANCE FOR QUARTERS AS THE NAME PLAINLY INDICATES, IS INTENDED TO REIMBURSE A SERVICE MEMBER FOR PERSONAL EXPENSES INCURRED IN ACQUIRING PRIVATE HOUSING FOR HIMSELF AND HIS DEPENDENTS WHEN HE IS NOT FURNISHED WITH RENT-FREE GOVERNMENT QUARTERS. THE QUARTERS ALLOWANCE IS, THEREFORE, NOT A BENEFIT OR GRATUITY DESIGNED TO REIMBURSE A DIVORCED SERVICE MEMBER FOR CHILD SUPPORT PAYMENTS HE IS REQUIRED TO MAKE. OUR OFFICE HAS NEVERTHELESS LONG HELD THAT UNDER 37 U.S.C. 403 AND SIMILAR PRIOR LAWS, A DIVORCED SERVICE MEMBER WHO IS ASSIGNED QUARTERS IN A SINGLE-MEN'S BARRACKS - BUT WHO ALSO PAYS FOR NON-GOVERNMENT QUARTERS FOR HIS DEPENDENT CHILDREN THROUGH CHILD SUPPORT PAYMENTS - IS ENTITLED TO A QUARTERS ALLOWANCE, SINCE IN THAT SITUATION HE HAS NOT BEEN FURNISHED WITH GOVERNMENT QUARTERS "ADEQUATE FOR HIMSELF, AND HIS DEPENDENTS." SEE GENERALLY, 24 COMP.GEN. 233 (1944) AND 9 COMP.GEN. 299 (1930). HOWEVER, IF THE MEMBER REMARRIES AND IS THEN ASSIGNED RENT-FREE GOVERNMENT FAMILY- TYPE LIVING QUARTERS, HE IS DEEMED UNDER 37 U.S.C. 403 TO HAVE BEEN FURNISHED WITH QUARTERS "ADEQUATE FOR HIMSELF, AND HIS DEPENDENTS;" AND HIS ENTITLEMENT TO A MONETARY QUARTERS ALLOWANCE TERMINATES EVEN THOUGH HIS OBLIGATION TO PAY CHILD SUPPORT MAY REMAIN UNCHANGED. IN THAT SITUATION, THE FACT THAT THE MEMBER MAY HAVE DEPENDENTS OF A PRIOR MARRIAGE WHO, FOR PERSONAL REASONS, ARE UNABLE TO JOIN HIM IN HIS ASSIGNED FAMILY QUARTERS CANNOT IN ITSELF JUSTIFY CONTINUED QUARTERS ALLOWANCE PAYMENTS TO HIM. SEE 48 COMP.GEN. 28 (1968).

REGULATIONS WHICH HAVE BEEN ADOPTED TO CARRY OUT THE STATUTORY PURPOSE OF 37 U.S.C. 403 ARE CONTAINED IN CHAPTER 2 OF PART 3, DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL (DODPM), AND THOSE REGULATIONS INCORPORATE THE RULINGS OF THE COMPTROLLER GENERAL DECISIONS MENTIONED. SPECIFICALLY, PARAGRAPH 30221A(2) PROVIDES THAT A MEMBER WITH DEPENDENTS IS ENTITLED TO A MONETARY QUARTERS ALLOWANCE WHEN GOVERNMENT QUARTERS ARE NOT FURNISHED FOR HIS DEPENDENTS, EVEN THOUGH THE MEMBER IS ASSIGNED QUARTERS FOR HIMSELF. HOWEVER, PARAGRAPH 30237.1 FURTHER PROVIDES THAT:

"THE PROVISIONS OF PARAGRAPH 30221A(2) ARE NOT FOR APPLICATION IN THE CASE OF A MEMBER WHO IS REQUIRED TO SUPPORT A CHILD IN THE CUSTODY OF A FORMER SPOUSE WHEN THE MEMBER REMARRIES AND HE IS ASSIGNED AND OCCUPIES GOVERNMENT QUARTERS WITH HIS NEW DEPENDENTS. HE IS NOT ENTITLED TO BASIC ALLOWANCE FOR QUARTERS ON BEHALF OF THE CHILD LIVING WITH THE FORMER SPOUSE."

IN THE PRESENT CASE, IT APPEARS THAT THE MEMBER CONCERNED, PETTY OFFICER JOHN L. WEST, WAS PROPERLY PAID A QUARTERS ALLOWANCE ON ACCOUNT OF HIS 4 DEPENDENT CHILDREN OF HIS PRIOR MARRIAGE BETWEEN THE TIME OF HIS 1975 DIVORCE AND HIS 1976 REMARRIAGE EVEN THOUGH HE WAS LIVING RENT FREE IN SINGLE-MEN'S BARRACKS, SINCE THE BARRACKS BILLET DID NOT CONSTITUTE GOVERNMENT QUARTERS "ADEQUATE FOR HIMSELF, AND HIS DEPENDENTS." ALSO, IF NAVY AUTHORITIES HAD RECOGNIZED THE VALIDITY OF HIS AUGUST 20, 1976 REMARRIAGE AND HAD ASSIGNED GOVERNMENT FAMILY QUARTERS TO HIM FOR HIS USE AS A RESULT OF THAT REMARRIAGE, THEN, UNDER THE LAWS AND REGULATIONS CITED ABOVE, HIS ENTITLEMENT TO A MONETARY QUARTERS ALLOWANCE WOULD HAVE ENDED SINCE HE WOULD THEN BE DEEMED TO HAVE BEEN FURNISHED WITH GOVERNMENT QUARTERS "ADEQUATE FOR HIMSELF, AND HIS DEPENDENTS."

HOWEVER, NAVY AUTHORITIES DECLINED TO RECOGNIZE THE VALIDITY OF PETTY OFFICER WEST'S AUGUST 20, 1976 REMARRIAGE; THEY DECLINED TO RECOGNIZE HIS NEW WIFE AND STEP-DAUGHTER AS HIS DEPENDENTS; AND THEY DID NOT ASSIGN GOVERNMENT FAMILY QUARTERS TO HIM. HOWEVER, HE REMAINED IN THE GOVERNMENT FAMILY QUARTERS WHICH HAD PREVIOUSLY BEEN ASSIGNED TO HIS WIFE INSTEAD OF MOVING BACK TO THE BARRACKS. IT IS OUR VIEW THAT THE FACT THAT HE REMAINED IN FAMILY QUARTERS ASSIGNED TO ANOTHER PERSON IN THESE CIRCUMSTANCES DID NOT CONSTITUTE AN ASSIGNMENT TO HIM OF GOVERNMENT FAMILY QUARTERS "ADEQUATE FOR HIMSELF, AND HIS DEPENDENTS" WITHIN THE MEANING OF 37 U.S.C. 403 AND PARAGRAPH 30237.1, DODPM. IT IS THEREFORE ALSO OUR VIEW THAT QUARTERS ALLOWANCE PAYMENTS TO HIM SHOULD NOT HAVE BEEN TERMINATED ON THE BASIS OF HIS PERMISSIVE OCCUPANCY OF FAMILY QUARTERS WHICH HAD NOT BEEN ASSIGNED TO HIM OR MADE AVAILABLE TO HIM FOR HIS USE IN PROVIDING LIVING QUARTERS FOR HIS DEPENDENTS, INCLUDING THE CHILDREN OF HIS PRIOR MARRIAGE. COMPARE 57 COMP.GEN. 194, 197 (1977) AND 52 COMP.GEN. 64, 66- 67 (1972), WITH RESPECT TO THE MATTER OF WHAT CONSTITUTES "ASSIGNMENT" OF GOVERNMENT QUARTERS UNDER 37 U.S.C. 403. ACCORDINGLY, HIS CLAIM FOR CONTINUING QUARTERS ALLOWANCE PAYMENTS FOR PERIODS AFTER AUGUST 20, 1976, SHOULD BE ALLOWED.

WITH RESPECT TO YOUR QUESTION CONCERNING THE FUTURE SUBMISSION OF CLAIMS INVOLVING CONTINUING PAYMENTS, OFFICE MEMORANDUM A-33547-O.M., APRIL 27, 1931, CONTAINED THE RULE THAT CLAIMS THE ALLOWANCE OF WHICH WOULD INVOLVE FUTURE PAYMENTS, SUCH AS THE CONTINUED PAYMENT OF COMPENSATION AT INCREASED RATES, SHOULD NOT BE ALLOWED BY THE CLAIMS DIVISION BUT SHOULD BE REFERRED TO THE COMPTROLLER GENERAL. ALSO, B-112701-O.M., JUNE 28, 1954, MADE SUBMISSION OF A CLAIM TO THE COMPTROLLER GENERAL MANDATORY IF PAYMENT IN AN AMOUNT IN EXCESS OF $1,000 WAS PROPOSED. SINCE, ALLOWANCE OF A CLAIM FOR INDEFINITE CONTINUING PAYMENTS COULD INVOLVE THE ALLOWANCE OF SUBSTANTIAL PAYMENT, THE BASIS FOR BOTH OF THOSE RULES APPEARS SIMILAR. HOWEVER, THE $1,000 LIMIT WAS REMOVED BY B-189-- O.M., OCTOBER 4, 1977. IN VIEW THEREOF WE WILL NO LONGER REQUIRE THAT CLAIMS INVOLVING CONTINUING PAYMENTS BE SUBMITTED, PROVIDED THAT COMPTROLLER GENERAL DECISIONS HAVE PREVIOUSLY BEEN RENDERED ON OTHER CLAIMS INVOLVING IDENTICAL OR SIMILAR FACTS AND CIRCUMSTANCES. OF COURSE, IF DOUBT EXISTS AS TO THE PROPER DISPOSITION OF A PARTICULAR CLAIM, IT SHOULD BE REFERRED HERE FOR OUR CONSIDERATION.

A COPY OF THIS OFFICE MEMORANDUM IS BEING PLACED IN FILE B-112701, FOR CROSS-REFERENCE PURPOSES.