B-225984, FEB 17, 1987

B-225984, FEB 17, 1987

MILITARY PERSONNEL - PAY - BASIC QUARTERS ALLOWANCES - RATES - DETERMINATION - DEPENDENTS DIGEST: CONGRESSMAN ASKS FOR COMMENTS ON AN AIR FORCE SERGEANT'S CONCERNS OVER THE LOSS OF BASIC ALLOWANCE FOR QUARTERS AT THE "WITH-DEPENDENT" RATE. THE CONSTITUENT AND ANOTHER SERVICE MEMBER WHO ARE MARRIED TO EACH OTHER ALSO RESIDE TOGETHER WITH DEPENDENT CHILDREN, BUT HE MAKES SUPPORT PAYMENTS FOR TWO OTHER DEPENDENTS FROM A PREVIOUS MARRIAGE WHO LIVE ELSEWHERE. UNDER THESE CIRCUMSTANCES THE CONSTITUENT CONTENDS THAT TWO COMPTROLLER GENERAL DECISIONS THAT DENY DUAL BAQ AT THE "WITH DEPENDENT" RATE ARE UNFAIR AND RESULT IN SUBSTANTIAL BURDENS TO MARRIED SERVICE MEMBERS LIVING TOGETHER. THERE IS NO ENTITLEMENT TO DUAL BAQ AT THE "WITH -DEPENDENT" RATE UNDER THE DESCRIBED CIRCUMSTANCES BECAUSE THE LAW IS INTENDED TO REIMBURSE MEMBERS FOR ONE SET OF NON-GOVERNMENT QUARTERS WHEN ADEQUATE GOVERNMENT QUARTERS ARE NOT AVAILABLE. THE LAW DOES NOT AUTHORIZE PAYMENT OF A GRATUITY FOR MEMBERS WHO MAKE PAYMENTS FOR THE SUPPORT OF DEPENDENTS WHO LIVE ELSEWHERE FOR PERSONAL REASONS.

THE HONORABLE WILLIAM S. BROOMFIELD:

WE REFER FURTHER TO YOUR LETTER OF DECEMBER 18, 1986, ASKING FOR OUR COMMENTS ON THE CONCERNS OF YOUR CONSTITUENT, TECHNICAL SERGEANT ROBERT W. FRETT, USAF, WHO SUGGESTS THAT DUAL PAYMENTS OF A BASIC ALLOWANCE FOR QUARTERS (BAQ) AT THE "WITH-DEPENDENT" RATE SHOULD BE MADE CONCURRENTLY TO BOTH HIM AND HIS WIFE, WHO IS ALSO ON ACTIVE DUTY IN THE AIR FORCE. ARE UNABLE TO AGREE WITH THAT SUGGESTION.

SERGEANT FRETT INDICATES THAT HE IS MARRIED TO AN AIR FORCE STAFF SERGEANT. THEY RESIDE TOGETHER IN NON-GOVERNMENT QUARTERS WITH THEIR CHILD AND ANOTHER CHILD BORN TO HIS WIFE PRIOR TO THEIR PRESENT MARRIAGE. HE SAYS HE MAKES SUPPORT PAYMENTS UNDER THE TERMS OF A DIVORCE DECREE ON BEHALF OF TWO CHILDREN OF HIS PREVIOUS MARRIAGE WHO ARE LIVING ELSEWHERE. SERGEANT FRETT POINTS OUT THAT THE AIR FORCE HAS DENIED HIM AND HIS WIFE DUAL PAYMENTS OF BAQ AT THE "WITH-DEPENDENT" RATE IN THESE CIRCUMSTANCES BECAUSE OF TWO DECISIONS OF THE COMPTROLLER GENERAL. SERGEANT FRETT SUGGESTS THAT THE DENIAL OF DUAL BAQ AT THE "WITH-DEPENDENT" RATE IS UNFAIR AND THAT IT IMPOSES A PARTICULAR FINANCIAL HARDSHIP ON HIM BECAUSE OF THE REQUIREMENT THAT HE MAKE SUPPORT PAYMENTS FOR THE CHILDREN OF HIS PREVIOUS MARRIAGE.

UNDER THE PROVISIONS OF 37 U.S.C. SEC. 403, ACTIVE DUTY SERVICE MEMBERS ARE ENTITLED TO BAQ UNLESS THEY ARE PROVIDED WITH GOVERNMENT QUARTERS ADEQUATE FOR THEMSELVES, AND FOR THEIR DEPENDENTS IF THEY HAVE DEPENDENTS. IN OTHER WORDS, BAQ IS AUTHORIZED IN LIEU OF GOVERNMENT QUARTERS. BAQ IS PAYABLE AT A "WITH-DEPENDENT" RATE AND A LOWER "WITHOUT- DEPENDENT" RATE. SERGEANT FRETT IS CORRECT IN ASSERTING THAT THE TWO COMPTROLLER GENERAL DECISIONS HE IDENTIFIED, WHICH CONCERN THE PROPER APPLICATION OF 37 U.S.C. SEC. 403, WOULD DENY BAQ AT THE "WITH DEPENDENT" RATE TO BOTH HIM AND HIS WIFE IN THE CIRCUMSTANCES HE DESCRIBES.

A COPY OF EACH DECISION IS ENCLOSED. BRIEFLY, IN CHIEF WARRANT OFFICER RONALD G. HULL, USCG, AND PETTY OFFICER DORIS H. HULL, USCG, 62 COMP.GEN. 666 (1983), WHICH SERGEANT FRETT REFERS TO AS B-210437, WE HELD THAT WHERE MARRIED SERVICE MEMBERS LIVE TOGETHER IN A JOINT HOUSEHOLD, ONLY ONE OF THEM MAY RECEIVE BAQ AT THE "WITH-DEPENDENT" RATE, AND THE OTHER AT THE "WITHOUT-DEPENDENT" RATE, WHETHER ALL, SOME, OR NONE OF THEIR CHILDREN RESIDE WITH THEM. UNDER SIMILAR FACTS IN PETTY OFFICER FIRST CLASS EARL DUFFY, USNR, AND PETTY OFFICER CAROLE DUFFY, USNR, B-217665, AUGUST 23, 1985, WE REAFFIRMED THE REASONING EXPRESSED IN THE HULL DECISION. NOTED THAT BAQ WAS INTENDED BY LAW TO REIMBURSE SERVICE MEMBERS FOR THE EXPENSE OF PROVIDING NON GOVERNMENT QUARTERS FOR THEMSELVES AND THEIR DEPENDENTS WHEN ADEQUATE GOVERNMENT QUARTERS ARE NOT AVAILABLE. THUS, WHEN TWO MARRIED SERVICE MEMBERS RESIDE TOGETHER IN A JOINT FAMILY HOUSEHOLD THEY ARE ENTITLED TO BAQ, BUT ONLY ONE MAY RECEIVE IT AT THE "WITH-DEPENDENT" RATE BECAUSE THE NON-GOVERNMENT QUARTERS ARE DEEMED ADEQUATE BY LAW TO SATISFY THE REQUIREMENTS OF THE FAMILY.

WE TRUST THIS WILL SERVE THE PURPOSE OF YOUR INQUIRY.