B-92152, MARCH 21, 1950, 29 COMP. GEN. 376

B-92152, MARCH 21, 1950, 29 COMP. GEN. 376

QUARTERS - BASIC ALLOWANCE - DEPENDENT PARENTS - RESIDENCE REQUIREMENTS OF MEMBERS OF THE UNIFORMED SERVICES ON SEA DUTY IN VIEW OF THE REQUIREMENT OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949 THAT FOR PURPOSES OF INCREASED QUARTERS ALLOWANCE FOR MEMBERS OF THE UNIFORMED SERVICES A DEPENDENT PARENT MUST RESIDE IN HIS HOUSEHOLD, A MEMBER ON SEA DUTY MAY NOT, ON AND AFTER OCTOBER 1, 1949, BE PAID INCREASED QUARTERS ALLOWANCE FOR A DEPENDENT PARENT UNDER SECTION 302 OF THE ACT UNLESS SUCH DEPENDENT ACTUALLY RESIDES IN THE MEMBER'S HOUSEHOLD AT, OR CONVENIENT TO, HIS PERMANENT STATION, THAT IS, THE HOME YARD OR HOME PORT OF THE VESSEL TO WHICH THE MEMBER IS ASSIGNED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MARCH 21, 1950:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 17, 1950, REQUESTING DECISION ON SEVERAL QUESTIONS WHICH HAVE ARISEN UNDER THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, (63 STAT. 802), IN CONNECTION WITH THE PAYMENT OF INCREASED BASIC ALLOWANCE FOR QUARTERS UNDER SECTION 302 OF THE SAID ACT, 63 STAT. 812, TO MEMBERS OF THE UNIFORMED SERVICES ON ACCOUNT OF A DEPENDENT PARENT WHILE SUCH MEMBERS ARE ON SEA DUTY, IN VIEW OF THE PROVISION IN SECTION 102 (G) OF THE ACT, 63 STAT. 804, DEFINING THE TERM "DEPENDENT" AS INCLUDING, INTER ALIA---

* * * THE FATHER OR MOTHER OF SUCH MEMBER, PROVIDED HE OR SHE IS IN FACT DEPENDENT ON SUCH MEMBER FOR OVER HALF OF HIS OR HER SUPPORT AND ACTUALLY RESIDES IN THE HOUSEHOLD OF SAID MEMBER * * *.

THE QUESTIONS PRESENTED ARE AS FOLLOWS:

(A) IS A MEMBER OF THE UNIFORMED SERVICES ON SEA DUTY, WHO WAS RECEIVING INCREASED RENTAL AND SUBSISTENCE ALLOWANCES OR MONEY ALLOWANCE FOR QUARTERS FOR A DEPENDENT PARENT ON SEPTEMBER 30, 1949, AND WHO QUALIFIED ON OCTOBER 1, 1949, FOR BASIC PAY UNDER THE CAREER COMPENSATION ACT OF 1949, ENTITLED TO BASIC ALLOWANCE FOR QUARTERS FOR A DEPENDENT PARENT ON AND AFTER OCTOBER 1, 1949, IRRESPECTIVE OF THE PLACE WHERE HE MAINTAINS LIVING ACCOMMODATIONS FOR THE DEPENDENT?

(B) IS A MEMBER WHO IS RECEIVING BASIC ALLOWANCE FOR QUARTERS FOR A DEPENDENT PARENT UNDER THE CAREER COMPENSATION ACT OF 1949 AND WHO IS ASSIGNED TO SEA DUTY ENTITLED TO CONTINUE IN RECEIPT OF BASIC ALLOWANCE FOR QUARTERS FOR SUCH DEPENDENT PARENT AFTER SUCH ASSIGNMENT PROVIDED HE ACTUALLY MAINTAINS LIVING ACCOMMODATIONS FOR SUCH DEPENDENT AT WHATEVER PLACE THE DEPENDENT MAY CHOOSE TO RESIDE?

(C) MAY A MEMBER WHO IS RECEIVING BASIC PAY UNDER THE CAREER COMPENSATION ACT OF 1949 AND WHO IS ASSIGNED TO SEA DUTY AFTER OCTOBER 1, 1949, INITIALLY QUALIFY FOR BASIC ALLOWANCE FOR QUARTERS FOR A DEPENDENT PARENT WHEREVER SUCH DEPENDENT MAY ELECT TO RESIDE?

(D) IF THE ANSWER TO ANY OF THE FOREGOING QUESTIONS IS IN THE NEGATIVE, WHAT CRITERIA MAY BE ESTABLISHED BY WHICH TO DETERMINE ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF THE DEPENDENT PARENT OF A MEMBER OF THE UNIFORMED SERVICES WHO IS ON SEA DUTY?

IT WILL BE NOTED THAT UNDER THE DEFINITION IN SECTION 102 (G), SUPRA, A FATHER OR MOTHER MAY NOT BE REGARDED AS A DEPENDENT UNLESS THE PARENT, IN ADDITION TO BEING FINANCIALLY DEPENDENT ON THE MEMBER FOR OVER HALF OF HIS OR HER SUPPORT, ACTUALLY RESIDES IN THE HOUSEHOLD OF SUCH MEMBER. WHILE IT IS POSSIBLE THAT A SHIP OR VESSEL MIGHT BE REGARDED UNDER CERTAIN CIRCUMSTANCES AS A PERSON'S "HOUSEHOLD," IN VIEW OF THE VIRTUAL IMPOSSIBILITY OF A PARENT ACCOMPANYING A MEMBER ON SEA DUTY IT IS OBVIOUS THAT THE SHIP OR VESSEL TO WHICH A MEMBER IS ORDERED IS NOT TO BE CONSIDERED HIS "HOUSEHOLD" WITHIN THE MEANING OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949. YET, WITH RESPECT TO THE PAYMENT OF INCREASED QUARTERS ALLOWANCE ON ACCOUNT OF A DEPENDENT PARENT, THE LAW EXPRESSLY REQUIRES THAT, IN ADDITION TO FINANCIAL DEPENDENCY, THE PARENT MUST ACTUALLY RESIDE IN THE MEMBER'S HOUSEHOLD. THE STATUTE MAKES NO EXCEPTIONS WITH RESPECT TO SUCH RESIDENCE REQUIREMENT IN CASES WHERE THE MEMBER IS ASSIGNED TO SEA DUTY AND NO EXCEPTIONS HAVING BEEN MADE IN THAT RESPECT, IT MUST BE CONCLUDED THAT IT WAS CONTEMPLATED A MEMBER WOULD MAINTAIN A "HOUSEHOLD" DURING THE PERIOD OF HIS ASSIGNMENT TO SEA DUTY IF HE DESIRED TO QUALIFY FOR INCREASED QUARTERS ALLOWANCE ON ACCOUNT OF A DEPENDENT PARENT. BUT WHERE IS SUCH A MEMBER REQUIRED TO MAINTAIN HIS HOUSEHOLD DURING THE PERIOD HE IS ASSIGNED TO SEA DUTY--- AT HIS LAST PERMANENT STATION; AT HIS NEW PERMANENT STATION; OR, AS SUGGESTED IN YOUR SECOND AND THIRD QUESTIONS, AT WHATEVER PLACE THE DEPENDENT MAY CHOOSE TO RESIDE? WHILE THE STATUTE IS NOT SPECIFIC IN THAT RESPECT, IT HAS BEEN DETERMINED, AT LEAST WITH RESPECT TO MEMBERS ASSIGNED TO SHORE STATIONS, THAT THE STATUTE CONTEMPLATES THAT THE MEMBER'S HOUSEHOLD WILL BE LOCATED AT, OR CONVENIENT TO, HIS PERMANENT DUTY STATION. SEE B-90278, DECEMBER 19, 1949, 29 COMP. GEN. 280. THE LAW MAKES NO DISTINCTION IN THAT RESPECT BETWEEN MEMBERS ON SHORE DUTY AND THOSE ON SEA DUTY AND TO MAKE A DISTINCTION IN SUCH CASES IN ACCORDANCE WITH THE SUGGESTION CONTAINED IN YOUR SECOND AND THIRD QUESTIONS WOULD BE TANTAMOUNT TO BASING ENTITLEMENT TO INCREASED QUARTERS ALLOWANCE ON ACCOUNT OF A DEPENDENT PARENT PRIMARILY ON THE GROUND OF FINANCIAL DEPENDENCY, WITHOUT REGARD TO THE STATUTORY RESIDENCE REQUIREMENT. FURTHERMORE, TO IGNORE SUCH RESIDENCE REQUIREMENT IN CASES INVOLVING ASSIGNMENT TO SEA DUTY MIGHT HAVE THE RESULT THAT A MEMBER WHOSE FINANCIALLY DEPENDENT PARENT DID NOT ACTUALLY RESIDE IN HIS HOUSEHOLD IMMEDIATELY PRIOR TO HIS ASSIGNMENT TO SEA DUTY WOULD BECOME ENTITLED TO SUCH INCREASED ALLOWANCE MERELY BECAUSE OF THE FORTUITOUS CIRCUMSTANCE OF THE MEMBER'S ASSIGNMENT TO SEA DUTY. AND, FOR EXAMPLE, IF TWO MEMBERS ENTITLED TO INCREASED QUARTERS ALLOWANCE ON ACCOUNT OF A DEPENDENT PARENT WERE DIRECTED TO MAKE A PERMANENT CHANGE OF STATION FROM WASHINGTON, D.C., TO SAN DIEGO, CALIFORNIA, AND ONE MEMBER WAS ASSIGNED TO SHORE DUTY AND THE OTHER TO SEA DUTY (THE HOME YARD OR HOME PORT OF HIS VESSEL BEING SAN DIEGO), THE MEMBER ASSIGNED TO SHORE DUTY WOULD NOT BE ENTITLED TO SUCH INCREASED ALLOWANCE UNLESS THE PARENT MOVED TO SAN DIEGO, OR VICINITY, AND ACTUALLY RESIDED THERE IN THE MEMBER'S HOUSEHOLD, WHEREAS, UNDER THE RULE SUGGESTED BY YOUR QUESTIONS, THE MEMBER ASSIGNED TO SEA DUTY WOULD BE ENTITLED TO CONTINUE IN RECEIPT OF SUCH INCREASED ALLOWANCE IRRESPECTIVE OF THE PLACE WHERE THE PARENT MIGHT RESIDE.

I FIND NOTHING IN THE ACT OR ITS LEGISLATIVE HISTORY INDICATING THAT ANY SUCH ANOMALOUS RESULT WAS INTENDED OR CONTEMPLATED. IN EACH CASE SAN DIEGO MUST BE CONSIDERED THE MEMBER'S PERMANENT STATION (THE HOME YARD OR HOME PORT OF A MEMBER'S VESSEL BEING THE ONLY STATION WHICH REASONABLY COULD BE CONSIDERED AS THE PERMANENT STATION OF SUCH MEMBER WHILE ON SEA DUTY--- SEE SECTION 303 (C) OF THE CAREER COMPENSATION ACT, 63 STAT. 814), AND THERE IS NO MORE STATUTORY BASIS FOR WAIVING THE RESIDENCE REQUIREMENT IN ONE CASE THAN IN THE OTHER. THE FACT THAT A MEMBER ON SEA DUTY MIGHT BE ABSENT FROM HIS PERMANENT STATION FOR CONSIDERABLE PERIODS OF TIME IS NOT DETERMINATIVE OF HIS RIGHT TO INCREASED QUARTERS ALLOWANCE ON ACCOUNT OF A DEPENDENT PARENT ANY MORE THAN PROTRACTED PERIODS OF ABSENCE FROM A MEMBER'S PERMANENT SHORE STATION ON VARIOUS TEMPORARY DUTY ASSIGNMENTS WOULD BE DETERMINATIVE OF THE RIGHT OF A MEMBER TO SUCH INCREASED QUARTERS ALLOWANCE. THE LAW RECOGNIZES THE HOME YARD OR THE HOME PORT OF A VESSEL AS THE PERMANENT STATION OF A MEMBER ON SEA DUTY AND SUCH STATION PRESUMABLY IS THE PLACE WHERE HE PERFORMS HIS DUTIES WHILE NOT ABSENT AT SEA AND TO WHICH HE USUALLY RETURNS UPON COMPLETION OF A VOYAGE, MANEUVER, ETC. IT IS AT SUCH PERMANENT STATION THAT A MEMBER WOULD NORMALLY HAVE HIS "HOUSEHOLD," IF HE MAINTAINS ONE AT ALL, SINCE THAT IS THE PLACE WHERE HE WOULD OR MIGHT HAVE DUTIES TO PERFORM AND THE PLACE WHERE HE WOULD NORMALLY BE ASSIGNED PUBLIC QUARTERS FOR HIS DEPENDENTS OR FOR HIMSELF AND DEPENDENTS IF SUCH QUARTERS WERE AVAILABLE. WHILE IT MAY BE INCONVENIENT, IMPRACTICAL, OR IMPOSSIBLE IN MANY CASES FOR THE PARENTS TO ACCOMPANY THE MEMBER ON A CHANGE OF PERMANENT STATION, ESPECIALLY WHERE IT IS KNOWN IN ADVANCE THAT THE CHANGE OF PERMANENT STATION IS FOR THE PURPOSE OF ASSIGNING THE MEMBER TO SEA DUTY, NEVERTHELESS, THE LANGUAGE OF THE STATUTE AND ITS LEGISLATIVE HISTORY (WHICH IS QUOTED AT LENGTH IN B-90278, SUPRA) LEAVE NO DOUBT IT WAS INTENDED THAT INCREASED QUARTERS ALLOWANCE ON ACCOUNT OF A DEPENDENT PARENT IS NOT TO BE PAID UNLESS THE PARENT, IN ADDITION TO BEING FINANCIALLY DEPENDENT, ACTUALLY RESIDES IN THE MEMBER'S HOUSEHOLD. AS STATED IN B-90278, SUPRA:

THE ALLOWANCE IS NOT PAYABLE PRIMARILY ON ACCOUNT OF THE DEPENDENCY OF THE PARENT, BUT THE STATUTORY OBJECT APPARENTLY IS ONLY TO PROVIDE A MEMBER WITH AN ALLOWANCE WHERE NECESSARY TO OBTAIN QUARTERS FOR HIMSELF AND HIS DEPENDENT PARENT AT, OR CONVENIENT TO, HIS PERMANENT STATION IN CASES WHERE THE GOVERNMENT IS UNABLE TO FURNISH HIM WITH FAMILY QUARTERS AT SUCH STATION. IF THE PARENT IS NOT AT THE MEMBER'S PERMANENT STATION THERE WOULD BE NO OCCASION FOR HIM TO DEMAND PUBLIC FAMILY QUARTERS AT SUCH STATION FOR HIMSELF AND PARENT AND, HENCE, NO OCCASION FOR AN ALLOWANCE TO OBTAIN QUARTERS NEARBY FOR HIMSELF AND PARENT IN LIEU OF PUBLIC FAMILY QUARTERS THEREAT. TO HOLD OTHERWISE WOULD BE TO PLACE THE ALLOWANCE PRIMARILY ON THE BASIS OF DEPENDENCY AND NOT ON ANY NEED FOR FAMILY QUARTERS AT THE MEMBER'S PERMANENT STATION, WHICH THE GOVERNMENT NORMALLY PROVIDES. THE LAW MAKES NO EXCEPTION IN CASES WHERE IT IS IMPOSSIBLE OR IMPRACTICABLE FOR THE PARENT TO RESIDE IN THE MEMBER'S HOUSEHOLD, IRRESPECTIVE OF LOCATION, BECAUSE OF AGE, PHYSICAL CONDITION, CLIMATE, LIVING CONDITIONS, INCOMPATABILITY, HIGH COST OF LIVING, OR DIFFICULTY IN SECURING HOUSING ACCOMMODATIONS. IT IS QUITE CLEAR THAT TO PERMIT EXCEPTIONS TO BE MADE IN SUCH CASES WOULD BE VIRTUALLY TO DISREGARD THE PURPOSE OF THE EXPRESS STATUTORY REQUIREMENT OF ACTUAL RESIDENCE IN THE MEMBER'S HOUSEHOLD. * * *

IN VIEW OF THE FOREGOING IT MUST BE CONCLUDED THAT A MEMBER OF THE UNIFORMED SERVICES ON SEA DUTY MAY NOT BE PAID INCREASED QUARTERS ALLOWANCE ON ACCOUNT OF A DEPENDENT PARENT ON AND AFTER OCTOBER 1, 1949, UNDER THE CAREER COMPENSATION ACT OF 1949, UNLESS SUCH DEPENDENT PARENT ACTUALLY RESIDES IN THE MEMBER'S HOUSEHOLD ACT, OR CONVENIENT TO, HIS PERMANENT STATION--- THE HOME YARD OR HOME PORT OF THE VESSEL TO WHICH HE IS ASSIGNED. YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.