B-96992, JANUARY 3, 1951, 30 COMP. GEN. 260

B-96992, JANUARY 3, 1951, 30 COMP. GEN. 260

QUARTERS - BASIC ALLOWANCE - DEPENDENT PARENTS - RESERVE OFFICERS ORDERED TO ACTIVE DUTY TRAINING A RESERVE MEMBER OF THE UNIFORMED SERVICES WHO IS ORDERED TO ACTIVE DUTY TRAINING FOR A PERIOD NOT IN EXCESS OF FOUR MONTHS AT A SERVICE SCHOOL WHERE PUBLIC QUARTERS ARE NOT AVAILABLE FOR DEPENDENTS DOES NOT HAVE A PERMANENT MILITARY DUTY STATION WHILE ON SUCH DUTY AND COULD NOT BE EXPECTED TO MAINTAIN A HOUSEHOLD FOR HIMSELF AND HIS DEPENDENT PARENT AT THE SERVICE SCHOOL IN ADDITION TO HIS PERMANENT RESIDENCE WHERE DEPENDENT USUALLY RESIDES, AND THEREFORE, THE MEMBER MAY BE PAID THE BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT PARENT WHO OTHERWISE MEETS THE DEPENDENCY REQUIREMENTS OF THE CAREER COMPENSATION ACT OF 1949.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, JANUARY 3, 1951:

REFERENCE IS MADE TO YOUR PREDECESSOR'S LETTER OF JULY 20, 1950, FORWARDING A LETTER DATED JANUARY 5, 1950, WITH ENCLOSURES, FROM MAJOR R. E. ZUMWALT, F.D., WITH THE REQUEST THAT AN ADVANCE DECISION BE RENDERED ON THE QUESTION PRESENTED IN SAID LETTER AS TO WHETHER OR NOT PAYMENT OF BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF DEPENDENT PARENTS MAY BE MADE UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, 63 STAT. 802, TO RESERVE OFFICERS ORDERED TO ACTIVE DUTY TRAINING FOR SHORT PERIODS, NOT TO EXCESS OF FOUR MONTHS, AT SERVICE SCHOOLS.

THERE WAS SUBMITTED WITH MAJOR ZUMWALT'S LETTER THE DEPENDENCY CERTIFICATE OF FRED J. SWIHART, CAPTAIN, CMP-1RES., EXECUTED NOVEMBER 30, 1949, BY THE OFFICER AND HIS MOTHER, SHOWING THAT THE OFFICER MAINTAINED A RENTED APARTMENT, CONSISTING OF THREE ROOMS, LOCATED AT 141 SOUTH 12TH STREET, LINCOLN, NEBRASKA, HIS PERMANENT ADDRESS; THAT HIS MOTHER ACTUALLY RESIDED IN SAID QUARTERS AS A MEMBER OF HIS HOUSEHOLD; AND THAT HE HAS BEEN THE SOLE SUPPORT OF HIS MOTHER SINCE THE DEATH OF HIS FATHER IN 1937. ALSO, THERE WAS SUBMITTED A COPY OF LETTER ORDERS ISSUED BY HEADQUARTERS, FIFTH ARMY, CHICAGO 15, ILLINOIS, DATED SEPTEMBER 26, 1949, SUBJECT: ORDERS FOR ACTIVE DUTY TRAINING, BY WHICH CAPTAIN SWIHART WAS, WITH HIS CONSENT, ORDERED TO ACTIVE DUTY TRAINING EFFECTIVE ON NOVEMBER 1, 1949, WITH STATION AT CAMP GORDON, GEORGIA; DIRECTED TO PROCEED FROM HIS HOME ON NOVEMBER 1, 1949, AND REPORT TO THE COMMANDING OFFICER OF THE MILITARY POLICE SCHOOL, ASSOCIATE ADVANCED COURSE, CLASS NO. 7, ON NOVEMBER 2, 1949, FOR ACTIVE DUTY TRAINING; AND ADVISED THAT, UNLESS SOONER RELIEVED BY COMPETENT AUTHORITY, HE WAS TO RETURN TO HIS HOME FROM SUCH ACTIVE DUTY STATION AT CAMP GORDON, GEORGIA, SO AS TO ARRIVE HOME ON FEBRUARY 20, 1950, AND ON THAT DATE REVERT TO INACTIVE DUTY STATUS. THE SAID ORDERS RECITED THAT TRAVEL OF DEPENDENTS AND SHIPMENT OF HOUSEHOLD GOODS WERE NOT AUTHORIZED AND THAT PUBLIC QUARTERS WOULD NOT BE AVAILABLE FOR DEPENDENTS.

IT APPEARS THAT CAPTAIN SWIHART'S DEPENDENCY CERTIFICATE IS INTENDED TO SUPPORT HIS CLAIM FOR BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF HIS DEPENDENT MOTHER FOR ONE MONTH OF NOVEMBER 1949 AND THAT THE OFFICER WILL CLAIM SUCH ALLOWANCE FOR THE BALANCE OF THE PERIOD OF THE ACTIVE DUTY TRAINING PERFORMED UNDER HIS ORDERS OF SEPTEMBER 26, 1949,

SUPRA.

SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, DEFINES THE TERM ,DEPENDENT" FOR THE PURPOSES OF THE ACT, 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 * * *.

SINCE THE DATE OF YOUR SUBMISSION IN THIS CASE, THE ABOVE-QUOTED PROVISION HAS BEEN AMENDED AND THE RESIDENCE REQUIREMENT THEREIN HAS BEEN SUSPENDED, AS TO MOST CASES, BY PUBLIC LAW 771, APPROVED SEPTEMBER 8, 1950, 64 STAT. 794. HOWEVER, THE SAID AMENDATORY ACT IS EFFECTIVE FROM AND AFTER AUGUST 1, 1950, AND HAS NO APPLICATION IN CAPTAIN SWIHART'S CASE AND IN OTHER SIMILAR CASES INVOLVING ACTIVE DUTY TRAINING COMPLETED PRIOR TO SUCH EFFECTIVE DATE.

WHILE IT WAS HELD IN DECISION OF DECEMBER 19, 1949, B-90278, (29 COMP. GEN. 280), RESPECTING THE ABOVE-QUOTED PROVISION, THAT "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," SUCH DECISION WAS RENDERED WITH REFERENCE TO PERSONNEL ON THE ACTIVE LISTS OR ON EXTENDED ACTIVE DUTY, THAT IS, PERSONNEL WHO ACTUALLY HAVE PERMANENT MILITARY STATIONS AND, HENCE, WOULD LIVE AND HAVE THEIR HOUSEHOLDS AT OR CONVENIENT TO SUCH STATIONS. THAT DECISION NEED NOT BE CONSIDERED AS PRECLUDING PAYMENT OF THE INCREASED (DEPENDENCY) QUARTERS ALLOWANCE TO A MEMBER OF THE UNIFORMED SERVICES WHO IS ORDERED FROM HIS HOME TO ACTIVE DUTY TRAINING FOR A PERIOD OF NOT MORE THAN FOUR MONTHS' DURATION, WHO OBVIOUSLY HAS NO PERMANENT MILITARY DUTY STATION WHILE ON SUCH DUTY AND WHO COULD NOT REASONABLY BE EXPECTED TO MAINTAIN A HOUSEHOLD FOR HIMSELF AND HIS DEPENDENT PARENT AT ANY PLACE OTHER THAN THE PLACE WHERE HE MAKES HIS PERMANENT RESIDENCE AND NORMALLY AND USUALLY RESIDES WITH HIS DEPENDENT PARENT. IF THE SAID DECISION WERE TO BE APPLIED IN ITS STRICTEST CONNOTATION IN SUCH CASES INVOLVING ONLY ACTIVE DUTY TRAINING, THE MEMBER, EVEN THOUGH HAVING A PARENT DEPENDENT CHIEFLY ON HIM FOR SUPPORT AND RESIDING WITH HIM IN HIS HOUSEHOLD, COULD NOT UNDER ANY CIRCUMSTANCES QUALIFY FOR INCREASED QUARTERS ALLOWANCE ON ACCOUNT OF A DEPENDENT PARENT, INCIDENT TO SUCH DUTY, SINCE HE WOULD NOT HAVE A PERMANENT MILITARY OR NAVAL STATION AT WHICH TO MAINTAIN A HOUSEHOLD. VIEWING THE TERMS OF SECTION 102 (G) LITERALLY, HOWEVER, IT WOULD SEEM THAT CAPTAIN SWIHART'S CASE MET THOSE TERMS, INCIDENT TO THE PERIOD OF HIS ACTIVE DUTY TRAINING, IN THAT HIS MOTHER WAS DEPENDENT ON HIM FOR OVER HALF OF HER SUPPORT AND ACTUALLY RESIDED IN HIS HOUSEHOLD. IN THE CIRCUMSTANCES, WHILE THERE MAY BE SOME CAUSE FOR DOUBT WITH RESPECT TO CASES OF THIS KIND AS TO THE TRUE INTENT OF THE CONGRESS IN ENACTING THE ABOVE-QUOTED PROVISION OF THE CAREER COMPENSATION ACT OF 1949 (SEE LEGISLATIVE HISTORY QUOTED IN 29 COMP. GEN. 280, SUPRA), IT IS BELIEVED THAT THE MATTER WILL BEST BE RESOLVED BY FOLLOWING THE LITERAL MEANING OF THE SAID PROVISION IN APPLYING IT TO SUCH CASES. SEE PARAGRAPH 5B, AR 35- 3420, DATED NOVEMBER 5, 1948, AND COMPARE 4 COMP. GEN. 571; ID. 661; ID. 784; 20 ID. 432; B-94402, MAY 5, 1950 (29 COMP. GEN. 441).

ACCORDINGLY, CAPTAIN SWIHART MAY BE CREDITED FOR THE PERIOD NOVEMBER 1 TO 30, 1949, AND THEREAFTER--- NOT EXCEEDING THE ORDERED PERIOD OF HIS ACTIVE DUTY TRAINING--- WITH BASIC ALLOWANCE FOR QUARTERS AS AN OFFICER WITH A DEPENDENT MOTHER ON THE BASIS OF HIS DEPENDENCY CERTIFICATE COVERING THE MONTH OF NOVEMBER 1949 AND ON THE BASIS OF SUBSEQUENT DEPENDENCY CERTIFICATES, IF SUCH SUBSEQUENT CERTIFICATES SHOW NO MATERIAL CHANGE IN THE DEPENDENCY STATUS AND RESIDENCE SITUATION OF HIS MOTHER. AND IN SIMILAR CASES INVOLVING SHORT PERIODS OF ACTIVE DUTY TRAINING, NOT IN EXCESS OF FOUR MONTHS, AT SERVICE SCHOOLS WHERE PUBLIC QUARTERS WERE NOT AVAILABLE FOR DEPENDENTS, NO OBJECTION WILL BE MADE TO CREDITS OF INCREASED BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF DEPENDENT PARENT IF THE PARENT IS SHOWN TO HAVE BEEN IN FACT DEPENDENT ON THE MEMBER FOR CHIEF SUPPORT AND TO HAVE RESIDED IN THE MEMBER'S HOUSE OR APARTMENT WHERE HE MAINTAINED HIS PERMANENT RESIDENCE, THAT IS, HIS HOUSEHOLD.

CAPTAIN SWIHART'S DEPENDENCY CERTIFICATE FOR NOVEMBER 1949, AND COPY OF HIS ORDERS DATED SEPTEMBER 26, 1949, ARE RETURNED HEREWITH.