B-120352, NOV 22, 1954

B-120352, NOV 22, 1954

PRECIS-UNAVAILABLE

CAPTAIN W. J. HENDRICKS, USAF:

BY LETTER DATED JUNE 4, 1954, THE DIRECTOR OF FINANCE REFERRED TO THIS OFFICE YOUR 12TH INDORSEMENT OF MARCH 17, 1954, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO WHETHER MAJOR MARGARET D. HORN, 21367W (FORMERLY AL 80472), USAF, MAY BE CREDITED WITH AN INCREASED BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITH A DEPENDENT HUSBAND FOR THE PERIOD COMMENCING JULY 1, 1953.

AMONG THE ENCLOSURES SUBMITTED WITH YOUR LETTER ARE THE OFFICER'S DEPENDENCY CERTIFICATE (DD FORM 137-1), DATED SEPTEMBER 2, 1953, HER EXPLANATORY LETTER DATED NOVEMBER 9, 1953, AN ITEMIZED STATEMENT OF HER OWN AND HER HUSBAND'S LIVING EXPENSES, AND STATEMENTS FROM THE COMMANDER, UNITED STATES AIR FORCE HOSPITAL, DAVIS-MONTHAN AIR FORCE BASE, TUCSON, ARIZONA, DR. W. R. HEWITT, OF THE TUCSON CLINIC, AND LIEUTENANT COLONEL JOHN A. BARNETT, STAFF JUDGE ADVOCATE, HEADQUARTERS 803D AIR BASE GROUP, DAVIS-MONTHAN AIR FORCE BASE.

THE OFFICER'S DEPENDENCY CERTIFICATE SHOWS THAT HER HUSBAND HAS BEEN RETIRED SINCE 1945, THAT HE HAS A HEART CONDITION WHICH OFTEN CONFINES HIM TO A HOSPITAL, AND THAT HOSPITAL AND MEDICAL BILLS ARE LARGE AND CONTINUOUS, RANGING FROM $40 TO SEVERAL HUNDRED DOLLARS EACH MONTH. THE DEPENDENCY CERTIFICATE SHOWS ALSO THAT THE HUSBAND'S ACTUAL LIVING EXPENSES AVERAGE $427 PER MONTH; THAT HIS TOTAL INCOME FROM OTHER SOURCES IS NOT MORE THAN $183 PER MONTH; AND THAT THE OFFICER CONTRIBUTES NOT LESS THAN $244 PER MONTH TOWARD THE HUSBAND'S LIVING EXPENSES.

IN HER EXPLANATORY LETTER THE OFFICER STATES THAT HER HUSBAND IS A RETIRED CAPTAIN, RECEIVING RETIREMENT PAY IN THE AMOUNT OF $185 PER MONTH, AND THAT HE IS AN OUT-PATIENT AT DAVIS-MONTHAN HOSPITAL. THE ITEMIZATION OF THE OFFICER'S AND HER HUSBAND'S LIVING EXPENSES SHOWS FOR THE PERIOD JANUARY 1 TO JUNE 30, 1953, THAT HER MONTHLY EXPENSES AVERAGED $206 PER MONTH, REPRESENTING ONE-HALF OF THEIR HOUSEHOLD EXPENSES, THE COST OF HER PERSONAL CLOTHING, AND ONE-HALF OF THE MONTHLY PAYMENT ON A CAR AND THE COST OF OPERATION THEREOF, AND THAT HER HUSBAND'S EXPENSES AVERAGED $312.75, REPRESENTING ONE-HALF OF THE HOUSEHOLD EXPENSES, THE CAR PAYMENT AND COSTS OF OPERATION, AND THE COST OF HIS CLOTHING, PLUS SPECIAL DOCTOR, MEDICAL, DIETARY, AND HOSPITAL BILLS. THE OFFICER EXPLAINS FURTHER THAT THE ITEM OF $427 AS SHOWN IN HER DEPENDENCY CERTIFICATE INCLUDES, IN ADDITION TO THE AMOUNT ATTRIBUTABLE TO HER HUSBAND'S PHYSICAL CONDITION, THE ENTIRE AMOUNT PAID FOR RENT, LIGHT AND HEAT, GAS AND OIL, INSURANCE, AND THE CAR PAYMENT. THE GIST OF THE OTHER SUPPORTING STATEMENTS IS THAT THE HUSBAND WAS RETIRED BECAUSE OF A PHYSICAL DISABILITY OF 90 TO 95 PERCENT; THAT BETWEEN PERIODS OF HOSPITALIZATION HE REQUIRES CONSTANT SUPERVISION AND TREATMENT, AND SPECIAL DRUGS WHICH CANNOT BE FURNISHED TO HIM BY THE UNITED STATES AIR FORCE HOSPITAL; AND THAT HE IS CAPABLE OF PERFORMING ONLY THE SIMPLEST OF ACTS IN CARING FOR HIMSELF.

YOU QUESTION WHETHER THE FULL AMOUNT OF SUCH ITEMS AS RENT AND UTILITIES, AND THE CAR PAYMENT AND COST OF OPERATION, SHOULD BE CONSIDERED AN EXPENSE OF THE HUSBAND IN DETERMINING HIS DEPENDENCY STATUS, AND STATE THAT MAJOR HORN HAS BEEN CREDITED WITH AN INCREASED BASIC ALLOWANCE FOR QUARTERS THROUGH AUGUST 31, 1953. APPARENTLY, THOSE CREDITS WERE MADE ON THE BASIS OF PREVIOUSLY SUBMITTED DEPENDENCY CERTIFICATES WHICH SHOWED THAT HER HUSBAND'S LIVING EXPENSES AVERAGED FROM $380 TO $418 PER MONTH, THAT HE HAD AN INCOME OF $183 PER MONTH, AND THAT SHE CONTRIBUTED TO HIS SUPPORT FROM $197 TO $308 PER MONTH. IT APPEARS THAT SHE IS CURRENTLY BEING CREDITED WITH A BASIC ALLOWANCE FOR QUARTERS IN HER OWN RIGHT.

THE PAYMENT OF INCREASED ALLOWANCES TO FEMALE MEMBERS OF THE UNIFORMED SERVICES IS GOVERNED BY THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, EFFECTIVE OCTOBER 1, 1949. SECTION 102(G) OF THAT ACT DEFINES THE TERM "DEPENDENT" AS INCLUDING A HUSBAND BUT ONLY IN CASE THE HUSBAND IS "IN FACT DEPENDENT" UPON THE MEMBER FOR "OVER HALF OF HIS *** SUPPORT." HAS BEEN HELD THAT TO BE REGARDED AS IN FACT DEPENDENT, AS REQUIRED BY THE APPLICABLE STATUTES, A HUSBAND ALSO MUST BE INCAPABLE OF SELF SUPPORT ON ACCOUNT OF MENTAL OR PHYSICAL INFIRMITY, OR OTHER REASON. SEE 32 COMP. GEN. 364.

IT IS DIFFICULT TO STANDARDIZE THE FACTS WHICH DISCLOSE A CONDITION DESIGNATED IN THE LAW AS "OVER HALF OF HIS *** SUPPORT," AND EACH CASE MUST STAND ON ITS PARTICULAR FACTS. HOWEVER, IT IS THE VIEW OF THIS OFFICE IN CASES WHERE INCREASED BASIC ALLOWANCE FOR QUARTERS IS CLAIMED BY A FEMALE MEMBER OF THE UNIFORMED SERVICES ON ACCOUNT OF A DEPENDENT HUSBAND, WHO, AS HERE, IS LIVING WITH HER, THAT THE USUAL EXPENSES OF MAINTAINING A HOUSEHOLD, SUCH AS RENT (OR IF THEY OWN THEIR HOME, REAL ESTATE TAXES, MORTGAGE PAYMENTS AND INTEREST, AND COSTS OF REPAIRS AND UPKEEP), UTILITIES, FOOD, MONTHLY PAYMENTS AND COSTS OF OPERATION OF A FAMILY CAR, ETC., CONSTITUTE JOINT EXPENSES, TO BE APPORTIONED EQUALLY BETWEEN THEM, AND THAT ONLY THE UNUSUAL PERSONAL EXPENSES ACTUALLY AND NECESSARILY INCURRED BY THE HUSBAND, SUCH AS THE UNUSUAL MEDICAL EXPENSES IN THIS CASE, ARE PROPERLY FOR CONSIDERATION AS AN INDIVIDUAL EXPENSE. WHILE THE SUBMITTED EVIDENCE MAY BE ACCEPTED AS ESTABLISHING THAT MAJOR HORN'S HUSBAND IS PHYSICALLY INCAPABLE OF SELF SUPPORT, IT APPEARS, COMPUTED ON THE BASIS HEREIN SET FORTH, THAT HIS AVERAGE MONTHLY LIVING EXPENSES AMOUNTED TO $312.75, THAT HE HAD AN INCOME FROM SOURCES OTHER THAN HER CONTRIBUTIONS IN THE AMOUNT OF $183, AND THAT HE ACTUALLY AND IN FACT WAS DEPENDENT ON HER ONLY TO THE EXTENT OF $129.75 PER MONTH. SINCE HIS INCOME OF $183 PER MONTH WAS MORE, AND HER MONTHLY CONTRIBUTION WAS LESS, THAN ONE-HALF OF HIS AVERAGE MONTHLY LIVING EXPENSES, THE CONCLUSION IS REQUIRED THAT HE WAS NOT IN FACT DEPENDENT ON HER FOR OVER HALF OF HIS SUPPORT. ACCORDINGLY, YOU ARE NOT AUTHORIZED TO CREDIT HER WITH AN INCREASED BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITH A DEPENDENT HUSBAND FOR THE PERIOD COMMENCING JULY 1, 1953.

THE SUBMITTED PAPERS ARE RETAINED IN THIS OFFICE.