B-143501, OCTOBER 18, 1960, 40 COMP. GEN. 215

B-143501, OCTOBER 18, 1960, 40 COMP. GEN. 215

MILITARY PERSONNEL - QUARTERS ALLOWANCE - DEPENDENT IN HOSPITAL A MEMBER OF THE UNIFORMED SERVICES WHO CONTINUES TO OCCUPY PRIVATE QUARTERS WHILE HIS ONLY DEPENDENT IS HOSPITALIZED IN A GOVERNMENT HOSPITAL --- EITHER AT THE MEMBER'S STATION OR AT ANOTHER PLACE--- OR IN A CIVILIAN HOSPITAL UNDER THE DEPARTMENTS' MEDICAL CARE ACT, EVEN THOUGH SINGLE-TYPE QUARTERS ARE ASSIGNED, IS NOT REGARDED AS HAVING BEEN ASSIGNED QUARTERS ADEQUATE FOR HIMSELF AND DEPENDENT AND IS ENTITLED TO CONTINUE TO RECEIVE QUARTERS ALLOWANCE; HOWEVER, IF THE MEMBER IS ASSIGNED TO AND OCCUPIES SINGLE-TYPE QUARTERS DURING THE HOSPITALIZATION OF THE DEPENDENT, THE MEMBER AND HIS DEPENDENT ARE REGARDED AS HAVING BEEN ASSIGNED ADEQUATE QUARTERS SO THAT NO QUARTERS ALLOWANCE MAY BE PAID AND THIS WOULD APPLY IF HE MAINTAINS AND OCCASIONALLY OCCUPIES PRIVATE QUARTERS SINCE SUCH OCCUPANCY WOULD BE CONSIDERED FOR PERSONAL CONVENIENCE. A MEMBER WHO HAS MORE THAN ONE DEPENDENT FOR WHOM ADEQUATE QUARTERS ARE NOT AVAILABLE AT HIS STATION AND WHO OCCUPIES SINGLE-TYPE GOVERNMENT QUARTERS DURING A PERIOD IN WHICH ONE DEPENDENT IS HOSPITALIZED IN A GOVERNMENT HOSPITAL OR IN A CIVILIAN HOSPITAL UNDER THE DEPENDENTS' MEDICAL CARE ACT IS NOT PRECLUDED FROM RECEIVING A QUARTERS ALLOWANCE ON ACCOUNT OF A DEPENDENT OTHER THAN THE ONE HOSPITALIZED SINCE ADEQUATE QUARTERS WOULD NEITHER BE ASSIGNED NOR OCCUPIED.

TO THE SECRETARY OF DEFENSE, OCTOBER 18, 1960:

REFERENCE IS MADE TO LETTER OF JULY 13, 1960, FROM THE DEPUTY ASSISTANT SECRETARY OF DEFENSE REQUESTING DECISION AS TO WHETHER A MEMBER OF THE ARMED FORCES IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS, AS A MEMBER WITH ONE DEPENDENT, DURING PERIODS THE DEPENDENT IS HOSPITALIZED IN A GOVERNMENT HOSPITAL UNDER THE CIRCUMSTANCES SET FORTH IN COMMITTEE ACTION NO. 269 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

THE CIRCUMSTANCES ARE SET FORTH IN THE FORM OF QUESTIONS, AS FOLLOWS:

1. MAY A MEMBER ENTITLED TO BAQ AS A MEMBER WITH ONE DEPENDENT CONTINUE TO RECEIVE SUCH CREDIT DURING PERIODS THE DEPENDENT IS HOSPITALIZED IN A GOVERNMENT HOSPITAL AT HIS PERMANENT DUTY STATION IF:

A. THE MEMBER MAINTAINS AND CONTINUES TO OCCUPY PRIVATE QUARTERS AND SINGLE TYPE GOVERNMENT QUARTERS ARE ASSIGNED THE MEMBER?

B. THE MEMBER DOES NOT MAINTAIN PRIVATE QUARTERS AND OCCUPIES SINGLE TYPE GOVERNMENT QUARTERS?

2. WOULD THE ANSWERS BE THE SAME IF THE DEPENDENT WERE HOSPITALIZED IN A GOVERNMENT HOSPITAL AT OTHER THAN THE MEMBER'S PERMANENT DUTY STATION?

3. IF ANY OF THE ANSWERS TO THE ABOVE QUESTIONS ARE IN THE NEGATIVE WOULD THE ANSWER BE THE SAME IF THERE ARE DEPENDENTS IN ADDITION TO THE ONE HOSPITALIZED AND WHO ARE NOT OCCUPYING GOVERNMENT QUARTERS?

4. WOULD ANY OF THE ANSWERS TO THE ABOVE VARY IF THE HOSPITALIZED DEPENDENT IS HOSPITALIZED IN A CIVILIAN HOSPITAL UNDER THE DEPENDENTS'MEDICAL CARE ACT?

THE COMMITTEE REFERS PARTICULARLY TO DECISION B-130107, DATED FEBRUARY 7, 1957, IN WHICH IT WAS HELD THAT WHERE A MEMBER OCCUPIES SINGLE-TYPE GOVERNMENT QUARTERS WHILE HIS ONLY DEPENDENT (WIFE) IS HOSPITALIZED BY THE GOVERNMENT, HE IS NOT ENTITLED TO BASIC ALLOWANCE FOR QUARTERS FOR A DEPENDENT WIFE SINCE THE GOVERNMENT FURNISHED FACILITIES WHICH RELIEVED THE MEMBER OF PROVIDING QUARTERS EITHER FOR HIMSELF OR HIS WIFE. IT IS STATED IN THE COMMITTEE ACTION THAT MANY DIFFICULT AND INEQUITABLE PROBLEMS ARE CREATED BY APPLYING THE PRINCIPLE THAT BASIC ALLOWANCE FOR QUARTERS DOES NOT ACCRUE UNDER SUCH CIRCUMSTANCES. EXCEPT AS OTHERWISE PROVIDED BY LAW, SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 252, AUTHORIZES THE PAYMENT OF AN INCREASED BASIC ALLOWANCE FOR QUARTERS TO MEMBERS OF THE UNIFORMED SERVICES ON ACCOUNT OF ONE DEPENDENT EXCEPT IN THE CASE OF ENLISTED MEMBERS OF THE FIRST THREE GRADES. SUBSECTIONS (B) AND (D) OF THAT SECTION READ AS FOLLOWS:

(B) EXCEPT AS OTHERWISE PROVIDED BY LAW, NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO MEMBERS OF THE UNIFORMED SERVICES ASSIGNED TO GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES, APPROPRIATE TO THEIR RANK, GRADE, OR RATING AND ADEQUATE FOR THEMSELVES AND DEPENDENTS, IF WITH DEPENDENTS.

(D) NO MEMBER OF THE UNIFORMED SERVICES ASSIGNED TO GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES SHALL BE DENIED HIS BASIC ALLOWANCE FOR QUARTERS, IF, BY REASON OF ORDERS OF COMPETENT AUTHORITY, HIS DEPENDENTS ARE PREVENTED FROM OCCUPYING SUCH QUARTERS.

EXECUTIVE ORDER NO. 10204, JANUARY 16, 1951, ISSUED PURSUANT TO SECTION 302, PROVIDES, IN PART, AS FOLLOWS:

2. EXCEPT AS OTHERWISE BY STATUTE HERETOFORE OR HEREAFTER PROVIDED, A MEMBER SHALL BE ENTITLED TO PAYMENT OF BASIC ALLOWANCE FOR QUARTERS, IN ACCORDANCE WITH THESE REGULATIONS AND ANY REGULATIONS PRESCRIBED PURSUANT THERETO, DURING SUCH TIME OR TIMES AS HE IS ENTITLED TO RECEIVE BASIC PAY.

3. ANY QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF ANY OF THE UNIFORMED SERVICES IN FACT OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGES (A) BY A MEMBER AND HIS DEPENDENTS, OR (B) AT HIS PERMANENT STATION BY A MEMBER WITHOUT DEPENDENTS, OR (C) BY THE DEPENDENTS OF A MEMBER ON FIELD DUTY OR ON SEA DUTY OR ON DUTY AT A STATION WHERE ADEQUATE QUARTERS ARE NOT AVAILABLE FOR HIS DEPENDENTS, SHALL BE DEEMED TO HAVE BEEN ASSIGNED TO SUCH MEMBER AS APPROPRIATE AND ADEQUATE QUARTERS, AND NO BASIC ALLOWANCE FOR QUARTERS SHALL ACCRUE TO SUCH MEMBER UNDER SUCH CIRCUMSTANCES UNLESS THE OCCUPANCY IS BECAUSE OF A SOCIAL VISIT OF A TEMPORARY NATURE.

4. WHEN ADEQUATE QUARTERS FOR HIS DEPENDENTS ARE NOT AVAILABLE FOR ASSIGNMENT AT HIS PERMANENT STATION TO A MEMBER WITH DEPENDENTS, HE MAY OCCUPY NOT MORE THAN ONE ROOM AND A BATH AT SUCH STATION, WITHOUT AFFECTING HIS RIGHT TO RECEIVE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS, IF PERMITTED OR REQUIRED PERSONALLY TO OCCUPY QUARTERS AT SUCH STATION.

THUS, THE LAW CONTEMPLATES THAT MEMBERS WITH DEPENDENTS WILL AT ALL TIMES BE FURNISHED ADEQUATE QUARTERS FOR SUCH DEPENDENTS OR BE ENTITLED TO BASIC ALLOWANCE FOR QUARTERS. WHEN ADEQUATE QUARTERS ARE NOT AVAILABLE AT HIS STATION FOR HIS DEPENDENTS, A MEMBER MAY OCCUPY NOT MORE THAN ONE ROOM AND A BATH AT HIS PERMANENT STATION WITHOUT AFFECTING HIS RIGHT TO BASIC ALLOWANCE FOR QUARTERS. GENERALLY, ANY QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES OCCUPIED WITHOUT PAYMENT OF RENTAL CHARGE BY THE MEMBER AND HIS DEPENDENT SHALL BE DEEMED TO BE ADEQUATE.

WITH RESPECT TO DEPENDENTS OCCUPYING GOVERNMENT QUARTERS ON A SOCIAL VISIT OF A TEMPORARY NATURE, THE EXECUTIVE ORDER SPECIFICALLY MAKES AN EXCEPTION IN THOSE CASES SO AS TO PERMIT PAYMENT OF THE ALLOWANCE DURING SUCH VISITS. 37 COMP. GEN. 47. AND, IN GENERAL, WHERE A MEMBER WITH DEPENDENTS (CIVILIAN) IS NEITHER ASSIGNED TO NOR OCCUPIES GOVERNMENT QUARTERS OR HOUSING FACILITIES UNDER THE JURISDICTION OF THE UNIFORMED SERVICES, SUCH MEMBER IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITH DEPENDENTS, EVEN THOUGH HIS DEPENDENTS (CIVILIAN) ARE OCCUPYING GOVERNMENT QUARTERS NOT DESIGNATED AS FAMILY TYPE QUARTERS. COMP. GEN. 575. THUS, A MEMBER WHO HAS NOT BEEN ASSIGNED TO AND DOES NOT OCCUPY GOVERNMENT QUARTERS, AND WHO IS ENTITLED TO A QUARTERS ALLOWANCE FOR A DEPENDENT, WOULD NOT BE PRECLUDED FROM RECEIVING THE ALLOWANCE BY REASON OF THE HOSPITALIZATION OF THE DEPENDENT IN A HOSPITAL UNDER THE JURISDICTION OF THE UNIFORMED SERVICES, SINCE THE FACILITIES UTILIZED BY THE DEPENDENT PRESUMABLY WOULD NOT BE DESIGNATED AS FAMILY-TYPE QUARTERS.

REFERRING TO QUESTION ONE, IF THE MEMBER IS ASSIGNED TO AND OCCUPIES SINGLE-TYPE GOVERNMENT QUARTERS DURING PERIODS WHEN HIS DEPENDENT IS HOSPITALIZED IN A GOVERNMENT HOSPITAL, HE IS NOT ENTITLED TO BE CREDITED WITH THE ALLOWANCE SINCE HE AND HIS DEPENDENT THEN WOULD BE FURNISHED ALL THE QUARTERS THEY COULD USE. SEE B-130107, DATED FEBRUARY 7, 1957, AND SECTION 3 OF THE EXECUTIVE ORDER WHICH EVIDENCES A GENERAL INTENTION THAT IF BOTH THE MEMBER AND HIS DEPENDENT OCCUPY QUARTERS UNDER THE JURISDICTION OF THE UNIFORMED SERVICES WITHOUT THE PAYMENT OF A RENTAL CHARGE, SUCH QUARTERS SHALL BE DEEMED TO HAVE BEEN ASSIGNED TO THE MEMBER AS ADEQUATE QUARTERS AND NO QUARTERS ALLOWANCE SHALL ACCRUE TO HIM UNDER SUCH CIRCUMSTANCES. THIS WOULD BE TRUE WHETHER OR NOT HE MAINTAINS AND OCCASIONALLY OCCUPIES PRIVATE QUARTERS, SINCE ANY SUCH OCCUPANCY WOULD BE A MATTER OF PERSONAL CONVENIENCE NOT OCCASIONED BY NONASSIGNMENT OF GOVERNMENT QUARTERS. HOWEVER, IF SINGLE TYPE QUARTERS ARE ASSIGNED TO A MEMBER WHO CONTINUES TO MAINTAIN AND OCCUPY PRIVATE QUARTERS WHILE HIS DEPENDENT IS HOSPITALIZED, THERE WOULD SEEM TO BE NO REQUIREMENT THAT HE ACCEPT AND OCCUPY SUCH SINGLE QUARTERS, SINCE IT WOULD NOT BE AN ASSIGNMENT OF QUARTERS ADEQUATE FOR HIMSELF AND DEPENDENT, AND IF SUCH QUARTERS ARE, IN FACT, NOT OCCUPIED BY THE MEMBER SUCH AN ASSIGNMENT WOULD NOT PRECLUDE HIM FROM CONTINUING TO RECEIVE QUARTERS ALLOWANCE AS A MEMBER WITH A DEPENDENT DURING THE PERIOD OF HOSPITALIZATION OF THE DEPENDENT. QUESTION NO. 1 IS ANSWERED ACCORDINGLY.

SINCE SIMILAR SITUATIONS EXIST IF THE DEPENDENT IS HOSPITALIZED IN A GOVERNMENT HOSPITAL AT OTHER THAN THE MEMBER'S PERMANENT DUTY STATION, THE ANSWERS TO QUESTION TWO ARE THE SAME.

AS TO QUESTION THREE, SECTION 302 (D), 37 U.S.C. 252 (D), QUOTED ABOVE, PROVIDES THAT A MEMBER ASSIGNED GOVERNMENT QUARTERS SHALL NOT BE DENIED A QUARTERS ALLOWANCE IF, BY REASON OF ORDERS OF COMPETENT AUTHORITY, HIS DEPENDENTS ARE PREVENTED FROM OCCUPYING SUCH QUARTERS. SECTION 4 OF THE EXECUTIVE ORDER PROVIDES THAT WHEN ADEQUATE QUARTERS FOR A MEMBER'S DEPENDENTS ARE NOT AVAILABLE FOR ASSIGNMENT AT HIS STATION, HE MAY OCCUPY NOT MORE THAN ONE ROOM AND A BATH AT HIS STATION WITHOUT AFFECTING HIS RIGHT TO A QUARTERS ALLOWANCE. WHILE A MEMBER WHO OCCUPIES SINGLE QUARTERS DURING A PERIOD OF HOSPITALIZATION OF HIS ONLY DEPENDENT IS NOT ENTITLED TO A QUARTERS ALLOWANCE SINCE THE QUARTERS OCCUPIED ARE DEEMED TO BE ADEQUATE (ANSWER TO QUESTION NO. 1), SUCH QUARTERS WOULD NOT BE ADEQUATE FOR A MEMBER WITH OTHER DEPENDENTS. HENCE, IF ADEQUATE QUARTERS FOR THE MEMBER AND HIS DEPENDENTS WERE NOT AVAILABLE FOR ASSIGNMENT, THE OCCUPANCY BY THE MEMBER OF SINGLE QUARTERS WOULD NOT PRECLUDE HIM FROM RECEIVING A QUARTERS ALLOWANCE ON ACCOUNT OF A DEPENDENT OTHER THAN THE ONE HOSPITALIZED SINCE ADEQUATE QUARTERS WOULD NEITHER BE ASSIGNED NOR OCCUPIED.

WITH RESPECT TO QUESTION FOUR, THERE PRESENTLY DOES NOT APPEAR ANY REASON WHY THE ABOVE ANSWERS WOULD VARY IF A DEPENDENT IS HOSPITALIZED IN A CIVILIAN HOSPITAL UNDER THE DEPENDENTS' MEDICAL CARE ACT, 70 STAT 250, 37 U.S.C. 401, SINCE SUCH HOSPITALIZATION WOULD BE FURNISHED BY THE GOVERNMENT IN LIEU OF HOSPITALIZATION IN A SERVICE FACILITY AND THE GOVERNMENT WOULD PAY IN A SUBSTANTIAL MEASURE FOR THE FACILITIES FURNISHED. COMPARE 27 COMP. GEN. 479, 30 ID. 246, 249; AND 32 ID. 454.