B-125889, FEB. 6, 1956

B-125889, FEB. 6, 1956

TO MAJOR L. L. PERSONS, FC, FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

YOUR LETTER OF SEPTEMBER 28, 1955, WITH ENCLOSURES, WHICH WAS FORWARDED TO OUR OFFICE OCTOBER 24, 1955, BY THE CHIEF OF FINANCE, REQUESTS AN ADVANCE DECISION WHETHER THE OCCUPANCY OF GOVERNMENT QUARTERS BY AN OFFICER'S ESTRANGED WIFE AND TWO LEGITIMATE CHILDREN ON A RENT-FREE BASIS PRECLUDES CREDIT OF BASIC ALLOWANCE FOR QUARTERS TO SUCH MEMBER FOR A LEGITIMATE CHILD BY A PREVIOUS MARRIAGE WHERE SUPPORT OF SUCH CHILD IS REQUIRED BY COURT ORDER.

ONE OF THE ENCLOSURES SUBMITTED WITH YOUR LETTER IS A COPY OF A WRITTEN SEPARATION AGREEMENT EXECUTED BY THE OFFICER AND HIS WIFE ON FEBRUARY 18, 1954, RELATING TO THEIR REAL AND PERSONAL PROPERTY AND GRANTING CUSTODY OF THE TWO MINOR CHILDREN TO THE WIFE. THIS AGREEMENT ALSO PROVIDES FOR AN ALLOTMENT OF $150 PER MONTH FOR THE SUPPORT OF THE MINOR CHILDREN. THE RECORD SHOWS THE WIFE, WHO IS EMPLOYED OVERSEAS AS A CIVILIAN EMPLOYEE, AND THE OFFICER'S TWO MINOR CHILDREN HAVE BEEN OCCUPYING GOVERNMENT QUARTERS FREE OF CHARGE SINCE APRIL 6, 1954. ALSO, THERE WAS ENCLOSED A COPY OF A DECREE OF DIVORCE GRANTED THE OFFICER AND A PREVIOUS WIFE IN THE DISTRICT COURT OF NUECES COUNTY, TEXAS, IN JANUARY 1946, IN WHICH THE WIFE WAS GIVEN COMPLETE CUSTODY, CONTROL AND EDUCATION OF THEIR MINOR CHILD AND WHICH ALSO ORDERED THE OFFICER TO PAY $35 PER MONTH TO THE CHILD'S MOTHER FOR THE SUPPORT OF THE CHILD.

SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, PROVIDES IN MATERIAL PART THAT MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO BASIC PAY SHALL BE ENTITLED TO RECEIVE A BASIC ALLOWANCE FOR QUARTERS FOR THEIR DEPENDENTS WHEN SUCH DEPENDENTS ARE NOT ASSIGNED TO OR OCCUPYING GOVERNMENT QUARTERS. SECTION 102 OF THE LAW, 63 STAT. 804, DEFINES THE TERM "DEPENDENT" AS INCLUDING AT ALL TIMES AND IN ALL PLACES THE LAWFUL WIFE AND UNMARRIED LEGITIMATE CHILDREN UNDER TWENTY-ONE YEARS OF AGE. THESE PROVISIONS WERE DRAWN WITH RESPECT TO THE NORMAL SITUATION OF A HUSBAND AND FATHER AS THE HEAD OF THE FAMILY WITH THE DUTY OF SUPPORTING HIS WIFE AND CHILDREN.

WHILE THE OFFICER HAS A TECHNICAL MARRIED STATUS, IT WOULD APPEAR FROM THE SEPARATION AGREEMENT THAT THE FAMILY TIES HAVE BEEN SEVERED BY MUTUAL CONSENT AND HE HAS RENOUNCED HIS OBLIGATION TO SUPPORT HIS WIFE. IN THE CIRCUMSTANCES, OUR VIEW IS THAT SHE IS NOT A DEPENDENT WITHIN THE CONTEMPLATION OF THE LAW. THEREFORE, THE OCCUPANCY OF GOVERNMENT QUARTERS BY HIS WIFE ON A RENT-FREE BASIS IN HER CAPACITY AS A CIVILIAN EMPLOYEE OF THE GOVERNMENT WOULD NOT AFFECT THE OFFICER'S RIGHT TO A BASIC ALLOWANCE FOR QUARTERS ON BEHALF OF OTHER DEPENDENTS. FURTHER, SINCE THE TWO MINOR CHILDREN OF HIS PRESENT MARRIAGE OCCUPY THE RENT-FREE GOVERNMENT QUARTERS WITH THEIR MOTHER, THE OFFICER IS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS ON THEIR BEHALF, EVEN THOUGH HE IS OBLIGATED TO SUPPORT THEM.

CONCERNING THE LEGITIMATE CHILD BY A PREVIOUS MARRIAGE, SINCE THE DIVORCE DECREE REQUIRES THE OFFICER TO CONTRIBUTE A SPECIFIC SUM EACH MONTH FOR SUPPORT OF THE CHILD AND SINCE THE OFFICER HAS CERTIFIED HE IS CONTRIBUTING THAT SUM THROUGH AN ALLOTMENT IN FAVOR OF THE CHILD'S MOTHER AND HE IS NOT ASSIGNED QUARTERS FOR DEPENDENTS, THERE DOES NOT APPEAR TO BE ANY REASON WHY PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS SHOULD NOT BE MADE TO HIM AS AN OFFICER WITH A DEPENDENT CHILD. ACCORDINGLY, IF OTHERWISE PROPER, PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS MAY BE MADE TO THE OFFICER ON THE BASIS OF A DEPENDENT FROM APRIL 6, 1954, AND SO LONG THEREAFTER AS THERE IS NO MATERIAL CHANGE IN THE STATUS OF HIS DEPENDENTS AND HE IS NOT ASSIGNED QUARTERS FOR DEPENDENTS.