Department of Defense

INSTRUCTION

NUMBER 1338.1

April 18, 1974

ASD(M&RA)

SUBJECT:  Assignment of Public Quarters or Payment of
Basic Allowance for Quarters to Members of the Uniformed
Services 

References:  (a)  Sections 401 and 403 of title 37,
U.S.C. 

(b)  DoD Instruction 1338.1, subject as above, January
30, 1964 (hereby canceled)

(c)  DoD Military Pay and Allowances Entitlements Manual,
authorized by DoD Directive 5154.13, May 1, 1958

(d)  ASD(M&RA) memorandum, "Military Family Housing
or Allowance for Quarters--Female Members," dated June
15, 1973 (hereby canceled)

(e) ASD(M&RA) memorandum, "Military Family Housing Eligibility
- Husband and Wife Members," dated September 13, 1973
(hereby canceled)

1.  REISSUANCE AND PURPOSE 

This Instruction reissues reference (b) and contains
changes that restate policy in regard to assignment
of public quarters for members of the Uniformed Services
or entitlement to the basic allowance for quarters.
  These changes are in consonance, where applicable,
with the Supreme Court decision, Frontiero v. Richardson,
May 14, 1973, which held as unconstitutional those provisions
of sections 401 and 403 of reference (a), which provided
for different treatment of the female member in the
application of dependency criteria for purposes of entitlement
to the basic allowance for quarters.   References (b),
(d) and (e) are hereby superseded and canceled.

2.  APPLICABILITY AND SCOPE 

2.1.  The provisions of this Instruction apply to the
Military Departments.

2.2.  Its provisions do not cover restrictions on authorization
and payment of the basic allowance for quarters, or
rates that will continue to be determined in accordance
with the provisions of the Department of Defense Military
Pay and Allowances Entitlements Manual (reference (c)).

3.  POLICY 

3.1.  It is the policy of the Department of Defense
to encourage maintenance of the family unit.   When
both husband and wife are members of the Uniformed Services,
and stationed at the same or adjacent military installations,
both members are authorized the basic allowance for
quarters prescribed for a member without dependents
when public quarters for dependents are not assigned,
notwithstanding the availability of adequate single
quarters for either or both.

3.2.  When only one person in the family unit is a member
of the Uniformed Services, the following provisions
are applicable:

3.2.1.  The civilian husband of a female member is considered
a presumptive dependent when so claimed, without proof
that he is in fact dependent upon her for over one-half
of his support.

3.2.2.  The female member married to a civilian spouse
is considered a member with dependents for the purpose
of assignment to public quarters or entitlement to the
basic allowance for quarters.

3.2.3. The unmarried, legitimate, minor child of a female
member is also a presumptive dependent when so claimed,
without proof of in fact dependency.

3.2.4.  An unmarried, illegitimate, minor child, whose
parentage has been admitted in writing by a male or
female member, or whose alleged member-father has been
judicially decreed to be the father of the child or
judicially ordered to contribute to the child's support,
may be considered a dependent on submission of adequate
proof of in fact dependency and provision of support,
under conditions set forth in the Department of Defense
Military Pay and Allowances Entitlements Manual (reference
(c)). 

3.2.5.  Entitlement of male members to the basic allowance
for quarters when married to civilians is also set forth
in reference (c). 

3.3.  When both husband and wife are members of the
Uniformed Services with no other dependents and are
stationed or homeported at the same or adjacent military
installations, the following provisions apply:

3.3.1.  Both Officer or Both Enlisted.    Eligibility
for assignment to public quarters for dependents rests
with whichever member both spouses jointly decide. 
 When public quarters are not assigned, both members
are entitled to the basic allowance for quarters, prescribed
for a member without dependents, notwithstanding the
availability of adequate single quarters for assignment
to either or both.    However, when either husband or
wife is on sea duty, or occupies single Government quarters
for any reason and has only the other spouse for consideration
as a dependent, he or she will not be entitled to the
basic allowance for quarters during the period of such
occupancy or while on sea duty.   When adequate public
quarters for dependents are assigned, neither member
is entitled to the basic allowance for quarters.

3.3.2.  Male Enlisted - Female Officer, or Vice Versa.
   Assignment to public quarters under these circumstances
has traditionally not been considered in the best interest
of the Service.   In view of differences in availability
of and requirements for public quarters at various installations,
this tradition of assignment policy need not necessarily
be used as a singular determinate in the assignment
of public quarters.

3.4.  When both parties concerned are members of the
Uniformed Services and either or both have dependents
other than spouse, the assignment to public quarters
for dependents rests with either or both and either
or both may be entitled to the basic allowance for quarters
prescribed for members with dependents when not assigned
to public quarters, under conditions set forth in the
Department of Defense Military Pay and Allowances Entitlements
Manual (reference (c)).

3.4.1.  Both members may not claim the same dependent
for entitlement to the basic allowance for quarters
prescribed for members with dependents.

3.4.2.  When more than one child is born of the same
marriage, only one member may claim those children for
purposes of entitlement to the basic allowance for quarters
prescribed for a member with dependents.

3.4.3.  Members may jointly decide which spouse will
claim the child or children, born of the same marriage,
for purposes of entitlement to the basic allowance for
quarters prescribed for a member with dependents.  
If such determination is not jointly made by the members,
entitlement to such allowance on account of the child
or children will rest with the senior member.

3.4.4.  When public quarters are jointly occupied by
the members, either or both of whom have dependents
other than spouse, neither member will be entitled to
a basic allowance for quarters prescribed for such dependents
even though such dependents do not reside in the quarters.

3.5.  When both parties concerned are members of the
Uniformed Services with no other dependents and when
such parties are precluded by distance from living together,
both parties will normally be treated as members without
dependents for purposes of assignment to public quarters
or determining entitlement to the basic allowance for
quarters.   However, when husband-wife members, who
are both entitled to the basic allowance for quarters
at the same or adjacent military installations, are
geographically separated by competent orders and one
member remains assigned to the old duty station, that
member will normally be authorized continuance of the
basic allowance for quarters prescribed for a member
without dependents, notwithstanding the availability
of adequate single quarters for assignment to him or
her.

4.  EFFECTIVE DATE AND IMPLEMENTATION 

This Instruction is effective immediately.   Two copies
of implementing documents shall be forwarded to the
Assistant Secretary of Defense (Manpower and Reserve
Affairs) within 45 days.