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B-150452, SEP. 16, 1963

B-150452 Sep 16, 1963
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FC: REFERENCE IS MADE TO OUR DECISION OF FEBRUARY 1. YOUR LETTER WAS FORWARDED BY SECOND INDORSEMENT DATED DECEMBER 10. TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE AND WAS ASSIGNED PDTATAC CONTROL NO. 62-25. YOU WERE ADVISED IN OUR DECISION OF FEBRUARY 1. THE WORDS "IN FACT DEPENDENT" INCLUDED IN SECTION 401 (2) OF THE STATUTE EXPRESS THE INTENT THAT THE STEPCHILD MAY BE CONSIDERED A DEPENDENT FOR THE PURPOSE OF THE STATUTE ONLY WHEN IT IS ESTABLISHED THAT THE STEPCHILD ACTUALLY IS DEPENDENT UPON THE MEMBER FOR ITS SUPPORT. THAT ITS TRANSPORTATION IS NECESSARY INCIDENT TO THE MEMBER'S CHANGE OF STATION. YOU WERE ALSO ADVISED IN OUR DECISION THAT THE STATUTE DOES NOT IMPOSE UPON THE GOVERNMENT A LIABILITY WITH RESPECT TO MAINTAINING AND TRANSPORTING A STEPCHILD WITH AN INDEPENDENT INCOME FOR THE PURPOSE OF CONSERVING ITS INCOME.

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B-150452, SEP. 16, 1963

TO LIEUTENANT COLONEL J. E. BATTISTA, FC:

REFERENCE IS MADE TO OUR DECISION OF FEBRUARY 1, 1963, B-150452, ISSUED IN REPLY TO THE REQUEST IN YOUR LETTER DATED OCTOBER 10, 1962, FOR AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT TO COLONEL FRANCIS T. DEVLIN, 023314, AS REIMBURSEMENT FOR THE COST OF TRANSPORTATION OF HIS STEPCHILDREN, CYNTHIA A. DEVLIN AND LOUIS W. DEVLIN, FROM WASHINGTON, D.C., TO PALO ALTO, CALIFORNIA, AUGUST 22 TO SEPTEMBER 2, 1962, INCIDENT TO PERMANENT CHANGE OF STATION ORDERS DATED AUGUST 7, 1962. YOUR LETTER WAS FORWARDED BY SECOND INDORSEMENT DATED DECEMBER 10, 1962, OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE AND WAS ASSIGNED PDTATAC CONTROL NO. 62-25.

YOU WERE ADVISED IN OUR DECISION OF FEBRUARY 1, 1963, THAT IN ORDER FOR A MEMBER OF THE UNIFORMED SERVICES TO BE ENTITLED TO REIMBURSEMENT FOR TRANSPORTATION OF HIS STEPCHILDREN UNDER THE PROVISIONS OF THE PERTINENT STATUTE, 37 U.S.C. 406, THEY MUST BE IN FACT DEPENDENT UPON THE MEMBER. THE WORDS "IN FACT DEPENDENT" INCLUDED IN SECTION 401 (2) OF THE STATUTE EXPRESS THE INTENT THAT THE STEPCHILD MAY BE CONSIDERED A DEPENDENT FOR THE PURPOSE OF THE STATUTE ONLY WHEN IT IS ESTABLISHED THAT THE STEPCHILD ACTUALLY IS DEPENDENT UPON THE MEMBER FOR ITS SUPPORT, MAINTENANCE AND EDUCATION. SEE 35 COMP. GEN. 536. WE STATED THAT THE FACTS THAT THE CHILD MAY LIVE WITH THE MEMBER, THAT ITS TRANSPORTATION IS NECESSARY INCIDENT TO THE MEMBER'S CHANGE OF STATION, OR THAT THE AMOUNT CONTRIBUTED BY THE MEMBER IMPROVES THE LIVING CONDITIONS OF THE CHILD DO NOT, OF THEMSELVES, MAKE THE CHILD IN FACT DEPENDENT UPON THE MEMBER. SEE 34 COMP. GEN. 625.

YOU WERE ALSO ADVISED IN OUR DECISION THAT THE STATUTE DOES NOT IMPOSE UPON THE GOVERNMENT A LIABILITY WITH RESPECT TO MAINTAINING AND TRANSPORTING A STEPCHILD WITH AN INDEPENDENT INCOME FOR THE PURPOSE OF CONSERVING ITS INCOME. WE HAVE HELD THAT PENSION PAYMENTS MUST BE CONSIDERED AS INCOME IN DETERMINING THE DEPENDENCY STATUS OF ALLEGED DEPENDENT STEPCHILDREN, NOTWITHSTANDING THE FACT THAT SUCH PAYMENTS WERE REQUIRED BY THE SUPERIOR COURT OF THE STATE OF CALIFORNIA TO BE USED FOR THE PURCHASE OF UNITED STATES SAVINGS BONDS AS A TRUST FUND FOR THE OFFICER'S STEPCHILDREN. SEE 34 COMP. GEN. 694; B-126476, APRIL 2, 1956. SIMILARLY, IN THIS CASE THE INTEREST WHICH ACCRUES TO THE TRUST FUND OF APPROXIMATELY $30,000 FOR EACH STEPCHILD OF THE MEMBER, HELD BY THE OMAHA NATIONAL BANK, OMAHA, NEBRASKA, AS FINANCIAL GUARDIAN, UNTIL THE CHILDREN REACH THE AGE OF 21 YEARS, MUST BE CONSIDERED INCOME FOR THE PURPOSE OF DETERMINING THEIR DEPENDENCY STATUS.

WE HELD IN THE DECISION OF FEBRUARY 1, 1963, THAT WHILE THE AMOUNT OF INCOME THROUGH INVESTMENT ACCRUING TO THE TRUST FUND FOR THE MEMBER'S STEPCHILDREN WAS NOT SHOWN, IT WAS ASSUMED TO BE SUBSTANTIAL, AND, THEREFORE, IT COULD NOT BE CONSIDERED THAT THE RECORD ESTABLISHED THAT THE STEPCHILDREN WERE IN FACT DEPENDENT UPON THE OFFICER WITHIN THE MEANING OF 37 U.S.C. 401 (2) OR THAT THE OFFICER WAS ENTITLED TO A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION ON THEIR ACCOUNT. THE MEMBER HAS NOW SUBMITTED A LETTER DATED MAY 7, 1963, FROM THE OMAHA NATIONAL BANK, FINANCIAL GUARDIAN OF THE STEPCHILDREN, WHICH STATES THAT BASED ON 1962 REPORTS THE ESTIMATED 1963 INCOME FROM THE TRUST FUND FOR EACH CHILD IS APPROXIMATELY $1,400, WITH EXPENSES OF APPROXIMATELY $300, LEAVING A NET INCOME OF $1,100 FOR EACH CHILD. IT IS INDICATED THAT THE INCOME FOR 1962 WAS APPROXIMATELY THE SAME. THE MEMBER STATES THAT HE CONTRIBUTES $290 MONTHLY FOR THE SUPPORT OF THE TWO STEPCHILDREN AND THAT THE CHILDREN'S LIVING EXPENSES AVERAGE $290 PER MONTH (FOOD $100, CLOTHING $50, SHELTER $100, MISCELLANEOUS $40), OR $3,480 PER YEAR.

THE STATUTE AUTHORIZING REIMBURSEMENT FOR THE COST OF TRANSPORTATION OF DEPENDENTS, WHILE NO DOUBT CONTEMPLATING SUBSTANTIAL DEPENDENCY, DOES NOT SPECIFY CHIEF SUPPORT OR REQUIRE THAT ANY CERTAIN DEGREE OF DEPENDENCY BE SHOWN REGARDING STEPCHILDREN OR ADOPTED CHILDREN. 34 COMP. GEN. 193; COMPARE B-124149, DECEMBER 23, 1955. IT APPEARS FROM THE SUBMITTED EVIDENCE THAT THE STEPCHILDREN ARE DEPENDENT ON THE MEMBER TO THE EXTENT OF APPROXIMATELY 36 PERCENT OF THE AMOUNT REQUIRED FOR THEIR SUPPORT. THEREFORE, SINCE THE MEMBER ACTUALLY CONTRIBUTES SUBSTANTIALLY TO THE SUPPORT, MAINTENANCE, AND EDUCATION OF HIS STEPCHILDREN AND SINCE THEIR INCOME IS NOT SUFFICIENT FOR THEIR ENTIRE SUPPORT, IT IS CONCLUDED THAT THEY WERE IN FACT DEPENDENT UPON HIM FOR THE PURPOSE OF TRANSPORTATION INCIDENT TO HIS PERMANENT CHANGE OF STATION.

ACCORDINGLY, THE VOUCHER AND SUPPORTING PAPERS WHICH WERE SUBMITTED WITH YOUR LETTER OF OCTOBER 10, 1962, ARE RETURNED, PAYMENT ON THE VOUCHER BEING AUTHORIZED, IF OTHERWISE CORRECT.

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