B-118875, OCTOBER 25, 1954, 34 COMP. GEN. 193

B-118875: Oct 25, 1954

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MAY BE CONSIDERED TO HAVE STEPCHILD IN FACT DEPENDENT UPON HIM WITHIN THE CONTEMPLATION OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949. WHO IS A MEMBER OF THE OFFICER'S HOUSEHOLD AND WHOSE MOTHER IS RECEIVING FROM HIS NATURAL FATHER $80 PER MONTH FOR THE BOY'S SUPPORT AND EDUCATION. THERE WERE SUBMITTED IN SUPPORT OF THE VOUCHER. IN THE EARLIER CERTIFICATE THE OFFICER CERTIFIES THAT THE CHILD IS THE LEGITIMATE SON OF HIS WIFE BY A PRIOR MARRIAGE. WERE HE NOT A MEMBER OF MY HOUSEHOLD WOULD NOT BE SUFFICIENT FOR HIS SUPPORT. WHEREAS I HAVE KEPT NO ABSOLUTE RECORD IN DOLLARS AND CENTS THAT SUM IS NOT SUFFICIENT FOR HIS ENTIRE MONTHLY SUPPORT WHEN BASED OVER THE YEARS. I MUST DEFRAY HIS ENTIRE TRANSPORTATION EXPENSES AS HE IS A VALID MEMBER OF MY FAMILY AND NATURALLY PERFORMS THE TRAVEL INVOLVED.

B-118875, OCTOBER 25, 1954, 34 COMP. GEN. 193

TRANSPORTATION - DEPENDENTS - MILITARY, NAVAL, ETC., PERSONNEL - STEPCHILDREN A MARINE CORPS OFFICER WHO REGULARLY MAKES SUBSTANTIAL CONTRIBUTIONS TO THE SUPPORT, MAINTENANCE, AND EDUCATION OF HIS MINOR STEPCHILD, A MEMBER OF THE HOUSEHOLD WITHOUT INDEPENDENT MEANS, MAY BE CONSIDERED TO HAVE STEPCHILD IN FACT DEPENDENT UPON HIM WITHIN THE CONTEMPLATION OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, SO AS TO BE ENTITLED TO REIMBURSEMENT FOR THE COST OF THE STEPCHILD'S TRANSPORTATION, EVEN THOUGH THE OFFICER'S WIFE RECEIVES CONTRIBUTIONS FOR SUPPORT OF THE CHILD FROM THE NATURAL FATHER.

ACTING COMPTROLLER GENERAL WEITZEL TO MAJOR EUGENE E. GREENING, UNITED STATES MARINE CORPS, OCTOBER 25, 1954:

BY FIRST ENDORSEMENT DATED FEBRUARY 9, 1954, THE COMMANDANT OF THE MARINE CORPS REFERRED TO THIS OFFICE YOUR LETTER OF NOVEMBER 4, 1953, SUBMITTING FOR ADVANCE DECISION A VOUCHER STATED IN FAVOR OF FRED ELIAS PRATT, CWO, USMC, FOR REIMBURSEMENT OF THE COST OF TRANSPORTATION OF HIS STEPSON (16 YEARS OF AGE) FROM OCEANSIDE, CALIFORNIA, TO PORTSMOUTH, VIRGINIA, THE TRAVEL HAVING BEEN PERFORMED DURING THE PERIOD FROM JULY 7 TO 19, 1952, PURSUANT TO FOURTH ENDORSEMENT DATED JUNE 18, 1952, ON ORDERS DATED MAY 27, 1952. YOUR DOUBT AS TO THE PROPRIETY OF PAYMENT STEMS FROM THE QUESTION WHETHER THE STEPSON, WHO IS A MEMBER OF THE OFFICER'S HOUSEHOLD AND WHOSE MOTHER IS RECEIVING FROM HIS NATURAL FATHER $80 PER MONTH FOR THE BOY'S SUPPORT AND EDUCATION, MAY BE CONSIDERED A ,DEPENDENT" OF MR. PRATT AS DEFINED IN THE LAWS AND REGULATIONS AUTHORIZING REIMBURSEMENT FOR THE COST OF TRANSPORTATION OF DEPENDENTS.

THERE WERE SUBMITTED IN SUPPORT OF THE VOUCHER, THE OFFICER'S TWO CERTIFICATES, DATED NOVEMBER 4 AND DECEMBER 14, 1953, CONCERNING THE RELATIONSHIP AND DEPENDENCY STATUS OF THE STEPCHILD. IN THE EARLIER CERTIFICATE THE OFFICER CERTIFIES THAT THE CHILD IS THE LEGITIMATE SON OF HIS WIFE BY A PRIOR MARRIAGE, AND THAT---

* * * MY STEPSON HAS BEEN A MEMBER OF MY HOUSEHOLD SINCE MY MARRIAGE TO HIS MOTHER. MY WIFE RECEIVES $80.00 PER MONTH FROM THE SON'S FATHER FOR HIS SUPPORT. HOWEVER, THIS SUM, WERE HE NOT A MEMBER OF MY HOUSEHOLD WOULD NOT BE SUFFICIENT FOR HIS SUPPORT, AND, WHEREAS I HAVE KEPT NO ABSOLUTE RECORD IN DOLLARS AND CENTS THAT SUM IS NOT SUFFICIENT FOR HIS ENTIRE MONTHLY SUPPORT WHEN BASED OVER THE YEARS. ONE MAJOR ELEMENT BEING THE FACT THAT AS A MEMBER OF THE UNIFORMED SERVICES, UPON TRANSFER FROM STATION TO STATION, I MUST DEFRAY HIS ENTIRE TRANSPORTATION EXPENSES AS HE IS A VALID MEMBER OF MY FAMILY AND NATURALLY PERFORMS THE TRAVEL INVOLVED.

IN THE LATER CERTIFICATE THE OFFICER CERTIFIES THAT THE AMOUNT REQUIRED FOR THE STEPSON'S REASONABLE AND PROPER LIVING EXPENSES EACH MONTH AMOUNTS TO $140, CONSISTING OF ROOM AND BOARD $100, LAUNDRY AND DRY CLEANING $10, CLOTHING AND INCIDENTAL $10, AND SCHOOL AND ALLOWANCE $20, AND THAT DURING THE PERIOD COVERED BY THE VOUCHER ( JULY 1952) HE CONTRIBUTED THE SUM OF $318.26 FOR THE SUPPORT OF THE STEPSON, WHICH AMOUNT INCLUDES THE BOY'S NORMAL EXPENSES OF $140 AND THE SUM OF $178.26, THE AMOUNT CLAIMED. THE OFFICER EXPLAINS THAT THE BOY'S NORMAL LIVING EXPENSES DO NOT INCLUDE WEAR AND TEAR ON HIS CAR, THE INCREASED INSURANCE THEREON, AND INNUMERABLE SMALL EXPENSES INCURRED DUE TO THE FACT THAT THE BOY DRIVES THE CAR. EXPLAINS FURTHER THAT DURING THE PERIOD COVERED BY THE VOUCHER, ADDITIONAL EXPENSES WERE INCURRED BY HIM ON ACCOUNT OF THE STEPSON IN VIEW OF THE TEMPORARILY HIGH COST OF LODGING AND RESTAURANT MEALS WHILE AWAITING AVAILABILITY OF GOVERNMENT QUARTERS AT PORTSMOUTH, VIRGINIA, AND THAT---

THE CHILD DOES NOT HAVE A MONTHLY INCOME FROM ANY SOURCE. THE CHILD'S MOTHER, MY LEGAL WIFE, IS IN RECEIPT OF COURT ORDER AFFORDING HER MONTHLY PAYMENTS FROM THE CHILD'S LEGAL FATHER OF EIGHTY DOLLARS ($80.00) AS CONTRIBUTION TO HIS (THE CHILDS) SUPPORT AND EDUCATION. NO OTHER SOURCES OF INCOME.

SUBSECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, 815, IN EFFECT DURING THE PERIOD HERE INVOLVED, PROVIDES, IN MATERIAL PART, THAT UNDER SUCH CONDITIONS AND LIMITATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES, WHEN ORDERED TO MAKE A PERMANENT CHANGE OF STATION, SHALL BE ENTITLED TO TRANSPORTATION IN KIND FOR DEPENDENTS OR TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE IN LIEU OF SUCH TRANSPORTATION IN KIND. REGULATIONS PROMULGATED UNDER THAT AUTHORITY ARE CONTAINED IN THE JOINT TRAVEL REGULATIONS. SECTION 7003, JOINT TRAVEL REGULATIONS, PROVIDES THAT A MEMBER WHO ELECTS TO TRANSPORT HIS DEPENDENTS AT HIS OWN EXPENSE IS ENTITLED TO A MONETARY ALLOWANCE AT SPECIFIED RATES FOR ALL TRAVEL PERFORMED WITHIN THE UNITED STATES. SUBSECTION 102 (G) OF THE CITED ACT, 63 STAT. 804, DEFINING THE TERM "DEPENDENT" FOR THE PURPOSES OF THE STATUTE, IS IN PERTINENT PART AS FOLLOWS:

THE TERM "DEPENDENT" SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES THE LAWFUL WIFE AND UNMARRIED LEGITIMATE CHILDREN, UNDER TWENTY-ONE YEARS OF AGE, OF ANY MEMBER OF THE UNIFORMED SERVICES, EXCEPT AS HEREINAFTER LIMITED IN THIS SUBSECTION. * * * PROVIDED, THAT THE TERM "CHILDREN" SHALL BE HELD TO INCLUDE STEPCHILDREN AND ADOPTED CHILDREN WHEN SUCH STEPCHILDREN OR ADOPTED CHILDREN ARE IN FACT DEPENDENT UPON SUCH MEMBER: * * * (ITALICS SUPPLIED.)

THE PROVISIONS OF THE ACT, INSOFAR AS STEPCHILDREN AND ADOPTED CHILDREN ARE CONCERNED, ARE SUBSTANTIALLY THE SAME AS THE PROVISIONS OF PRIOR SIMILAR STATUTES CONCERNING THE ENTITLEMENT OF MEMBERS OF THE UNIFORMED SERVICES TO TRANSPORTATION AND OTHER ALLOWANCES ON ACCOUNT OF SUCH DEPENDENTS. THE WORDS "IN FACT DEPENDENT" WERE USED TO EXPRESS THE INTENT THAT A STEPCHILD OR AN ADOPTED CHILD MAY BE CONSIDERED A DEPENDENT FOR THE PURPOSES OF THE STATUTES ONLY WHEN IT IS ESTABLISHED THAT THE STEPCHILD OR THE ADOPTED CHILD ACTUALLY IS DEPENDENT ON THE MEMBER OF THE UNIFORMED SERVICES FOR ITS SUPPORT, MAINTENANCE, AND EDUCATION. WHERE DEPENDENCY IN FACT IS A CONDITION PRECEDENT TO ENTITLEMENT, CLEAR AND CONVINCING EVIDENCE IS REQUIRED TO ESTABLISH THE FACT. WHERE SUFFICIENT FUNDS ARE AVAILABLE FROM SOURCES OTHER THAN THE MEMBER, EITHER DIRECTLY OR INDIRECTLY, FOR THE SUPPORT, MAINTENANCE AND EDUCATION OF A STEPCHILD OR AN ADOPTED CHILD, THE CHILD IS NOT IN FACT DEPENDENT UPON THE MEMBER. 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. 23084, APRIL 2, 1942; B 89140 OCTOBER 5, 1949; B-94657, FEBRUARY 9, 1951. AND, NOTWITHSTANDING THE INTERPRETATION OF THE WORD "INCOME" AS USED IN DIFFERENT CONNOTATIONS IN OTHER STATUTES, THE CONCLUSION APPEARS REQUIRED, WITH RESPECT TO THE STATUTE HERE INVOLVED, THAT THE PAYMENTS RECEIVED BY A MEMBER'S WIFE FROM A FORMER HUSBAND FOR THE SUPPORT, MAINTENANCE AND EDUCATION OF THE MEMBER'S STEPCHILD ARE PROPERLY TO BE REGARDED AS INCOME IN DETERMINING WHETHER AN ALLEGED DEPENDENT WAS, OR IS, IN FACT DEPENDENT UPON THE MEMBER.

THE STATUTE, HOWEVER, WHILE NO DOUBT CONTEMPLATING SUBSTANTIAL DEPENDENCY, DOES NOT SPECIFY CHIEF SUPPORT OR REQUIRE THAT ANY CERTAIN DEGREE OF DEPENDENCY BE SHOWN WITH REGARD TO STEPCHILDREN OR ADOPTED CHILDREN. SINCE THE OFFICER NECESSARILY AND REGULARLY CONTRIBUTES SUBSTANTIALLY TO THE SUPPORT, MAINTENANCE AND EDUCATION OF HIS STEPCHILD, SINCE THE STEPCHILD IS A MEMBER OF THE OFFICER'S HOUSEHOLD, AND SINCE THE CHILD IS NOT IN RECEIPT OF FUNDS EITHER DIRECTLY OR INDIRECTLY FROM SOURCES OTHER THAN THE OFFICER SUFFICIENT FOR HIS SUPPORT, MAINTENANCE AND EDUCATION, IT IS CONCLUDED THAT THE CHILD IS IN FACT DEPENDENT UPON THE OFFICER FOR THE PURPOSE OF TRANSPORTATION ON PERMANENT CHANGE OF STATION. B-3032, MAY 9, 1939.

ACCORDINGLY, THE VOUCHER AND THE OFFICER'S ORIGINAL TRAVEL ORDERS SUBMITTED WITH YOUR LETTER ARE RETURNED HEREWITH, PAYMENT ON THE VOUCHER BEING AUTHORIZED, IF OTHERWISE CORRECT.