B-123512, JUN. 21, 1955

B-123512, JUN. 21, 1955

TO HONORABLE H. V. HIGLEY, ADMINISTRATOR, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 1, 1955, CONCERNING THE DEPENDENCY STATUS OF THE SON OF ONE OF YOUR EMPLOYEES STATIONED IN THE VETERANS ADMINISTRATION REGIONAL OFFICE, MANILA, PHILIPPINE ISLANDS, AND HOW SUCH STATUS AFFECTS THE EMPLOYEE'S RIGHT TO INCREASED OVERSEAS ALLOWANCES AND RETURN TRANSPORTATION FOR HIS SON TO THE UNITED STATES.

IT APPEARS FROM THE INFORMATION CONTAINED IN YOUR LETTER THAT THE EMPLOYEE REPORTED FOR DUTY IN THE PHILIPPINE ISLANDS IN 1946 AND WAS ACCOMPANIED ON HIS JOURNEY TO THAT POST BY HIS WIFE AND MINOR SON. APPARENTLY HE, TOGETHER WITH HIS WIFE, RETURNED TO THE UNITED STATES IN 1951 FOR THE PURPOSE OF TAKING LEAVE. HIS SON REMAINED IN MANILA TO CONTINUE HIS SCHOOLING. IT WAS UNDERSTOOD BY THE EMPLOYEE THAT HIS SON WOULD BE ALLOWED TO RETURN TO THE UNITED STATES ALONE AT A LATER DATE. MAY 21, 1952, THE SON ATTAINED THE AGE OF MAJORITY (21 YEARS), AT WHICH TIME THE EMPLOYEE'S INCREASED ALLOWANCES ON ACCOUNT OF A DEPENDENT SON WERE DISCONTINUED. AS OF THE FIRST OF THIS YEAR, THE SON STILL HAD NOT RETURNED TO THE UNITED STATES BUT WAS IN HIS FINAL YEAR IN THE COLLEGE OF ENGINEERING OF THE UNIVERSITY OF THE PHILIPPINES. THE EMPLOYEE FEELS THAT BECAUSE HIS SON HAS BEEN IN FULL SCHOOL ATTENDANCE AT ALL TIMES SINCE REACHING THE AGE OF 21 YEARS AND SINCE THE SON'S DEPENDENCY STATUS HAS, IN FACT, AT ALL TIMES CONTINUED HE SHOULD BE REGARDED AS A DEPENDENT OF THE EMPLOYEE FOR PURPOSES OF INCREASED OVERSEAS ALLOWANCES AND RETURN TRANSPORTATION TO THE UNITED STATES AT GOVERNMENT EXPENSE.

SECTION 215C (2) OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS), WHICH REGULATIONS CONTROL THE RIGHT TO OVERSEAS ALLOWANCES, IS AS FOLLOWS:

"C. "FAMILY" (EXCEPT AS USED IN CONNECTION WITH SEPARATION ALLOWANCES - SEE SEC. 261) MEANS ONE OR MORE OF THE FOLLOWING RELATIVES OF AN EMPLOYEE RESIDING AT HIS POST WHO DOES NOT RECEIVE FROM THE UNITED STATES GOVERNMENT AN ALLOWANCE SIMILAR TO THAT GRANTED TO THE EMPLOYEE AND WHO IS NOT DEEMED TO BE A DEPENDENT OR A MEMBER OF THE FAMILY OF ANOTHER EMPLOYEE FOR THE PURPOSE OF DETERMINING THE AMOUNT OF A SIMILAR ALLOWANCE:

"/2) CHILDREN (INCLUDING STEPCHILDREN AND ADOPTED CHILDREN) UNMARRIED AND UNDER TWENTY-ONE YEARS OF AGE OR PHYSICALLY OR MENTALLY INCAPABLE OF SUPPORTING THEMSELVES REGARDLESS OF AGE; "

SIMILARLY, SECTION 1 (D) OF EXECUTIVE ORDER NO. 9805, NOVEMBER 25, 1946, WHICH ORDER CONTROLS THE RIGHT TO RETURN TRANSPORTATION FROM OVERSEAS POSTS OF DUTY, DEFINES THE TERM "IMMEDIATE AMILY" AS FOLLOWS:

" "IMMEDIATE FAMILY" MEANS ANY OF THE FOLLOWING-NAMED MEMBERS OF THE EMPLOYEE'S HOUSEHOLD: SPOUSE, CHILDREN (INCLUDING STEPCHILDREN AND ADOPTED CHILDREN) UNMARRIED AND UNDER TWENTY-ONE YEARS OF AGE OR PHYSICALLY OR MENTALLY INCAPABLE OF SUPPORTING THEMSELVES REGARDLESS OF AGE, OR DEPENDENT PARENTS OF THE EMPLOYEE (BUT NOT OF THE SPOUSE).'

NEITHER OF THE QUOTED REGULATIONS INCLUDE CHILDREN OVER 21 YEARS OF AGE AS MEMBERS OF THE EMPLOYEE'S FAMILY FOR PURPOSES OF ENTITLING THE EMPLOYEE TO INCREASED BENEFITS ON THEIR ACCOUNT UNLESS, OF COURSE, THEY ARE PHYSICALLY OR MENTALLY INCAPABLE OF SUPPORTING THEMSELVES. THE FACT THAT SUCH CHILDREN MAY, BY REASON OF THEIR EDUCATIONAL PURSUITS, CONTINUE TO BE DEPENDENT UPON THE EMPLOYEE FOR SUPPORT DOES NOT ENLARGE THE RIGHT OF THE EMPLOYEE UNDER THE REGULATIONS. BECAUSE OF THE CLEAR LANGUAGE OF BOTH EXECUTIVE ORDER NO. 9805 AND THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS), DEFINING THE SCOPE OF THE TERM "CHILDREN" TO INCLUDE ONLY UNMARRIED CHILDREN UNDER 21 YEARS OF AGE, WE MUST CONCLUDE THAT UNDER SUCH REGULATIONS PAYMENT OF INCREASED OVERSEAS ALLOWANCES AND TRANSPORTATION ON ACCOUNT OF THE EMPLOYEE'S SON WOULD NOT BE AUTHORIZED.