B-124149, DEC 23, 1955

B-124149: Dec 23, 1955

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PRECIS-UNAVAILABLE SECRETARY OF DEFENSE: REFERENCE IS MADE TO LETTER DATED MAY 27. FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING DECISION ON A NUMBER OF QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH PRESCRIBING SPECIFIC GUIDE LINES TO BE USED IN DETERMINING "THE DEGREE OF SUPPORT REQUIRED TO ESTABLISH 'IN FACT' DEPENDENCY UNDER THE PROVISIONS OF SECTION 102(G) OF THE CAREER COMPENSATION ACT OF 1949. THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE STATES IN COMMITTEE ACTION NO. 119 THAT THE SERVICES HAVE CONSTRUED THE TERM "IN FACT DEPENDENT" AS IT RELATED TO STEPCHILDREN AND ADOPTED CHILDREN IN SECTION 102(G) OF THE CAREER COMPENSATION ACT OF 1949. THAT THEY HAVE CONSIDERED THAT THE SAME DEGREE OF DEPENDENCY IS REQUIRED TO ESTABLISH ENTITLEMENT TO REIMBURSEMENT FOR TRANSPORTATION OF A STEP OR ADOPTED CHILD AS IS REQUIRED TO ESTABLISH ENTITLEMENT TO PAYMENT OF ALLOWANCES FOR QUARTERS ON ACCOUNT OF SUCH A CHILD.

B-124149, DEC 23, 1955

PRECIS-UNAVAILABLE

SECRETARY OF DEFENSE:

REFERENCE IS MADE TO LETTER DATED MAY 27, 1955, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING DECISION ON A NUMBER OF QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH PRESCRIBING SPECIFIC GUIDE LINES TO BE USED IN DETERMINING "THE DEGREE OF SUPPORT REQUIRED TO ESTABLISH 'IN FACT' DEPENDENCY UNDER THE PROVISIONS OF SECTION 102(G) OF THE CAREER COMPENSATION ACT OF 1949, PARTICULARLY WITH RESPECT TO STEP- CHILDREN AND ADOPTED CHILDREN."

THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE STATES IN COMMITTEE ACTION NO. 119 THAT THE SERVICES HAVE CONSTRUED THE TERM "IN FACT DEPENDENT" AS IT RELATED TO STEPCHILDREN AND ADOPTED CHILDREN IN SECTION 102(G) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, TO MEAN DEPENDENT UPON THE SERVICE MEMBER FOR OVER ONE-HALF SUPPORT, AND FURTHER, THAT THEY HAVE CONSIDERED THAT THE SAME DEGREE OF DEPENDENCY IS REQUIRED TO ESTABLISH ENTITLEMENT TO REIMBURSEMENT FOR TRANSPORTATION OF A STEP OR ADOPTED CHILD AS IS REQUIRED TO ESTABLISH ENTITLEMENT TO PAYMENT OF ALLOWANCES FOR QUARTERS ON ACCOUNT OF SUCH A CHILD. ALSO, THAT THE FACT THAT A STEP OR ADOPTED CHILD RESIDED IN THE HOUSEHOLD OF THE MEMBER HAS NOT BEEN REGARDED AS A MATERIAL ELEMENT IN DETERMINING ITS DEPENDENCY STATUS.

THE COMMITTEE STATES, IN SUBSTANCE, HOWEVER, THAT DOUBT CONCERNING THESE MATTERS HAS ARISEN BECAUSE OF OUR DECISION OF OCTOBER 24, 1954, 34 COMP. GEN. 193, INVOLVING THE CLAIM OF AN OFFICER FOR REIMBURSEMENT FOR TRANSPORTATION OF A STEPSON WHO WAS A MEMBER OF THE OFFICER'S HOUSEHOLD AND TO WHOSE SUPPORT THE OFFICER CONTRIBUTED $60 A MONTH OF A NECESSARY $140. IN THAT DECISION, AFTER STATING THAT WHILE THE STATUTE DOES NOT SPECIFY CHIEF SUPPORT, OR REQUIRE ANY CERTAIN DEGREE OF DEPENDENCY TO BE SHOWN, IT NO DOUBT CONTEMPLATED SUBSTANTIAL DEPENDENCY, THE CHILD WAS HELD TO BE DEPENDENT FOR THE REASON, AMONG OTHERS, THAT HE WAS A MEMBER OF THE OFFICER'S HOUSEHOLD. IN THE LIGHT OF THIS DECISION AND THE CURRENT POLICIES AND PROCEDURES OF THE UNIFORMED SERVICES THE COMMITTEE CONCLUDES (1) THAT RESIDENCY OF THE STEPCHILD IN THE MEMBER'S HOUSEHOLD SHOULD BE EXCLUDED AS A FACTOR IN DETERMINING "IN FACT" DEPENDENCY, (2) THAT A MEMBER NEED NOT CONTRIBUTE OVER ONE-HALF TOWARDS THE SUPPORT OF AN ADOPTED CHILD OR STEPCHILD TO BE CONSIDERED A MEMBER WITH DEPENDENTS, AND (3) THAT SINCE THE STATUTE IS SILENT AS TO THE DEGREE OF SUPPORT REQUIRED AND THE WORD "SUBSTANTIAL" IS A RELATIVE TERM IT IS CONSIDERED REASONABLE TO ASSIGN 30% AS A MINIMUM DEGREE OF SUPPORT REQUIRED TO ESTABLISH "IN FACT" DEPENDENCY.

THE QUESTIONS PRESENTED TOGETHER WITH COMMENTS RELATIVE TO ADMINISTRATIVE POLICIES, PROCEDURES AND RECOMMENDATIONS, ARE AS FOLLOWS:

QUESTION 1.

"A WIDOWED OFFICER HAS A STEPCHILD AGE 16 ATTENDING A PRIVATE MILITARY ACADEMY. TOTAL MONTHLY EXPENSES FOR SEPTEMBER THRU MAY ARE $150 PER MONTH OF WHICH THE OFFICER FURNISHES $80 EACH MONTH. DURING JUNE, JULY AND AUGUST THE CHILD LIVES WITH HIS STEPFATHER AND INCURS $100 EXPENSES EACH MONTH OF WHICH THE OFFICER CONTRIBUTES $30 EACH MONTH. $70 PER MONTH THROUGHOUT THE YEAR IS CONTRIBUTED TO THE CHILD'S SUPPORT BY HIS NATURAL FATHER IN ACCORDANCE WITH A COURT ORDER.

"UNDER CURRENT REGULATIONS THE SERVICES WOULD APPROVE THE FOREGOING CASE FOR THE OFFICER'S ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS FOR SEPTEMBER THRU MAY BASED ON THE FACT THAT THE OFFICER FURNISHED OVER HALF (53 1/3%) OF HIS STEPCHILD'S SUPPORT. CONVERSELY, ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS WOULD BE DENIED FOR THOSE MONTHS IN WHICH THE OFFICER FURNISHED 30% SUPPORT. FOR THE LATTER PERIOD THE SERVICES WOULD FAVOR A LIBERAL INTERPRETATION OF 'IN FACT' DEPENDENCY WHICH WOULD IN EFFECT ESTABLISH 30% OR MORE AS CONSTITUTING SUBSTANTIAL DEPENDENCY, SO THAT INCREASED BASIC ALLOWANCES FOR QUARTERS AND REIMBURSEMENT FOR TRANSPORTATION WOULD BE AUTHORIZED, IF OTHERWISE ENTITLED. IT MAY BE ARGUED, AND NOT WITHOUT REASON, THAT THE FURNISHING OF 30% SUPPORT IS A MATERIAL CONTRIBUTION, WITHOUT WHICH, THE CHILD'S WELFARE WOULD BE SERIOUSLY JEOPARDIZED, AND HENCE CONSTITUTES A SUBSTANTIAL CONTRIBUTION TO THE SUPPORT OF THE CHILD SUFFICIENT TO ESTABLISH 'IN FACT' DEPENDENCY.

"THE SERVICES WOULD FAVOR APPROVAL OF THIS CASE FOR EITHER BASIC ALLOWANCES FOR QUARTERS OR TRAVEL REIMBURSEMENT PURPOSES FOR THE REASONS SET FORTH IN THE COMMENT."

QUESTION 2.

"A WIDOWED OFFICER HAS A STEPCHILD AGE 18 ATTENDING A STATE UNIVERSITY. DURING THE SCHOOL TERM AND FOR THE REST OF THE YEAR THE CHILD RESIDES IN A ROOMING HOUSE AND IS EMPLOYED PART TIME, RECEIVING $90 PER MONTH. HIS TOTAL MONTHLY EXPENSES AVERAGE $150.00, OF WHICH THE OFFICER FURNISHES $60.

"UNDER CURRENT REGULATIONS THE SERVICES WOULD DENY BASIC ALLOWANCE FOR QUARTERS BECAUSE THE OFFICER CONTRIBUTED 40% OR LESS THAN OVER HALF OF THE STEPCHILD'S SUPPORT. THE SERVICES WOULD FAVOR APPROVAL OF THIS CASE FOR EITHER BASIC ALLOWANCES FOR QUARTERS OR TRAVEL REIMBURSEMENT PURPOSES, ON THE GROUNDS THAT 'IN FACT' DEPENDENCY WAS ESTABLISHED BY THE FURNISHING OF 30% OR MORE SUPPORT, WHICH WAS A SUBSTANTIAL PORTION OF THE REQUIRED SUPPORT."

QUESTION 3.

"A DIVORCED OFFICER HAS AN ADOPTED CHILD AGE 12 WHO RESIDES THE YEAR ROUND WITH THE OFFICER. THE CHILD'S EXPENSES AVERAGE $100 PER MONTH OF WHICH THE OFFICER CONTRIBUTES $25 AND THE REMAINING $75 REQUIRED FOR SUPPORT IS DERIVED FROM A TRUST FUND.

"FOR BASIC ALLOWANCE FOR QUARTERS OR REIMBURSEMENT FOR DEPENDENT TRAVEL PURPOSES THE SERVICES WOULD DENY ENTITLEMENT BASED ON THE CONCLUSION THAT THE SUPPORT FURNISHED WAS NOT SUBSTANTIAL AND THEREFORE DID NOT CONSTITUTE 'IN FACT' DEPENDENCY."

QUESTION 4.

"A DIVORCED OFFICER HAS AN ADOPTED CHILD AGE 14 WHO LIVES IN THE HOUSEHOLD OF THE OFFICER'S MARRIED SISTER. THE CHILD'S EXPENSES ARE $100 PER MONTH, THE OFFICER CONTRIBUTES $45 AND THE REMAINING $55 IS DERIVED FROM OTHER SOURCES.

"BASIC ALLOWANCE FOR QUARTERS WOULD BE DENIED BY THE SERVICES SINCE THE OFFICER'S CONTRIBUTION (45%) IS LESS THAN THAT REQUIRED BY REGULATIONS (OVER 50%). IF THE STEPCHILD (SIC) MOVED TO JOIN THE OFFICER ON A PERMANENT CHANGE OF STATION IN ORDER TO ACTUALLY LIVE THEREAFTER IN THE HOUSEHOLD OF THE OFFICER, THE SERVICES WOULD, FOR TRAVEL REIMBURSEMENT PURPOSES UNDER THEIR CURRENT REGULATIONS, TAKE THE FOLLOWING ACTION:

"NAVY - BUREAU OF NAVAL PERSONNEL WOULD ADJUDICATE THE CASE.

"ARMY - THE CASE WOULD BE SUBMITTED TO THE COMPTROLLER GENERAL FOR A DETERMINATION OF DEPENDENCY.

"AIR FORCE - THE COMMANDING GENERAL, AIR FORCE FINANCE CENTER WOULD ADJUDICATE THE CASE.

"MARINE CORPS - SINCE THE STEPCHILD (SIC) RECEIVED INCOME FROM ANOTHER SOURCES, THE CASE WOULD BE SUBMITTED TO THE COMPTROLLER GENERAL FOR RESOLUTION.

"APPROVAL OF THIS CASE WOULD BE FAVORED BY THE MILITARY DEPARTMENTS."

QUESTION 5.

"UNDER THE SAME CIRCUMSTANCES SPECIFIED IN QUESTION 4, EXCEPT THAT THE OFFICER CONTRIBUTES $35 PER MONTH AND THE REMAINING $65 IS DERIVED FROM OTHER SOURCES, BASIC ALLOWANCE FOR QUARTERS WOULD BE DENIED, ENTITLEMENT TO REIMBURSEMENT FOR TRAVEL OF THE STEPCHILD WOULD BE DETERMINED BY THE OFFICES INDICATED ABOVE, AND APPROVAL OF THE CASE WOULD BE FAVORED BY THE MILITARY DEPARTMENTS."

WHETHER A MEMBER HAS A STEPCHILD OR ADOPTED CHILD IN FACT DEPENDENT UPON HIM DEPENDS ON THE PROVEN FACTS IN EACH CASE. IN A CLAIM FOR REIMBURSEMENT FOR TRANSPORTATION OF SUCH A CHILD INCIDENT TO A CHANGE OF PERMANENT STATION THE FACT THAT THE CHILD RESIDES IN THE OFFICER'S HOUSEHOLD OBVIOUSLY TENDS TO LEND CREDENCE TO ALLEGATIONS OF DEPENDENCY. FOR THIS REASON, AND WITH NO INTENTION OF INDICATING THAT RESIDENCY OF THE CHILD IN THE OFFICER'S HOUSEHOLD IS REGARDED AS A PRIMARY ELEMENT IN A DETERMINATION OF DEPENDENCY, OUR DECISION OF OCTOBER 25, 1954, IN WHICH IT WAS CLEARLY STATED THAT THE FACT THAT A CHILD LIVES WITH THE MEMBER DOES NOT OF ITSELF MAKE THE CHILD DEPENDENT UPON THE MEMBER, ASSIGNED THE FACT OF RESIDENCY IN THE OFFICER'S HOUSEHOLD AS ONE OF THE REASONS FOR FAVORABLE ACTION ON HIS CLAIM. AS TO THE DEGREE OF DEPENDENCY REQUIRED, SINCE THE CURRENT STATUTE, AND SIMILAR PROVISIONS IN EARLIER STATUTES, SPECIFICALLY PROVIDE THAT THE TERM DEPENDENT SHALL INCLUDE THE FATHER, MOTHER, OR MENTALLY DEFECTIVE OR PHYSICALLY INCAPACITATED UNMARRIED LEGITIMATE CHILD OVER 21 YEARS OF AGE, IF DEPENDENT FOR "CHIEF SUPPORT" OR FOR "MORE THAN HALF OF HIS OR HER SUPPORT" UPON THE PERSON CLAIMING DEPENDENCY ALLOWANCES, IT SEEMS EVIDENT THAT THE LAW CONTEMPLATES THAT SOME LESSER DEGREE OF DEPENDENCY SHALL SUFFICE TO ENTITLE A MEMBER TO DEPENDENCY ALLOWANCES ON ACCOUNT OF A STEPCHILD OR ADOPTED CHILD. BEARING IN MIND, HOWEVER, THAT DEPENDENCY ALLOWANCES ARE PAYABLE IN FIXED AMOUNTS IN ANY CASE IN WHICH DEPENDENCY IS FOUND TO EXIST IRRESPECTIVE TO THE DEGREE OF DEPENDENCY, THE CONCLUSION, AS STATED IN OUR DECISION OF OCTOBER 25, 1954, THAT MERE INCIDENTAL CONTRIBUTIONS BY AN OFFICER TO OR ON ACCOUNT OF A STEPCHILD OR ADOPTED CHILD ARE NOT SUFFICIENT TO MEET THE REQUIREMENTS OF THE STATUTE BUT THAT THE EXPENSES THE OFFICER REGULARLY AND NECESSARILY INCURS ON ACCOUNT OF THE CLAIMED DEPENDENT CHILD MUST CONSTITUTE A SUBSTANTIAL PART OF THE TOTAL COST OF SUPPORTING SUCH CHILD SEEMS CLEARLY REQUIRED. ON THIS BASIS, WE WOULD NO DOUBT CONSIDER MEMBERS IN THE CIRCUMSTANCES SET OUT IN QUESTIONS 1, 2, 4, AND 5 OF COMMITTEE ACTION NO. 119 ENTITLED TO DEPENDENCY ALLOWANCES.

QUESTION 3 IS ANSWERED BY SAYING THAT IF THE EVIDENCE SHOWED THAT WITHOUT THE OFFICER'S CONTRIBUTION THE CHILD'S WELFARE WOULD BE SUBSTANTIALLY AFFECTED, AS DISTINGUISHED FROM A SITUATION WHERE THE CONTRIBUTION MERELY IMPROVED THE CHILD'S LIVING CONDITIONS, WE WOULD BE INCLINED TO VIEW THE CONTRIBUTION OF 25 PERCENT OF THE AMOUNT OF THE CHILD'S LIVING EXPENSES AS A SUBSTANTIAL CONTRIBUTION AND THAT THE CHILD WAS IN FACT DEPENDENT ON THE OFFICER.