B-126916, APRIL 3, 1956, 35 COMP. GEN. 536

B-126916: Apr 3, 1956

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TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - STEP-CHILDREN THE FACT THAT GOVERNMENT INSURANCE AND SOCIAL SECURITY BENEFITS WHICH ARE PAID TO AN ARMY OFFICER'S MINOR STEPSON ON ACCOUNT OF HIS NATURAL FATHER'S DEATH IN THE MILITARY SERVICE ARE NOT USED FOR THE CHILD'S SUPPORT DOES NOT CREATE A DUPLICATE LIABILITY ON THE GOVERNMENT TO PROVIDE SUPPORT BY PAYMENT OF QUARTERS OR TRANSPORTATION ALLOWANCES. THE STEPCHILD WHO RECEIVES SUCH GOVERNMENT BENEFITS IN AN AMOUNT WHICH IS NOT SHOWN TO BE INADEQUATE FOR HIS SUPPORT. IS NOT IN FACT DEPENDENT ON THE OFFICER WITHIN THE MEANING OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949 TO ENTITLE THE OFFICER TO REIMBURSEMENT FOR THE COST OF THE STEPSON'S TRANSPORTATION INCIDENT TO A CHANGE OF STATION.

B-126916, APRIL 3, 1956, 35 COMP. GEN. 536

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - STEP-CHILDREN THE FACT THAT GOVERNMENT INSURANCE AND SOCIAL SECURITY BENEFITS WHICH ARE PAID TO AN ARMY OFFICER'S MINOR STEPSON ON ACCOUNT OF HIS NATURAL FATHER'S DEATH IN THE MILITARY SERVICE ARE NOT USED FOR THE CHILD'S SUPPORT DOES NOT CREATE A DUPLICATE LIABILITY ON THE GOVERNMENT TO PROVIDE SUPPORT BY PAYMENT OF QUARTERS OR TRANSPORTATION ALLOWANCES, AND THE STEPCHILD WHO RECEIVES SUCH GOVERNMENT BENEFITS IN AN AMOUNT WHICH IS NOT SHOWN TO BE INADEQUATE FOR HIS SUPPORT, IS NOT IN FACT DEPENDENT ON THE OFFICER WITHIN THE MEANING OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949 TO ENTITLE THE OFFICER TO REIMBURSEMENT FOR THE COST OF THE STEPSON'S TRANSPORTATION INCIDENT TO A CHANGE OF STATION.

TO MAJOR L. E. WILLIAMS, DEPARTMENT OF THE ARMY, APRIL 3, 1956:

IN YOUR LETTER OF NOVEMBER 28, 1955, YOU REQUEST A DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER STATED IN FAVOR OF FIRST LIEUTENANT JACK B. WILKES, XXX-XX-XXXX, FOR REIMBURSEMENT OF THE COST OF TRANSPORTATION OF A DEPENDENT (STEPSON, GRANT S. GUSTIN) FROM MONTEREY, CALIFORNIA, TO ST. ALBANS, VERMONT, THE TRAVEL HAVING BEEN PERFORMED BETWEEN JUNE 12 AND JULY 10, 1955, PURSUANT TO ORDERS DATED APRIL 25, 1955.

THE VOUCHER SHOWS THAT THE CHILD WAS BORN ON APRIL 7, 1949. IN HIS DEPENDENCY CERTIFICATE THE OFFICER AVERS THAT HE CONTRIBUTES $110 A MONTH FOR THE SUPPORT OF HIS STEPSON, THAT THE CHILD'S LIVING EXPENSES AVERAGE $110 A MONTH, AND THAT THE CHILD RECEIVES BENEFITS IN THE FORM OF " GOVERNMENT INSURANCE AND SOCIAL SECURITY," AS THE CHILD OF A DECEASED MEMBER OF THE ARMED FORCES (KILLED IN ACTION), AND IS THE BENEFICIARY OF A TRUST ESTABLISHED BY THE CHILD'S GRANDFATHER FOR EDUCATIONAL PURPOSES--- THE VALUE OF THE TRUST, THE CHILD'S SHARE, AND THE ANNUAL INCOME ACCRUING TO THE CHILD BEING UNKNOWN. RESPECTING THE TRUST THE OFFICER SAYS," THIS INCOME IN NO WAY GOES TO THEIR SUPPORT NOW. IT IS A TRUST SET UP FOR THEIR FURTHER EDUCATION.' ON THE REVERSE OF THE DEPENDENCY CERTIFICATE THE OFFICER EXPLAINS:

INCOME WHICH IS IN THE FORM OF BENEFITS (BENEFITS) IS PROCESSED AS FOLLOWS:

$47 SET ASIDE IN A TRUST FUND FOR GRANT S. GUSTIN. THIS CHECK IS BANKED MONTHLY BE THE VETERANS ADMINISTRATION. THIS AMOUNT CANNOT BE USED FOR THE UPKEEP OF THE CHILD. THE PLACEMENT OF THIS FUND BY THE VA IS MANDATORY.

$35 IS RECEIVED MONTHLY TO BE USED FOR THE UPKEEP OF GRANT S. GUSTIN. THIS AMOUNT IS SOCIAL SECURITY BENEFITS PAYABLE TO MRS. OLGA J. WILKES AS GUARDIAN.

SUBSECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, 37 U.S.C. 253, 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. SUBSECTION 102 (G) OF THE ACT, 63 STAT. 804, 37 U.S.C. 231, 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.)

SUCH PROVISIONS, INSOFAR AS STEPCHILDREN AND ADOPTED CHILDREN ARE CONCERNED, ARE SUBSTANTIALLY THE SAME AS THE PROVISIONS OF PRIOR SIMILAR STATUTES RELATING TO 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 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 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 STATUTE REQUIRES ACTUAL DEPENDENCY; IT DOES NOT IMPOSE ON THE GOVERNMENT A LIABILITY WITH RESPECT TO MAINTAINING AND TRANSPORTING A STEPCHILD WITH INDEPENDENT INCOME FOR THE PURPOSE OF CONSERVING ITS INCOME, PARTICULARLY WHERE THAT INCOME IS DERIVED FROM GOVERNMENT BENEFITS PAID PRIMARILY TO PROVIDE FOR A CONTINUATION OF SUPPORT (TO REPLACE A WAGE LOSS DUE TO ITS FATHER'S DEATH IN THE MILITARY SERVICE). THE GOVERNMENT INSURANCE IS PAID FROM APPROPRIATED FUNDS EITHER THROUGH THE SERVICEMEN'S INDEMNITY ACT OF 1951, 38 U.S.C. 851, OR PURSUANT TO THE PROVISIONS OF THE NATIONAL SERVICE LIFE INSURANCE ACT OF 1940, 38 U.S.C. 801, UNDER WHICH THE GOVERNMENT ASSUMES THE RISK INCIDENT TO THE EXTRA HAZARDS OF MILITARY SERVICE AND PAYS THE INSURANCE FUND THE AMOUNT REQUIRED TO PROVIDE THE BENEFITS COVERED BY THE INSURANCE POLICY. THE NONUTILIZATION OF GOVERNMENT BENEFITS PROVIDED FOR THE STEPCHILD'S SUPPORT CANNOT CREATE A DUPLICATE LIABILITY ON THE GOVERNMENT TO PROVIDE SUPPORT THROUGH THE PAYMENT OF A QUARTERS ALLOWANCE OR TRANSPORTATION ALLOWANCE ON ITS ACCOUNT.

THE CHILD WAS ONLY 6 YEARS OLD WHEN THE TRAVEL WAS PERFORMED. THE MONTHLY COST OF HIS SUPPORT WAS STATED TO BE $35 FOR FOOD, $20 FOR CLOTHING, AND " ADDITIONAL EXPENSE--- $55.' THE " ADDITIONAL EXPENSE" IS NOT ITEMIZED OR EXPLAINED, NOR IS THERE ANY SHOWING THAT THE $82 A MONTH FROM THE GOVERNMENT WAS NOT GENERALLY ADEQUATE FOR HIS SUPPORT AS A MEMBER OF THE OFFICER'S HOUSEHOLD. THIS RECORD FAILS TO ESTABLISH THAT THE CHILD WAS IN FACT DEPENDENT UPON THE OFFICER WHEN THE TRAVEL WAS PERFORMED. ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETAINED HERE, IS NOT AUTHORIZED.