B-134263, DEC. 27, 1957

B-134263, DEC. 27, 1957

TO MR. J. LADUTKO, DISBURSING OFFICER, MARINE CORPS SCHOOLS:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 30, 1957, FILE L20/4 1/AMD, REQUESTING A DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER (ENCLOSED WITH YOUR LETTER) STATED IN FAVOR OF LIEUTENANT COLONEL HENSLEY WILLIAMS, USMC, FOR MONETARY ALLOWANCE AT SIX CENTS PER MILE FOR TRAVEL PERFORMED BY HIS STEPSON (AGE 16), FROM SAN FRANCISCO, CALIFORNIA, TO FRANKLIN, TENNESSEE. THE TRAVEL WAS PERFORMED DURING JULY OR AUGUST 1957, INCIDENT TO ORDERS DATED FEBRUARY 26, 1957, WHICH EFFECTED THE OFFICER'S TRANSFER FROM HAWAII TO PERMANENT DUTY AT THE MARINE CORPS SCHOOLS, QUANTICO, VIRGINIA.

YOU EXPRESS DOUBT AS TO WHETHER THE MONETARY ALLOWANCE IS PAYABLE FOR THE STEPSON'S TRAVEL SINCE HE "IS NOT FULLY DEPENDENT" UPON THE OFFICER, IT BEING SHOWN THAT GOVERNMENT PAYMENTS EXCEEDING $128 PER MONTH, IN THE AGGREGATE, ARE BEING RECEIVED BY THE OFFICER'S WIFE FOR THE STEPCHILD'S SUPPORT AND EDUCATION.

THE OFFICER'S DEPENDENCY CERTIFICATE (UNDATED) SUBMITTED WITH YOUR LETTER IS AS FOLLOWS:

"I CERTIFY THAT JOHN O. COLTON IS MY STEP CHILD AND IS A MEMBER OF MY HOUSEHOLD; AND THAT HE IS NOT POSSESSED OF PROPERTY OR INCOME ADEQUATE FOR HIS SUPPORT. HIS MOTHER (MY WIFE) RECEIVES A $50.80 SOCIAL SECURITY PAYMENT PER MONTH FOR HIS SUPPORT FROM THE U.S. GOVERNMENT (SOCIAL SECURITY AGENCY). A PAYMENT OF $78.00 PER MONTH IS RECEIVED FROM THE VETERANS ADMINISTRATION. THIS VETERANS ADMINISTRATION PAYMENT IS AND HAS ALWAYS BEEN SAVED FOR HIS COLLEGE EDUCATION AS REQUIRED AND ACTIVELY ADMINISTERED BY THE VETERANS ADMINISTRATION. THE ABOVE TWO MONTHLY PAYMENTS FROM THE U.S. GOVERNMENT FOR MY STEPSON ARE PAID AS A RESULT OF THE DEATH OF HIS FATHER AS AN AIR FORCE OFFICER DURING WORLD WAR II. HIS ONLY OTHER INCOME IS APPROXIMATELY $5.00 PER YEAR FROM DIVIDENDS ON STOCK LEFT TO HIM BY HIS FATHER. I FEEL THAT SINCE MY STEPSON IS A MEMBER OF MY HOUSEHOLD AND SINCE HE WILL RECEIVE MORE THAN 50 PERCENT OF HIS SUPPORT FROM MY SELF DURING THE PRESENT YEAR, I SHOULD RECEIVE THE STANDARD TRAVEL ALLOWANCE FOR HIM AS IF HE WERE, IN FACT, MY OWN SON.

(S) HENSLEY WILLIAMS

HENSLEY WILLIAMS, LTCOL, USMC"

SUBSECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, AS AMENDED, 37 U.S.C. 253 (C) 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, 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: *

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 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 FACT THAT THE CHILD MAY LIVE WITH THE MEMBER, THAT HIS 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, DOES NOT ESTABLISH AS A FACT THAT THE CHILD IS ACTUALLY DEPENDENT UPON THE MEMBER. B-23084, APRIL 2, 1942; B-89140, OCTOBER 5, 1949; B 94657, FEBRUARY 9, 1951.

IT IS NOTED THAT THE OFFICER DOES NOT SPECIFY THE AMOUNT REQUIRED ANNUALLY FOR THE SUPPORT, MAINTENANCE, AND EDUCATION OF THE STEPCHILD, ALTHOUGH HE INDICATES THAT THE TOTAL SUM RECEIVED MONTHLY AS SOCIAL SECURITY PAYMENT ($50.80), PLUS THE SUM RECEIVED EACH MONTH FROM THE VETERANS ADMINISTRATION ($78), IS INADEQUATE "FOR HIS SUPPORT," AND THAT MORE THAN 50 PERCENT OF THE STEPSON'S SUPPORT DURING THE PRESENT YEAR WILL BE CONTRIBUTED BY HIM. HOWEVER, IT IS EVIDENT THE OFFICER IS OF THE VIEW THAT THE PAYMENTS RECEIVED FROM THE VETERANS ADMINISTRATION ARE TO BE PLACED IN A TRUST FUND FOR THE STEPSON'S EDUCATION AND THAT NO PART OF SUCH PAYMENTS ARE TO BE USED CURRENTLY FOR THE STEPSON'S SUPPORT AND MAINTENANCE. NO STATUTORY OR REGULATORY PROVISION HAS BEEN FOUND TO SUPPORT SUCH VIEW. CONSEQUENTLY, ALL PAYMENTS RECEIVED BY THE OFFICER'S WIFE FOR THE STEPSON'S SUPPORT, MAINTENANCE, AND EDUCATION ARE PROPERLY TO BE REGARDED AS INCOME IN DETERMINING WHETHER THE STEPSON WAS, OR IS, IN FACT DEPENDENT UPON THE OFFICER. SEE 34 COMP. GEN. 625 AND COMPARE 34 COMP. GEN. 193.

INASMUCH AS THE EVIDENCE SUBMITTED FAILS TO ESTABLISH THAT THE STEPSON WAS IN FACT DEPENDENT UPON THE OFFICER, NO BASIS EXISTS FOR PAYMENT AS CLAIMED.