B-147597, DEC. 14, 1961

B-147597, DEC. 14, 1961

TO MAJOR ROBERT J. LAHR, USMC, DISBURSING OFFICER:

THERE HAS BEEN RECEIVED BY THIRD INDORSEMENT OF NOVEMBER 13, 1961, YOUR LETTER DATED OCTOBER 5, 1961, REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER STATED IN FAVOR OF CAPTAIN TEDDY J. BECKER, 059 784, USMC, IN THE SUM OF $94.68 AS REIMBURSEMENT FOR TRAVEL OF HIS TWO STEPSONS FROM OKLAHOMA CITY, OKLAHOMA, TO CARLSBAD, CALIFORNIA, BETWEEN SEPTEMBER 6 AND 13, 1961. THE TRAVEL WAS INCIDENT TO PERMANENT CHANGE OF STATION ORDERS DATED AUGUST 14, 1961, TRANSFERRING CAPTAIN BECKER FROM OKLAHOMA CITY, OKLAHOMA, TO CAMP PENDLETON, CALIFORNIA. THE REQUEST WAS ASSIGNED CONTROL NO. 61-16 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IN A CERTIFICATE DATED OCTOBER 3, 1961, CAPTAIN BECKER CERTIFIED AS FOLLOWS:

"I CERTIFY THAT WILLIAM PATRICK DEAN AGE 10, AND DWIGHT HENRY DEAN AGE 5, ARE MY STEP CHILDREN AND ARE MEMBERS OF MY HOUSEHOLD. THE AVERAGE MONTHLY AMOUNT REQUIRED FOR THEIR REASONABLE AND PROPER LIVING EXPENSES IS ABOUT $175.00. THIS OFFICER CONTRIBUTES LITTLE, IF ANY, ADDITIONAL EXPENSES INCURRED EXCEPT IN TRAVEL MOVEMENTS. THE CHILDREN RECEIVE $200.00 MONTHLY FROM A TRUST FUND SET UP FOR THEIR CHILD SUPPORT. THEIR ACTUAL MONTHLY LIVING EXPENSES NORMALLY WOULD NOT EXCEED THE $200.00 ALLOTED. THIS REQUEST IS MADE PRIMARILY TO ESTABLISH DEPENDENCY FOR TRAVEL PURPOSES ONLY, WHICH EXCEEDS THEIR NORMAL MONTHLY EXPENSES.'

SECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (C), PROVIDES 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 OF DEPENDENTS OR TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE IN LIEU OF SUCH TRANSPORTATION IN KIND. SECTION 102 (G) OF THE SAME ACT, 37 U.S.C. 231, DEFINING THE TERM "DEPENDENT" FOR ALL PURPOSES OF THE STATUTE, PROVIDES THAT IT SHALL INCLUDE UNMARRIED LEGITIMATE CHILDREN, UNDER TWENTY-ONE YEARS OF AGE, OF ANY MEMBER OF THE UNIFORMED SERVICES AND 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 ADOPTED CHILD MAY BE CONSIDERED A DEPENDENT FOR THE PURPOSE OF THE STATUTE 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. 35 COMP. GEN. 536. IN DECISION OF MAY 24, 1955, 34 COMP. GEN. 625, INVOLVING STEPCHILDREN FOR WHOM INCOME FROM OTHER SOURCES WAS MORE THAN THEIR ORDINARY MONTH-TO-MONTH LIVING EXPENSES BUT FOR WHOM THE MEMBER INCURRED ADDITIONAL EXPENSE DURING A SHORT PERIOD OF TRAVEL IT WAS HELD, AT PAGE 627, AS FOLLOWS:

"* * * 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. B-23084, APRIL 2, 1942; B-89140, OCTOBER 5, 1949; B-94657, FEBRUARY 9, 1951.'

IN THE PRESENT CASE, SINCE CAPTAIN BECKER RECEIVES $200 PER MONTH FROM A TRUST FUND FOR THE SUPPORT OF HIS STEPCHILDREN WHOSE NORMAL LIVING EXPENSES ARE ABOUT $175 PER MONTH AND DO NOT EXCEED THE $200 ALLOTTED, IT SEEMS CLEAR THAT THEY ARE NOT IN FACT DEPENDENT UPON HIM FOR THEIR SUPPORT. THE FACT THAT THE AMOUNT RECEIVED BY HIM FOR CHILD SUPPORT MAY BE INSUFFICIENT TO ALSO COVER ALL TRANSPORTATION EXPENSES FOR TRAVEL PERFORMED IN CONNECTION WITH PERMANENT CHANGE OF STATION ORDERS DOES NOT ESTABLISH HIS STEPCHILDREN AS HIS DEPENDENTS WITHIN THE MEANING OF THE CAREER COMPENSATION ACT FOR THE PURPOSE OF TRANSPORTATION ALLOWANCES FOR THEIR TRAVEL.

ACCORDINGLY, PAYMENT IS NOT AUTHORIZED ON THE VOUCHER WHICH WILL BE RETAINED HERE.