B-153342, APRIL 16, 1964, 43 COMP. GEN. 690

B-153342: Apr 16, 1964

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ETC. - CHILDREN'S CUSTODY TRANSFERRED TO MEMBER THE FACT THAT THE NATURAL FATHER OF TWO MINOR CHILDREN WHO WERE ADOPTED BY THEIR STEPFATHER. 1964: WE HAVE RECEIVED FROM R. FOR PAYMENT FOR TRAVEL OF DEPENDENTS AND COST OF LIVING ALLOWANCES ON ACCOUNT OF TWO MINOR CHILDREN WHOSE NAMES WERE FORMERLY DEBRA RENEE CHAPMAN AND TERESA GAIL CHAPMAN. THE CIRCUMSTANCES PROMPTING THE REQUEST FOR DECISION ARE SET OUT IN DETAIL IN THE LETTER FROM MR. IT IS STATED THAT THE CLAIMANT'S WIFE. WAS PREVIOUSLY MARRIED TO SAM C. DEBRA RENEE CHAPMAN AND TERESA GAIL CHAPMAN WERE BORN OF THAT MARRIAGE. CHAPMAN WERE DIVORCED ON SEPTEMBER 13. THE CHILDREN WERE AWARDED TO THEIR MOTHER AND CHAPMAN WAS REQUIRED TO PAY $75 PER MONTH PER CHILD.

B-153342, APRIL 16, 1964, 43 COMP. GEN. 690

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - DIVORCE, SEPARATION, ETC. - CHILDREN'S CUSTODY TRANSFERRED TO MEMBER THE FACT THAT THE NATURAL FATHER OF TWO MINOR CHILDREN WHO WERE ADOPTED BY THEIR STEPFATHER--- AN ENLISTED MAN OF THE UNITED STATES COAST GUARD--- RECEIVES ON THE BASIS OF COURT ORDERED SUPPORT BASIC ALLOWANCE FOR QUARTERS DOES NOT PRECLUDE THE STEPFATHER FROM ENTITLEMENT TO TRANSPORTATION AND A COST OF LIVING ALLOWANCE ON ACCOUNT OF THE STEPCHILDREN, PURSUANT TO 37 U.S.C. 405 AND 406, INCIDENT TO HIS DUTY ASSIGNMENT IN ALASKA, THERE BEING INVOLVED NO DUPLICATE CREDIT OF ALLOWANCES TO THE FATHER AND STEPFATHER, DEPENDENT UNDER 37 U.S.C. 401 INCLUDING STEPCHILDREN AND ADOPTED CHILDREN DEPENDENT ON A SERVICE MEMBER, AND THE COAST GUARD, IN ACCORDANCE WITH 50 U.S.C. APP. 1010, HAVING MADE THE ADMINISTRATIVE DETERMINATION OF DEPENDENCY OF THE CHILDREN ON THE MEMBER, THE ALLOWANCES CLAIMED ON THE BASIS OF THE DEPENDENT STEPCHILDREN MAY BE PAID TO THE MEMBER.

TO THE COMMANDANT, UNITED STATES COAST GUARD, APRIL 16, 1964:

WE HAVE RECEIVED FROM R. H. MILLS, AUTHORIZED CERTIFYING OFFICER, U.S. COAST GUARD, VIA YOUR OFFICE, A LETTER DATED JANUARY 22, 1964, FP 2, WITH ENCLOSURES, REQUESTING THAT A DETERMINATION OF ENTITLEMENT BE MADE ON THE CLAIMS OF CHIEF BOATSWAIN'S MATE ROBERT A SWANEY, 271-645, U.S. COAST GUARD, FOR PAYMENT FOR TRAVEL OF DEPENDENTS AND COST OF LIVING ALLOWANCES ON ACCOUNT OF TWO MINOR CHILDREN WHOSE NAMES WERE FORMERLY DEBRA RENEE CHAPMAN AND TERESA GAIL CHAPMAN.

THE CIRCUMSTANCES PROMPTING THE REQUEST FOR DECISION ARE SET OUT IN DETAIL IN THE LETTER FROM MR. MILLS. BRIEFLY, IT IS STATED THAT THE CLAIMANT'S WIFE, MARJORIE, WAS PREVIOUSLY MARRIED TO SAM C. CHAPMAN (281- 226), EN1, USCG. THE TWO CHILDREN, DEBRA RENEE CHAPMAN AND TERESA GAIL CHAPMAN WERE BORN OF THAT MARRIAGE. MARJORIE AND SAM C. CHAPMAN WERE DIVORCED ON SEPTEMBER 13, 1960, IN KETCHIKAN, ALASKA. THE CHILDREN WERE AWARDED TO THEIR MOTHER AND CHAPMAN WAS REQUIRED TO PAY $75 PER MONTH PER CHILD. CHAPMAN COMMENCED A CLASS Q ALLOTMENT OF $150 TO MARJORIE FOR SUPPORT OF THE TWO CHILDREN IN SEPTEMBER 1960. ON MAY 19, 1961, A MODIFICATION AGREEMENT WAS SIGNED BY MARJORIE AND CHAPMAN REDUCING THE CHILD SUPPORT TO A TOTAL OF $77.10 PER MONTH. CHAPMAN REDUCED THE CLASS Q ALLOTMENT TO $77.10 EFFECTIVE JUNE 1961. THIS ALLOTMENT WAS AUTOMATICALLY TERMINATED AFTER DECEMBER 1962 AND REPLACED BY A CLASS D ALLOTMENT IN THE AMOUNT OF $77.10. ON APRIL 21, 1961, MARJORIE MARRIED THE CLAIMANT, ROBERT W. SWANEY.

ON OCTOBER 27, 1962, SWANEY SUBMITTED AN APPLICATION, NAVPERS FORM 668, CLAIMING REIMBURSEMENT FOR TRANSPORTATION FOR HIS STEPDAUGHTER, DEBRA, FROM PORT ISABEL, TEXAS, TO SEATTLE, WASHINGTON, STATING THAT HE HAD PAID THE TRAVEL EXPENSES. HE LATER SUBMITTED ANOTHER CLAIM FOR DETERMINATION OF ENTITLEMENT TO ALLOWANCES ON THE BASIS OF DEPENDENCY OF HIS WIFE, STEPCHILDREN AND SON, BORN AUGUST 8, 1962, INCLUDING STATION ALLOWANCES, INCIDENT TO HIS DUTY ASSIGNMENT IN ALASKA. SWANEY ADOPTED HIS STEPCHILDREN, DEBRA AND TERESA CHAPMAN, EFFECTIVE NOVEMBER 26, 1963. SECTION 401 OF TITLE 37, U.S. CODE, DEFINES THE TERM "DEPENDENT" AS INCLUDING STEPCHILDREN AND ADOPTED CHILDREN WHEN THEY ARE IN FACT DEPENDENT ON THE SERVICE MEMBER. SECTION 10 OF THE ACT OF MARCH 7, 1942, 56 STAT. 143, AS AMENDED (MADE PERMANENT LEGISLATION BY SECTION 15 OF THE ACT OF AUGUST 29, 1957, 71 STAT. 493, 50 U.S.C. APP. 1010), PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THE DETERMINATION OF THE FACT OF DEPENDENCY UNDER THE PROVISIONS OF THIS ACT, * * * AND THE DETERMINATION OF THE FACT OF DEPENDENCY UNDER THE PROVISIONS OF ANY AND ALL OTHER LAWS PROVIDING FOR THE PAYMENT OF PAY, ALLOWANCES, OR OTHER EMOLUMENTS TO ENLISTED MEN IN THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD OF THE UNITED STATES WHERE SUCH PAYMENTS ARE CONTINGENT UPON DEPENDENCY, SHALL BE MADE BY THE HEAD OF THE DEPARTMENT CONCERNED, OR BY SUCH SUBORDINATE AS HE MAY DESIGNATE, AND ANY SUCH DETERMINATION SO MADE SHALL BE FINAL AND CONCLUSIVE.

PRESUMABLY AN ADMINISTRATIVE DETERMINATION HAS BEEN MADE THAT THE STEPCHILDREN WERE IN FACT SWANEY'S DEPENDENTS. MR. MILL'S QUESTION IS WHETHER, IN VIEW OF SUCH DETERMINATION THAT THE STEPCHILDREN WERE IN FACT DEPENDENT ON SWANEY AND, THEREFORE, LEGALLY HIS DEPENDENTS FOR PURPOSES OF TRAVEL AND COST OF LIVING ALLOWANCES, HE MAY BE PAID SUCH BENEFITS WHILE THE NATURAL FATHER WAS AT THE SAME TIME AUTHORIZED TO RECEIVE A BASIC ALLOWANCE FOR QUARTERS ON THEIR BEHALF UNDER ESTABLISHED ADMINISTRATIVE PROCEDURES BY VIRTUE OF HIS COMPLIANCE WITH A COURT ORDER REQUIRING HIM TO CONTRIBUTE TO THEIR SUPPORT.

SECTIONS 405 AND 406 OF TITLE 37, U.S. CODE, AND REGULATIONS ISSUED THEREUNDER, PROVIDE FOR INCREASED COST OF LIVING ALLOWANCES ON THE BASIS OF DEPENDENCY INCIDENT TO DUTY PERFORMED OUTSIDE THE UNITED STATES AND FOR TRANSPORTATION FOR DEPENDENTS WHEN THE MEMBER IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION. IN VIEW OF THOSE PROVISIONS IT IS CONCLUDED THAT NO REASONABLE BASIS EXISTS IN THE CIRCUMSTANCES PRESENTED TO DENY SUCH ALLOWANCES, IF OTHERWISE AUTHORIZED, TO A MEMBER CLAIMING THEM BY VIRTUE OF STEPCHILDREN DETERMINED TO BE HIS DEPENDENTS UNDER THE EXCLUSIVE JURISDICTION OF THE COAST GUARD IN 50 U.S.C. APP. 1010 TO MAKE FACTUAL DETERMINATIONS AS TO DEPENDENCY, EVEN THOUGH THE NATURAL FATHER MAY BE VESTED WITH THE PRIMARY ENTITLEMENT TO A QUARTERS ALLOWANCE CREDIT FOR THE DEPENDENTS, THERE BEING NO DUPLICATE CREDIT OF ALLOWANCES INVOLVED IN THE MATTER. SUCH CONCLUSION, OF COURSE, IS NOT TO BE VIEWED AS STANDING FOR THE PROPOSITION THAT MORE THAN ONE MEMBER MAY BE CREDITED IN ANY CIRCUMSTANCES WITH THE SAME DEPENDENT ALLOWANCE FOR THE SAME PERSON. SEE DECISION OF MAY 9, 1939, B-3032, COPY ENCLOSED.

ACCORDINGLY PAYMENT ON THE CLAIMS IS AUTHORIZED. THE CLAIM AND SUPPORTING PAPERS ARE RETURNED.