B-156045, MAR. 4, 1965

B-156045: Mar 4, 1965

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FC: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 23. REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON VOUCHERS IN FAVOR OF CAPTAIN LLOYD E. THE REQUEST WAS ASSIGNED CONTROL NO. 65-2 BY THE PER DIEM. THE TRANSPORTATION WAS INCIDENT TO PARAGRAPH 139. THE ADOPTED CHILD SHOWN ON THE FIRST VOUCHER WAS OVER 5 YEARS OF AGE BUT UNDER 12 YEARS OF AGE ON THE EFFECTIVE DATE OF THE FIRST ORDERS. BOTH CHILDREN WERE IN THAT AGE BRACKET ON THE EFFECTIVE DATE OF THE SECOND ORDERS. THESE FUNDS ARE BEING DEPOSITED IN TRUSTEESHIP AND MAY NOT BE EXPENDED FOR THE MAINTENANCE AND SUPPORT OF THE CHILDREN EXCEPT UPON AUTHORIZATION BY THE VETERANS ADMINISTRATION AFTER ADEQUATE INFORMATION HAS BEEN FURNISHED REFLECTING THE NEED TO USE SUCH FUNDS FOR THE SUPPORT OF THESE CHILDREN. 38 CFR 13.101.

B-156045, MAR. 4, 1965

TO MAJOR T. M. BECKHAM, FC:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 23, 1964, USARJ FA- E, REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON VOUCHERS IN FAVOR OF CAPTAIN LLOYD E. GOMES, 072713, FOR REIMBURSEMENT FOR THE COST OF TRANSPORTATION OF AN ADOPTED CHILD FROM HONOLULU, HAWAII, TO AUGUSTA, GEORGIA, AUGUST 4 TO 22, 1961, AND OF TWO ADOPTED CHILDREN FROM AUGUSTA, GEORGIA, TO CAMP ZAMA, JAPAN, MAY 21 TO JULY 1, 1964. THE REQUEST WAS ASSIGNED CONTROL NO. 65-2 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE TRANSPORTATION WAS INCIDENT TO PARAGRAPH 139, SPECIAL ORDERS NO. 56, DATED MARCH 7, 1961, TRANSFERRING THE MEMBER FROM HONOLULU, HAWAII, TO FORT GORDON, GEORGIA, AND PARAGRAPH 109, SPECIAL ORDERS NO. 35, DATED FEBRUARY 7, 1964, TRANSFERRING HIM FROM FORT GORDON TO JAPAN, RESPECTIVELY. THE ADOPTED CHILD SHOWN ON THE FIRST VOUCHER WAS OVER 5 YEARS OF AGE BUT UNDER 12 YEARS OF AGE ON THE EFFECTIVE DATE OF THE FIRST ORDERS; BOTH CHILDREN WERE IN THAT AGE BRACKET ON THE EFFECTIVE DATE OF THE SECOND ORDERS. THE RECORD SHOWS THAT CAPTAIN GOMES ADOPTED BOTH CHILDREN ON JULY 27, 1960, PURSUANT TO PROCEEDINGS IN THE FIRST CIRCUIT COURT, STATE OF HAWAII JUVENILE COURT; THAT THE MOTHER OF THE CHILDREN, MRS. EDNA F. GOMES (WIFE OF THE CLAIMANT) HAS BEEN RECOGNIZED AS LEGAL CUSTODIAN BY THE VETERANS ADMINISTRATION AND AWARDED COMPENSATION OF $50 MONTHLY PER CHILD DUE TO THE DEATH OF THE NATURAL FATHER WHILE A MEMBER OF THE U.S. ARMY. SEE 38 U.S.C. 3202. THESE FUNDS ARE BEING DEPOSITED IN TRUSTEESHIP AND MAY NOT BE EXPENDED FOR THE MAINTENANCE AND SUPPORT OF THE CHILDREN EXCEPT UPON AUTHORIZATION BY THE VETERANS ADMINISTRATION AFTER ADEQUATE INFORMATION HAS BEEN FURNISHED REFLECTING THE NEED TO USE SUCH FUNDS FOR THE SUPPORT OF THESE CHILDREN. 38 CFR 13.101. AN ADDITIONAL SUM OF $112 IS RECEIVED MONTHLY FROM THE SOCIAL SECURITY ADMINISTRATION WHICH AMOUNT MAY BE USED FOR THE MAINTENANCE AND SUPPORT OF THE CHILDREN. THUS, A TOTAL OF $212 PER MONTH IS RECEIVED FROM SOURCES OTHER THAN THE CLAIMANT, AND IT IS SHOWN THAT THE LIVING EXPENSES FOR THE CHILDREN AVERAGE $204.13 MONTHLY. SINCE THE AMOUNT RECEIVED FROM THE SOCIAL SECURITY ADMINISTRATION IS NOT ADEQUATE FOR THE COMPLETE SUPPORT OF THE ADOPTED CHILDREN, THE CLAIMANT CONTENDS HE MUST FURNISH ADDITIONAL FUNDS TO FULLY COVER THE COST OF THEIR OVER-ALL MAINTENANCE AND CARE. IN THIS CONNECTION, HE ARGUES THAT OUR DECISION, PUBLISHED AT 34 COMP. GEN. 625, IS NOT APPLICABLE TO HIS CASE SINCE THE RESTRICTION ON THE USE OF THE VETERAN'S COMPENSATION PAYMENTS WAS NOT SELF-IMPOSED BUT WAS REQUIRED BY THE VETERANS ADMINISTRATION.

THE PERTINENT STATUTE, 37 U.S.C. 406, PROVIDES THAT A MEMBER OF A UNIFORMED SERVICE WHO IS ORDERED TO MAKE A CHANGE OF PERMANENT STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENTS, TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE IN PLACE OF THAT TRANSPORTATION IN KIND. SECTION 401 (2) DEFINES THE TERM "DEPENDENT" WITH RESPECT TO A MEMBER OF THE UNIFORMED SERVICE TO INCLUDE:

"/2) HIS UNMARRIED LEGITIMATE CHILD (INCLUDING A STEPCHILD, OR AN ADOPTED CHILD, WHO IS IN FACT DEPENDENT ON THE MEMBER) WHO EITHER---

"/A) IS UNDER 21 YEARS OF AGE; * * *.'

THUS, IN ORDER FOR A MEMBER OF THE UNIFORMED SERVICES TO BE ENTITLED UNDER THE PROVISIONS OF THE STATUTE TO REIMBURSEMENT FOR TRANSPORTATION OF AN ADOPTED CHILD, THE CHILD MUST BE IN FACT DEPENDENT UPON THE MEMBER. 35 COMP. GEN. 536, CONCERNING A FACTUAL SITUATION SIMILAR TO THAT IN THIS CASE, WE HELD THAT (QUOTING FROM THE SYLLABUS):

"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 * * * TO ENTITLE THE OFFICER TO REIMBURSEMENT FOR THE COST OF THE STEPSON'S TRANSPORTATION INCIDENT TO A CHANGE OF STATION.'

WHERE SUFFICIENT FUNDS ARE AVAILABLE FROM SOURCES OTHER THAN THE MEMBER, EITHER DIRECTLY, OR INDIRECTLY, FOR THE SUPPORT, MAINTENANCE, AND EDUCATION OF ADOPTED CHILDREN, THE CHILDREN ARE NOT IN FACT DEPENDENT UPON THE MEMBER. THE FACT THAT THE PAYMENTS FROM THE VETERANS ADMINISTRATION ARE NOT USED FOR THE DIRECT SUPPORT OF ADOPTED CHILDREN DOES NOT CREATE A DUPLICATE LIABILITY ON THE PART OF THE GOVERNMENT TO PROVIDE SUPPORT BY PAYMENT OF TRANSPORTATION ALLOWANCES. THEREFORE, IN THE PRESENT CASE IT MAY NOT BE CONCLUDED THAT THE RECORD ESTABLISHES THAT THE ADOPTED CHILDREN WERE IN FACT DEPENDENT UPON THE OFFICER WITHIN THE MEANING OF THE PERTINENT STATUTE, 37 U.S.C. 401 (2).

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