B-158409, MAR. 16, 1966, 45 COMP. GEN. 574

B-158409: Mar 16, 1966

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IN VETERANS FACILITIES REDUCTION THE RETIRED PAY OF A FORMER ARMY NURSE INSTITUTIONALIZED IN A VETERANS HOSPITAL WHOSE AFFAIRS ARE ADMINISTERED BY A GUARDIAN AND WHOSE UNMARRIED. LEGITIMATE CHILD UNDER 18 IS FURNISHED NO SUBSTANTIAL ASSISTANCE IS NOT SUBJECT TO THE RETIRED PAY REDUCTION PRESCRIBED IN 38 U.S.C. 3203 (A) (1) FOR A VETERAN. WHO IS FURNISHED HOSPITAL TREATMENT. THE RETIREMENT PAY REDUCTION EXEMPTION FOR A VETERAN HAVING A CHILD IS THEREFORE BASED ON THE PARENT AND CHILD RELATIONSHIP WITHOUT REGARD TO THE CONDITION OF DEPENDENCY. - IS ENTITLED TO RECEIVE RETIREMENT PAY FREE OF THE LIMITATION PRESCRIBED IN SECTION 3203 (A) (1). THE RETIRED PAY WITHHELD IS PAYABLE TO THE GUARDIAN.

B-158409, MAR. 16, 1966, 45 COMP. GEN. 574

PAY - RETIRED - HOSPITALIZATION, ETC., IN VETERANS FACILITIES REDUCTION THE RETIRED PAY OF A FORMER ARMY NURSE INSTITUTIONALIZED IN A VETERANS HOSPITAL WHOSE AFFAIRS ARE ADMINISTERED BY A GUARDIAN AND WHOSE UNMARRIED, LEGITIMATE CHILD UNDER 18 IS FURNISHED NO SUBSTANTIAL ASSISTANCE IS NOT SUBJECT TO THE RETIRED PAY REDUCTION PRESCRIBED IN 38 U.S.C. 3203 (A) (1) FOR A VETERAN, WITHOUT SPOUSE, CHILD, OR DEPENDENT PARENT, WHO IS FURNISHED HOSPITAL TREATMENT, INSTITUTIONAL, OR DOMICILIARY CARE BY THE VETERANS ADMINISTRATION, THE STATUTORY REQUIREMENT OF DEPENDENCY IN SECTION 3203 (A) (1) ATTACHING ONLY TO PARENTS, THE RETIREMENT PAY REDUCTION EXEMPTION FOR A VETERAN HAVING A CHILD IS THEREFORE BASED ON THE PARENT AND CHILD RELATIONSHIP WITHOUT REGARD TO THE CONDITION OF DEPENDENCY, AND THE VETERAN HAVING A "CHILD" WITHIN THE MEANING OF 38 U.S.C. 101 (4/--- AN UNMARRIED PERSON, UNDER THE AGE OF 18, AND LEGITIMATE --- IS ENTITLED TO RECEIVE RETIREMENT PAY FREE OF THE LIMITATION PRESCRIBED IN SECTION 3203 (A) (1), AND THE RETIRED PAY WITHHELD IS PAYABLE TO THE GUARDIAN.

TO LIEUTENANT COLONEL H. W. KASSERMAN, DEPARTMENT OF THE ARMY, MARCH 16, 1966:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 14, 1965, AND ENCLOSURES (NUMBERED 1 TO 19), REQUESTING AN ADVANCE DECISION CONCERNING PAYMENT PROPOSED ON VOUCHER (TRANSMITTED WITH YOUR LETTER) STATED IN FAVOR OF FRANK T. DOYLE, GUARDIAN, FOR SECOND LIEUTENANT PATRICIA M. MURDOCK, N- 785305, ARMY NURSE CORPS, RETIRED, IN THE AMOUNT OF $500.56, REPRESENTING AN ADJUSTMENT OF RETIRED PAY WITHHELD BY REASON OF THE PROVISION OF 38 U.S.C. 3202 (A) (1), FOR THE PERIOD APRIL 1, 1965 TO SEPTEMBER 30, 1965, INCLUSIVE. YOUR REQUEST WAS ASSIGNED D.O. NO. A-889 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS INDICATED THAT LIEUTENANT PATRICIA M. DOYLE, ARMY NURSE CORPS, WAS RETIRED ON MAY 31, 1946, BY REASON OF DISABILITY UNDER AUTHORITY OF THE ACT OF JUNE 20, 1930, CH. 554, 46 STAT. 790, 10 U.S.C. 937 (1946 ED.), AND THE ACT OF JUNE 22, 1944, CH. 272, 58 STAT. 324, 50 U.S.C. APP. 1591 (1958 ED.). HER NAME HAS BEEN CHANGED TO MURDOCK BY REASON OF MARRIAGE. CHILD, JUDITH ANNE KRAFT, WAS BORN MAY 4, 1949, AND THE CERTIFICATE OF BIRTH (ENCLOSURE 11) SHOWS THE NAME OF THE MOTHER AS PATRICIA M. DOYLE AND THE NAME OF THE FATHER AS JAMES RALPH KRAFT. THE CHILD'S NAME WAS LEGALLY CHANGED TO JUDITH ANN MURDOCK ON MARCH 5, 1962 (ENCLOSURE 12).

ON FEBRUARY 13, 1959, IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE CITY AND COUNTY OF SAN FRANCISCO, MR. FRANK T. DOYLE (LIEUTENANT MURDOCK'S BROTHER) WAS APPOINTED GUARDIAN OF THE PERSON AND ESTATE OF PATRICIA DOYLE MURDOCK, INCOMPETENT (ENCLOSURE 16). IT APPEARS THAT THE APPOINTMENT OF GUARDIANSHIP IS STILL IN FULL FORCE AND EFFECT AND THAT RETIRED PAY HAS BEEN PAID TO THE GUARDIAN SINCE FEBRUARY 1959.

IT IS STATED THAT LIEUTENANT MURDOCK WAS DISCHARGED FROM THE VETERANS ADMINISTRATION HOSPITAL, SAN FRANCISCO, CALIFORNIA, ON FEBRUARY 19, 1961, AFTER 2 MONTHS OF COMPLETE BED OCCUPANCY. IT IS ALSO STATED THAT LIEUTENANT MURDOCK WAS ADMITTED ON AUGUST 21, 1961, TO THE VETERANS ADMINISTRATION HOSPITAL, PALO ALTO, CALIFORNIA, AND HAS REMAINED THEREIN AS A PATIENT SINCE THAT DATE WITHOUT LEAVE, TRIAL VISITS, RELEASE OR DISCHARGE. IT APPEARS THAT VETERANS ADMINISTRATION FORM 10-7132, DATED MARCH 26, 1965, SHOWING THE ADMISSION OF LIEUTENANT MURDOCK TO THE PALO ALTO VA HOSPITAL IN THE MONTH OF AUGUST 1961 WAS THE FIRST NOTICE OF VETERANS ADMINISTRATION HOSPITALIZATION RECEIVED BY THE ARMY FINANCE CENTER FOLLOWING THE PRIOR RECEIPT OF VETERANS ADMINISTRATION FORM 21-404, DATED FEBRUARY 23, 1961, WHICH YOU SAY INDICATES THAT SHE WAS DISCHARGED FROM THE SAN FRANCISCO VA HOSPITAL ON FEBRUARY 19, 1961. UNDER AUTHORITY OF 38 U.S.C. 3203 (A) (1) RETIRED PAY WAS REDUCED TO ONE-HALF OR $82.82 A MONTH EFFECTIVE APRIL 1, 1965, AND THE GUARDIAN, FRANK T. DOYLE, WAS REQUESTED TO REFUND THE AMOUNT OF $2,989.29 STATED TO HAVE BEEN OVERPAID HIM FOR THE PERIOD MARCH 1, 1962 TO MARCH 31, 1965, INCLUSIVE.

SECTION 3203 (A) (1), TITLE 38, U.S.C. (1964 ED.), IN PERTINENT PART PROVIDES AS FOLLOWS:

WHERE ANY VETERAN HAVING NEITHER WIFE, CHILD, NOR DEPENDENT PARENT IS BEING FURNISHED HOSPITAL TREATMENT, INSTITUTIONAL OR DOMICILIARY CARE BY THE VETERANS' ADMINISTRATION ANY COMPENSATION OR RETIREMENT PAY OTHERWISE PAYABLE SHALL CONTINUE WITHOUT REDUCTION UNTIL THE FIRST DAY OF THE SEVENTH CALENDAR MONTH FOLLOWING THE MONTH OF ADMISSION OF SUCH VETERAN FOR TREATMENT OR CARE. IF TREATMENT OR CARE EXTENDS BEYOND THAT PERIOD, THE COMPENSATION OR RETIREMENT PAY, IF $30 PER MONTH OR LESS, SHALL CONTINUE WITHOUT REDUCTION, BUT IF GREATER THAN $30 PER MONTH, THE COMPENSATION OR RETIREMENT PAY SHALL NOT EXCEED 50 PERCENTUM OF THE AMOUNT OTHERWISE PAYABLE OR $30 PER MONTH, WHICHEVER IS THE GREATER. * * *.

LIEUTENANT MURDOCK IS A "VETERAN.' 38 U.S.C. 101 (2). INSOFAR AS IS HERE MATERIAL THE TERM ,CHILD" AS DEFINED IN 38 U.S.C. 101 (4/---

* * * MEANS (EXCEPT FOR PURPOSES OF CHAPTER 19 OF THIS TITLE AND SECTION 5202 (B) OF THIS TITLE) A PERSON WHO IS UNMARRIED AND---

(A) WHO, IS UNDER THE AGE OF EIGHTEEN YEARS;

(B) WHO, BEFORE ATTAINING THE AGE OF EIGHTEEN YEARS, BECAME PERMANENTLY INCAPABLE OF SELF-SUPPORT; OR

(C) WHO, AFTER ATTAINING THE AGE OF EIGHTEEN YEARS AND UNTIL COMPLETION OF EDUCATION OR TRAINING (BUT NOT AFTER ATTAINING THE AGE OF TWENTY-ONE YEARS), IS PURSUING A COURSE OF INSTRUCTION AT AN APPROVED EDUCATIONAL INSTITUTION; AND WHO IS A LEGITIMATE CHILD, A LEGALLY ADOPTED CHILD, A STEPCHILD WHO IS A MEMBER OF A VETERAN'S HOUSEHOLD OR WAS A MEMBER AT THE TIME OF THE VETERAN'S DEATH, OR AN ILLEGITIMATE CHILD * * *.

IT IS STATED IN PARAGRAPH 5 OF YOUR LETTER THAT ACCORDING TO INFORMATION FURNISHED BY THE GUARDIAN AND HIS ATTORNEY "JUDITH ANN (NOW AGE 16) IS LIEUTENANT MURDOCK'S LEGITIMATE, UNMARRIED, DEPENDENT CHILD.' IT IS FURTHER STATED THAT SHE ROOMS AND BOARDS WITH FRIENDS OF THE FAMILY (MR. AND MRS. JOHN MITCHELL, SAN FRANCISCO, CALIFORNIA) WHO ARE REIMBURSED FOR HER CARE BY THE CATHOLIC SOCIAL SERVICE; THAT LIEUTENANT MURDOCK DOES NOT CONTRIBUTE TOWARD JUDITH'S SUPPORT BUT DOES PROVIDE SOME CLOTHING AND SPENDING MONEY FROM TIME TO TIME AND THAT THE GUARDIAN (FRANK T. DOYLE) IS REPORTED TO BE SAVING A PORTION OF LIEUTENANT MURDOCK'S FUNDS "TO HELP FINANCE JUDITH'S COLLEGE EDUCATION.' IT IS ALSO STATED (IN PARAGRAPH 3 OF YOUR LETTER) THAT THE RECORDS OF THE ARMY FINANCE CENTER CONTAIN ONLY ONE STATEMENT OF ACCOUNT (SUBMITTED TO THE COURT BY THE GUARDIAN IN MAY 1960) AND THAT NO EXPENDITURE SPECIFICALLY FOR A MINOR CHILD IS SHOWN THEREON (ENCLOSURE 14).

THE REQUEST FOR AN ADVANCE DECISION IS PRESENTED BECAUSE OF UNCERTAINTY AS TO WHETHER JUDITH ANN MURDOCK IS A "CHILD" AS THAT TERM IS USED AND DEFINED IN SUBSECTIONS 101 (4) AND 3203 (A) (1) OF TITLE 38, U.S.C. IN THAT CONNECTION IT IS STATED (PARAGRAPH 8 OF YOUR LETTER):

* * * IT MAY HAVE BEEN CONTEMPLATED THAT A "CHILD" AS THE TERM IS USED IN SUBSECTIONS 101 (4) AND 3203 (A) (1) WOULD BE DEPENDENT UPON THE VETERAN FOR SUPPORT. IF DEPENDENCY IS REQUIRED, THEN JUDITH ANN MURDOCK, MAY NOT BE AN ELIGIBLE DEPENDENT. THEREFORE, DOUBT EXISTS AS TO WHETHER THIS "FEMALE VETERAN" IS ENTITLED TO PAYMENT OF FULL RETIRED PAY WITHOUT THE REDUCTION PROVIDED FOR IN 38 U.S. CODE, SUBSECTION 3203 (A) (1).

SECTION 3203 (A) (1), TITLE 38, U.S. CODE, PROVIDES FOR REDUCTION OF RETIREMENT PAY IN THE AMOUNT AND UNDER THE CIRCUMSTANCES THEREIN SET FORTH ONLY IN THE CASE OF A "VETERAN HAVING NEITHER WIFE, CHILD, NOR DEPENDENT PARENT.' IT WILL BE NOTED THAT THE SPECIFIC STATUTORY REQUIREMENT OF DEPENDENCY ATTACHES ONLY TO THE PARENTS AND NOT TO THE WIFE OR CHILD OF THE VETERAN. THE EXEMPTION FROM THE RETIREMENT PAY REDUCTION PRESCRIBED IN SECTION 3203 (A) (1) FOR A VETERAN HAVING A "CHILD" QUITE CLEARLY IS BASED ON THE GENERAL PRESUMPTION OF DEPENDENCY WHICH FLOWS FROM THE LEGAL DUTY OF THE PARENT TO SUPPORT HIS OR HER CHILD. IN ANY EVENT THE CITED STATUTORY PROVISION IMPOSES NO CONDITION WHATEVER IN THE CASE OF A "CHILD" WITHIN THE STATUTORY DEFINITION OF THAT TERM IN 38 U.S.C. 101 (4), BUT GRANTS THE EXEMPTION SOLELY ON THE BASIS OF THE PARENT AND CHILD RELATIONSHIP AND TOTALLY WITHOUT REGARD TO THE ACTUAL CONDITION OF DEPENDENCY. ALSO, IN THE DEFINITION OF THE TERM "CHILD" IN SUBSECTION 101 (4) THE MATTER OF THE CHILD'S DEPENDENCY UPON THE VETERAN FOR SUPPORT AND MAINTENANCE IS NOT MENTIONED EXCEPT AS MAY BE INFERRED IN THE TWO SITUATIONS MENTIONED IN CLAUSES (B) AND (C), NEITHER OF WHICH IS PRESENTED IN THE INSTANT CASE. HENCE, WHERE THE VETERAN HAS A "CHILD" WITHIN THE DEFINITION OF THAT TERM IN 38 U.S.C. 104 (4), THE VETERAN CONCERNED IS ENTITLED TO RECEIVE RETIREMENT PAY FREE OF THE LIMITATION PRESCRIBED IN 38 U.S.C. 3203 (A) (1). COMPARE 9 COMP. GEN. 142.

ACCORDINGLY, LIEUTENANT PATRICIA M. MURDOCK HAS BEEN ENTITLED TO RECEIVE FULL RETIREMENT PAY FROM MARCH 1962, SINCE HER STATUS UNDER THE PROVISIONS OF 38 U.S.C. 3203 (A) (1) IS THAT OF A ,VETERAN" WITH A "CHILD.' THE VOUCHER (FCUSA FORMS 20-41 AND 20-43) RECEIVED WITH YOUR LETTER IS RETURNED AND, IF OTHERWISE CORRECT, PAYMENT THEREON IS AUTHORIZED.