B-162587, DECEMBER 18, 1967, 47 COMP. GEN. 349

B-162587, DECEMBER 18, 1967, 47 COMP. GEN. 349

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - CHILDREN - ADOPTED THE ADOPTION OF AN ORPHAN BY AN ARMY OFFICER HAVING BEEN IN CONFORMITY WITH THE ADOPTION LAWS OF VIETNAM, IT WILL BE RECOGNIZED IN OTHER STATES TO THE EXTENT IT IS NOT REPUGNANT TO THE PUBLIC POLICY OF THE STATE, AND THE OFFICER HAVING COMPLIED WITH THE REQUIREMENTS FOR THE ISSUANCE OF A PASSPORT AND FOR THE CLASSIFICATION OF THE MINOR CHILD AS AN ELIGIBLE ORPHAN FOR A VISA UNDER THE IMMIGRATION AND NATURALIZATION ACT OF 1952, AS AMENDED, THE ADOPTED CHILD IS CONSIDERED A DEPENDENT OF THE OFFICER WITHIN THE MEANING OF 37 U.S. 401, AND THE OFFICER IS ENTITLED TO THE CHILD'S TRANSPORTATION AT GOVERNMENT EXPENSE INCIDENT TO A PERMANENT CHANGE OF STATION AND HE, THEREFORE, MAY BE PAID A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION.

TO MAJOR H. T. TAYLOR, DEPARTMENT OF THE ARMY, DECEMBER 18, 1967:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 17, 1967, FORWARDED HERE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE (PDTATAC CONTROL NO. 67-30), REQUESTING A DECISION WHETHER MAJOR GEORGE M. BUCK IS ENTITLED TO A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR THE TRAVEL OF AN ADOPTED DAUGHTER FROM FORT HOLABIRD, MARYLAND, TO FORT SHAFTER, HAWAII, UNDER PERMANENT CHANGE OF STATION ORDERS DATED AUGUST 9, 1966.

DURING JANUARY AND FEBRUARY 1967, THE OFFICER'S WIFE AND FOUR DEPENDENT CHILDREN, INCLUDING AN ADOPTED DAUGHTER, MAI LIEN BUCK, TRAVELED FROM LINTHICUM, MARYLAND, TO FORT SHAFTER, HAWAII, UNDER LETTER ORDER DATED AUGUST 17, 1966, AUTHORIZING OVERSEA TRAVEL OF DEPENDENTS TO FORT SHAFTER AT GOVERNMENT EXPENSE. PAYMENT WAS MADE FOR THE TRAVEL OF MAJOR BUCK'S DEPENDENTS TO TRAVIS AIR FORCE BASE, CALIFORNIA, WITH THE EXCEPTION OF THE ADOPTED DAUGHTER, PAYMENT FOR HER TRAVEL HAVING BEEN WITHHELD BECAUSE OF DOUBT AS TO WHETHER THE ADOPTION WAS LEGAL.

THE PAPERS ENCLOSED WITH YOUR LETTER SHOW THAT ON NOVEMBER 16, 1964, MAJOR BUCK, ACTING FOR HIMSELF AND ON BEHALF OF HIS WIFE, WHO WAS THEN RESIDING IN FORSYTH COUNTY, NORTH CAROLINA, ENTERED INTO A CHILD ADOPTION AGREEMENT WITH THE MANAGER OF AN ORPHANAGE IN SAIGON, REPUBLIC OF VIETNAM. THE AGREEMENT, ENTERED INTO IN THE PRESENCE OF THE VILLAGE ADMINISTRATIVE COMMITTEE OF THE VILLAGE IN VIETNAM WHERE THE OFFICER WAS RESIDING, STATED THAT THE CHILD'S PARENTS HAD GIVEN HER TO THE ORPHANAGE AFTER HER BIRTH ON JUNE 1, 1960, HAD MADE NO FURTHER VISITS AND THEIR ADDRESS IS UNKNOWN. ON NOVEMBER 24, 1964, THE ADOPTION AGREEMENT WAS RATIFIED BY THE SAIGON COURT OF FIRST INSTANCE, JUDICIAL SERVICE, SOUTH OF SOUTH VIETNAM, MINISTRY OF JUSTICE, REPUBLIC OF VIETNAM. THE RATIFICATION WAS DULY RECORDED AND REGISTERED NOVEMBER 30, 1964.

IN A MEMORANDUM OF MAY 15, 1964, THE CONSULAR SECTION, AMERICAN EMBASSY, SAIGON, VIETNAM, OUTLINED THE LAWS OF VIETNAM PERTAINING TO ADOPTION. THIS MEMORANDUM STATES THAT THEY REQUIRE THAT THE PARENTS OF THE CHILD OR THE GUARDIANS AGREE TO THE ADOPTION, THAT THE ADOPTING PERSON IF MARRIED, SUBMIT WRITTEN CONSENT OF THE SPOUSE AND THAT THE DEED MUST BE EXECUTED IN THE PRESENCE OF NOTARIAL AUTHORITIES AND THE CIVIL REGISTRAR. THE MEMORANDUM ALSO LISTED THE REQUIREMENTS FOR OBTAINING A PASSPORT FOR THE ADOPTED CHILD AND A NON-QUOTA IMMIGRANT VISA BY THE IMMIGRATION AND NATURALIZATION SERVICE.

THE MEMORANDUM INDICATED THAT EACH STATE OF THE UNITED STATES HAS ITS OWN LAWS CONCERNING ADOPTION, BUT A LEGAL ADOPTION IN VIETNAM WOULD ORDINARILY BE CONSIDERED VALID IN THE UNITED STATES.

IN HIS CLAIM, MAJOR BUCK CERTIFIED THAT HIS ADOPTED DAUGHTER WAS 100 PERCENT DEPENDENT ON HIM. HOWEVER, YOU STATE THAT HER DEPENDENCY FOR TRAVEL PURPOSES HAS NOT BEEN PREVIOUSLY ESTABLISHED. YOU INDICATE THAT ADOPTION PAPERS HAVE NOT BEEN RATIFIED BY A COURT IN THE UNITED STATES AND DOUBT EXISTS AS TO DEPENDENCY, SINCE IT IS NOT CLEAR WHETHER THE DOCUMENTS SUBMITTED CONSTITUTED A LEGAL ADOPTION OR WERE MERELY EVIDENCE OF AN AGREEMENT FOR THE MEMBER TO LATER ADOPT THE CHILD.

THE TERM "DEPENDENT" AS USED IN SECTION 406 OF TITLE 37, UNITED STATES CODE, AUTHORIZING THE TRANSPORTATION OF DEPENDENTS OF MILITARY PERSONNEL INCIDENT TO A CHANGE OF PERMANENT STATION, IS DEFINED IN SECTION 401 OF TITLE 37, TO MEAN IN PERTINENT PART, AS FOLLOWS: "/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; OR (B) IS INCAPABLE OF SELF-SUPPORT BECAUSE OF A MENTAL OR PHYSICAL INCAPACITY AND IN FACT DEPENDENT ON THE MEMBER FOR OVER ONE-HALF OF HIS SUPPORT; * * *"

CHAPTER 7 OF THE JOINT TRAVEL REGULATIONS ISSUED PURSUANT TO THE PROVISIONS OF SECTION 406 CITED ABOVE, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES (WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL) SHALL BE ENTITLED TO TRANSPORTATION IN KIND (OR MONETARY ALLOWANCE IN LIEU THEREOF) FOR THEIR DEPENDENTS UPON A PERMANENT CHANGE OF STATION.

GENERALLY, THE VALIDITY OF AN ADOPTION DECREE IS TO BE DETERMINED BY THE LAW OF THE STATE OR COUNTRY IN WHICH THE DECREE WAS GRANTED. HOWEVER, WHEN LEGALLY CREATED PURSUANT TO THE LAWS OF THE FORUM OF THE ADOPTION PROCEEDINGS, THE STATUS OF THE ADOPTION WILL BE RECOGNIZED AND GIVEN EFFECT IN OTHER STATES, AT LEAST TO THE EXTENT THAT THE STATUS CREATED OR THE RIGHTS FLOWING THEREFROM ARE NOT REPUGNANT TO THE POLICY OF SUCH OTHER STATE, EVEN THOUGH THE FORM OF THE PROCEDURE BY WHICH THAT STATUS WAS CREATED UNDER THE FOREIGN LAW WAS DIFFERENT FROM THAT REQUIRED TO CREATE IT UNDER THE LAW OF SUCH OTHER STATES. 2 AM JUR 2D - ADOPTION - SECTION 12.

UNDER THE RULES OF INTERNATIONAL COMITY, THE GENERAL RULE STATED ABOVE EXTENDS TO THE RECOGNITION BY A STATE OF THE ADOPTION DECREE OF A COURT OF A FOREIGN NATION, PROVIDED THAT THE FOREIGN COURT HAD JURISDICTION TO FIX THE STATUS OF THE CHILD WITH RESPECT TO THE ADOPTIVE PARENTS AND THE RECOGNITION OF SUCH STATUS AS FIXED BY THE FOREIGN DECREE WILL NOT OFFEND PUBLIC POLICY OF THAT STATE. SEE ZANAONICO V. NEELD, 111 A2D 772; TAILIDIS V. PEDAKIS, 132 SO 2D 9; CORBETT V. STERGIOS, 137 N.W. 2D 266 AND DOULGERIS V. BAMBACUS, 127 S.E. 2D 145.

THE ADOPTION AGREEMENT ENTERED INTO BETWEEN MAJOR BUCK AND THE MANAGER OF THE ORPHANAGE IN SAIGON WAS RATIFIED BY A DULY CONSTITUTED COURT OF THE REPUBLIC OF VIETNAM AND AS DULY RECORDED AND REGISTERED, APPEARS TO BE IN CONFORMITY WITH THE ADOPTION LAWS OF VIETNAM, AS OUTLINED IN THE MEMORANDUM OF THE CONSULAR SECTION. MAJOR BUCK APPARENTLY COMPLIED WITH ALL THE NECESSARY REQUIREMENTS FOR THE ISSUANCE OF A PASSPORT FOR HIS ADOPTED DAUGHTER AND PRESUMABLY FILED THE REQUIRED PETITION AS SET FORTH IN THE CONSULAR MEMORANDUM TO CLASSIFY HER AS AN ELIGIBLE ORPHAN FOR A VISA UNDER THE IMMIGRATION AND NATURALIZATION ACT OF 1952, 66 STAT. 166, AS AMENDED.

ACCORDINGLY, ON THE EVIDENCE SUBMITTED, THE OFFICER MAY BE CONSIDERED TO HAVE A DEPENDENT (ADOPTED MINOR CHILD) WITHIN THE MEANING OF THE DEFINITION CONTAINED IN SECTION 401 OF TITLE 37, U.S.C. AND ENTITLED TO HER TRANSPORTATION AT GOVERNMENT EXPENSE INCIDENT TO HIS CHANGE OF PERMANENT STATION TO HAWAII. THEREFORE, IF OTHERWISE CORRECT, PAYMENT MAY BE MADE ON THE VOUCHER PRESENTED, WHICH IS ENCLOSED.