B-170459, SEP 24, 1970, 50 COMP GEN 220

B-170459, SEP 24, 1970, 50 COMP GEN 220

TRANSPORTATION - DEPENDENTS - MILITARY PERSONNEL - DEPENDENCY STATUS - CHILD IN VENTRE SA MERE ALTHOUGH A CHILD IN VENTRE SA MERE ON THE EFFECTIVE DATE OF THE PERMANENT CHANGE-OF-STATION ORDERS OF THE FATHER, A MEMBER OF THE UNIFORMED SERVICES, MAY NOT BE CONSIDERED HIS DEPENDENT FOR THE PURPOSES OF 37 U.S.C. 406(A) AUTHORIZING TRANSPORTATION AT GOVERNMENT EXPENSE OF PERSONS DEPENDENT UPON A MEMBER ON THE EFFECTIVE DATE OF CHANGE-OF-STATION ORDERS, IN VIEW OF THE BENEFICIAL PURPOSES OF THE STATUTE, REGULATIONS MAY BE ISSUED TO AUTHORIZE REIMBURSEMENT FOR THE COST OF TRAVEL TO A MEMBER'S NEW STATION OF HIS CHILD BORN AFTER THE EFFECTIVE DATE OF HIS CHANGE-OF- STATION ORDERS IF HIS WIFE'S TRAVEL TO THE NEW STATION AT GOVERNMENT EXPENSE PRIOR TO THE BIRTH OF THE CHILD IS PRECLUDED BY DEPARTMENTAL REGULATIONS DUE TO THE ADVANCED STAGE OF HER PREGNANCY.

TO THE SECRETARY OF THE ARMY, SEPTEMBER 24, 1970:

FURTHER REFERENCE IS MADE TO LETTER OF JULY 14, 1970, FROM THE OFFICE OF THE SECRETARY OF THE ARMY (DEPUTY FOR RESERVE AFFAIRS) REQUESTING A DECISION WHETHER A CHILD IN VENTRE SA MERE MAY BE CONSIDERED A DEPENDENT FOR THE PURPOSE OF ENTITLEMENT TO TRANSPORTATION AT GOVERNMENT EXPENSE WHEN SUCH CHILD IS NOT BORN UNTIL AFTER THE EFFECTIVE DATE OF PERMANENT CHANGE-OF-STATION ORDERS OF THE MILITARY MEMBER FATHER. THE REQUEST WAS ASSIGNED CONTROL NO. 70-38 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

IN THE LETTER OF JULY 14, 1970, IT IS SAID THAT PARAGRAPH M7000 OF THE JOINT TRAVEL REGULATIONS, VOLUME 1, PROVIDES THAT MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE UPON PERMANENT CHANGE OF STATION EXCEPT WHEN DEPENDENCY DOES NOT EXIST ON THE EFFECTIVE DATE OF THE ORDER DIRECTING THE PERMANENT CHANGE OF STATION. HOWEVER, WHEN TRAVEL OF DEPENDENTS IS DELAYED UNTIL AFTER THE EFFECTIVE DATE OF PERMANENT CHANGE-OF-STATION ORDERS FOR THE PURPOSE OF WAITING FOR THE BIRTH OF A CHILD, QUESTION ARISES WHETHER SUCH CHILD IS IN EXISTENCE AS A DEPENDENT ON THE EFFECTIVE DATE OF SUCH ORDERS SO AS TO ENTITLE THE MEMBER TO ITS TRANSPORTATION AT GOVERNMENT EXPENSE.

THE LETTER MENTIONS THAT IN 34 COMP. GEN. 415 (1955), WE HELD THAT THE RIGHT OF AN ILLEGITIMATE CHILD TO THE 6 MONTHS' DEATH GRATUITY AUTHORIZED BY THE ACT OF JUNE 4, 1920, WAS NOT DEFEATED BY THE FACT THAT THE CHILD WAS UNBORN ON THE DATE OF NOTIFICATION OF THE DEATH OF THE MEMBER, CITING IN RE SEABOLT, 113 F. 766, 771. IN THAT DECISION WE QUOTED FROM THE SEABOLT CASE WHICH HELD THAT A CHILD IN VENTRE SA MERE IS A CHILD WHILE YET UNBORN, AND THAT FROM THE TIME OF CONCEPTION THE INFANT "IS IN ESSE FOR THE PURPOSE OF TAKING ANY ESTATE WHICH IS FOR HIS INTEREST." SIMILARLY, IT HAS BEEN HELD THAT AN UNBORN CHILD IN ESSE AT THE TIME OF AN ACCIDENT HAS A RIGHT OF ACTION FOR WORKMEN'S COMPENSATION AGAINST THE EMPLOYER OF ITS FATHER BECAUSE OF THE FATHER'S INJURIES SUFFERED IN THE ACCIDENT. ROUTH V LIST & WEATHERLY CONSTR. CO., 257 P. 721 (KANSAS 1927).

THOSE DECISIONS RELATE TO THE CHILD'S ENTITLEMENT TO CLAIM IN ITS OWN RIGHT THE PAYMENTS CONCERNED. SINCE THE PERMANENT CHANGE-OF-STATION BENEFITS PROVIDED BY 37 U.S.C. 406(A) ARE AUTHORIZED FOR THE MEMBER AND NOT FOR HIS DEPENDENTS IN THEIR OWN RIGHT, SUCH DECISIONS ARE NOT CONTROLLING IN THIS CASE.

ADMITTEDLY, FOR THE PURPOSE OF THE TRANSPORTATION PROVIDED BY 37 U.S.C. 406(A), THE TERM "DEPENDENT" IS DEFINED IN 37 U.S.C. 401 AS INCLUDING THE MEMBER'S UNMARRIED CHILDREN UNDER 21 YEARS OF AGE WITHOUT OTHER LIMITATION.

HOWEVER, THE PURPOSE OF THE STATUTES AUTHORIZING TRANSPORTATION OF DEPENDENTS AT GOVERNMENT EXPENSE IS TO RELIEVE A MEMBER OF THE ARMED FORCES OF THE BURDEN OF PERSONALLY DEFRAYING THE EXPENSES OF MOVING HIS DEPENDENTS BETWEEN STATIONS WHEN SUCH MOVE IS MADE NECESSARY BY AN ORDERED CHANGE OF STATION. AND, IT CONSISTENTLY HAS BEEN HELD THAT THE TRANSPORTATION IS LIMITED TO SUCH PERSONS AS ARE DEPENDENT UPON THE MEMBER ON THE EFFECTIVE DATE OF THE ORDERS. SEE 37 COMP. GEN. 715.

ACCORDINGLY, IT MUST BE CONCLUDED THAT GENERALLY A CHILD IN VENTRE SA MERE ON THE EFFECTIVE DATE OF CHANGE OF PERMANENT STATION ORDERS MAY NOT BE CONSIDERED TO BE A DEPENDENT FOR THE PURPOSES OF 37 U.S.C. 406(A) AND WITH THE EXCEPTION HEREAFTER NOTED, YOUR QUESTION IS ANSWERED IN THE NEGATIVE.

HAVING IN MIND THE BENEFICIAL PURPOSES OF THE STATUTE, AND NOTWITHSTANDING THE FACT THAT NO TRANSPORTATION COST WOULD BE INCURRED FOR THE CHILD IF THE MOTHER TRAVELED TO THE NEW STATION PRIOR TO ITS BIRTH, WE WOULD NOT BE REQUIRED TO OBJECT TO THE PROMULGATION OF REGULATIONS AUTHORIZING REIMBURSEMENT FOR THE COST OF TRAVEL TO THE MEMBER'S NEW STATION OF HIS CHILD BORN AFTER THE EFFECTIVE DATE OF HIS CHANGE OF STATION ORDERS IF HIS WIFE'S TRAVEL TO THE NEW STATION AT GOVERNMENT EXPENSE PRIOR TO THE BIRTH OF THE CHILD IS PRECLUDED BY DEPARTMENTAL REGULATIONS DUE TO THE ADVANCED STAGE OF HER PREGNANCY.