B-20483, DECEMBER 5, 1941, 21 COMP. GEN. 525

B-20483: Dec 5, 1941

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THE SAME RULE IS APPLICABLE TO A SIMILARLY SITUATED ENLISTED MAN WITH RESPECT TO MONEY ALLOWANCE FOR QUARTERS FOR DEPENDENTS UNDER THE ACT OF OCTOBER 17. OR ADOPTED CHILDREN ARE IN FACT DEPENDENT UPON THE PERSON CLAIMING DEPENDENCY ALLOWANCE.'. THE PURPOSE OF THIS LEGISLATION AND THE REASONS THEREFOR ARE SET FORTH IN A LETTER DATED MARCH 26. IT IS SIGNIFICANT TO NOTE THAT AFTER THE HOUSE COMMITTEE ON MILITARY AFFAIRS HAD STRICKEN THE WORD . OR ADOPTED CHILDREN ARE IN FACT DEPENDENT UPON THE PERSON CLAIMING DEPENDENCY ALLOWANCE.'. IT IS STATED WITH RESPECT TO THE ADDITIONAL EXPENSE INVOLVED: "IN THE ABSENCE OF ACCURATE INFORMATION AS TO THE NUMBER OF OFFICERS WHO HAVE ADOPTED CHILDREN OR STEPCHILDREN.

B-20483, DECEMBER 5, 1941, 21 COMP. GEN. 525

RENTAL, SUBSISTENCE, AND QUARTERS ALLOWANCES - DEPENDENTS OF NAVY PERSONNEL - STEPCHILDREN THE RELATION OF STEPPARENT AND STEPCHILD EXISTING BETWEEN A NAVY OFFICER AND THE CHILD OF HIS WIFE BY A FORMER MARRIAGE DOES NOT SURVIVE THE DEATH OF THE WIFE SO AS TO AUTHORIZE PAYMENT OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF DEPENDENT CHILD AS DEFINED IN SECTION 4 OF THE ACT OF JUNE 10, 1922, AS AMENDED, EVEN THOUGH THE OFFICER CONTINUES TO MAINTAIN THE CHILD SOLELY FROM HIS OWN INCOME, AND THE SAME RULE IS APPLICABLE TO A SIMILARLY SITUATED ENLISTED MAN WITH RESPECT TO MONEY ALLOWANCE FOR QUARTERS FOR DEPENDENTS UNDER THE ACT OF OCTOBER 17, 1940.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, DECEMBER 5, 1941:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 12, 1941, FORWARDING FOR CONSIDERATION AND DECISION A LETTER OF SEPTEMBER 3, 1941, FROM THE BUREAU OF SUPPLIES AND ACCOUNTS, AS FOLLOWS: SUBJECT: INCREASED ALLOWANCES BECAUSE OF DEPENDENTS; REQUEST FOR DECISION OF THE COMPTROLLER GENERAL. REFERENCES: (A) SECTION 4, ACT OF JUNE 10, 1922, 42 STAT. 627.

(B) ACT OF FEBRUARY 21, 1929, 45 STAT. 1254, CHAPTER

288.

(C) PARAGRAPH A-4 (B), APPENDIX A, S. AND A. MANUAL.

(D) EXECUTIVE ORDER NO. 8688, FEBRUARY 19, 1941.

(E) DECISION OF COMPTROLLER GENERAL, 20 COMP. GEN. 522.

1. SECTION 4 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, PROVIDED:

"THAT THE TERM "DEPENDENT" AS USED IN THE SUCCEEDING SECTIONS OF THIS ACT SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES A LAWFUL WIFE AND UNMARRIED CHILDREN UNDER TWENTY-ONE YEARS OF AGE * * *.' THE ACT OF FEBRUARY 21, 1929, 45 STAT. 1254, CHAPTER 288, PROVIDED:

"THAT THE WORD * * * "CHILDREN" AS USED IN * * * SECTION 4 OF THE ACT APPROVED JUNE 10, 1922 ( FORTY-SECOND STATUTES, PAGE 627), * * * SHALL BE HELD TO INCLUDE, LEGITIMATE CHILDREN, STEPCHILDREN, OR ADOPTED CHILDREN, WHERE SUCH LEGITIMATE CHILDREN, STEPCHILDREN, OR ADOPTED CHILDREN ARE IN FACT DEPENDENT UPON THE PERSON CLAIMING DEPENDENCY ALLOWANCE.' IT MAY ALSO BE NOTED THAT EXECUTIVE ORDER NO. 8688, FEBRUARY 19, 1941, PROMULGATING REGULATIONS FOR THE PAYMENT OF MONEY ALLOWANCE FOR QUARTERS TO ENLISTED MEN HAVING DEPENDENTS AS PROVIDED IN THE ACT OF OCTOBER 17, 1940, 54 STAT. 1205, USED IDENTICAL LANGUAGE (37 U.S.C. 8, 8A) IN DEFINING DEPENDENTS OF ENLISTED MEN. SEE COMMENT ON PAGES 529-530 OF REFERENCE (E).

2. THE PURPOSE OF THIS LEGISLATION AND THE REASONS THEREFOR ARE SET FORTH IN A LETTER DATED MARCH 26, 1928, FROM THE SECRETARY OF WAR TO THE CHAIRMAN OF THE COMMITTEE ON MILITARY AFFAIRS, HOUSE OF REPRESENTATIVES, PUBLISHED AS SENATE REPORT NO. 1359, 70TH CONGRESS, 2ND SESSION. IT IS SIGNIFICANT TO NOTE THAT AFTER THE HOUSE COMMITTEE ON MILITARY AFFAIRS HAD STRICKEN THE WORD ,STEPCHILDREN" FROM THE ORIGINAL DRAFT OF THE BILL (H.R. 12449) THE SENATE COMMITTEE REINSERTED THE WORD AND ADDED THE FOLLOWING "WHERE SUCH CHILDREN, STEPCHILDREN, OR ADOPTED CHILDREN ARE IN FACT DEPENDENT UPON THE PERSON CLAIMING DEPENDENCY ALLOWANCE.' IN THE LETTER REFERRED TO, AFTER SETTING FORTH THE REASONS FOR THE AMENDMENT, IT IS STATED WITH RESPECT TO THE ADDITIONAL EXPENSE INVOLVED:

"IN THE ABSENCE OF ACCURATE INFORMATION AS TO THE NUMBER OF OFFICERS WHO HAVE ADOPTED CHILDREN OR STEPCHILDREN, OR EVEN WITH THIS INFORMATION IT WOULD BE DIFFICULT TO ESTIMATE WHAT THE EFFECT OF THE ENACTMENT OF THE PROPOSED LEGISLATION WOULD HAVE UPON THE APPROPRIATION FOR THE PAY OF THE ARMY. THERE WOULD NO DOUBT BE MANY INSTANCES EVEN WHERE THERE WERE CHILDREN UNDER EITHER OF THESE CATEGORIES WHERE QUARTERS AND SUBSISTENCE WOULD BE DRAWN FOR OTHER DEPENDENTS AND THEREFORE THERE WOULD BE NO CHANGE IN THE SITUATION SO FAR AS THE COST IS CONCERNED. * * *.'

3. IN 8 COMP. GEN. 573 THE RULING IS MADE THAT THE FACT THAT AN OFFICER ACTUALLY SUPPORTS OR CONTRIBUTES TO THE SUPPORT OF A STEPCHILD MERELY TENDS TO ESTABLISH WHETHER HE STANDS IN LOCO PARENTIS TO THE CHILD AND NOT THAT IT IS HIS STEPCHILD, AND THAT THE LAW DOES NOT PROVIDE INCREASED ALLOWANCES TO AN OFFICER BECAUSE HE STANDS IN LOCO PARENTIS TO A CHILD NOT HIS OWN. THE DECISION IS ALSO MADE THAT THE OFFICER INVOLVED IN THAT CASE NO LONGER HAD A STEPCHILD AFTER THE TERMINATION OF THE MARRIAGE RELATION BETWEEN THE OFFICER AND THE MOTHER OF THE CHILD.

4. IN THE BELIEF THAT THE PARTICULAR CIRCUMSTANCES INVOLVED IN 8 COMP. GEN. 573 MADE IT NECESSARY TO ESTABLISH THE RULE STATED, AND NOT THAT THE INCREASED ALLOWANCE IS DENIED IN EVERY CASE REGARDLESS OF CIRCUMSTANCES, AND BECAUSE OF THE FACT THAT EXISTING REGULATIONS CONTAINED IN REFERENCE (C) HAVE BEEN CONSTRUED BY CERTAIN DISBURSING OFFICERS AS AUTHORIZING CREDITS OF INCREASED ALLOWANCES ON ACCOUNT OF A STEPCHILD, IT IS REQUESTED THAT A DECISION OF THE COMPTROLLER GENERAL BE OBTAINED ON THE FOLLOWING QUESTIONS:

(A) AN OFFICER OF THE NAVY MARRIED A WIDOW WHO HAD A SMALL CHILD BORN OF HER PREVIOUS MARRIAGE. BECAUSE OF THE FACT THAT THE CHILD HAD NO OTHER MEANS OF SUPPORT THE OFFICER TOOK IT INTO HIS HOME AND PROVIDED FOR ITS MAINTENANCE AND EDUCATION AS IF IT WERE HIS OWN CHILD. SUBSEQUENTLY (WHILE THE CHILD REMAINED AN INFANT AND INCAPABLE OF SELF-SUPPORT), THE MOTHER OF THE CHILD DIED AND THE OFFICER CONTINUED THE EXISTING ARRANGEMENT AFFECTING THE MAINTENANCE OF THE CHILD. UNDER SUCH CIRCUMSTANCES WHERE THE CHILD IS MAINTAINED SOLELY FROM HIS OWN INCOME, IS THE OFFICER ENTITLED TO INCREASED ALLOWANCES ON ACCOUNT OF A DEPENDENT CHILD WITHIN THE MEANING OF SECTION 4 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, AS AMENDED?

(B) IS AN ENLISTED MAN SIMILARLY SITUATED ENTITLED TO MONEY ALLOWANCE FOR QUARTERS, OTHER CONDITIONS BEING MET, WITHIN THE MEANING OF THE ACT OF OCTOBER 17, 1940, 54 STAT. 1205, AND EXECUTIVE ORDER NO. 8688, DATED FEBRUARY 19, 1941?

REFERENCE (A) IS SET OUT SUFFICIENTLY FOR PRESENT PURPOSES IN THE LETTER, SUPRA. REFERENCE (B), QUOTED IN FULL, IS AS FOLLOWS:

THAT THE WORDS ",CHILD" AND "CHILDREN" AS USED IN SECTION 12 OF THE ACT APPROVED MAY 18, 1920 ( FORTY-FIRST STATUTES, PAGE 604), AND IN SECTION 4 OF THE ACT APPROVED JUNE 10, 1922 ( FORTY-SECOND STATUTES, PAGE 627), AND IN SECTION 12 OF THE ACT APPROVED JUNE 10, 1922 ( FORTY SECOND STATUTES, PAGE 631), AS AMENDED BY THE ACT APPROVED JUNE 1, 1926 ( FORTY-FOURTH STATUTES, PAGE 680), SHALL BE HELD TO INCLUDE LEGITIMATE CHILDREN, STEPCHILDREN, AND ADOPTED CHILDREN, WHERE SUCH LEGITIMATE CHILDREN, STEPCHILDREN, OR ADOPTED CHILDREN ARE IN FACT DEPENDENT UPON THE PERSON CLAIMING DEPENDENCY ALLOWANCE.

REFERENCE (C) IS IN RELEVANT PART AS FOLLOWS:

IN THE CASE OF OFFICERS CLAIMING INCREASED ALLOWANCES BECAUSE OF DEPENDENT LEGITIMATE CHILD, STEPCHILD, OR ADOPTED CHILD, CERTIFICATES IN THE FOLLOWING FORM WILL BE REQUIRED:

OFFICER WHO IS A WIDOWER

IN THE CASE OF AN OFFICER WHO IS A WIDOWER CLAIMING INCREASED ALLOWANCES FOR DEPENDENT LEGITIMATE CHILD OR STEPCHILD A CERTIFICATE IN THE FORM INDICATED BELOW WILL BE EXECUTED BY THE OFFICER AND FILED WITH THE VOUCHER OR PAY ROLL ON WHICH THE FIRST PAYMENT TO HIM IS MADE DURING EACH FISCAL YEAR. * * * THERE FOLLOWS THE FORM OF CERTIFICATE PRESCRIBED. IT WILL BE OBSERVED IN DECISION OF JANUARY 18, 1930, 9 COMP. GEN. 299, THE CERTIFICATE FOR TRANSPORTATION INCLUDED ,LEGITIMATE STEP-ADOPTED" CHILD OR CHILDREN, THE CERTIFICATE REQUIRED OF A WIDOWER WHO IS CLAIMING RENTAL AND SUBSISTENCE ALLOWANCE PROVIDED FOR "MY LEGITIMATE" CHILD OR CHILDREN, AND THAT OTHER CERTIFICATES AND REQUIREMENTS WERE MADE AS TO OFFICERS CLAIMING RENTAL AND SUBSISTENCE ALLOWANCES FOR AN ADOPTED CHILD OR CHILDREN.

REFERENCE (D), EXECUTIVE ORDER NO. 8688, FEBRUARY 19, 1941, DEFINED "DEPENDENTS" IN SUBSTANTIALLY THE WORDS OF THE STATUTES (REFERENCES (A) AND (B) (, AND PROVIDED THAT EFFECTIVE OCTOBER 17, 1940, CERTAIN CLASSES OF ENLISTED MEN DESIGNATED THEREIN SHOULD BE ENTITLED TO RECEIVE ALLOWANCES FOR QUARTERS PRESCRIBED FOR ENLISTED MEN BY AN EARLIER EXECUTIVE ORDER NO. 7293, FEBRUARY 14, 1936, AND IS NOT MATERIAL HERE.

REFERENCE (E), DECISION OF COMPTROLLER GENERAL, 20 COMP. GEN. 522, DISCUSSED IN DETAIL THE ENTITLEMENT OF SEVERAL CLASSES OF NAVAL ENLISTED PERSONNEL TO THE BENEFITS OF THE ACT OF OCTOBER 17, 1940, 54 STAT. 1205, AND EXECUTIVE ORDER NO. 8688 ISSUED PURSUANT THERETO, AND POINTED OUT THAT "AN ENLISTED MAN CLAIMING THE QUARTERS ALLOWANCE FOR DEPENDENT CHILDREN (LEGITIMATE, ADOPTED, OR STEP) IS REQUIRED TO SUPPLY SATISFACTORY EVIDENCE THAT SUCH CHILDREN ARE IN FACT DEPENDENT UPON HIM. SEE 9 COMP. GEN. 299.' THAT IS TO SAY, THAT EVEN WHEN THE RELATIONSHIP BETWEEN THE CLAIMANT AND THE MINOR ON WHOSE ACCOUNT HE CLAIMS ALLOWANCES IS SUCH AS OTHERWISE TO ENTITLE HIM THERETO, ACTUAL DEPENDENCY OF THE MINOR UPON THE CLAIMANT IS CONDITIO SINE QUA NON TO HIS RIGHT TO SAID ALLOWANCES, SINCE ACTUAL DEPENDENCY IS BY LAW MADE A QUESTION OF FACT IN EVERY CASE, TO BE ESTABLISHED BY ACCEPTABLE EVIDENCE.

EXAMINATION OF THE DECISION IN 8 COMP. GEN. 573, CITED IN THE ABOVE QUOTED LETTER, FAILS TO DISCLOSE ANY "PARTICULAR CIRCUMSTANCES INVOLVED" IN THE CASE THERE PRESENTED TO DIFFERENTIATE IT FROM OTHERS OF ITS KIND, OR TO SUPPORT A "BELIEF" THAT THE RULE THERE LAID DOWN WAS NOT INTENDED TO APPLY OR IS NOT EQUALLY APPLICABLE TO ALL OTHER CASES OF LIKE CHARACTER. NOR DOES IT APPEAR THAT THE FACTS IN THAT CASE DIFFERED IN ANY MATERIAL ASPECT FROM THOSE RECITED IN PARAGRAPH 4 (A) OF BUREAU OF SUPPLIES AND ACCOUNTS LETTER, SUPRA, EXCEPT THAT IT WAS NOT SHOWN THERE WHETHER THE MARRIAGE BETWEEN THE CLAIMANT AND THE MOTHER OF THE STEPCHILD HAD BEEN TERMINATED, WHILE THE INSTANCE CITED BY YOU SHOWS THE DEATH OF THE MOTHER OF THE INFANT AS A FACT.

THE REASON FOR THE RULE LAID DOWN IN THE CITED DECISION IS FOUND IN THE STATUTE ITSELF AND IN PRINCIPLES OF LAW ESTABLISHED BY NUMEROUS COURTS AND LEXICOGRAPHERS ALIKE AS A CHILD OF ONE'S WIFE OR HUSBAND BY A FORMER MARRIAGE. SEE WEBSTER'S NEW INTERNATIONAL DICTIONARY; 60 C.J. 31; WORDS AND PHRASES, PERMANENT EDITION, VOLUME 40, PAGE 142 ET SEQ. THE RELATION OF STEPPARENT AND STEPCHILD IS THAT EXISTING BETWEEN A HUSBAND OR WIFE AND THE CHILD OF HIS WIFE OR HER HUSBAND AS THE CASE MAY BE, BY A FORMER MARRIAGE. 46 C.J. 1337. THE RELATION IS ONE OF AFFINITY, A RELATIONSHIP BY MARRIAGE WHOLLY AND SOLELY, AS DISTINGUISHED FROM CONSANGUINITY OR RELATION BY BLOOD, AND THE CONSENSUS OF JUDICIAL DECISION IS THAT IT EXISTS ONLY SO LONG AS THE MARRIAGE FROM WHICH IT AROSE MAINTAINS, AND CEASES WITH THE TERMINATION THEREOF EITHER BY DEATH OR DIVORCE. THAT IS TO SAY, WHEN THE MARRIAGE BETWEEN THE MOTHER OR FATHER, AS THE CASE MAY BE, OF THE INFANT, AND THE STEPPARENT, IS TERMINATED FROM WHATEVER CAUSE, THE RELATION OF STEPPARENT AND STEPCHILD IS LIKEWISE TERMINATED IPSO FACTO, ALTHOUGH IN SOME JURISDICTIONS A DIFFERENT RULE HAS BEEN APPLIED WHEN THERE WAS OFFSPRING OF THE SECOND MARRIAGE, OR THAT BETWEEN THE NATURAL AND STEPPARENT OF THE CHILD, IN WHICH CASE, OF COURSE, THERE WOULD BE INVOLVED RELATIVES OF THE HALF BLOOD.

IN THE NATURE OF THE QUESTION MOST DECISIONS ON THE SUBJECT ARE OF STATE COURTS, BUT THE CASE OF BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINE MEN V. HOGAN, ET AL., 5 FED. SUPPLEMENT 598, COLLATED NUMEROUS DECISIONS, AND THE COURT REACHED THE CONCLUSION THAT THE WEIGHT OF AUTHORITY CLEARLY WAS THAT THE RELATION OF STEPPARENT AND STEPCHILD DOES NOT SURVIVE DISSOLUTION OF THE MARRIAGE BY WHICH IT WAS CREATED. IT MAY BE SAID IN THIS CONNECTION THAT THE WEIGHT OF AUTHORITY IS TO THE EFFECT THAT IN THE ABSENCE OF AGREEMENT TO THE CONTRARY, A STEPPARENT AS A GENERAL RULE, IS NOT RESPONSIBLE OR LIABLE FOR THE SUPPORT OF AN OFFSPRING OF A SPOUSE BY A FORMER MARRIAGE EVEN DURING COVERTURE, AND A FORTIORI WOULD THE RULE BE FOR APPLICATION AFTER TERMINATION THEREOF, ALTHOUGH THE DEPENDENCY STATUTE ABROGATES THE GENERAL RULE IN THAT RESPECT TO THE EXTENT THAT AN OFFICER OR ENLISTED MAN ESTABLISHING HIS RIGHT THERETO OTHERWISE IS ENTITLED TO TRANSPORTATION ON ACCOUNT OF A DEPENDENT STEPCHILD DURING COVERTURE WITH ITS MOTHER.

IT HAS BEEN HELD BY THE COURTS THAT IN THE CONSTRUCTION OF STATUTES CONGRESS WILL BE PRESUMED TO HAVE USED LANGUAGE IN ITS USUAL SIGNIFICANCE AND IN ACCORDANCE WITH COMMON UNDERSTANDING. UNITED STATES V. WURTS, 303 U.S. 414. IN VIEW OF THE UNIVERSAL ACCEPTATION OF THE WORD STEPCHILD AS ABOVE DEFINED THERE APPEARS TO BE NO ROOM FOR DOUBT THAT CONGRESS USED THE TERM IN THAT SENSE IN THE STATUTE IN QUESTION, THERE BEING NOTHING IN THE ACT OF FEBRUARY 21, 1929, SUPRA, TO INDICATE THAT THE CONGRESS, IN INCLUDING A STEPCHILD IN THE CATEGORY OF POSSIBLE DEPENDENTS, USED THE WORD IN ANY BROADER THAN ITS ORDINARY AND USUAL ACCEPTATION, AND INTENDED ONLY TO IMPOSE UPON THE GOVERNMENT THE COST OF TRANSPORTATION OF STEPCHILDREN UNDER SECTION 12 OF THE ACT OF MAY 18, 1920, 41 STAT. 604, AND SECTION 12 OF THE ACT OF JUNE 10, 1922, 42 STAT. 631, WHEN THE OTHER REQUIREMENTS OF THE STATUTE WERE FULFILLED.

IT FOLLOWS THAT THE QUESTIONS PRESENTED IN NUMBERED PARAGRAPH 4 (A) AND (B) OF YOUR SUBMISSION MUST BOTH BE ANSWERED IN THE NEGATIVE.