B-229464, Aug 22, 1988

B-229464: Aug 22, 1988

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Maintenance and education was less than 22 percent of the total costs. Under the law stepchildren are required to be "in fact" dependent on the member to qualify for the allowances. The Army's disallowance of the member's claim for the stepchildren's travel allowance is sustained. Jr. - Travel Allowances - Dependency of Stepchildren: The issue in this case is whether the two stepchildren of Major George J. Are "in fact" dependent on him as required by law for him to receive travel allowances for them incident to his permanent change of duty station in July 1987. We conclude that there is no basis to question the Army's determination that "in fact" dependency has not been established for Major Kaigh's two stepchildren for purposes of travel allowances. /1/ Two minor stepchildren of Major Kaigh traveled to his new duty station in 1987 when he was transferred from Fort Drum.

B-229464, Aug 22, 1988

MILITARY PERSONNEL - Relocation - Relocation travel - Dependents - Eligibility DIGEST: An Army officer claimed his stepchildren as dependents for transportation allowances; however, the stepchildren received monthly income independent of the officer and the officer's contribution toward the stepchildren's support, maintenance and education was less than 22 percent of the total costs. Under the law stepchildren are required to be "in fact" dependent on the member to qualify for the allowances, and Army regulations require the member to show that he contributed not less than 30 percent of the costs before the stepchildren may be viewed, in fact, as dependents. Therefore, the Army's disallowance of the member's claim for the stepchildren's travel allowance is sustained.

Major George J. Kaigh, Jr. - Travel Allowances - Dependency of Stepchildren:

The issue in this case is whether the two stepchildren of Major George J. Kaigh, Jr., USA, are "in fact" dependent on him as required by law for him to receive travel allowances for them incident to his permanent change of duty station in July 1987. We conclude that there is no basis to question the Army's determination that "in fact" dependency has not been established for Major Kaigh's two stepchildren for purposes of travel allowances. /1/

Two minor stepchildren of Major Kaigh traveled to his new duty station in 1987 when he was transferred from Fort Drum, New York, to Fort Leavenworth, Kansas. He claimed the stepchildren as dependents for travel allowance purposes and submitted the following information in support of their "dependent" status. They required monthly support of $686; they received $536 from an independent source and Major Kaigh contributed $150. The Director of the Per Diem, Travel and Transportation Allowance Committee, in referring the question to us, observed that the facts are almost identical to those in our decision, Captain Rodney H. Bowman, B-196727, May 20, 1980, except for the amounts involved, and suggested that the claim should be denied. We agree.

Under 37 U.S.C. Sec. 406, members of the uniformed services are entitled to transportation allowances for their dependents when the member is ordered to make a permanent change of station. For the purposes of section 406, the term "dependent" is defined by 37 U.S.C. Sec. 401(2) to include a stepchild "if such child is in fact dependent on the member."

In the cited decision, Captain Rodney H. Bowman, B-196727, supra, it was determined that each stepchild required monthly support of $310.50; that each child received $250 from an independent source; and that the member contributed the balance, less than 20 percent. There we applied a principle, stated in Captain Roger E. Box, USN, B-193161, Feb. 22, 1979, that where a stepchild has an independent source of income, as here, the member much show a personal contribution making the child substantially dependent upon the member. See also Lieutenant Commander Albert Dick, B-199433, Dec. 29, 1980. In the Bowman decision we followed the Army regulations which, generally, require evidence that the member necessarily and regularly contributed not less than 30 percent of a stepchild's support. See para. 30216(b), AR 37-104-3, and para. 9-65, AR 37-106. The regulations have not materially changed since the Bowman decision. In the present case Major Kaigh contributes less than 22 percent of the stepchildren's support, which does not satisfy that burden.

Major Kaigh has not shown that his stepchildren were "in fact" dependents, as required by law. Accordingly, the disallowance of the member's claim will not be disturbed.

/1/ The request for decision was made by the Finance and Accounting Officer for the Commander, U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas. It was assigned Control No. 87 25 by the Per Diem, Travel and Transportation Allowance Committee.