B-94657, FEB 9, 1951

B-94657, FEB 9, 1951

PRECIS-UNAVAILABLE

MAJOR L. R. ANDREWS, F.D., DISBURSING OFFICER:

BY SIXTH INDORSEMENT DATED APRIL 14, 1950, OF THE CHIEF OF FINANCE, THERE WAS RECEIVED YOUR LETTER OF NOVEMBER 17, 1949, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER (ENCLOSED THEREWITH) IN FAVOR OF CHIEF WARRANT OFFICER CHARLES B. WIGGINS, UNITED STATES ARMY, FOR REIMBURSEMENT OF THE COST OF TRANSPORTATION OF HIS STEPCHILD (SIX YEARS OLD) FROM ANDALUSIA, ALABAMA, TO NEW ORLEANS, LOUISIANA, THE TRAVEL INVOLVED HAVING BEEN PERFORMED DURING THE PERIOD FEBRUARY 8 TO 14, 1949, PURSUANT TO ORDERS DATED FEBRUARY 7, 1949, WHICH, AMONG OTHER THINGS, AUTHORIZED MR. WIGGINS' DEPENDENTS (WIFE, CHILD AND STEPCHILD) TO PROCEED AS INDICATED THEREIN TO THE NEW ORLEANS PORT OF EMBARKATION. YOU EXPRESS DOUBT AS TO WHETHER THE STEPCHILD, WHO IS IN RECEIPT OF A $58 MONTHLY PENSION FROM THE VETERANS ADMINISTRATION, IS IN FACT DEPENDENT UPON THE OFFICER WITHIN THE MEANING OF THE ACT OF FEBRUARY 21, 1929, 45 STAT. 1254.

THE OFFICER'S DEPENDENCY CERTIFICATE, SUBMITTED WITH YOUR LETTER, CONTAINS A TYPEWRITTEN STATEMENT AT THE BOTTOM THEREOF WHICH READS AS FOLLOWS:

"THIS CHILD RECEIVES VET. ADMINISTRATION PENSION IN THE AMOUNT OF $58.00 MONTHLY, VET. ADM. A/C #XC-3154195, MONTGOMERY, ALA. OFFICE, WHICH I DO NOT CONSIDER ADEQUATE FOR HER SUPPORT AND EDUCATION BUT WHICH PREVENTS HER BEING SOLELY DEPENDENT ON ME."

SECTION 4(B) OF THE ACT OF JUNE 5, 1942, 56 STAT. 315, AUTHORIZES TRANSPORTATION OF DEPENDENTS OF CERTAIN MEMBERS OF THE MILITARY SERVICES FROM THE PLACE WHERE THEY WERE LEFT UPON THE MEMBER'S ASSIGNMENT TO AN OVERSEAS STATION TO A DUTY STATION AT WHICH RESTRICTIONS AGAINST TAKING DEPENDENTS DO NOT APPLY, AND SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 365, 366, AUTHORIZES THE FURNISHING OF TRANSPORTATION IN LIEU THEREOF) FOR DEPENDENTS, AS DEFINED IN SECTION 4 OF SAID ACT, TO THE NEW STATION OF THE MEMBER OF THE MILITARY SERVICE WHEN ORDERED TO MAKE A PERMANENT CHANGE OF STATION, NOT TO EXCEED THE COST FROM THE OLD TO THE NEW STATION. SECTION 4 OF SUCH LATTER ACT (56 STAT. 361), IN EFFECT DURING THE PERIOD INVOLVED, DEFINES THE TERM "DEPENDENT" INSOFAR AS HEREIN MATERIAL, AS FOLLOWS:

"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. *** PROVIDED, THAT THE TERM 'CHILDREN' SHALL BE HELD TO INCLUDE STEPCHILDREN AND ADOPTED CHILDREN WHEN SUCH STEPCHILDREN OR ADOPTED CHILDREN ARE IN FACT DEPENDENT UPON THE PERSON CLAIMING DEPENDENCY ALLOWANCE."

THE ABOVE-QUOTED ACT, INSOFAR AS STEPCHILDREN ARE CONCERNED, IS SUBSTANTIALLY IDENTICAL WITH THE PROVISIONS OF SECTION 4 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF FEBRUARY 21, 1929, SUPRA. THE PHRASE "IN FACT DEPENDENT UPON THE PERSON CLAIMING DEPENDENCY ALLOWANCE," WAS USED TO EXPRESS THE INTENT THAT A STEPCHILD OR ADOPTED CHILD MAY BE CONSIDERED A DEPENDENT FOR THE PURPOSES OF THE STATUTE ONLY WHEN IT IS ESTABLISHED THAT SUCH STEPCHILD OR ADOPTED CHILD ACTUALLY IS DEPENDENT ON THE MEMBER OF THE UNIFORMED SERVICES FOR ITS SUPPORT, MAINTENANCE, AND EDUCATION. AND WHERE DEPENDENCY IN FACT IS A CONDITION PRECEDENT TO PAYMENT FROM THE TREASURY OF THE UNITED STATES, EVIDENCE TENDING TO ESTABLISH THE FACT IS REQUIRED. 9 COMP.GEN. 299, 300. THE MERE STATEMENT OF THE OFFICER THAT HE DOES NOT CONSIDER ADEQUATE, FOR SUPPORT AND EDUCATION, THE $58 MONTHLY HIS SIX YEAR OLD STEPCHILD RECEIVES FROM THE VETERANS ADMINISTRATION, IS NOT SUFFICIENT TO ESTABLISH DEPENDENCY, SINCE ACTUAL DEPENDENCY IS BY LAW MADE A QUESTION OF FACT IN EVERY CASE, TO BE ESTABLISHED BY ACCEPTABLE EVIDENCE. THUS, IN CASES SUCH AS THIS WHERE A STEPCHILD IS IN RECEIPT OF INCOME FROM SOURCES OTHER THAN THE PERSON IN THE SERVICE, THERE SHOULD BE SUBMITTED WITH THE OFFICER'S DEPENDENCY CERTIFICATE A SUPPLEMENTAL CERTIFICATE BY THE OFFICER SHOWING (1) THE AMOUNT REQUIRED FOR THE CHILD'S REASONABLE AND PROPER LIVING EXPENSES EACH MONTH; (2) THE AMOUNT CONTRIBUTED BY THE OFFICER FOR THE SUPPORT OF THE CHILD DURING THE PERIOD COVERED BY THE CLAIM; (3) THE MONTHLY GROSS INCOME OF THE CHILD FROM ALL SOURCES OTHER THAN THE CLAIMANT; AND (4) THE LIVING EXPENSES ACTUALLY INCURRED BY THE CHILD EACH MONTH.

ACCORDINGLY, IT MUST BE CONCLUDED THAT THE EVIDENCE SUBMITTED IS NOT SUFFICIENT TO ESTABLISH THAT THE STEPCHILD IS IN FACT DEPENDENT UPON CHIEF WARRANT OFFICER WIGGINS WITHIN THE MEANING OF THE STATUTORY PROVISIONS HERE INVOLVED.

THE VOUCHER AND THE OTHER PAPERS SUBMITTED WITH YOUR LETTER ARE RETAINED IN THIS OFFICE.