B-169522, AUG 3, 1971
Highlights
AS THE CHILD WAS IN THE LEGAL CUSTODY OF CLAIMANT'S FORMER WIFE DURING THE PERIOD IN QUESTION. SHE COULD NOT HAVE RESIDED WITH CLAIMANT IN ANY CASE. WHICH IS A PREREQUISITE TO ENTITLEMENT. WHICH HELD THAT YOU WERE NOT ENTITLED TO FAMILY SEPARATION ALLOWANCES. WERE ERRONEOUS AND SHOULD BE RECOVERED. PROVIDES NO LEGAL AUTHORITY FOR PAYMENT OF THIS ALLOWANCE WHICH IS NOT AUTHORIZED UNDER THE BASIC LAW. WHICH IS CONTROLLING. THE GRANTING OF A DIVORCE OVER A YEAR LATER IN NO WAY CHANGED THE CIRCUMSTANCES AS YOUR INITIAL SEPARATION WAS AS A RESULT OF SUCH ORDERS. THAT UNDER GEORGIA LAW SHE WAS CONSIDERED AN ADULT AND THEREFORE NO LONGER SUBJECT TO PARENTAL CONTROL AND SUPERVISION. AS YOU SAY YOU HAVE PROVIDED YOUR DAUGHTER'S FINANCIAL SUPPORT DURING THIS PERIOD.
B-169522, AUG 3, 1971
MILITARY PERSONNEL - FAMILY SEPARATION ALLOWANCE - ENTITLEMENT DECISION SUSTAINING DECISION B-169522, JUNE 22, 1970, WHICH DENIED SERGEANT MAJOR BENJAMIN F. SEAGO'S CLAIM FOR PAYMENT OF A FAMILY SEPARATION ALLOWANCE FOR HIS DAUGHTER. THE AMENDMENT OF TITLE 37, U.S.C., THE GOVERNING LAW REGARDING PAYMENT OF THIS ALLOWANCE, DATED DECEMBER 7, 1970, DOES NOT ALTER THE CIRCUMSTANCES IN THE CASE SO AS TO PRODUCE A DIFFERENT RESULT. AS THE CHILD WAS IN THE LEGAL CUSTODY OF CLAIMANT'S FORMER WIFE DURING THE PERIOD IN QUESTION, SHE COULD NOT HAVE RESIDED WITH CLAIMANT IN ANY CASE, WHICH IS A PREREQUISITE TO ENTITLEMENT.
TO SERGEANT MAJOR BENJAMIN F. SEAGO:
WE REFER FURTHER TO YOUR LETTER DATED MARCH 15, 1971, IN WHICH YOU REQUEST RECONSIDERATION OF DECISION B-169522, JUNE 22, 1970 (49 COMP. GEN. 867), WHICH HELD THAT YOU WERE NOT ENTITLED TO FAMILY SEPARATION ALLOWANCES, TYPE I OR TYPE II, FOR THE PERIOD FROM SEPTEMBER 27 THROUGH DECEMBER 31, 1969, AND THAT PAYMENTS OF THESE ALLOWANCES BASED ON SEPARATION FROM YOUR CHILD SUBSEQUENT TO THE DIVORCE DECREE WHICH AWARDED HER CUSTODY TO YOUR FORMER WIFE, WERE ERRONEOUS AND SHOULD BE RECOVERED.
YOU REFER TO PARAGRAPH 30303A OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL AS PROVIDING AUTHORITY FOR THE PAYMENT OF FAMILY SEPARATION ALLOWANCE, TYPE I, WHERE DEPENDENTS, INCLUDING A DEPENDENT CHILD IN THE CUSTODY OF A FORMER WIFE, DO NOT LIVE AT OR NEAR A MEMBER'S PERMANENT DUTY STATION.
PARAGRAPH 30303 OF THE MANUAL (CHANGE 8, DECEMBER 20, 1968), AS WELL AS TABLE 3-3-1, DOES NOT REFLECT OUR DECISION B-161781, AUGUST 9, 1967, CITED IN DECISION B-169522, JUNE 22, 1970, WHICH HELD THAT A MEMBER MUST BE SEPARATED FROM A DEPENDENT AS A RESULT OF MILITARY ORDERS AND THAT THE SEPARATION RESULTING FROM A DIVORCE DECREE GRANTING CUSTODY OF A MEMBER'S CHILD TO HIS DIVORCED WIFE DOES NOT MEET THIS REQUIREMENT. HOWEVER, THE FACT THAT THE MANUAL DOES NOT INCORPORATE THE HOLDING IN DECISION B- 161781, SUPRA, PROVIDES NO LEGAL AUTHORITY FOR PAYMENT OF THIS ALLOWANCE WHICH IS NOT AUTHORIZED UNDER THE BASIC LAW, 37 U.S.C. 427(A), WHICH IS CONTROLLING.
IN YOUR LETTER YOU SAY THAT SINCE AT THE TIME OF YOUR ASSIGNMENT ON AN "ALL OTHERS" TOUR TO EUROPE, EFFECTIVE AUGUST 1, 1967, SEPARATION FROM YOUR DEPENDENTS RESULTED FROM MILITARY ORDERS, THE GRANTING OF A DIVORCE OVER A YEAR LATER IN NO WAY CHANGED THE CIRCUMSTANCES AS YOUR INITIAL SEPARATION WAS AS A RESULT OF SUCH ORDERS.
IN ADDITION, YOU SAY THAT YOUR DAUGHTER REACHED AGE 18 SHORTLY BEFORE YOUR DIVORCE BECAME FINAL, AND THAT UNDER GEORGIA LAW SHE WAS CONSIDERED AN ADULT AND THEREFORE NO LONGER SUBJECT TO PARENTAL CONTROL AND SUPERVISION. YOU ALSO SAY THAT SINCE THE DIVORCE YOUR DAUGHTER HAS NOT LIVED WITH YOUR FORMER WIFE, BUT THAT SHE HAS ATTENDED A COLLEGE AND RESIDED THERE. AS YOU SAY YOU HAVE PROVIDED YOUR DAUGHTER'S FINANCIAL SUPPORT DURING THIS PERIOD, YOU ARE OF THE OPINION THAT WHILE ATTENDING COLLEGE SHE IS SUBJECT TO YOUR MANAGEMENT AND CONTROL.
THE CODE OF GEORGIA PROVIDES THAT THE AGE OF LEGAL MAJORITY IN THAT STATE IS 21 YEARS; UNTIL THAT AGE ALL PERSONS ARE MINORS (SEC. 74-104, GA. CODE ANN.). WHILE GEORGIA LAW PERMITS AN OTHERWISE QUALIFIED MINOR AGE 18 OR OLDER TO REGISTER AND VOTE IN ELECTIONS (SEC. 2-702, GA. CODE ANN.), THIS DOES NOT SERVE TO LOWER THE AGE OF LEGAL MAJORITY FROM 21 TO 18 YEARS. HOWEVER, A PARENT IS NO LONGER UNDER A LEGAL OBLIGATION TO SUPPORT A CHILD WHO MARRIES. 17 S.E. 2D 607.
THE CODE FURTHER PROVIDES GENERALLY THAT IN CASES OF DIVORCE GRANTED, THE PARTY NOT IN DEFAULT SHALL BE ENTITLED TO THE CUSTODY OF THE MINOR CHILDREN OF THE MARRIAGE (SEC. 30-127, GA. CODE ANN.). IT APPEARS THAT IN ACCORDANCE WITH THE PROVISIONS OF LAW CITED ABOVE, YOUR FORMER WIFE WAS AWARDED CUSTODY OF YOUR DAUGHTER DURING HER MINORITY. BY VIRTUE OF THE DECREE YOU WERE ORDERED TO MAKE PAYMENTS FOR THE SUPPORT OF YOUR CHILD AND ALLOWED VISITATION RIGHTS. THEREFORE, WHILE YOU MAY HAVE SUPPORTED YOUR DAUGHTER WHILE SHE HAS ATTENDED COLLEGE, YOU APPARENTLY ARE NOT ENTITLED TO HER CUSTODY WHILE SHE IS A MINOR.
IN VIEW OF THE ABOVE IT IS CLEAR THAT SEPARATION FROM YOUR DAUGHTER AFTER YOUR DIVORCE DID NOT RESULT FROM YOUR MILITARY ASSIGNMENT BUT FROM THE COURT DECREE. IT FOLLOWS THAT THE COMMENCEMENT OF YOUR "ALL OTHERS" TOUR IN EUROPE PRIOR TO THE DIVORCE AFFORDS NO BASIS FOR SUBSEQUENT ENTITLEMENT, WHEN REGARDLESS OF THE AVAILABILITY OF GOVERNMENT HOUSING, YOUR CHILD WAS NOT PERMITTED TO RESIDE WITH YOU BY TERMS OF THE DECREE OF DIVORCE. SIMILARLY, YOUR CONTINUED FINANCIAL SUPPORT OF YOUR DAUGHTER IN OBEDIENCE TO THE DECREE, DOES NOT AFFORD YOU ANY RIGHT TO HER CUSTODY AND YOUR SEPARATION IS NOT BY REASON OF YOUR DUTY ASSIGNMENT.
IN REGARD TO FAMILY SEPARATION ALLOWANCE, TYPE II, YOU REFER TO AN ARTICLE YOU HAVE READ TO THE EFFECT THAT A DECISION RENDERED BY THIS OFFICE IN DECEMBER 1968, HAD BEEN "REVERSED" BY THE CONGRESS SO THAT A SERVICE MEMBER NO LONGER IS REQUIRED TO MAINTAIN FOR HIS DEPENDENTS A HOUSEHOLD WHICH IS SUBJECT TO HIS MANAGEMENT AND CONTROL. YOU BELIEVE THAT THE EFFECT OF THIS ACTION IS TO PERMIT PAYMENT OF THIS ALLOWANCE TO YOU.
IT APPEARS THAT YOU REFER TO PUBLIC LAW 91-529, DATED DECEMBER 7, 1970, 84 STAT. 1389, WHICH PROVIDES AS FOLLOWS:
" *** THAT SECTION 427(B) OF TITLE 37, U.S.C. IS AMENDED BY ADDING THE FOLLOWING SENTENCE AT THE END THEREOF: 'AN ALLOWANCE IS PAYABLE UNDER THIS SUBSECTION EVEN THOUGH THE MEMBER DOES NOT MAINTAIN FOR HIS PRIMARY DEPENDENTS WHO WOULD OTHERWISE NORMALLY RESIDE WITH HIM, A RESIDENCE OR HOUSEHOLD, SUBJECT TO HIS MANAGEMENT AND CONTROL, WHICH HE IS LIKELY TO SHARE WITH THEM AS A COMMON HOUSEHOLD WHEN HIS DUTY ASSIGNMENT PERMITS.'
"SEC. 2. SECTION 1 OF THIS ACT IS EFFECTIVE OCTOBER 1, 1963."
THE PURPOSE OF THIS BILL WAS TO PROVIDE ENTITLEMENT TO THE MONTHLY $30 ALLOWANCE UNDER SECTION 427(B) (FAMILY SEPARATION ALLOWANCE, TYPE II) IN CERTAIN CASES IN WHICH WE HAD HELD (DECISION B-157486, FEBRUARY 9, 1968), THAT THE ALLOWANCE WAS NOT AUTHORIZED BECAUSE THE MEMBER DID NOT MAINTAIN A RESIDENCE FOR HIS DEPENDENTS SUBJECT TO HIS MANAGEMENT AND CONTROL.
THE AMENDMENT IS APPLICABLE ONLY IN THE CASE OF "PRIMARY DEPENDENTS WHO WOULD OTHERWISE NORMALLY RESIDE WITH" THE MEMBER, THE PURPOSE OF SUCH LANGUAGE BEING TO EXCLUDE FROM COVERAGE MEMBERS WITH LEGALLY SEPARATED SPOUSES, CHILDREN IN THE CUSTODY OF ANOTHER PERSON, ETC. SEE PAGE 6, SENATE REPORT NO. 91-1346, 91ST CONGRESS, 2D SESSION, TO ACCOMPANY H.R. 110, WHICH WAS ENACTED AS PUBLIC LAW 91-529.
THUS, THE AMENDMENT OF DECEMBER 7, 1970, IS NOT FOR APPLICATION IN YOUR CIRCUMSTANCES, AS YOUR CHILD WAS IN YOUR FORMER WIFE'S LEGAL CUSTODY DURING THE PERIOD IN QUESTION AND WOULD NOT HAVE RESIDED WITH YOU IF YOU HAD NOT BEEN ASSIGNED OVERSEAS.
AS YOU ARE NOT ENTITLED TO BE PAID EITHER FAMILY SEPARATION ALLOWANCE, TYPE I OR TYPE II, DURING THE PERIOD SUBSEQUENT TO YOUR DIVORCE, THE DECISION OF JUNE 22, 1970, IS AFFIRMED.