B-177061, NOV 4, 1974

B-177061, NOV 4, 1974

WHERE 37 U.S.C. 401 (1970) AS AMENDED BY PUB. L. NO. 93-64, SEC. 103 (JULY 9, 1973) INCLUDES AS DEPENDENTS CERTAIN ILLEGITIMATE CHILDREN, IN VIEW OF EXPRESSION OF CONGRESSIONAL INTENTION THAT REGARDING SUCH CHILDREN THE PHRASE "IN FACT DEPENDENT ON THE MEMBER" NORMALLY WOULD BE INTERPRETED AS DEPENDENT FOR OVER ONE-HALF OF SUPPORT ON THE MEMBER, THERE HAVING BEEN NO SUCH REQUIREMENT FOR THE IN FACT DEPENDENCY OF STEPCHILDREN OR ADOPTED CHILDREN UNDER AGE 21, 1 JOINT TRAVEL REGULATIONS PARA. M1150-9 MAY BE AMENDED TO REQUIRE ILLEGITIMATE CHILDREN'S DEPENDENCY TO BE BASED ON OVER ONE-HALF OF SUPPORT BY THE MEMBER WITHOUT A SIMILAR REQUIREMENT FOR STEPCHILDREN OR ADOPTED CHILDREN UNDER AGE 21.

DEPENDENCY REQUIREMENTS FOR ILLEGITIMATE CHILDREN, STEPCHILDREN AND ADOPTED CHILDREN - 1 JTR PARA. M1150-9:

THIS ACTION IS IN RESPONSE TO A REQUEST FOR AN ADVANCE DECISION FROM THE ACTING ASSISTANT SECRETARY OF THE AIR FORCE (MANPOWER AND RESERVE AFFAIRS), DATED JANUARY 8, 1974, FORWARDED TO THIS OFFICE BY ENDORSEMENT DATED JANUARY 9, 1974, FROM THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE WHICH WAS ASSIGNED PDTATAC CONTROL NO. 73-57, CONCERNING THE AMENDMENT OF PARAGRAPH M1150-9, 1 JOINT TRAVEL REGULATIONS (JTR) TO DEFINE THE TERM "DEPENDENT" TO INCLUDE ILLEGITIMATE CHILDREN.

THE SUBMISSION REFERS TO SECTION 401, TITLE 37, U.S.C. (1970), AS AMENDED BY PUBLIC LAW NUMBER 93-64, SECTION 103, JULY 9, 1973 (H.R. 8537), WHICH PROVIDES IN PERTINENT PART THAT IN CHAPTER 7 OF TITLE 37 (ALLOWANCES), "DEPENDENT", WITH RESPECT TO A MEMBER OF A UNIFORMED SERVICE, MEANS -

"(2) HIS UNMARRIED CHILD (INCLUDING ANY OF THE FOLLOWING CATEGORIES OF CHILDREN IF SUCH CHILD IS IN FACT DEPENDENT ON THE MEMBER; A STEPCHILD; AN ADOPTED CHILD; OR AN ILLEGITIMATE CHILD WHOSE ALLEGED MEMBER-FATHER HAS BEEN JUDICIALLY DECREED TO BE THE FATHER OF THE CHILD OR JUDICIALLY ORDERED TO CONTRIBUTE TO THE CHILD'S SUPPORT, OR WHOSE PARENTAGE HAS BEEN ADMITTED IN WRITING BY THE MEMBER) WHO EITHER -

"(A) IS UNDER 21 YEARS OF AGE; OR

"(B) IS INCAPABLE OF SELF-SUPPORT BECAUSE OF A MENTAL OR PHYSICAL INCAPACITY, AND IN FACT DEPENDENT ON THE MEMBER FOR OVER ONE-HALF OF HIS SUPPORT ***"

FURTHER REFERENCE IS MADE TO THE CONFERENCE REPORT TO ACCOMPANY H.R. 8537 (H.R. REP. NO. 361, 93D CONG., 1ST SESS. 3 (1973)), WHICH STATED THAT THE CONFEREES AGREED TO ACCEPT THE SENATE PROVISION INCLUDING ILLEGITIMATE CHILDREN IN THE DEFINITION OF DEPENDENT WITH THE UNDERSTANDING THAT IT WOULD BE IMPLEMENTED BY THE DEPARTMENT OF DEFENSE IN SUCH MANNER AS TO PREVENT ABUSE AND THAT THE PHRASE "IN FACT DEPENDENT ON THE MEMBER" NORMALLY WOULD BE INTERPRETED TO MEAN DEPENDENT FOR OVER ONE-HALF OF HIS SUPPORT ON THE MEMBER.

IT IS INDICATED BY THE ACTING ASSISTANT SECRETARY OF THE AIR FORCE THAT HERETOFORE, THE DEPENDENCY OF UNMARRIED STEPCHILDREN AND ADOPTED CHILDREN UNDER 21 YEARS OF AGE WAS TAKEN FOR GRANTED. SINCE THERE IS NO DISCUSSION IN THE CONFERENCE REPORT OF ANY CONGRESSIONAL INTENT TO CHANGE THE RULES WITH RESPECT TO UNMARRIED STEPCHILDREN OR ADOPTED CHILDREN, DOUBT IS EXPRESSED AS TO WHETHER OR NOT THERE ALSO SHOULD BE A REQUIREMENT RELATIVE TO THE EXTENT OF SUPPORT FOR SUCH CHILDREN.

CONSEQUENTLY, A DECISION IS REQUESTED AS TO WHETHER IN AMENDING 1 JTR PARA. M1150-9, WHEREIN THE TERM "DEPENDENT" IS DEFINED, STEPCHILDREN AND ADOPTED CHILDREN UNDER AGE 21 MAY CONTINUE TO BE DEFINED AS IN FACT DEPENDENT ON THE MEMBER, WHILE A SHOWING OF DEPENDENCY ON THE MEMBER FOR OVER ONE-HALF OF SUPPORT IS TO BE REQUIRED FOR ILLEGITIMATE CHILDREN JUDICIALLY ACKNOWLEDGED OR RECOGNIZED BY THE FATHER, OR WHOSE PARENTAGE HAS BEEN ADMITTED IN WRITING BY THE MEMBER.

PARA. M1150-9 CURRENTLY INCLUDES AS A DEPENDENT FOR A MEMBER OF THE UNIFORMED SERVICES THE FOLLOWING:

"2. HIS UNMARRIED LEGITIMATE CHILD (INCLUDING A STEPCHILD OR AN ADOPTED CHILD) WHO IS INCAPABLE OF SELF-SUPPORT BECAUSE OF A MENTAL OR PHYSICAL INCAPACITY AND IS, IN FACT, DEPENDENT ON THE MEMBER FOR OVER ONE-HALF OF HIS SUPPORT:

"3. HIS UNMARRIED LEGITIMATE CHILD (INCLUDING A STEPCHILD OR AN ADOPTED CHILD WHO IS, IN FACT, DEPENDENT ON THE MEMBER) WHO IS UNDER 21 YEARS OF AGE;"

PRIOR TO THE AMENDMENT OF 37 U.S.C. 401 TO INCLUDE AN ILLEGITIMATE CHILD, WE HELD THAT THE STATUTE, WHILE NO DOUBT CONTEMPLATING SUBSTANTIAL DEPENDENCY, DID NOT SPECIFY CHIEF SUPPORT OR REQUIRE THAT ANY CERTAIN DEGREE OF DEPENDENCY BE SHOWN REGARDING STEPCHILDREN OR ADOPTED CHILDREN UNDER 21 YEARS OF AGE. 34 COMP. GEN. 193 (1954); ID. 625 (1955); ID. 694 (1955).

IN THIS INSTANCE, THE CONFEREES IN INCLUDING ILLEGITIMATE CHILDREN WITHIN THE DEFINITION OF DEPENDENTS, AND CLEARLY CONCERNED WITH THE POSSIBILITY OF ABUSE IN CLAIMS FOR DEPENDENT ILLEGITIMATE CHILDREN HAVE EXPRESSED A DESIRE THAT THESE INDIVIDUALS BE DEEMED DEPENDENT ONLY UPON A SHOWING OF DEPENDENCY FOR OVER ONE-HALF OF THEIR SUPPORT ON THE MEMBER, WHILE REMAINING SILENT AS TO EITHER STEPCHILDREN OR ADOPTED CHILDREN.

IN SUCH CIRCUMSTANCES, IN AMENDING 1 JTR PARA. M1150-9 STEPCHILDREN AND ADOPTED CHILDREN UNDER 21 YEARS OF AGE MAY CONTINUE TO BE DEFINED AS IN FACT DEPENDENT ON THE MEMBER WITHOUT REGARD TO DEGREE OF SUPPORT, WHILE A SHOWING OF DEPENDENCY FOR OVER ONE-HALF OF SUPPORT ON THE MEMBER IS TO BE REQUIRED FOR ILLEGITIMATE CHILDREN UNDER 21 YEARS OF AGE.