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B-156482, MAY 5, 1965

B-156482 May 05, 1965
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MORDEROSIAN: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 26. WAS A COPY OF A LETTER DATED MARCH 24. IN THE LETTER IT IS STATED THAT THE AMOUNT OF $108.96 INCLUDED IN THE PAYMENT FOR THE TRAVEL OF YOUR PARENTS FROM ST. WAS AN OVERPAYMENT SINCE THEY WERE NEVER DETERMINED TO BE YOUR DEPENDENTS SO AS TO ENTITLE YOU TO A TRAVEL ALLOWANCE FOR THEM. ALSO IT WAS EXPLAINED WHY YOU WERE NOT ENTITLED TO THE DISLOCATION ALLOWANCE PAYMENT OF $130.05. YOU REQUEST THE HELP OF OUR OFFICE TO FORCE THE AIR FORCE ACCOUNTING AND FINANCE CENTER TO TAKE A STAND ON THE DEPENDENCY OF YOUR PARENTS SO YOU WILL KNOW WHETHER YOU WILL HAVE TO GO TO COURT TO PROVE THAT YOUR PARENTS HAVE BEEN YOUR DEPENDENTS FOR YEARS.

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B-156482, MAY 5, 1965

TO CAPTAIN LAWRENCE D. MORDEROSIAN:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 26, 1965, CONCERNING THE DEPENDENCY STATUS OF YOUR PARENTS FOR THE PURPOSE OF YOUR ENTITLEMENT TO THEIR TRANSPORTATION AT GOVERNMENT EXPENSE UPON PERMANENT CHANGE OF STATION INCIDENT TO YOUR SERVICE IN THE UNITED STATES AIR FORCE. ALSO THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 20, 1965, WITH ENCLOSURES, CONCERNING THE MATTER.

INCLUDED IN THE ENCLOSURES TO YOUR LETTER OF MARCH 26, 1965, WAS A COPY OF A LETTER DATED MARCH 24, 1965, TO YOU FROM THE AIR FORCE CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES ON ACCOUNT OF AN ERRONEOUS PAYMENT OF $239.01 MADE TO YOU ON VOUCHER NO. T-33540, BY LIEUTENANT COLONEL R. J. JONES ON FEBRUARY 11, 1964. IN THE LETTER IT IS STATED THAT THE AMOUNT OF $108.96 INCLUDED IN THE PAYMENT FOR THE TRAVEL OF YOUR PARENTS FROM ST. LOUIS, MISSOURI, TO WASHINGTON, D.C., ON DECEMBER 31, 1964, WAS AN OVERPAYMENT SINCE THEY WERE NEVER DETERMINED TO BE YOUR DEPENDENTS SO AS TO ENTITLE YOU TO A TRAVEL ALLOWANCE FOR THEM. ALSO IT WAS EXPLAINED WHY YOU WERE NOT ENTITLED TO THE DISLOCATION ALLOWANCE PAYMENT OF $130.05. THE AIR FORCE ACCOUNTING AND FINANCE CENTER, UNITED STATES AIR FORCE, DENVER, COLORADO 80205, ADVISED OUR OFFICE ON DECEMBER 16, 1964, THAT IT COULD FIND NO RECORD THAT YOUR PARENTS HAD BEEN DETERMINED TO BE YOUR DEPENDENTS SO AS TO ENTITLE YOU TO TRAVEL ALLOWANCES FOR THEM. YOU REQUEST THE HELP OF OUR OFFICE TO FORCE THE AIR FORCE ACCOUNTING AND FINANCE CENTER TO TAKE A STAND ON THE DEPENDENCY OF YOUR PARENTS SO YOU WILL KNOW WHETHER YOU WILL HAVE TO GO TO COURT TO PROVE THAT YOUR PARENTS HAVE BEEN YOUR DEPENDENTS FOR YEARS.

SECTION 406 OF TITLE 37, U.S.C. PROVIDES THAT THE TRANSPORTATION OF DEPENDENTS INCIDENT TO A MEMBER'S PERMANENT CHANGE OF STATION IS AUTHORIZED UDNER SUCH CONDITIONS AND LIMITATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED. SECTION 401 PROVIDES THAT FOR THE PURPOSES OF CHAPTER 7, TITLE 37, U.S. CODE, RELATING TO AUTHORIZED ALLOWANCES FOR MEMBERS OF THE UNIFORMED SERVICES, THE TERM "DEPENDENT," WITH RESPECT TO A MEMBER OF SUCH A SERVICE, INCLUDES HIS PARENT (INCLUDING A STEPPARENT OR PARENT BY ADOPTION, AND ANY PERSON, INCLUDING A FORMER STEPPARENT, WHO HAS STOOD IN LOCO PARENTIS TO THE MEMBER AT ANY TIME FOR A CONTINUOUS PERIOD OF AT LEAST 5 YEARS BEFORE HE BECAME 21 YEARS OF AGE) WHO IS IN FACT DEPENDENT ON THE MEMBER FOR OVER ONE-HALF OF HIS SUPPORT AND ACTUALLY RESIDES IN THE MEMBER'S HOUSEHOLD. SECTIONS 2201, 2210 AND 2211 OF THE TITLE 50 APP., U.S.C. AUTHORIZE THE SECRETARY OF THE DEPARTMENT CONCERNED, OR SUCH OTHER PERSON OR PERSONS AS HE MAY DESIGNATE, TO MAKE DETERMINATIONS OF THE DEPENDENCY OF PARENTS OF MEMBERS OF THE UNIFORMED SERVICES ON THE BASIS THERE PRESCRIBED AND PROVIDES THAT SUCH DETERMINATIONS SHALL BE FINAL AND CONCLUSIVE FOR ALL PURPOSES AND NOT SUBJECT TO REVIEW IN ANY COURT OR BY ANY ACCOUNTING OFFICER OF THE GOVERNMENT, EXCEPT FOR CASES INVOLVING FRAUD OR GROSS NEGLIGENCE. THUS, THIS STATUTE DOES NOT AUTHORIZE OUR OFFICE TO RENDER A DECISION AS TO THE DEPENDENCY STATUS OF YOUR PARENTS DURING THE PERIOD YOU WERE ON ACTIVE DUTY AS A MEMBER OF THE AIR FORCE. SEE 30 COMP. GEN. 282, COPY ENCLOSED.

SINCE THE STATUTE SPECIFICALLY AUTHORIZES THE SECRETARY OF THE AIR FORCE OR HIS DESIGNEE TO MAKE THE DETERMINATION IN YOUR CASE AS TO THE DEPENDENCY OF YOUR PARENTS WITHOUT A REVIEW OF SUCH DETERMINATION BY OUR OFFICE, WE ARE WITHOUT AUTHORITY TO REQUIRE THE AIR FORCE TO MAKE A DETERMINATION THAT YOUR PARENTS WERE DEPENDENT ON YOU WHILE YOU WERE ON ACTIVE DUTY IN THE AIR FORCE. HOWEVER, IT IS SUGGESTED THAT YOU CONTACT THE AIR FORCE ACCOUNTING AND FINANCE CENTER, UNITED STATES AIR FORCE, DENVER, COLORADO, 80205, AS TO ITS REQUIREMENTS FOR ESTABLISHING THE DEPENDENCY OF PARENTS OF ITS MEMBERS AND WHETHER A DETERMINATION MAY NOW BE MADE AS TO YOUR PARENTS' DEPENDENCY ON YOU DURING THE PERIOD OF YOUR CLAIM. IN THE ABSENCE OF SUCH A DETERMINATION, THE ALLOWANCE PAID TO YOU ON ACCOUNT OF THE TRAVEL OF YOUR PARENTS CLEARLY WERE NOT AUTHORIZED.

WHILE THE INTERNAL REVENUE SERVICE MAY NOT HAVE QUESTIONED YOUR CLAIM THAT YOUR PARENTS WERE DEPENDENT ON YOU FOR INCOME TAX PURPOSES, YOU ARE ADVISED THAT THE LAWS AND REGULATIONS RELATIVE TO THE DEPENDENCY OF PARENTS FOR FEDERAL INCOME TAX PURPOSES ARE ENTIRELY SEPARATE AND DISTINCT FROM THE STATUTORY PROVISIONS AND REGULATIONS GOVERNING THE PAYMENT OF ALLOWANCES TO MEMBERS OF THE UNIFORMED SERVICES ON ACCOUNT OF DEPENDENT PARENTS. CONSEQUENTLY, A DETERMINATION THAT YOUR PARENTS WERE YOUR DEPENDENTS FOR INCOME TAX PURPOSES WOULD AFFORD NO LEGAL BASIS FOR CONCLUDING THAT YOU WERE ENTITLED TO AN ALLOWANCE FOR THEIR TRAVEL.

RELATIVE TO THE DISLOCATION ALLOWANCE PAID YOU ON VOUCHER T-33540, DATED FEBRUARY 11, 1964, PARAGRAPH 9003-10 OF THE JOINT TRAVEL REGULATIONS PROVIDES THAT SUCH ALLOWANCE IS NOT PAYABLE IN CONNECTION WITH PERMANENT CHANGE OF STATION TRAVEL PERFORMED FROM EITHER A DUTY STATION OR A HOSPITAL IN THE UNITED STATES TO A HOSPITAL FOR OBSERVATION AND TREATMENT. THUS, REGARDLESS OF THE DEPENDENCY OF YOUR PARENTS,A DISLOCATION ALLOWANCE IS NOT AUTHORIZED INCIDENT TO YOUR ASSIGNMENT TO ANDREWS AIR FORCE BASE HOSPITAL, WASHINGTON, D.C., BY ORDERS DATED JUNE 11, 1963.

THEREFORE, ON THE BASIS OF THE RECORD BEFORE US, IT APPEARS THAT THE DEPARTMENT OF THE AIR FORCE PROPERLY DETERMINED THAT THE PAYMENT OF $239.01 TO YOU ON FEBRUARY 11, 1964, WAS ERRONEOUS. THE AMOUNT OF $88 ALLOWED YOU BY OUR CLAIMS DIVISION SETTLEMENT OF JANUARY 11, 1965,SHOULD HAVE BEEN WITHHELD TO PARTIALLY LIQUIDATE SUCH ERRONEOUS PAYMENT.

THE DEPARTMENT OF THE AIR FORCE IS BEING FURNISHED A COPY OF THIS DECISION.

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