B-150929, APRIL 11, 1963, 42 COMP. GEN. 578

B-150929, APRIL 11, 1963, 42 COMP. GEN. 578

QUARTERS ALLOWANCES - DEPENDENTS - CHILDREN - ADOPTED - RELATIVES OVER 21 AN OFFICER OF THE UNIFORMED SERVICES WHO ADOPTS AN UNEMPLOYABLE OLDER BROTHER AND SISTER OVER 21 YEARS OF AGE WHO DO NOT RESIDE WITH HER DOES NOT HAVE AN ESTABLISHED BONA FIDE PARENTAL RELATIONSHIP BETWEEN HERSELF AND THE ADOPTED CHILDREN TO HAVE THE ADOPTED RELATIVES CONSIDERED AS CHILDREN UNDER 37 U.S.C. 401 TO ENTITLE THE MEMBER TO BASIC ALLOWANCE FOR QUARTERS ON THEIR BEHALF.

TO LIEUTENANT COLONEL G. SHERMAN, DEPARTMENT OF THE ARMY, APRIL 11, 1963:

REFERENCE IS MADE TO YOUR FIRST INDORSEMENT, DATED JANUARY 31, 1963, TO LETTER DATED JANUARY 10, 1963, FROM ALLOTMENTS AND DEPOSITS OPERATIONS, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, SUBMITTING FOR ADVANCE DECISION THE APPLICATION OF CAPTAIN OZA ELMA BARNES, N-2779, FOR BASIC ALLOWANCE FOR QUARTERS, EFFECTIVE NOVEMBER 6, 1962, ON ACCOUNT OF TWO ADOPTED CHILDREN. THE REQUEST WAS FORWARDED TO THIS OFFICE BY SECOND INDORSEMENT, DATED FEBRUARY 25, 1963, AFTER HAVING BEEN ALLOCATED D.O. NUMBER A-694 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN SUPPORT OF HER APPLICATION, THE OFFICER HAS FURNISHED A SIGNED COPY OF AN ORDER, DATED NOVEMBER 6, 1962, FROM THE PULASKI CIRCUIT COURT, PULASKI COUNTY, KENTUCKY, BASED ON HER PETITION FOR ADOPTION OF GRACE W. BARNES AND GLENDY V. BARNES, HOLDING THAT SUCH PERSONS SHALL BE CONSIDERED AS THE "NATURAL CHILDREN OF OZA E. BARNES, AND VESTED WITH ALL THE RIGHTS OF CHILDREN OF SAID PETITIONER.' WHILE THE AGES OF SUCH PERSONS ARE NOT SHOWN IN THAT ORDER, THE OFFICER STATED IN HER APPLICATION FOR THE BASIC ALLOWANCE FOR QUARTERS THAT THEIR DATES OF BIRTH ARE MAY 3, 1905, AND MAY 15, 1918, RESPECTIVELY. WE HAVE RECEIVED INFORMAL ADVICE FROM THE DEPARTMENT OF THE ARMY THAT THE OFFICER IS DIVORCED AND THAT THE ADOPTED "CHILDREN" ARE HER ELDER BROTHER AND SISTER. A LETTER, DATED NOVEMBER 21, 1962, FROM THE SOMERSET CLINIC, SOMERSET, KENTUCKY, CONTAINING A MEDICAL REPORT ON GRACE W. BARNES AND GLENDY V. BARNES STATES THAT THEY ARE CONSIDERED TO BE UNEMPLOYABLE.

UNDER THE LAW IN EFFECT PRIOR TO THE PASSAGE OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 804, 37 U.S.C. 231 (G) (SEE SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 361, AS AMENDED 37 U.S.C. 104, 1946 ED., SUPP. II), NO UNMARRIED LEGITIMATE CHILD OR ADOPTED CHILD OVER 21 YEARS OF AGE WAS RECOGNIZED AS A DEPENDENT FOR THE PURPOSES OF THE MONETARY ALLOWANCE FOR QUARTERS. IN THE COURSE OF THE HEARINGS ON THE BILL WHICH BECAME THE CAREER COMPENSATION ACT OF 1949, THE MATTER OF THE EXTENSION OF THE QUARTERS ALLOWANCE AND OTHER BENEFITS TO CERTAIN MEMBERS ON ACCOUNT OF DEPENDENT CHILDREN OVER 21 YEARS OF AGE WAS DISCUSSED. PART OF THE DISCUSSION APPEARING ON PAGE 1484 OF THE HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, ON H.R. 2553, 81ST CONGRESS, 1ST SESSION, WAS AS FOLLOWS:

MR. VINSON. WOULDN-T IT BE ALL RIGHT TO INCLUDE IN THE TERM "DEPENDENT" EXACTLY WHAT IS CLASSIFIED TODAY IN THE PAY ACT OF 1942 AS TO WHAT CONSTITUTES A DEPENDENT? IS THAT ALL RIGHT?

GENERAL DAHLQUIST. YES; I THINK WE WOULD HAVE NO OBJECTION TO THAT.

MR. BATES. MR CHAIRMAN, LET US TAKE THE CASE OF A DISABLED PERSON OVER THE AGE OF 18.

MR. VINSON. IT WOULD BE INCLUDED, MR. BATES. IT WOULD BE INCLUDED UNDER THE PRESENT LAW. IT ALSO INCLUDES THE FATHER AND MOTHER OF THE PERSON, PROVIDING HE OR SHE IS DEPENDENT ON A CERTAIN PERSON FOR HIS OR HER SUPPORT.

MR. BATES. WHAT ABOUT A SON AND DAUGHTER WHO MAY, IN FACT, GO TO COLLEGE?

MR. VINSON. IT DOES INCLUDE A CHILD.

GENERAL DAHLQUIST. WE DO FEEL THAT MR. BATES' SUGGESTION THAT A DAUGHTER OR A SON WHO IS PHYSICALLY OR MENTALLY INCOMPETENT SHOULD BE INCLUDED.

MR. BATES. OR ATTENDING SCHOOL.

GENERAL DAHLQUIST. OR ATTENDING SCHOOL COULD BE ADMITTED.

MR. BATES. I HAVE A FEW OVER 18 YEARS OF AGE ATTENDING SCHOOL MYSELF.

MR. VINSON. I MOVE TO SUBSTITUTE THE PRESENT LAW WITH THE AMENDMENT TO THE PRESENT LAW TO INCLUDE CHILDREN THAT ARE INCAPACITATED AND THAT IT BE CUT DOWN FROM 21 YEARS TO 18 YEARS. DO YOU WANT TO LET IT STAND AT 21?

MR. KILDAY. YES.

MR. VINSON. ALL RIGHT, I AM PERFECTLY WILLING TO LET IT GO ALONG AT 21.

THE THOUGHT IMPLICIT IN THE FOREGOING DISCUSSION WAS EXPRESSED IN THE BILL AS AMENDED WHICH, WHEN ENACTED INTO LAW AS SECTION 102 (G), READ AS FOLLOWS:

THE TERM "DEPENDENT" SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES THE LAWFUL WIFE AND UNMARRIED LEGITIMATE CHILDREN, UNDER 21 YEARS OF AGE, OF ANY MEMBER OF THE UNIFORMED SERVICES, EXCEPT AS HEREAFTER LIMITED IN THIS SUBSECTION. SUCH TERM SHALL INCLUDE * * *. IT SHALL ALSO INCLUDE UNMARRIED LEGITIMATE CHILDREN, OVER 21 YEARS OF AGE, OF SUCH MEMBER WHO ARE INCAPABLE OF SELF-SUPPORT BECAUSE OF BEING MENTALLY DEFECTIVE OR PHYSICALLY INCAPACITATED, AND WHO ARE IN FACT DEPENDENT ON SUCH MEMBER FOR OVER HALF OF HIS OR HER SUPPORT: 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 SUCH MEMBER: *

THE CODIFICATION OF SECTION 102 (G) AS CONTAINED IN 37 U.S.C. 401 IS TO THE SAME EFFECT.

IT SEEMS EVIDENT THAT, INSOFAR AS LEGITIMATE CHILDREN ARE CONCERNED, THE CONGRESS INTENDED THAT THE BASIC ALLOWANCE FOR QUARTERS SHOULD BE PROVIDED TO AN OFFICER ON ACCOUNT OF A CHILD AFTER SUCH CHILD REACHES 21 YEARS OF AGE ONLY IN THE EVENT THAT THERE IS A NEED FOR CONTINUED SUPPORT OF THE CHILD AFTER REACHING THAT AGE, AS A RESULT OF INABILITY TO EARN A LIVING BECAUSE OF HIS OR HER MENTAL OR PHYSICAL DISABILITY. WE DO NOT BELIEVE THAT BY INCLUDING ADOPTED CHILDREN WITHIN THE MEANING OF THE TERM "CHILDREN" IT WAS INTENDED TO BROADEN THE SCOPE OF THE LAW TO COVER SITUATIONS WHERE THE PARENT AND CHILD RELATIONSHIP DID NOT EXIST WHEN THE CHILDREN REACHED THE AGE OF 21 AND THE DISABILITY EXISTED AT THE TIME OF ADOPTION. IN ANY EVENT, IT APPEARS EXTREMELY DOUBTFUL THAT THE CONGRESS CONTEMPLATED THE EXTENSION OF THE BENEFITS OF THE LAW TO AN OFFICER WHO ADOPTS A BROTHER, SISTER, OR OTHER RELATIVE OVER THE AGE OF 21 WHERE NO BONA FIDE RELATIONSHIP OF PARENT AND CHILD EXISTS. SEE IN THIS CONNECTION 7 COMP. GEN. 6; 7 COMP. GEN. 343; AND 9 COMP. GEN. 299, 304. IN THIS CASE, IT DOES NOT APPEAR THAT A BONA FIDE PARENTAL RELATIONSHIP EXISTS BETWEEN THE OFFICER AND HER ADOPTED "CHILDREN" SINCE THEY ARE IN FACT HER OLDER BROTHER AND SISTER AND THEY DO NOT RESIDE WITH HER.

IN THE CIRCUMSTANCES, IT IS CONCLUDED THAT GRACE W. BARNES AND GLENDY V. BARNES MAY NOT BE CONSIDERED TO BE THE CHILDREN OF THE OFFICER WITHIN THE PURVIEW OF 37 U.S.C. 401 SO AS TO ENTITLE HER TO THE BASIC ALLOWANCE FOR QUARTERS ON THEIR BEHALF. SINCE YOU ARE NOT AUTHORIZED TO MAKE PAYMENT OF SUCH ALLOWANCE TO CAPTAIN BARNES, HER APPLICATION AND SUPPORTING PAPERS WILL BE RETAINED HERE.