B-150452, FEB. 1, 1963

B-150452, FEB. 1, 1963

TO LIEUTENANT COLONEL J. E. BATTISTA, FC:

BY SECOND INDORSEMENT DATED DECEMBER 10, 1962, THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE FORWARDED YOUR LETTER DATED OCTOBER 10, 1962, AND ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT TO COLONEL FRANCIS T. DEVLIN, 023314, FOR REIMBURSEMENT FOR THE COST OF TRANSPORTATION OF HIS STEP-CHILDREN, CYNTHIA A. DEVLIN AND LOUIS W. DEVLIN, FROM WASHINGTON, D.C., TO PALO ALTO, CALIFORNIA, AUGUST 22 TO SEPTEMBER 2, 1962, INCIDENT TO PERMANENT CHANGE OF STATION ORDERS DATED AUGUST 7, 1962. YOUR REQUEST HAS BEEN ASSIGNED PDTATAC CONTROL NO. 62-25.

THE VOUCHER SHOWS THE CHILDREN WERE BORN NOVEMBER 21, 1949, AND AUGUST 31, 1952, RESPECTIVELY. IN HIS DEPENDENCY CERTIFICATE, THE OFFICER STATES THAT HE CONTRIBUTES $280 MONTHLY FOR THE SUPPORT OF THE TWO STEPCHILDREN AND THAT THE CHILDREN'S LIVING EXPENSES AVERAGE $280 PER MONTH (FOOD $90, CLOTHING $50, SHELTER $100, MISCELLANEOUS $40). HE STATES FURTHER THAT THE TWO CHILDREN DO NOT HAVE ANY INCOME OR PROPERTY IN THEIR OWN RIGHT, BUT THEY ARE BENEFICIARIES OF A TRUST FUND AMOUNTING TO APPROXIMATELY $30,000 FOR EACH CHILD, HELD BY THE OMAHA NATIONAL BANK OF OMAHA, NEBRASKA, AS FINANCIAL GUARDIAN, UNTIL THE CHILDREN REACH THE AGE OF 21 YEARS. THE OFFICER STATES FURTHER THAT THE INTEREST WHICH ACCRUES TO THE FUND IS ADDED TO THE PRINCIPAL AND ANY EXPENDITURES FROM THE FUND MUST HAVE THE PERMISSION OF THE MUNICIPAL COURT OF DOUGLAS COUNTY, NEBRASKA. HE STATES FURTHER THAT NO MONEY FROM THE FUND HAD BEEN MADE AVAILABLE TO THE CHILDREN, THEIR MOTHER OR TO HIMSELF BUT THAT HE BELIEVES THAT UPON PROPER APPLICATION FUNDS MAY BE MADE AVAILABLE FOR THE ADVANCED EDUCATION OF THE CHILDREN.

THE PERTINENT STATUTE, 37 U.S.C. 406, PROVIDES THAT A MEMBER OF A UNIFORMED SERVICE WHO IS ORDERED TO MAKE A CHANGE OF PERMANENT STATION IS ENTITLED TO TRANSPORTATION IN KIND FOR HIS DEPENDENTS, TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE IN PLACE OF THAT TRANSPORTATION IN KIND. SECTION 401 (2) DEFINES THE TERM "DEPENDENT," WITH RESPECT TO A MEMBER OF A UNIFORMED SERVICE TO INCLUDE:

"/2) HIS UNMARRIED LEGITIMATE CHILD (INCLUDING A STEPCHILD, OR AN ADOPTED CHILD, WHO IS IN FACT DEPENDENT ON 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; * * *"

IN ORDER FOR A MEMBER OF THE UNIFORMED SERVICE TO BE ENTITLED TO REIMBURSEMENT FOR TRANSPORTATION OF HIS STEPCHILDREN UNDER THE PROVISIONS OF THE STATUTE QUOTED ABOVE, THEY MUST BE IN FACT DEPENDENT UPON THE MEMBER. THE WORDS "IN FACT DEPENDENT" EXPRESS THE INTENT THAT THE STEPCHILD MAY BE CONSIDERED A DEPENDENT FOR THE PURPOSE OF THE STATUTE ONLY WHEN IT IS ESTABLISHED THAT THE STEPCHILD ACTUALLY IS DEPENDENT UPON THE MEMBER FOR ITS SUPPORT, MAINTENANCE, AND EDUCATION. SEE 35 COMP. GEN. 536. THE FACTS THAT THE CHILD MAY LIVE WITH THE MEMBER, THAT ITS TRANSPORTATION IS NECESSARY INCIDENT TO THE MEMBER'S CHANGE OF STATION, OR THAT THE AMOUNT CONTRIBUTED BY THE MEMBER IMPROVES THE LIVING CONDITIONS OF THE CHILD, DO NOT, OF THEMSELVES, MAKE THE CHILD IN FACT DEPENDENT UPON THE MEMBER. 34 COMP. GEN. 625.

WHERE SUFFICIENT FUNDS ARE AVAILABLE FROM SOURCES OTHER THAN THE MEMBER, EITHER DIRECTLY OR INDIRECTLY, FOR THE SUPPORT, MAINTENANCE, AND EDUCATION OF A STEPCHILD, THE CHILD IS NOT IN FACT DEPENDENT UPON THE MEMBER. THE STATUTE DOES NOT IMPOSE UPON THE GOVERNMENT A LIABILITY WITH RESPECT TO MAINTAINING AND TRANSPORTING A STEPCHILD WITH AN INDEPENDENT INCOME FOR THE PURPOSE OF CONSERVING ITS INCOME. WE HAVE HELD THAT PENSION PAYMENTS MUST BE CONSIDERED AS INCOME IN DETERMINING THE DEPENDENCY STATUS OF ALLEGED DEPENDENT STEPCHILDREN, NOTWITHSTANDING THE FACT THAT SUCH PAYMENTS WERE REQUIRED BY THE SUPERIOR COURT OF THE STATE OF CALIFORNIA TO BE USED FOR THE PURCHASE OF UNITED STATES SAVINGS BONDS AS A TRUST FUND FOR THE OFFICER'S STEPCHILDREN. SEE 34 COMP. GEN. 694; B-126476, APRIL 2, 1956. SIMILARLY, IN THIS CASE THE INTEREST WHICH ACCRUES TO THE TRUST FUND SET UP FOR THE TWO STEPCHILDREN MUST BE CONSIDERED INCOME FOR THE PURPOSE OF DETERMINING THEIR DEPENDENCY STATUS.

WHILE THE AMOUNT OF INCOME, THROUGH INVESTMENT, ACCRUING TO THE TRUST FUND HELD FOR THE MEMBER'S STEPCHILDREN IS NOT SHOWN, IT IS ASSUMED TO BE SUBSTANTIAL. IF AN AMOUNT EQUAL TO THAT INCOME WOULD HAVE BEEN SUFFICIENT FOR THE ADEQUATE SUPPORT OF THE STEPCHILDREN, A CONCLUSION THAT THEY WERE NOT IN FACT DEPENDENT ON THE MEMBER WOULD BE REQUIRED EVEN THOUGH ALL OF THEIR LIVING EXPENSES ACTUALLY WERE CONTRIBUTED BY THE MEMBER. SINCE THE TRUST FUND INCOME IS NOT SHOWN, IT MAY NOT BE CONSIDERED THAT THE PRESENT RECORD ESTABLISHES THAT THE STEPCHILDREN WERE IN FACT DEPENDENT UPON THE OFFICER WITHIN THE MEANING OF 37 U.S.C. 401 (2) OR THAT THE OFFICER IS ENTITLED TO A MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION ON THEIR ACCOUNT. ACCORDINGLY, PAYMENT OF THE VOUCHER WHICH IS RETAINED HERE IS NOT AUTHORIZED ON THE PRESENT RECORD. IF THE AMOUNT NECESSARY FOR THE ADEQUATE SUPPORT OF THESE STEPCHILDREN ACTUALLY WAS SUBSTANTIALLY IN EXCESS OF THE AMOUNT WHICH ACCRUED AS INCOME FROM THE TRUST FUND, FURTHER CONSIDERATION WILL BE GIVEN THE MATTER UPON A COMPLETE DISCLOSURE OF THE FACTS IN THAT RESPECT.