B-122242, MAY 24, 1955, 34 COMP. GEN. 625

B-122242, MAY 24, 1955, 34 COMP. GEN. 625

TRANSPORTATION - DEPENDENTS - MILITARY, NAVAL, ETC., PERSONNEL - STEPCHILDREN MINOR STEPSONS OF A MARINE CORPS OFFICER, WHOSE WIFE IS RECEIVING SOCIAL SECURITY AND VETERANS ADMINISTRATION PAYMENTS, AS THE RESULT OF THE DEATH OF THE CHILDREN'S NATURAL FATHER WHILE IN ARMED FORCES, IN AN AMOUNT SUFFICIENT TO COVER THEIR ACTUAL MONTHLY LIVING EXPENSES, ARE NOT IN FACT DEPENDENT UPON THE OFFICER WITHIN THE MEANING OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, SO AS TO ENTITLE THE OFFICER TO REIMBURSEMENT FOR THE COST OF THEIR TRANSPORTATION INCIDENT TO CHANGE OF STATION.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO CAPTAIN JAMES M. WEIDNER, UNITED STATES MARINE CORPS, MAY 24, 1955:

BY FIRST ENDORSEMENT DECEMBER 1, 1954, THE COMMANDANT OF THE MARINE CORPS FORWARDED YOUR LETTER OF OCTOBER 12, 1954, SUBMITTING A VOUCHER STATED IN FAVOR OF SECOND LIEUTENANT DON RODGER CHRISTENSEN, 1061133, USMC, FOR REIMBURSEMENT OF THE COST OF TRANSPORTATION OF HIS WIFE AND A STEPSON (AGE 5 YEARS) FROM RACINE, WISCONSIN, TO CAMP LEJEUNE, NORTH CAROLINA, THE TRAVEL HAVING BEEN PERFORMED DURING THE PERIOD FROM JANUARY 24 TO 27, 1954, PURSUANT TO FIRST ENDORSEMENT DATED DECEMBER 25, 1953, ON ORDERS FOR PERMANENT CHANGE OF STATION DATED DECEMBER 18, 1953. YOU REQUEST A DECISION WHETHER REIMBURSEMENT FOR THE STEPSON'S TRANSPORTATION IS AUTHORIZED. YOUR DOUBT IN THE MATTER STEMS FROM THE QUESTION WHETHER THE STEPSON MAY BE CONSIDERED "IN FACT DEPENDENT" ON THE OFFICER WITHIN THE MEANING OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, AND THE PERTINENT REGULATIONS.

IT APPEARS THAT THE OFFICER HAS TWO STEPSONS (THE ONE WHO IS 5 YEARS OF AGE AND ANOTHER WHO IS 3 YEARS OF AGE); THAT THEY RESIDE IN THE OFFICER'S HOUSEHOLD; AND THAT THEIR MOTHER (THE OFFICER'S WIFE) IS RECEIVING, AS A RESULT OF THE DEATH OF THEIR NATURAL FATHER, SOCIAL SECURITY PAYMENTS OF $38.20 MONTHLY FOR EACH CHILD AND PAYMENTS FROM THE VETERANS ADMINISTRATION (PRESUMABLY COMPENSATION UNDER SECTION 3 OF THE ACT OF MAY 23, 1952, 66 STAT. 90) IN THE AMOUNT OF $47 MONTHLY FOR EACH CHILD. ADDITION TO THE USUAL CERTIFICATE ON THE VOUCHER, THERE WERE SUBMITTED THE OFFICER'S TWO CERTIFICATES, ONE UNDATED AND THE OTHER DATED SEPTEMBER 21, 1954, CONCERNING THE RELATIONSHIP AND DEPENDENCY STATUS OF THE STEPSONS. IN THE UNDATED CERTIFICATE THE OFFICER CERTIFIES THAT---

* * * GARY STEPHEN SMITH AND JEFFERY LERGEN SMITH ARE MY STEP CHILDREN AND ARE MEMBERS OF HOUSEHOLD; THAT THE MOTHER OF THESE STEP CHILDREN IS MY LAWFUL WIFE AND WAS AT THE TIME THIS TRAVEL WAS PERFORMED.

THE ABOVE NAMED CHILDREN RECEIVE THE FOLLOWING FINANCIAL AID FROM THE GOVERNMENT DUE TO THE DEATH OF THEIR NATURAL FATHER WHILE ON ACTIVE DUTY AS AN OFFICER IN THE ARMED FORCES OF THE UNITED STATES;

A. $38.20 PER MONTH PER CHILD; A TOTAL OF $76.40 PER MONTH FROM THE OFFICE OF SOCIAL SECURITY.

B. $47.00 PER MONTH PER CHILD FROM THE VETERANS ADMINISTRATION. THIS MONEY GOES INTO A TRUST FUND UNTIL THE CHILDREN REACH THE AGE OF EIGHTEEN AND IS NOT USED FOR THEIR SUPPORT.

AFTER CONFERRING WITH AN OFFICIAL OF THE DEPARTMENT OF INTERNAL REVENUE AND ACCORDING TO HIS RECOMMENDATION, I DO NOT DEEM THIS AMOUNT OF $76.40 PER MONTH ADEQUATE FOR THE SUPPORT, EDUCATION, AND TRAVEL FROM STATION TO STATION OF THE AFOREMENTIONED CHILDREN. IN THE OTHER CERTIFICATE THE OFFICER CERTIFIES THAT THE AMOUNT REQUIRED FOR THE STEPSONS' REASONABLE AND PROPER LIVING EXPENSES IS $60 PER MONTH PER CHILD; THAT THE AMOUNT CONTRIBUTED BY HIM DURING THE PERIOD OF ACTUAL TRAVEL ( JANUARY 24 TO 27, 1954) FOR THE SUPPORT OF THE CHILDREN WAS $50 TO $25 PER CHILD; AND THAT THE LIVING EXPENSES ACTUALLY INCURRED BY THE CHILDREN IS $75 EACH PER MONTH. CONCERNING THE INCOME OF THE CHILDREN, HE REPEATS WHAT IS SAID IN THE CERTIFICATE QUOTED ABOVE. HE CONCLUDES---

SINCE A CLOSE BUDGET IS NOT KEPT ON THE CHILDREN'S EXPENSES, THIS STATEMENT IS AN ESTIMATE AS ACCURATE AS I CAN COMPUTE IT.

SUBSECTION 303 (C) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 814, PROVIDES, IN MATERIAL PART, THAT UNDER SUCH CONDITIONS AND LIMITATIONS AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES, WHEN ORDERED TO MAKE A PERMANENT CHANGE OF STATION, SHALL BE ENTITLED TO TRANSPORTATION IN KIND FOR DEPENDENTS, OR TO REIMBURSEMENT THEREFOR, OR TO A MONETARY ALLOWANCE IN LIEU OF SUCH TRANSPORTATION IN KIND. SUBSECTION 102 (G) OF THE ACT, CITED ABOVE, DEFINING THE TERM "DEPENDENT" FOR THE PURPOSES OF THE STATUTE, IS, IN PERTINENT PART, AS FOLLOWS:

THE TERM "DEPENDENT" SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES THE LAWFUL WIFE AND UNMARRIED LEGITIMATE CHILDREN, UNDER TWENTY-ONE YEARS OF AGE, OF ANY MEMBER OF THE UNIFORMED SERVICES, EXCEPT AS HEREINAFTER LIMITED IN THIS SUBSECTION * * * 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. * * * ( ITALICS SUPPLIED.)

SUCH PROVISIONS, INSOFAR AS STEPCHILDREN AND ADOPTED CHILDREN ARE CONCERNED, ARE SUBSTANTIALLY THE SAME AS THE PROVISIONS OF PRIOR SIMILAR STATUTES RELATING TO THE ENTITLEMENT OF MEMBERS OF THE UNIFORMED SERVICES TO TRANSPORTATION AND OTHER ALLOWANCES ON ACCOUNT OF SUCH DEPENDENTS. THE WORDS "IN FACT DEPENDENT" WERE USED TO EXPRESS THE INTENT THAT A STEPCHILD OR ADOPTED CHILD MAY BE CONSIDERED A DEPENDENT FOR THE PURPOSES OF THE STATUTES ONLY WHEN IT IS ESTABLISHED THAT THE STEPCHILD OR THE ADOPTED CHILD ACTUALLY IS DEPENDENT ON THE MEMBER OF THE UNIFORMED SERVICES FOR ITS SUPPORT, MAINTENANCE, AND EDUCATION. WHERE SUFFICIENT FUNDS ARE AVAILABLE FROM SOURCES OTHER THAN THE MEMBER, EITHER DIRECTLY OR INDIRECTLY, FOR THE SUPPORT, MAINTENANCE, AND EDUCATION OF A STEPCHILD OR AN ADOPTED CHILD, THE CHILD IS NOT IN FACT DEPENDENT UPON THE MEMBER. 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. 23084, APRIL 2, 1942; B-89140, OCTOBER 5, 1949; B-94657, FEBRUARY 9, 1951.

THE "COMPENSATION" AUTHORIZED BY THE CITED ACT OF MAY 23, 1952, IS UNDERSTOOD TO HAVE BEEN PROVIDED FOR THE PURPOSE OF SUPPORTING SURVIVING CHILDREN OF SERVICEMEN WHO DIE WHILE ON ACTIVE DUTY. THE SOCIAL SECURITY PAYMENT IS MADE FOR THE SAME REASON. ACCORDING TO THE OFFICER'S CERTIFICATE, THE LIVING EXPENSES OF HIS STEPSONS AMOUNT TO $75 PER MONTH PER CHILD. HENCE, IT WOULD APPEAR THAT THE MONTHLY INCOME OF EACH CHILD-- - $85.20 ($38.20 PLUS $47/--- IS SUFFICIENT TO COVER THE ACTUAL MONTHLY LIVING EXPENSES OF EACH CHILD. THERE SEEMS TO BE NO STATUTORY OR REGULATORY REQUIREMENT THAT VETERANS' COMPENSATION PAYMENTS BE PLACED IN A TRUST FUND AND NOT USED FOR THE CURRENT SUPPORT OF THE CHILDREN. ANY SUCH RESTRICTION WOULD SEEM TO BE THE RESULT OF ARRANGEMENTS MADE BY THE OFFICER AND HIS WIFE. SINCE THE RESTRICTED USE OF THE COMPENSATION IS SELF-IMPOSED, THE FUNDS MUST BE CONSIDERED AVAILABLE FOR THE SUPPORT OF THE CHILDREN. SUCH BEING THE CASE, IT IS NOT ESTABLISHED THAT THE CHILDREN ARE IN FACT DEPENDENT ON THE OFFICER.

ACCORDINGLY, PAYMENT ON THE VOUCHER IS AUTHORIZED ONLY TO THE EXTENT THAT IT COVERS THE TRANSPORTATION OF THE OFFICER'S WIFE. THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED. THIS DECISION, OR A COPY, SHOULD BE ATTACHED TO THE VOUCHER WHEN PAYMENT IS MADE FOR THE WIFE'S TRANSPORTATION.