B-132054, AUGUST 22, 1957, 37 COMP. GEN. 129

B-132054, AUGUST 22, 1957, 37 COMP. GEN. 129

MILITARY PERSONNEL - TRANSPORTATION OF DEPENDENTS - MINOR CHILDREN - MARRIAGE ANNULMENT A MILITARY OFFICER'S MINOR DAUGHTER WHO, PRIOR TO OBTAINING AN ANNULMENT OF HER MARRIAGE, TRAVELED TO HER PARENTS' HOME INCIDENT TO HIS RETIREMENT ORDERS MUST BE REGARDED AS HAVING A VALID MARRIAGE STATUS UNTIL THE ANNULMENT WAS ISSUED, AND, THEREFORE, THE DAUGHTER MAY NOT BE CONSIDERED AN "UNMARRIED MINOR CHILD" SO AS TO ENTITLE THE MEMBER TO REIMBURSEMENT FOR HER TRANSPORTATION.

TO LYNN SPILLMAN, AUGUST 22, 1957:

YOUR UNDATED COMMUNICATION POSTMARKED MAY 14, 1957, REQUESTS RECONSIDERATION OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED MARCH 28, 1957, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR TRANSPORTATION OF YOUR DEPENDENT DAUGHTER, ARLYNN SPILLMAN, INCIDENT TO YOUR RETIREMENT AS LIEUTENANT COLONEL, U.S. ARMY.

BY PARAGRAPH 35, SPECIAL ORDERS NO. 80, DEPARTMENT OF THE ARMY, WASHINGTON, D.C., DATED APRIL 23, 1956, YOU WERE RETIRED FROM ACTIVE DUTY EFFECTIVE APRIL 30, 1956. THE ORDERS DIRECTED YOU TO PROCEED TO YOUR HOME AT THE PROPER TIME AND AUTHORIZED THE TRANSPORTATION OF YOUR DEPENDENTS. YOU HAVE CERTIFIED THAT YOUR DAUGHTER TRAVELED AT PERSONAL EXPENSE FROM FORT EUSTIS, VIRGINIA, TO MIDDLETON, IDAHO, BETWEEN JUNE 13 AND 19, 1956.

SECTION 303 (A) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 813, AS AMENDED, 37 U.S.C. 253 (A), PROVIDES THAT, UNDER UNIFORM REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, A MEMBER OF THE UNIFORMED SERVICE WHO IS RETIRED MAY SELECT HIS HOME FOR THE PURPOSES OF TRAVEL AND TRANSPORTATION ALLOWANCES PAYABLE UNDER THAT SECTION. JOINT TRAVEL REGULATIONS (PARAGRAPHS 4158 AND 7012), ISSUED PURSUANT TO THE STATUTE, PROVIDE THAT A MEMBER WHO IS RETIRED MAY RECEIVE TRAVEL ALLOWANCES FOR HIS DEPENDENTS FROM HIS LAST STATION TO SUCH SELECTED HOME, PROVIDED THAT TRAVEL IS COMPLETED WITHIN THE SPECIFIED TIME LIMITATION. HOWEVER, SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, 37 U.S.C. 231 (G), AND THE JOINT TRAVEL REGULATIONS IN EFFECT AT THE TIME THE TRAVEL INVOLVED WAS PERFORMED FURTHER PROVIDED (PARAGRAPH 7001) THAT THE TERM "DEPENDENT" SHALL INCLUDE "UNMARRIED LEGITIMATE CHILDREN, UNDER TWENTY-ONE YEARS OF AGE.'

THE RECORD SHOWS THAT YOUR DAUGHTER WAS MARRIED TO MR. TOM HULIN BLOWERS, JR., AT DILLON, SOUTH CAROLINA, ON APRIL 4, 1956, WHICH MARRIAGE WAS ANNULLED BY THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF IDAHO ON SEPTEMBER 7, 1956. SOUTH CAROLINA LAW (SECTION 20-24, CODE OF LAWS OF SOUTH CAROLINA, 1952) PROVIDES THAT NO MARRIAGE LICENSE SHALL BE ISSUED WHEN THE WOMAN IS OVER 14 BUT UNDER 18 YEARS OF AGE AND SHALL RESIDE WITH HER FATHER OR MOTHER OR OTHER RELATIVE UNTIL THE CONSENT OF SUCH RELATIVE SHALL HAVE BEEN FURNISHED THE PROBATE JUDGE. IT WILL BE OBSERVED, HOWEVER, THAT THE STATUTE DOES NOT DECLARE THAT IF A MARRIAGE IS ENTERED INTO WHEN ONE OR BOTH OF THE PARTIES ARE UNDER THE AGE LIMIT PRESCRIBED THE MARRIAGE SHALL BE VOID; THAT "THE STATUTE HAS, FOR WISE REASONS, STOPPED SHORT OF DECLARING SUCH MARRIAGES TO BE VOID.' STATE V. WARD, 204 S.C. 210, 28 S.E.2D 785, 786. CF. CROSS V. CROSS, 110 MONT. 300, 102 P.2D 829. SUCH A MARRIAGE IS VOIDABLE ONLY AND NOT VOID.

A VOIDABLE MARRIAGE IS REGARDED AS VALID UNTIL ANNULLED BY A COURT OF COMPETENT JURISDICTION; GENERALLY THE MARRIAGE IS VOIDABLE BY JUDICIAL DECREE AT THE ELECTION OF THE PARTY UNDER THE AGE OF CONSENT, TO BE EXERCISED AT ANY TIME BEFORE REACHING THE AGE OF CONSENT OR THEREAFTER IF THERE HAS BEEN NO VOLUNTARY COHABITATION AFTER REACHING SUCH AGE. SINCE THE MARRIAGE WAS VALID, UNTIL IT WAS ANNULLED YOUR DAUGHTER WAS NOT AN "UNMARRIED" CHILD. IT FOLLOWS THAT SHE MAY NOT BE CONSIDERED TO HAVE BEEN YOUR DEPENDENT FOR TRANSPORTATION PURPOSES DURING THE PERIOD IN QUESTION. COMPARE MAYS V. FOLSOM, 143 F.1SUPP. 784.

ACCORDINGLY, THE SETTLEMENT OF MARCH 28, 1957, MUST BE AND IS SUSTAINED.