B-163164, JANUARY 30, 1968, 47 COMP. GEN. 407

B-163164, JANUARY 30, 1968, 47 COMP. GEN. 407

STATION ALLOWANCES - MILITARY PERSONNEL - DEPENDENTS - CHILDREN - DIVORCED DAUGHTER THE DIVORCED DAUGHTER OF AN OFFICER OF THE UNIFORMED SERVICES UNDER 21 YEARS OF AGE WHO HAS CUSTODY OF HER MINOR CHILD WITH THE OBLIGATION TO SUPPORT AND CARE FOR THE CHILD WITHOUT ANY ASSISTANCE FROM HER HUSBAND, AND WHO RESIDES AND IS DEPENDENT ON HER FATHER FOR HER SUPPORT IS A ,DEPENDENT" OF THE OFFICER WITHIN THE MEANING OF THE TERM AS USED IN 37 U.S.C. 401 AND, THEREFORE, HE IS ENTITLED TO A STATION ALLOWANCE INCREASE.

TO CAPT. R. C. DEE, DEPARTMENT OF THE ARMY, JANUARY 30, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 17, 1967, AEZNSFO, REQUESTING A DECISION WHETHER LIEUTENANT COLONEL JACK J. RUSSELL'S DIVORCED DAUGHTER, MRS. SHARON F. PAULSON, IS HIS DEPENDENT UNDER THE CIRCUMSTANCES SET FORTH IN YOUR LETTER, FOR THE PURPOSE OF INCREASED STATION ALLOWANCE. THE REQUEST WAS ASSIGNED PDTATAC CONTROL 67-39 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

YOU SAY THAT MRS. PAULSON IS LIEUTENANT COLONEL RUSSELL'S LEGITIMATE DAUGHTER; THAT SHE IS UNDER THE AGE OF 21 AND THAT SHE AND HER CHILD RECEIVE THEIR ENTIRE SUPPORT FROM HIM AND RESIDE WITH HIM AT HIS CURRENT DUTY STATION. A COPY OF A DECREE OF DIVORCE ISSUED BY THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF COCHISE, ARIZONA, ON DECEMBER 10, 1965, SHOWS THAT SHARON RUSSELL PAULSON WAS GRANTED AN ABSOLUTE DIVORCE FROM HER HUSBAND, LAUREN PAULSON, TOGETHER WITH CUSTODY OF THEIR MINOR DAUGHTER AND WITH THE COMPLETE OBLIGATION TO SUPPORT AND CARE FOR SUCH CHILD WITHOUT ASSISTANCE FROM HER HUSBAND.

SECTION 401 OF TITLE 37, U.S.C. DEFINES THE TERM "DEPENDENT" IN THE CASE OF A MEMBER OF THE UNIFORMED SERVICES AS INCLUDING HIS UNMARRIED LEGITIMATE CHILD (INCLUDING A STEPCHILD, OR AN ADOPTED CHILD, WHO IS IN FACT DEPENDENT UPON THE MEMBER) WHO EITHER IS UNDER 21 YEARS OF AGE, OR 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. THESE PROVISIONS WERE DERIVED FROM SECTION 102 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 80H.

UNMARRIED CHILDREN UNDER THE AGE OF 21 WERE DEFINED AS DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES BY SECTION 4 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627. THE ACT OF FEBRUARY 21, 1929, 45 STAT. 1254, PROVIDED THAT THE WORDS "CHILD" OR "CHILDREN" AS USED IN SECTIONS 4 AND 12 OF THE ACT OF JUNE 10, 1922, AS AMENDED, SHOULD BE HELD TO INCLUDE STEPCHILDREN, WHERE SUCH STEPCHILDREN ARE IN FACT DEPENDENT UPON THE PERSON CLAIMING DEPENDENCY ALLOWANCE. IN DECISION OF DECEMBER 29, 1937, A-90535, WE HELD THAT A MEMBER'S DIVORCED STEPDAUGHTER, UNDER 21 YEARS OF AGE, WHO WAS ENTIRELY DEPENDENT UPON HIM FOR SUPPORT, WAS HIS DEPENDENT WITHIN THE MEANING OF THOSE STATUTORY PROVISIONS.

INSOFAR AS HERE MATERIAL THERE HAS BEEN NO SUBSTANTIAL CHANGE IN THE DEFINITION OF DEPENDENTS OF MEMBERS OF THE UNIFORMED SERVICES SINCE THE DECISION OF DECEMBER 29, 1937, AND NO REASON IS OTHERWISE APPARENT WHY THE DEFINITION SHOULD NOW BE GIVEN AN INTERPRETATION DIFFERENT FROM THAT GIVEN IN THAT DECISION. ACCORDINGLY, SINCE THE CHILD HERE INVOLVED IS THE LEGITIMATE DAUGHTER OF LIEUTENANT COLONEL RUSSELL, HAS BEEN UNMARRIED SINCE THE DIVORCE WAS GRANTED ON DECEMBER 10, 1965, AND AGAIN IS DEPENDENT UPON HIM FOR HER SUPPORT, IT IS CONCLUDED THAT SHE IS HIS DEPENDENT FOR THE PURPOSE OF INCREASED STATION ALLOWANCE. CF. 37 COMP. GEN. 129. THE PAPERS WHICH ACCOMPANIED YOUR REQUEST ARE RETURNED.