B-169177, APR. 9, 1970

B-169177, APR. 9, 1970

TRANSPORTATION--DEPENDENTS--MILITARY PERSONNEL--CHILDREN--STEPCHILDREN PAYMENT OF MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR TRAVEL FROM OVERSEAS STATION OF OFFICER'S STEPDAUGHTER, WHO WAS DEPENDENT ON HIM FOR ABOUT 35% OF HER SUPPORT, MAY BE ALLOWED SINCE 37 U.S.C. 401 (2), IN DEFINING MEMBER'S DEPENDENT CHILD, FAILS TO SPECIFY CHIEF SUPPORT OR TO REQUIRE ANY CERTAIN DEGREE OF DEPENDENCY FOR STEPCHILDREN. MOREOVER, IF CLAIMANT CERTIFIES HER LIVING EXPENSES AND OTHER INCOME, AS WELL AS HIS CONTRIBUTIONS, WERE SAME AT TIME OF HIS RECEIPT OF COST-OF-LIVING AND TEMPORARY LODGING ALLOWANCES ON HER ACCOUNT, AS AT TIME OF HER TRAVEL, HE MAY BE PAID AMOUNTS ALREADY COLLECTED THEREFOR.

TO LIEUTENANT COLONEL G. W. GRIFFIN:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 1, 1969, WITH ENCLOSURES, FORWARDED HERE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE (PDTATAC CONTROL NO. 70-9). YOU REQUEST A DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER IN FAVOR OF LIEUTENANT COLONEL HARRY E. DODGE, FOR MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR THE TRAVEL OF HIS DEPENDENT STEPDAUGHTER FROM LOS ANGELES, CALIFORNIA (PORT OF DEBARKATION FROM MALAYSIA), TO FORT SHERIDAN, ILLINOIS, JULY 9 TO AUGUST 8, 1967.

IN YOUR LETTER YOU REFER TO A NOTICE OF EXCEPTION ISSUED BY OUR OFFICE DATED APRIL 4, 1969. THE NOTICE STATES THAT CREDIT WILL BE WITHHELD IN THE AMOUNT OF $63.57 PAID TO LIEUTENANT COLONEL DODGE ON A TRAVEL VOUCHER DATED AUGUST 30, 1967, PERTAINING TO THE TRAVEL OF DEBORAH ANN NETTERBLAD, SHOWN ON THE VOUCHER TO BE THE OFFICER'S DAUGHTER, WHEREAS SHE ACTUALLY WAS HIS STEPDAUGHTER AND DEPENDENCY WAS NOT ESTABLISHED. THE NOTICE OF EXCEPTION STATED FURTHER THAT A PREVIOUS CLAIM FOR TRAVEL ALLOWANCE FOR HIS STEPDAUGHTER HAD BEEN DISAPPROVED ON NOVEMBER 23, 1959, FOR THE REASON THAT SHE WAS NOT SUFFICIENTLY DEPENDENT UPON THE OFFICER TO BE ELIGIBLE FOR TRANSPORTATION AT GOVERNMENT EXPENSE. IT WAS ALSO REQUESTED IN THE NOTICE THAT THE COST TO THE GOVERNMENT FOR THE USE OF A TRANSPORTATION REQUEST ISSUED FOR HIS STEPDAUGHTER'S TRAVEL BY COMMERCIAL AIR FROM KUALA LUMPUR, MALAYSIA, TO LOS ANGELES, CALIFORNIA (JULY 9 TO 11, 1967), BE COLLECTED FROM THE OFFICER.

REPLY TO THE EXCEPTION DATED MAY 9, 1969, STATED THAT THE COLLECTION OF THE OVERPAYMENT PLUS COST OF TRANSPORTATION OBTAINED WITH THE TRANSPORTATION REQUEST FOR THE OFFICER'S STEPDAUGHTER HAD BEEN ENTERED ON THE OFFICER'S MILITARY PAY VOUCHER AND COLLECTED. FURTHER COLLECTIONS APPEAR TO HAVE BEEN MADE FOR OVERPAYMENT OF TEMPORARY LODGING ALLOWANCE AND COST-OF-LIVING ALLOWANCE ON ACCOUNT OF HIS STEPDAUGHTER WHILE HE WAS AT HIS FORMER DUTY STATION IN MALAYSIA.

YOU REQUEST A DETERMINATION OF DEPENDENCY AND THAT IF DEPENDENCY IS ESTABLISHED, YOUR OFFICE BE AUTHORIZED TO REIMBURSE LIEUTENANT COLONEL DODGE FOR THE AMOUNT PREVIOUSLY COLLECTED.

THE FILE SHOWS THAT ON APRIL 22, 1959, THE OFFICER FILED A DEPENDENCY CERTIFICATE IN WHICH HE STATED THAT THE COST OF THE SUPPORT OF HIS STEPDAUGHTER, DEBORAH ANN NETTERBLAD, WAS $120 AND THAT HE CONTRIBUTED $72 MONTHLY TOWARDS HER SUPPORT. HE STATED FURTHER THAT HIS STEPDAUGHTER WAS RECEIVING COMPENSATION IN THE AMOUNT OF $118 FROM THE GOVERNMENT. HE SAID THAT $48 THEREOF (RECEIVED FROM SOCIAL SECURITY ADMINISTRATION) WAS ACTUALLY USED MONTHLY FOR HER SUPPORT AND $70 WAS BEING PLACED IN A TRUST FUND BY THE VETERANS ADMINISTRATION, NOT TO BE USED FOR THE GIRL'S SUPPORT EXCEPT IN EMERGENCY OR EXCEPTIONAL CONDITIONS, BUT TO BE AVAILABLE TO HER WHEN SHE BECAME OF AGE.

THE FILE SHOWS FURTHER THAT A CLAIM DATED JANUARY 1, 1960, BY THE OFFICER FOR TRAVEL ALLOWANCE FOR HIS STEPDAUGHTER'S TRAVEL FROM COLUMBUS, GEORGIA, TO FORT HAMILTON, NEW YORK (PORT OF EMBARKATION), PERFORMED FEBRUARY 1 TO 4, 1954, WAS ADMINISTRATIVELY DENIED FOR THE REASON THAT THE COMPENSATION HIS STEPDAUGHTER WAS RECEIVING WAS CONSIDERED AS INCOME, INCLUDING THAT PORTION PLACED IN A TRUST FUND, UNLESS IT WAS CLEARLY PROVEN THAT THE USE OF THE VETERANS ADMINISTRATION COMPENSATION WAS RESTRICTED BY LAW TO BEING PLACED IN TRUST UNTIL THE CHILD BECOMES OF AGE. THE CLAIM WAS FORWARDED TO OUR CLAIMS DIVISION AND WAS DISALLOWED BY SETTLEMENT DATED APRIL 25, 1960, SINCE THE PAYMENTS RECEIVED FROM THE GOVERNMENT WERE ABOUT THE SAME AS THE CHILD'S LIVING EXPENSES.

IN A STATEMENT DATED JULY 7, 1969, COLONEL DODGE SAID THAT DURING THE PERIOD FROM JULY 12 TO AUGUST 8, 1967, HIS STEPCHILD, DEBORAH ANN NETTERBLAD, WAS IN FACT DEPENDENT UPON HIM. HE SAID THAT HER LIVING EXPENSES WERE IN EXCESS OF $200 MONTHLY AND THAT HIS MONTHLY CONTRIBUTION FOR HER SUPPORT WAS IN EXCESS OF $70. HE STATED THAT HIS STEPDAUGHTER RECEIVED MONTHLY BENEFITS FROM SOCIAL SECURITY AND THE VETERANS ADMINISTRATION IN THE TOTAL SUM OF APPROXIMATELY $129.

A SUBSEQUENT STATEMENT MADE BY THE OFFICER ON DECEMBER 1, 1969, WAS TO THE EFFECT THAT THERE WAS NO INTENT ON HIS PART TO MISREPRESENT HIS STEPDAUGHTER AS HIS DAUGHTER IN DESIGNATING HER AS SUCH IN THE TRAVEL VOUCHER ON WHICH HE WAS PAID FOR HER TRAVEL AS WELL AS THE TRAVEL OF HIS WIFE AND SON FROM LOS ANGELES TO FORT SHERIDAN. HE EXPLAINED THAT THE CHILD HAD BEEN LIVING CONTINUOUSLY WITH HIM SINCE SHE WAS TWO YEARS OLD, AND SHE HAD BEEN USING HIS SURNAME TO AVOID EMBARRASSMENT. HE INDICATED FURTHER THAT HIS OFFICIAL 201 FILE RECORDS HER NAME AND RELATIONSHIP CORRECTLY.

THE OFFICER STATED FURTHER THAT FROM 1964 OR 1965, HIS WIFE HAD BEEN RECEIVING APPROXIMATELY $77 MONTHLY FROM THE VETERANS ADMINISTRATION PLUS $52.50 MONTHLY SOCIAL SECURITY BENEFITS, AS LEGAL GUARDIAN FOR THE SUPPORT OF HER DAUGHTER. HE POINTED OUT THAT COSTS OF SUPPORTING A CHILD IN HER TEEN-AGE YEARS HAVE INCREASED CONSIDERABLY AND THAT DURING THE PERIOD IN QUESTION HE HAD PROVIDED AT LEAST 30 PERCENT OF HER SUPPORT. THEREFORE, HE RESUBMITTED A VOUCHER EVIDENCING HIS CLAIM FOR MONETARY ALLOWANCE IN LIEU OF TRANSPORTATION FOR HIS TRAVEL OF HIS STEPDAUGHTER FROM LOS ANGELES, CALIFORNIA, TO FORT SHERIDAN, ILLINOIS, AFTER REFUNDING THE AMOUNT PREVIOUSLY PAID HIM FOR SUCH TRAVEL.

UNDER THE PROVISIONS OF 37 U.S.C. 406 (A), 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) OF TITLE 37, U.S. CODE, DEFINES A MEMBER'S DEPENDENT CHILD AS:

"(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 DETERMINING DEPENDENCY OF MINOR STEPCHILDREN AS DEFINED ABOVE, WE HAVE HELD THAT 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. FURTHER, IT HAS BEEN OUR VIEW THAT PENSIONS OR OTHER SIMILAR PAYMENTS PAYABLE IN STATED INSTALLMENTS ARE CONSIDERED AS INCOME IN DETERMINING THE DEPENDENCY STATUS OF AN ALLEGED DEPENDENT. HOWEVER, THE STATUTE, WHILE NO DOUBT CONTEMPLATING SUBSTANTIAL DEPENDENCY, DOES NOT SPECIFY CHIEF SUPPORT OR REQUIRE THAT ANY CERTAIN DEGREE OF DEPENDENCY BE SHOWN REGARDING STEPCHILDREN OR ADOPTED CHILDREN. 34 COMP. GEN. 193 (1954); ID. 625 (1955); ID. 694 (1955).

IN THIS CASE, THE OFFICER STATED THAT DURING THE PERIOD UNDER CONSIDERATION HIS STEPDAUGHTER'S EXPENSES WERE IN EXCESS OF $200 MONTHLY. HER MONTHLY INCOME FROM OTHER SOURCES AMOUNTED TO $129.50 AND HIS CONTRIBUTIONS WERE IN EXCESS OF $70. THUS, IT APPEARS THAT HIS STEPDAUGHTER WAS DEPENDENT ON HIM TO THE EXTENT OF APPROXIMATELY 35 PERCENT OF THE AMOUNT REQUIRED FOR HER SUPPORT. IT IS CONCLUDED, THEREFORE, THAT SHE WAS IN FACT DEPENDENT UPON HIM DURING SUCH PERIOD. SEE B-150452, SEPTEMBER 16, 1963, COPY ENCLOSED.

THE RECORD DOES NOT SUPPORT THE CONCLUSION THAT THE OFFICER LISTED HIS STEPDAUGHTER AS HIS DAUGHTER WITH INTENT TO FALSIFY HIS CLAIM. ACCORDINGLY, THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED, PAYMENT ON THE VOUCHER BEING AUTHORIZED IF OTHERWISE CORRECT.

WITH RESPECT TO FURTHER COLLECTIONS MADE FROM THE OFFICER ON THE BASIS OF THE NOTICE OF EXCEPTION DATED APRIL 4, 1969, FOR ADDITIONAL TRAVEL EXPENSES OF THE STEPCHILD IN RETURNING FROM MALAYSIA, THE AMOUNT SO COLLECTED MAY BE REFUNDED TO THE OFFICER. FURTHERMORE, IF THE OFFICER CERTIFIES THAT DURING THE PERIOD HE WAS IN RECEIPT OF COST-OF LIVING ALLOWANCE AND TEMPORARY LODGING ALLOWANCE ON ACCOUNT OF HIS STEPDAUGHTER WHILE STATIONED IN KUALA LUMPUR, HIS CONTRIBUTIONS TO HER SUPPORT AND HER TOTAL INCOME FROM OTHER SOURCES AND HER LIVING EXPENSES WERE APPROXIMATELY THE SAME AS THEY WERE DURING THE PERIOD THE RETURN TRAVEL WAS PERFORMED, A FURTHER REFUND OF $218.60 ($210.60 COST OF LIVING ALLOWANCE PLUS $8.00 TEMPORARY LODGING ALLOWANCE), WHICH WAS COLLECTED FROM HIM FOR SUCH ALLOWANCES, MAY BE MADE TO THE OFFICER.