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B-192448, SEP. 19, 1978, 57 COMP.GEN. 797

B-192448 Sep 19, 1978
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1978: IT HAS COME TO OUR ATTENTION THAT DEPENDENT ADOPTIVE PARENTS OF MEMBERS OF THE UNIFORMED SERVICES ARE NOT ELIGIBLE TO RECEIVE MEDICAL BENEFITS PURSUANT TO 10 U.S.C. 1071-1088 (1976) UNDER THE CURRENT INTERPRETATION OF THE TERM "PARENT" AS USED IN 10 U.S.C. 1072 AND APPLICABLE REGULATIONS. "DEPENDENT" IS DEFINED TO INCLUDE "A PARENT OR PARENT-IN-LAW" WHO IS. OR WAS AT THE TIME OF THE MEMBER'S DEATH. OR TO A PERSON WHO AT THE TIME OF HIS DEATH WAS AN ACTIVE DUTY OR RETIRED MEMBER OF A UNIFORMED SERVICE: (3) PARENT OR PARENT-IN-LAW WHO IS. OR WAS AT THE TIME OF DEATH OF THE ACTIVE DUTY OR RETIRED MEMBER. ONE RECENT CASE INVOLVED AN ACTIVE DUTY AIR FORCE OFFICER WHO WAS ADOPTED WHEN SHE WAS 8 YEARS OLD AND WAS CONTRIBUTING ONE-HALF OF HER ADOPTIVE MOTHER'S SUPPORT.

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B-192448, SEP. 19, 1978, 57 COMP.GEN. 797

MEDICAL TREATMENT - DEPENDENTS OF MILITARY PERSONNEL - PARENTS - ADOPTIVE BONA FIDE ADOPTIVE PARENTS OF MEMBERS OF THE UNIFORMED SERVICES SHOULD BE INCLUDED, SIMILARLY TO NATURAL PARENTS, AS ELIGIBLE DEPENDENTS TO RECEIVE MEDICAL BENEFITS PURSUANT TO 10 U.S.C. 1071-1088 (1976), DESPITE THE FACT THAT THE STATUTE DOES NOT EXPRESSLY INCLUDE ADOPTIVE PARENTS WITHIN THE TERM "PARENTS" IN AUTHORIZING SUCH BENEFITS. DECISIONS TO THE CONTRARY SHOULD NO LONGER BE FOLLOWED.

IN THE MATTER OF MEDICAL BENEFITS FOR DEPENDENT ADOPTIVE PARENTS, SEPTEMBER 19, 1978:

IT HAS COME TO OUR ATTENTION THAT DEPENDENT ADOPTIVE PARENTS OF MEMBERS OF THE UNIFORMED SERVICES ARE NOT ELIGIBLE TO RECEIVE MEDICAL BENEFITS PURSUANT TO 10 U.S.C. 1071-1088 (1976) UNDER THE CURRENT INTERPRETATION OF THE TERM "PARENT" AS USED IN 10 U.S.C. 1072 AND APPLICABLE REGULATIONS. AFTER REVIEWING THIS SITUATION WE CONCLUDE THAT THIS INTERPRETATION SHOULD BE CHANGED TO CONSTRUE "PARENT" AS USED IN 10 U.S.C. 1072 AS INCLUDING BONA FIDE ADOPTIVE PARENTS.

CHAPTER 55, SECTIONS 1071-1088, TITLE 10, U.S.C. PROVIDES FOR A UNIFORM PROGRAM OF MEDICAL AND DENTAL CARE FOR MEMBERS OF THE UNIFORMED SERVICES, AND FOR "THEIR DEPENDENTS." IN SUBSECTION 1072(2)(F), "DEPENDENT" IS DEFINED TO INCLUDE "A PARENT OR PARENT-IN-LAW" WHO IS, OR WAS AT THE TIME OF THE MEMBER'S DEATH, DEPENDENT UPON HIM FOR OVER ONE-HALF OF HIS SUPPORT AND RESIDING IN HIS HOUSEHOLD.

THE JOINT REGULATIONS (MEDICAL SERVICES, UNIFORMED SERVICES HEALTH BENEFITS PROGRAM, SEPTEMBER 15, 1970) ISSUED BY THE DEPARTMENT OF DEFENSE AND DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, IMPLEMENTING 10 U.S.C. 1071-1088, PROVIDE AT PARAGRAPH 1-2 IN PERTINENT PART AS FOLLOWS:

F. DEPENDENT. A PERSON WHO BEARS ANY OF THE FOLLOWING RELATIONSHIPS TO AN ACTIVE DUTY OR RETIRED MEMBER OF A UNIFORMED SERVICE, OR TO A PERSON WHO AT THE TIME OF HIS DEATH WAS AN ACTIVE DUTY OR RETIRED MEMBER OF A UNIFORMED SERVICE:

(3) PARENT OR PARENT-IN-LAW WHO IS, OR WAS AT THE TIME OF DEATH OF THE ACTIVE DUTY OR RETIRED MEMBER, DEPENDENT ON THE MEMBER FOR OVER ONE HALF OF HIS SUPPORT AND RESIDING IN A DWELLING PLACE PROVIDED OR MAINTAINED BY THE MEMBER. (DOES NOT INCLUDE AN ADOPTIVE PARENT, STEP PARENT, OR PERSON WHO STOOD IN LOCO PARENTIS.)

ONE RECENT CASE INVOLVED AN ACTIVE DUTY AIR FORCE OFFICER WHO WAS ADOPTED WHEN SHE WAS 8 YEARS OLD AND WAS CONTRIBUTING ONE-HALF OF HER ADOPTIVE MOTHER'S SUPPORT. SHE APPLIED FOR HOSPITALIZATION BENEFITS FOR HER MOTHER UNDER THE ASSUMPTION SHE WOULD BE ELIGIBLE FOR SUCH BENEFITS AS HER PARENT WAS DEPENDENT UPON HER FOR SUPPORT. SHE WAS ISSUED THE DEPENDENT'S IDENTIFICATION CARD QUALIFYING HER FOR RECEIPT OF THE BENEFITS. HOWEVER, SEVERAL MONTHS LATER SHE WAS INFORMED BY THE AIR FORCE THAT PURSUANT TO DECISIONS OF THE COMPTROLLER GENERAL HER MOTHER'S ENTITLEMENT TO MEDICAL BENEFITS WAS BEING REVOKED, AS SHE WAS AN ADOPTIVE PARENT AND THEREFORE INELIGIBLE. IN VIEW OF THE PROVISIONS OF THE REGULATIONS QUOTED ABOVE, WE ASSUME THE OTHER SERVICES ARE APPLYING SIMILAR RULES.

OUR PREVIOUS DECISIONS WHICH WERE REFERRED TO BY THE AIR FORCE IN DISENTITLING THE OFFICER'S MOTHER TO MEDICAL BENEFITS HAVE BEEN PREMISED ON THE PRINCIPLE THAT UNLESS OTHERWISE DEFINED BY THE PERTINENT STATUTE, THE TERM "PARENT" REFERS TO THE NATURAL FATHER OR MOTHER AND DOES NOT INCLUDE ADOPTIVE PARENTS. WE HAVE HELD THAT WHERE THE CONGRESS INTENDS THAT ALLOWANCES BE AUTHORIZED IN THE CASE OF A DEPENDENT PARENT OTHER THAN A NATURAL PARENT, IT HAS EXPRESSLY SO PROVIDED. SEE 22 COMP.GEN. 1139 (1943); 26 ID. 211 (1946); B-175578, APRIL 21, 1972.

THE EXPRESS PURPOSE OF THE LEGISLATION, STATED IN 10 U.S.C. 1071, IS "TO CREATE AND MAINTAIN HIGH MORALE IN THE UNIFORMED SERVICES BY PROVIDING AN IMPROVED AND UNIFORM PROGRAM OF MEDICAL AND DENTAL CARE FOR MEMBERS AND CERTAIN FORMER MEMBERS OF THOSE SERVICES, AND FOR THEIR DEPENDENTS." OUR REVIEW OF THE LEGISLATIVE HISTORY WE HAVE FOUND NO SPECIFIC INTENT TO DISTINGUISH BETWEEN ADOPTIVE AND NATURAL PARENTS.

DURING THE PAST DECADE, THE JUDICIAL TREND HAS BEEN TO INVALIDATE STATUTORY CLASSIFICATIONS REQUIRING DISSIMILAR TREATMENT FOR THOSE SIMILARLY SITUATED. FOR EXAMPLE, THE DEPENDENCY PROVISIONS OF 10 U.S.C. 1072 WERE HELD INVALID AS THEY RELATED TO THE EXCLUSION OF ILLEGITIMATE CHILDREN FROM THE CATEGORY OF DEPENDENTS ELIGIBLE TO RECEIVE MEDICAL BENEFITS BY THE DISTRICT COURT OF THE DISTRICT OF COLUMBIA IN 1972. MILLER V. LAIRD, 349 F.SUPP. 1034 (1972). THE COURT FOUND THE CRITICAL ISSUE TO BE WHETHER THE ELIMINATION OF ILLEGITIMATE CHILDREN FROM THE CATEGORY OF ELIGIBLE DEPENDENTS BORE ANY RATIONAL RELATIONSHIP TO THE GOALS OF THE STATUTE. THE COURT CONCLUDED THAT THE DENIAL OF BENEFITS TO ILLEGITIMATE CHILDREN WAS SO LACKING IN RATIONAL JUSTIFICATION AS TO BE VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.

CONCERNING THE STATUS OF ADOPTIVE PARENTS, GENERALLY AN ADOPTION EFFECTS A LEGAL AS WELL AS A PRACTICAL SUBSTITUTION OF PARENTS. THE NATURAL PARENTS LOSE AND THE ADOPTIVE PARENTS RECEIVE OR ASSUME THE RIGHT TO THE CHILD'S CUSTODY, SERVICES, AND EARNINGS, THE RIGHT TO CONTROL THE CHILD, AND THE OBLIGATIONS OF MAINTENANCE, EDUCATION, ETC. THE CHILD OWES THE DUTIES ARISING OUT OF THE RELATIONSHIP TO HIS ADOPTIVE PARENTS AND NOT TO HIS NATURAL PARENTS. THE PURPOSE OF THE STATUTORY ADOPTION SCHEMES OF THE VARIOUS STATES IS TO TRANSPLANT THE ADOPTED PERSON INTO THE FAMILY OF THE ADOPTER, THE PERSON THUS BEARING THE SAME LEGAL RELATIONSHIPS TO THE ADOPTIVE PARENTS AS DOES THEIR NATURAL CHILD. SEE 34 COMP.GEN. 601, 604 (1955), AND AUTHORITIES CITED THEREIN.

WE HAVE HELD THAT IN CERTAIN UNUSUAL CASES SUCH AS WHERE A MEMBER ADOPTED HER BROTHER AND SISTER, NO BONA FIDE PARENTAL RELATIONSHIP WAS ESTABLISHED. 42 COMP.GEN. 578 (1963). HOWEVER, GENERALLY FOR MOST PURPOSES BONA FIDE ADOPTIVE PARENTS, SUCH AS THE MOTHER OF THE OFFICER DISCUSSED ABOVE, ARE TREATED SIMILARLY TO NATURAL PARENTS.

ACCORDINGLY, AFTER REVIEWING THE LEGISLATIVE HISTORY AND IN VIEW OF RECENT JUDICIAL DECISIONS, IT IS NOW OUR VIEW THAT BONA FIDE ADOPTIVE PARENTS SHOULD BE INCLUDED, SIMILARLY TO NATURAL PARENTS, AS ELIGIBLE DEPENDENTS TO RECEIVE MEDICAL BENEFITS PURSUANT TO 10 U.S.C. 1071 1088. TO THE EXTENT THAT PRIOR DECISIONS OF OUR OFFICE CONFLICT WITH THIS VIEW, THEY SHOULD NO LONGER BE FOLLOWED REGARDING MEDICAL BENEFITS AUTHORIZED UNDER THESE STATUTES.

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