B-57228, SEPTEMBER 17, 1946, 26 COMP. GEN. 195

B-57228, SEPTEMBER 17, 1946, 26 COMP. GEN. 195

RENTAL AND SUBSISTENCE ALLOWANCES - DEPENDENTS - CHILDREN - EMANCIPATION EFFECT AFTER DISCHARGE FROM ARMED FORCES A NAVY OFFICER WHOSE ADOPTED MINOR SON WAS EMANCIPATED FROM PARENTAL CONTROL UPON HIS ENTRY INTO THE ARMED FORCES BECAME ENTITLED, PURSUANT TO SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (ADOPTED MINOR SON) FROM AND AFTER THE DATE SAID CHILD WAS RESTORED TO PARENTAL CONTROL BY DISCHARGE FROM THE ARMED FORCES, DURING WHICH PERIOD THE CHILD WAS IN FACT DEPENDENT UPON THE OFFICER.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, SEPTEMBER 17, 1946:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 9, 1946, TRANSMITTING A LETTER DATED MARCH 12, 1946, FROM THE DISBURSING OFFICER, NAVY ACCOUNTS DISBURSING OFFICE, TWELFTH NAVAL DISTRICT, SAN FRANCISCO 2, CALIFORNIA, WITH ENCLOSURES, REGARDING THE RIGHT OF CAPTAIN WILLIS M. PERCIFIELD, U.S.N., TO BE CREDITED WITH ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (ADOPTED MINOR CHILD) FOR THE PERIOD APRIL 14, 1945, TO JUNE 1, 1945.

AMONG THE PAPERS SUBMITTED ARE AN ORDER OF ADOPTION, DATED DECEMBER 24, 1931, OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN DIEGO, IN THE MATTER OF THE ADOPTION OF WALLACE BRUCE HOLLINGSWORTH AND FRANKLYN WARD HOLLINGSWORTH--- THE LATTER BEING THE CHILD ON ACCOUNT OF WHOM THE ALLOWANCES ARE CLAIMED--- BY WILLIS MERRITT PERCIFIELD, PETITIONER, AND VARIOUS OTHER DOCUMENTS REQUIRED TO BE FILED IN SUPPORT OF SUCH CLAIMS. THE AFORESAID ORDER OF ADOPTION READS, IN PART, AS FOLLOWS:

THAT THE FATHER OF THE SAID MINORS IS NOW DECEASED AND THE MOTHER REMARRIED TO WILLIS MERRITT PERCIFIELD AND THAT SAID MOTHER FREELY CONSENTS TO THE ADOPTION OF SAID CHILDREN BY HER SAID HUSBAND WILLIS MERRITT PERCIFIELD RETAINING UNTO HERSELF THE NATURAL CARE AND CONTROL OF A MOTHER TO BE SHARED WITH HER HUSBAND. AND THAT SHE HAS FILED HER WRITTEN CONSENT IN THE MANNER AND FORM REQUIRED BY LAW WITH THE CLERK OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF SAN DIEGO.

AND IT FURTHER APPEARING, AND THE COURT BEING FULLY SATISFIED, THAT THE INTEREST OF SAID CHILDREN WILL BE PROMOTED BY THEIR ADOPTION BY THE SAID PETITIONER.

IT IS HEREBY ORDERED, THAT THE CUSTODY OF THE SAID WALLACE BRUCE HOLLINGSWORTH AND FRANKLYN WARD HOLLINGSWORTH BE, AND IT IS HEREBY, AWARDED TO, AND THAT THE SAID WALLACE BRUCE HOLLINGSWORTH AND FRANKLYN WARD HOLLINGSWORTH SHALL FROM NOW HENCEFORTH BE THE ADOPTED CHILDREN OF WILLIS MERRITT PERCIFIELD, AND SHALL HENCEFORTH BE REGARDED AND TREATED, IN ALL RESPECTS, AS HIS HILDREN; INCLUDING RIGHT OF INHERITANCE; THAT HE SHALL SUSTAIN TOWARDS SAID CHILDREN AND SAID CHILDREN TOWARDS HIM, THE REGULAR RELATION OF PARENT AND CHILD AND HAVE ALL THE RIGHTS AND BE SUBJECT TO ALL THE DUTIES OF THAT RELATION. THAT THE NAMES OF SAID CHILDREN HENCEFORTH BE WALLACE BRUCE HOLLINGSWORTH PERCIFIELD AND FRANKLYN WARD HOLLINGSWORTH PERCIFIELD.

OTHER EVIDENCE SUBMITTED SHOWS (1) THAT MILDRED GLADYS PERCIFIELD, THE CLAIMING OFFICER'S WIFE, ENLISTED IN THE WOMEN'S ARMY CORPS ON MAY 3, 1944, AND WAS IN AN ACTIVE DUTY PAY STATUS FROM THAT DATE UNTIL HER RELEASE JUNE 2, 1945; (2) THAT FRANKLYN WARD PERCIFIELD, THE CHILD ON WHOSE ACCOUNT THE ALLOWANCES ARE CLAIMED, ENLISTED AS AS V-5, U.S.N.R., FEBRUARY 26, 1944, AND WAS IN AN ACTIVE DUTY STATUS FROM JUNE 30, 1944, UNTIL DISCHARGED APRIL 13, 1945; (3) THAT DURING THE PERIOD FOR WHICH THE ALLOWANCES ARE CLAIMED THE CHILD WAS 18 YEARS OF AGE; (4) THAT HE RESIDED WITH THE CLAIMANT AT 286 MARION AVENUE, MILL VALLEY, CALIFORNIA; AND (5) THAT THE CLAIMING OFFICER ACTUALLY AND NECESSARILY CONTRIBUTED FROM HIS OWN PERSONAL FUNDS $150 EACH MONTH, SOLELY FOR THE CARE, MAINTENANCE, SUPPORT AND EDUCATION OF SAID CHILD.

SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361, DEFINES THE TERM "DEPENDENT," INSOFAR AS HEREIN MATERIAL, AS FOLLOWS:

THE TERM "DEPENDENT" AS USED IN THE SUCCEEDING SECTIONS OF THIS ACT SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES * * * UNMARRIED CHILDREN UNDER TWENTY-ONE YEARS OF AGE. * * * 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 THE PERSON CLAIMING DEPENDENCY ALLOWANCE.

THE CLAIM HERE INVOLVED IS FOR A PERIOD COMMENCING WITH THE DATE FOLLOWING THE DATE THE CHILD WAS DISCHARGED FROM NAVAL SERVICE TO THE DATE PRECEDING THE DATE THE OFFICER'S WIFE WAS RELEASED FROM ACTIVE DUTY IN THE MILITARY SERVICE, A PERIOD DURING ALL OF WHICH THE OFFICER WAS NOT ENTITLED TO SUCH ALLOWANCES ON HIS WIFE'S ACCOUNT BECAUSE OF HER MILITARY SERVICE. SEE 22 COMP. GEN. 955, AND 23 ID. 109. ASIDE FROM THE MATTER OF ADOPTION AND DEPENDENCY OF THE CHILD, THE RECORD INDICATES DOUBT IN THE MATTER BECAUSE OF THE EFFECT ON THE FILIAL RELATIONSHIP OF THE CHILD'S PRIOR NAVAL SERVICE.

IT HAS BEEN HELD THAT A MINOR'S ENTRY INTO THE ARMED FORCES OF THE UNITED STATES OPERATES AS AN EMANCIPATION AND THAT SUCH EMANCIPATION WORKS A SEVERANCE OF THE FILIAL RELATIONSHIP AS COMPLETELY AS THOUGH THE CHILD WERE OF AGE. SEE COURT CASES, INFRA. HOWEVER, IT HAS BEEN HELD THAT SUCH EMANCIPATION IS EFFECTIVE ONLY DURING THE TIME THE MINOR IS IN THE SERVICE OF THE GOVERNMENT AND THAT, WHEN DISCHARGED DURING MINORITY, HE AGAIN BECOMES, AS A MATTER OF LAW, SUBSERVIENT TO PARENTAL CONTROL, WHICH CONTROL WAS MERELY SUSPENDED, NOT DESTROYED. UNITED STATES V. WILLIAMS, 302 U.S. 46; IROQUOIS IRON CO. V. INDUSTRIAL COMMISSION, 128 N.E. 289, 12 A.L.R. 924; DEAN V. OREGON R. AND NAVIGATION CO. (1906), 44 WASH. 564, 87 PAC. 824; ANNOTATION 137 A.L.R. 1490; COMMONWEALTH EX REL. ENGLE V. MORRIS (1852), 1 PHILADELPHIA ( PA.) 381; BAKER V. BAKER (1868), 41 VT. 55. SEE, ALSO, 6 COMP. GEN. 288; 23 ID. 71.

ACCORDINGLY, SINCE IT APPEARS THAT DURING THE PERIOD FOR WHICH THE ALLOWANCES ARE CLAIMED CAPTAIN PERCIFIELD HAD AN ADOPTED MINOR CHILD, THAT PRIOR TO THE COMMENCEMENT DATE OF THE CLAIM THE SAID CHILD HAD BEEN DISCHARGED FROM THE SERVICE OF THE GOVERNMENT AND RESTORED TO THE CONTROL OF HIS PARENTS, AND THAT HE WAS IN FACT DEPENDENT ON THE OFFICER DURING SAID PERIOD, PAYMENT OF ALLOWANCES TO CAPTAIN PERCIFIELD AS FOR AN OFFICER WITH DEPENDENTS (ADOPTED MINOR CHILD) WILL BE PASSED TO CREDIT, PROVIDED THE ALLOWANCES ARE OTHERWISE PROPERLY PAYABLE, FOR THE PERIOD APRIL 14, 1945, TO JUNE 1, 1945.

THE OFFICER'S TWO VOUCHERS, S. AND A. FORM 531, ARE RETURNED HEREWITH, THE OTHER PAPERS SUBMITTED BEING RETAINED IN THIS OFFICE.

THIS DECISION, OR A COPY THEREOF, SHOULD BE INCLUDED IN THE ACCOUNT THEREIN CREDIT FOR PAYMENT UNDER AUTHORITY HEREOF IS CLAIMED.