B-117229, OCT 26, 1953

B-117229, OCT 26, 1953

PRECIS-UNAVAILABLE

FIRST LIEUTENANT W. A. DIETRICH, USAF:

BY LETTER DATED SEPTEMBER 30, 1953, THE DIRECTOR OF FINANCE, DEPARTMENT OF THE AIR FORCE, REFERRED TO THIS OFFICE YOUR LETTER OF JULY 1, 1953, REQUESTING DECISION CONCERNING THE RIGHT OF CAPTAIN DONALD W. SCHOEN, AO 721533, USAF, TO BE CREDITED WITH AN INCREASED BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT (LEGITIMATE MINOR CHILD) FOR THE PERIOD COMMENCING JANUARY 1, 1953.

WITH YOUR LETTER THERE WAS SUBMITTED A COPY OF A FINAL JUDGMENT AND DECREE OF DIVORCE ENTERED ON JANUARY 28, 1952, IN THE SUPERIOR COURT, WARE COUNTY, STATE OF GEORGIA, IN THE CASE OF DONALD W. SCHOEN V. NORENE H. SCHOEN, GRANTING THE PLAINTIFF A DIVORCE A VINCULO MATRIMONII, AWARDING THE CUSTODY OF THEIR CHILD TO THE DEFENDANT, AND PROVIDING "THAT THE PLAINTIFF PAY TO THE DEFENDANT $75.00 PER MONTH FOR THE SUPPORT OF HERSELF AND THE MINOR CHILD. SAID PAYMENTS SHALL CONTINUE SO LONG AS THE DEFENDANT IS UNMARRIED OR UNTIL THE CHILD REACHES ITS 18TH BIRTHDAY." ALSO, ACCOMPAYING YOUR LETTER ARE THE CHILD'S BIRTH CERTIFICATE, THE OFFICER'S DEPENDENCY CERTIFICATE, DD FORM 137, AND HIS EXPLANATORY STATEMENT AND ATTACHED AFFIDAVIT, WHICH SHOW, AMONG OTHER THINGS, THAT THE CHILD IS FIVE YEARS OF AGE; THAT THE MOTHER REMARRIED IN SEPTEMBER 1952; THAT THE CHILD IS IN THE CUSTODY OF ITS MOTHER; AND THAT DURING THE PERIOD FROM DECEMBER 5, 1952, TO MAY 5, 1953, THE OFFICER ACTUALLY CONTRIBUTED AN AVERAGE OF ABOUT $46 PER MONTH FOR THE SUPPORT OF THE CHILD, AND, APPARENTLY, THAT HE INTENDS TO CONTINUE SUCH CONTRIBUTIONS. YOU QUESTION THE PROPRIETY OF PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS UNDER SUCH CIRCUMSTANCES, AND STATE THAT THE CURRENT REGULATIONS DO NOT INDICATE THE PERCENTAGE OF DEPENDENCY REQUIRED TO ENTITLE AN OFFICER TO A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A LEGITIMATE MINOR CHILD IN THE CUSTODY OF A PERSON OTHER THAN THE OFFICER, AND THAT CAPTAIN SCHOEN DOES NOT CLAIM HIS DAUGHTER AS A DEPENDENT FOR INCOME TAX PURPOSES.

SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, 63 STAT. 812, AUTHORIZES PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF DEPENDENTS UNDER THE CIRCUMSTANCES AND CONDITIONS THEREIN SET FORTH; AND SECTION 102(R) OF THE SAID ACT, 63 STAT. 804, DEFINES THE TERM "DEPENDENT", INSOFAR AS HEREIN MATERIAL, AS FOLLOWS:

"THE TERM 'DEPENDENT' SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES THE LAWFUL WIFE AND UNMARRIED LEGITIMATE CHILDREN, UNDER TWENTY-ONE YEARS OF AGE, OF ANY MEMBER OF THE UNIFORMED SERVICES, *** 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 SUCH MEMBER ***."

IT WILL BE NOTED THAT THE GOVERNING STATUTE DOES NOT SPECIFY A DEGREE OF DEPENDENCY IN THE CASE OF LEGITIMATE MINOR CHILDREN. IN THAT CONNECTION, IT HAS BEEN HELD, UNDER A PRIOR SIMILAR STATUTE, THAT THIS OFFICE WILL NOT QUESTION OTHERWISE PROPER PAYMENTS OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES TO DIVORCED OFFICERS ON ACCOUNT OF SUCH CHILDREN EXCEPT WHERE IT IS SHOWN THAT A DIVORCED OFFICER EXPRESSLY HAS BEEN ABSOLVED FROM THE RESPONSIBILITY OF SUPPORTING HIS CHILD OR CHILDREN, OR THAT HIS CHILD OR CHILDREN HAVE BEEN EMANCIPATED, OR THAT THE DIVORCED OFFICER HAS REFUSED TO SUPPORT HIS CHILD OR CHILDREN. HOWEVER, WHERE THE DIVORCE DECREE AWARDS CUSTODY OF THE CHILD OR CHILDREN TO THE MOTHER AND SHE LATER REMARRIES, THE FATHER IS REQUIRED TO SHOW THAT HE IS CONTRIBUTING TO THE SUPPORT OF HIS CHILD OR CHILDREN. EVEN THOUGH IN SUCH CASES THE DECREE OF DIVORCE DID NOT SPECIFICALLY PROVIDE FOR THE SUPPORT OF THE CHILD OR CHILDREN BY THE FATHER, SUCH FACT DID NOT, OF ITSELF, OPERATE TO DEPRIVE AN OFFICER OF INCREASED ALLOWANCES. SEE, GENERALLY, 23 COMP. GEN. 71, AS AMPLIFIED BY 23 COMP. GEN. 454; ID. 625; 24 ID. 233. AND THE FACT THAT A DIVORCED OFFICER DOES, OR DOES NOT, CLAIM HIS CHILD AS A DEPENDENT FOR INCOME TAX PURPOSES IS NOT DETERMINATIVE OF HIS RIGHT TO AN INCREASED BASIC ALLOWANCE FOR QUARTERS, INASMUCH AS INCOME TAX MATTERS ARE ADMINISTERED UNDER LAWS SEPARATE AND DISTINCT FROM THE STATUTE GOVERNING THE PAYMENT OF SUCH ALLOWANCE.

CONSEQUENTLY, SINCE IT APPEARS FROM THE SUBMITTED EVIDENCE THAT CAPTAIN SCHOEN HAS A LEGITIMATE MINOR CHILD AND THAT HE ACTUALLY CONTRIBUTED TO THE SUPPORT OF THE CHILD, PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS TO HIM AS FOR AN OFFICER WITH A DEPENDENT (LEGITIMATE MINOR CHILD) WILL BE PASSED TO CREDIT, PROVIDED A PROPERLY AUTHENTICATED COPY OF THE DECREE OF DIVORCE IS FILED WITH THE ACCOUNT WHEREIN CREDIT FOR PAYMENT UNDER AUTHORITY HEREOF IS CLAIMED AND THE ALLOWANCE IS OTHERWISE PROPERLY PAYABLE, FOR JANUARY 1, 1953, AND SO LONG THEREAFTER AS THERE IS NO MATERIAL CHANGE IN THE DEPENDENCY STATUS OF THE SAID CHILD.

THE ORIGINAL DEPENDENCY CERTIFICATE SUBMITTED WITH YOUR LETTER IS RETURNED HEREWITH, THE DUPLICATE THEREOF TOGETHER WITH THE OTHER PAPERS SUBMITTED BY YOU BEING RETAINED IN THIS OFFICE.

THIS DECISION, OR A COPY THEREOF, SHOULD BE INCLUDED IN THE ACCOUNT WHEREIN CREDIT FOR PAYMENT HEREUNDER IS FIRST CLAIMED.