B-155739, JAN. 21, 1965, 44 COMP. GEN. 417

B-155739, JAN. 21, 1965, 44 COMP. GEN. 417

QUARTERS ALLOWANCE - DEPENDENTS - CHILDREN - ADOPTED - EFFECTIVE DATE FOR ENTITLEMENT THE CHILD ADOPTED BY A FEMALE OFFICER OF THE UNIFORMED SERVICES UNDER AN INTERLOCUTORY DECREE, FOLLOWED BY THE ISSUANCE OF A FINAL ORDER OF ADOPTION, THE GOVERNING STATE STATUTE PROVIDING THAT FROM AND AFTER THE ENTRY OF THE INTERLOCUTORY ORDER OF ADOPTION THE CHILD FOR ALL INTENTS AND PURPOSES SHALL BE THE CHILD OF THE PERSON ADOPTING HIM, MAY BE REGARDED AS THE LEGITIMATE CHILD OF THE OFFICER FROM THE DATE OF ISSUANCE OF THE INTERLOCUTORY DECREE TO DETERMINE HER ENTITLEMENT TO A BASIC ALLOWANCE FOR QUARTERS UNDER 37 U.S.C. 401 (2) AND 403; HOWEVER, THE RECORD SHOWING THE CHILD HAD BEEN SEASONALLY EMPLOYED, WITHOUT INDICATING THE AMOUNT OF THE EARNINGS, THE QUESTION OF ACTUAL DEPENDENCY IS FOR RESOLUTION, SECTION 401 PROVIDING THAT A PERSON IS NOT A DEPENDENT OF A FEMALE MEMBER UNLESS DEPENDENT ON HER FOR OVER ONE HALF OF HIS SUPPORT.

TO MAJOR J. W. FINNELL, DEPARTMENT OF THE ARMY, JANUARY 21, 1965:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 4, 1964, WITH ENCLOSURES, FORWARDED HERE ON DECEMBER 8 1964, UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE D.O. NO. A-812, REQUESTING DECISION AS TO PROPRIETY OF PAYMENT OF A VOUCHER IN FAVOR OF CLAUDIA G. RAMSEY (RAMSAY), CAPTAIN, AUS, COVERING BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITH DEPENDENT (ADOPTED CHILD) FOR THE PERIOD JANUARY 21, 1964, TO JULY 31, 1964. THE QUESTION IS PRESENTED IN VIEW OF THE FACT THAT THE RELATIONSHIP UPON WHICH THE CLAIM IS BASED WAS CREATED BY MEANS OF AN INTERLOCUTORY ORDER OF ADOPTION ISSUED BY THE CIRCUIT COURT OF PRINCE GEORGE COUNTY, VIRGINIA, ON JANUARY 21, 1964, AND BY FINAL ORDER OF ADOPTION ISSUED BY THE SAME COURT ON SEPTEMBER 15, 1964.

BASIC ALLOWANCE FOR QUARTERS IS PAYABLE TO MEMBERS OF THE UNIFORMED SERVICES UNDER 37 U.S.C. 403. FOR THE PURPOSE OF QUALIFICATION FOR THIS ALLOWANCE THE TERM "DEPENDENT" IS DEFINED IN 37 U.S.C. 401 AS:

(2) HIS UNMARRIED LEGITIMATE CHILD (INCLUDING A STEPCHILD, OR AN ADOPTED CHILD, WHO IS IN FACT DEPENDENT ON THE MEMBER) * * *

HOWEVER, A PERSON IS NOT A DEPENDENT OF A FEMALE MEMBER UNLESS HE IS IN FACT DEPENDENT ON HER FOR OVER ONE-HALF OF HIS SUPPORT. * * *.

THE ADOPTION IN THIS CASE TOOK PLACE IN THE STATE OF VIRGINIA AND SUCH PROCEDURE IS GOVERNED BY SECTIONS 63-347 TO 63-364 OF THE CODE OF VIRGINIA, 1950, AS AMENDED. SECTION 63-352 PROVIDES THAT THE INTERLOCUTORY ORDER OF ADOPTION WILL DECLARE THAT, SUBJECT TO THE PROBATIONARY PERIOD AND THE PROVISIONS OF THE FINAL ORDER OF ADOPTION, THE ADOPTED CHILD WILL BE, TO ALL INTENTS AND PURPOSES, THE CHILD OF THE ADOPTING PARENT FROM THE DATE OF THE ENTRY OF THE INTERLOCUTORY ORDER OF ADOPTION. SECTION 63-357 PROVIDES THAT FROM AND AFTER THE ENTRY OF THE INTERLOCUTORY ORDER OF ADOPTION THE CHILD SHALL BE, TO ALL INTENTS AND PURPOSES, THE CHILD OF THE PERSON ADOPTING HIM AND SHALL BE ENTITLED TO ALL THE RIGHTS AND PRIVILEGES, AND SUBJECT TO ALL THE OBLIGATIONS OF A CHILD OF SUCH PERSON BORN IN LAWFUL WEDLOCK UNLESS AND UNTIL THE INTERLOCUTORY OR FINAL ORDER OF ADOPTION IS SUBSEQUENTLY REVOKED. SECTION 63-358 PROVIDES THAT FOR THE PURPOSE OF INHERITANCE UNDER THE STATUTES OF DESCENT AND DISTRIBUTION THE ADOPTED CHILD SHALL INHERIT FROM AND THROUGH THE PARENTS BY ADOPTION FROM THE TIME OF ENTRY OF AN INTERLOCUTORY ORDER OF ADOPTION AND SHALL NOT INHERIT FROM THE NATURAL PARENTS, AND THAT IF THE ADOPTED CHILD DIES INTESTATE WITHOUT ISSUE SURVIVING HIM HIS PROPERTY SHALL PASS UNDER THE STATUTES OF DESCENT AND DISTRIBUTION TO THOSE PERSONS WHO WOULD HAVE TAKEN HAD THE DECEASED ADOPTED CHILD BEEN THE NATURAL CHILD OF THE ADOPTING PARENTS.

ACCORDINGLY, BASED ON THE INTERLOCUTORY AND FINAL ORDERS OF ADOPTION ISSUED IN THIS CASE, CAREY WAYNE RAMSAY MAY BE REGARDED AS THE LEGITIMATE CHILD OF CLAUDIA G. RAMSAY FROM AND AFTER JANUARY 21, 1964, FOR THE PURPOSE OF DETERMINING CAPTAIN RAMSAY'S ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS UNDER 37 U.S.C. 401 (2) AND 403.

IT IS NOTED THAT CAPTAIN RAMSAY STATES THE CHILD HAS BEEN 100 PERCENT DEPENDENT UPON HER SINCE SEPTEMBER 1962. SHE ALSO STATES THAT THE CHILD WAS EMPLOYED DURING THE SUMMER OF 1964 BUT DOES NOT SHOW THE AMOUNT OF THE CHILDS EARNINGS. SINCE YOUR REQUEST FOR DECISION IS LIMITED TO THE QUESTION AS TO THE EFFECT OF THE INTERLOCUTORY ORDER, WE ARE NOT PASSING ON THE QUESTION OF THE ACTUAL DEPENDENCY OF THE ADOPTED CHILD.

THE VOUCHER WITH RELATED PAPERS IS RETURNED HEREWITH, APPROVED FOR PAYMENT INSOFAR AS THE RELATIONSHIP OF THE ADOPTED CHILD IS CONCERNED.