[Title 32 CFR 733]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 32 - NATIONAL DEFENSE]
[Subtitle A - Department of Defense (Continued)]
[Chapter Vi - DEPARTMENT OF THE NAVY]
[Subchapter C - PERSONNEL]
[Part 733 - ASSISTANCE TO AND SUPPORT OF DEPENDENTS; PATERNITY COMPLAINTS]
[From the U.S. Government Printing Office]


32NATIONAL DEFENSE52002-07-012002-07-01false733PART 733NATIONAL DEFENSEDepartment of Defense (Continued)DEPARTMENT OF THE NAVYPERSONNEL
PART 733--ASSISTANCE TO AND SUPPORT OF DEPENDENTS; PATERNITY COMPLAINTS--Table of Contents




Sec.
733.1 Rates of basic allowance for housing (BAH).
733.2 Delegations.
733.3 Information and policy on support of dependents.
733.4 Complaints of nonsupport and insufficient support of dependents.
733.5 Determination of paternity and support of illegitimate children.

    Authority: 5 U.S.C. 301; 10 U.S.C. 5013; 37 U.S.C. 101, 401, 403; 50 
U.S.C. App. 2210; E.O. 11157, 29 FR 7973, 3 CFR 1964 Supp. p. 139, as 
amended.

    Source: 44 FR 42190, July 19, 1979, unless otherwise noted.



Sec. 733.1  Rates of basic allowance for housing (BAH).

    (a) Except as otherwise provided by law, a member of the naval 
service entitled to basic pay is entitled to a BAH at the monthly rates 
according to the pay grade to which he or she is assigned, in accordance 
with 37 U.S.C. 403.
    (b) The term ``dependent'' with respect to a member of the naval 
service, as used in this part, means:
    (1) His or her spouse;
    (2) His or her unmarried child (including any of the following 
categories of children if such child is in fact dependent on the member: 
A stepchild; an adopted child; or an illegitimate child whose alleged 
member-parent has been judicially decreed to be the parent of the child 
or judicially ordered to contribute to the child's support, or whose 
parentage has been admitted in writing by the member) who either:
    (i) Is under 21 years of age; or
    (ii) 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 
or her support; and
    (3) His or her parent (including a stepparent or parent by adoption, 
and any person, including a former stepparent, who has stood in loco 
parentis to the member at any time for a continuous period of at least 5 
years before he or she became 21 years of age) who is in fact dependent 
on the member for over one-half of his or her support; however, the 
dependency of such a parent is determined on the basis of an affidavit 
submitted by the parent and any other evidence required under 
regulations prescribed by the Secretary of the Navy, and he or she is 
not considered a dependent of the member claiming the dependency unless:
    (i) The member has provided over one-half of his or her support for 
the period prescribed by the Secretary; or
    (ii) Due to changed circumstances arising after the member enters on 
active duty, the parent becomes in fact dependent on the member for over 
one-half of is or her support.

The relationship between a stepparent and his or her stepchild is 
terminated

[[Page 363]]

by the stepparent's divorce from the parent by blood.

[44 FR 42190, July 19, 1979, as amended at 65 FR 62617, Oct. 19, 2000]



Sec. 733.2  Delegations.

    The Director, Navy Family Allowance Activity, Anthony J. Celebrezze 
Federal Building, Cleveland, OH 44199, with respect to personnel of the 
Navy, and the Head, Personal Affairs Branch, Manpower Department, 
Headquarters United States Marine Corps, Washington, DC 20380, with 
respect to personnel of the Marine Corps, have been granted the 
authority by the Secretary of the Navy to make determinations including 
determinations of dependency and relationship when required by 
legislation or policy for eligibility for BAH, transportation and 
medical care in behalf of dependents of Navy and Marine personnel and to 
administer matters involving adequacy of support for dependents and 
waivers of support of a spouse, and on the basis of new evidence or for 
other good cause to reconsider or modify any such determination.

[44 FR 42190, July 19, 1979, as amended at 65 FR 62617, Oct. 19, 2000]



Sec. 733.3  Information and policy on support of dependents.

    (a) Policy--(1) General. The naval service will not be a haven or 
refuge for personnel who disregard or evade their obligations to their 
families. All members of the naval service are expected to conduct their 
personal affairs satisfactorily. This includes the requirement that they 
provide adequate and continuous support for their lawful dependents and 
comply with the terms of separation agreements and court orders. Failure 
to do so which tends to bring discredit on the naval service is a proper 
subject of command consideration for initiation of court-martial 
proceedings or other administrative or disciplinary action.
    (2) Adequacy of support. Every member has an inherent natural and 
moral obligation to support his or her spouse and family. What is 
adequate and reasonably sufficient support is a highly complex and 
individual matter dependent on numerous factors, and may be resolved 
permanently only in the civil courts. Salient factors that should be 
considered are the pay of the member, any other private income or 
resources of the member and the dependents, the cost of necessities and 
every day living expenses and financial obligations of the dependents, 
and the expenses and other financial obligations of the member in 
relation to his or her income. The Department of the Navy does not and 
cannot act as a court in these matters. It is desired that the amount of 
support to be provided for dependents either be established by mutual 
understanding between the parties concerned or adjudicated in the civil 
courts. The support scales set forth in paragraphs (b) and (c) of this 
section are not intended as a fixed rule. They are intended as 
guidelines and the actual support may be increased or decreased as the 
facts and circumstances warrant until the amount of support to be 
furnished is settled by agreement of the parties or adjudicated by the 
civil courts. Because of the inherent arbitrary and temporary nature of 
the support scales set forth below, it is not intended that they be used 
as bases for any judicial proceedings, for to do so would lend excessive 
credence to administrative tools which have been designed for use only 
within the Navy and the Marine Corps.
    (b) Navy members. (1) The amount of support to be provided in the 
absence of a mutual agreement or court order is as follows:

For spouse only--\1/3\ gross pay
For spouse and one minor child--\1/2\ gross pay
For spouse and two or more children--\3/5\ gross pay
For one minor child--\1/6\ gross pay
For two minor children--\1/4\ gross pay
For three or more children--\1/3\ gross pay

    (2) For purposes of this support guide, gross pay will include basic 
pay and BAH, but does not include hazardous duty pay, sea or foreign 
duty pay, incentive pay, or basic allowance for subsistence.
    (3) Support of a lawful wife. The laws of jurisdictions in the 
United States impose a legal obligation upon a husband to support his 
wife. Exemptions from support of a lawful wife may be in the form of an 
order of a civil court of competent jurisdiction, relinquishment by the 
wife or mutual agreement of the

[[Page 364]]

parties, or a waiver of the naval support requirement granted by the 
Director, Navy Family Allowance Activity or the Commandant of the Marine 
Corps, as appropriate.
    (4) Payments of alimony. Dependents for whom basic allowance for 
quarters or other allowances are payable are defined by law. For 
purposes of qualifying for basic allowance for quarters, medical care or 
other benefits, a former spouse is not a dependent even though alimony 
has been decreed. Members are expected to comply with the terms of court 
orders or divorce decrees which adjudge payments of alimony even though 
basic allowance for quarters is not payable.
    (5) Support of children. The duty of a member to support his or her 
minor children is not affected by desertion or other misconduct on the 
part of the spouse. The obligation to support a child or children is not 
affected by dissolution of the marriage through divorce, unless the 
judicial decree or order specifically negates the obligations of the 
member to support a child or children of the marriage. The fact that a 
divorce decree is silent relative to support of minor children or does 
not mention a child or children will not be considered as relieving the 
service member of the inherent obligation to provide support for the 
child or children of the marriage. In many cases, the courts may not be 
cognizant of the existence of a child or children, or may not have 
jurisdiction over the child or children. A commanding officer has 
discretion to withhold action for alleged failure to support a child 
under the following conditions:
    (i) Where the member cannot ascertain the whereabouts and welfare of 
the child concerned.
    (ii) Where it is apparent that the person requesting support for a 
child does not have physical custody of the child.
    (iii) Where the member has been granted custody of the child by 
court order but does not have physical control of the child and the 
member is ready, willing, and able to care for and support the child if 
physical control is obtained.
    (6) Adopted children. The natural parents of an adopted child are 
relieved of the obligation to support the child as such duty is imposed 
on the adoptive parents. A Navy or Marine Corps member who contemplates 
the adoption of a child should be aware of the legal obligation to 
provide continuous support for such child during minority.
    (7) Entitlement to basic allowance for quarters. Entitlement of 
members to basic allowance for quarters on behalf of dependents is 
provided by statute. No member should be denied the right to submit a 
claim or application for basic allowance for quarters, nor should any 
command refuse or fail to forward any such claim or application. In 
cases involving parents, the member should furnish an estimate of the 
dependency situation to the best of his or her knowledge. Commanding 
officers should not contact parents for dependency information to 
include in the member's application. This delays the application and 
serves no useful purpose, as such cases are thoroughly investigated by 
the Navy Family Allowance Activity or Headquarters Marine Corps, which 
obtains necessary dependency affidavits directly from the parents. Any 
person, including a service member or dependent who obtains an allowance 
by fraudulent means is subject to criminal prosecution.
    (8) Application of the rule based on Robey v. United States 71 Ct. 
Cl. 561. Determinations that no dependency exists may be made in 
disputed cases--if a member does not contribute to the support of spouse 
and child at least to the extent of:
    (i) The full amount of his/her basic allowance for quarters, or
    (ii) An amount specified in a court order or legal separation 
agreement, or
    (iii) An amount agreed to by the parties as acceptable, adequate 
support, whichever is lesser. Pertinent decisions of the Court of Claims 
or Comptroller General will be followed in determinations of dependency.
    (c) Marine Corps members. (See MCO 5800.16A, Marine Corps Manual for 
Legal Administration (LEGADMINMAN))
    (1) In the absence of a court order or a written agreement between 
the parties as to an amount of support to be furnished by the Marine, 
the following shall apply to establish interim support requirements. 
Note that gross pay

[[Page 365]]

is defined as basic pay and BAH, but does not include hazardous duty 
pay, incentive pay, or basic allowance for subsistence.
    (2) Single family. (i) For a single family living in Government 
housing (civilian spouse): interim support shall be $200.00 per 
supported person, up to a maximum of \1/3\ gross pay, per month.
    (ii) For a single family not living in Government housing (civilian 
spouse): interim support shall be either $200.00 per supported family 
member, or BAH at the ``with dependents'' rate, whichever is greater, up 
to a maximum of \1/3\ gross pay, per month.
    (3) Multiple families (not including a spouse in the armed forces). 
Interim support for each family member shall be either $200.00 per 
supported family member, or the pro rata share of BAH at the ``with 
dependents'' rate, whichever is greater, up to a maximum of \1/3\ gross 
pay, per month.
    (4) Both spouses in the armed forces. (i) No children of the 
marriage: no support obligation, regardless of any disparities in pay 
grade.
    (ii) All the children of the marriage in the custody of one spouse: 
interim support shall be either $200.00 per supported child, or BAH at 
the ``with dependents'' rate, whichever is greater, up to a maximum of 
\1/3\ gross pay, per month.
    (iii) If custody of children of the marriage is divided between the 
two parents: interim support shall be either $200.00 per supported 
family member, or the pro rata share of BAH at the ``with dependents'' 
rate, whichever is greater, up to a maximum of \1/3\ gross pay, per 
month.
    (5) Support amounts required pursuant to this section will be paid 
until a court order or written agreement is obtained.
    (6) Form and timing of financial support payments
    (i) Unless otherwise required by court order or by written financial 
support agreement, a financial support payment will be made in one of 
the following ways:
    (A) Check.
    (B) Money order.
    (C) Electronic transfer.
    (D) Voluntary allotment.
    (E) Cash.
    (F) Involuntary allotment.
    (G) Garnishment.
    (ii) As an exception to paragraph 15002.6a of the LEGADMINMAN, a 
commanding officer may direct compliance with the financial support 
requirements of this section by making in-kind financial support. For 
example, paying non-Government housing expenses on behalf of family 
members, automobile loans, or charge accounts.
    (7) Alimony and child support. (i) Dependents for whom BAH or other 
allowances are payable are defined by law. For purposes of qualifying 
for BAH, medical care, or other benefits, a former spouse is not a 
dependent even though alimony has been decreed. Marines are expected to 
comply with the terms of court orders which adjudge alimony payments 
(even though BAH is not payable) until the responsibility for compliance 
is terminated by a court of competent jurisdiction; a written agreement 
between the persons concerned; relinquishment by the former spouse in 
writing; or the waiver of the support requirement is granted by the 
general court-martial (GCM) authority in writing.
    (ii) If the decree is silent as to alimony payments, it is presumed 
that the court did not intend such payments.
    (iii) When a valid court order exists and the Marine concerned is 
financially unable to comply, the Marine will be advised that 
noncompliance with the terms of that order renders the Marine liable to 
further civil court action.
    (iv) The duty of Marines to support their minor children is not 
terminated by desertion or other misconduct on the part of the Marine's 
spouse. Similarly, the obligation to support a child or children is not 
eliminated or reduced by the dissolution of the marriage through 
divorce, unless a judicial decree or order specifically negates the 
obligation of child support. The fact that a divorce decree is silent 
relative to support of minor children, or does not mention a child or 
children, will not be interpreted by command authorities as relieving 
the Marine of the inherent obligation to provide support for the child 
or children of the marriage.

[[Page 366]]

    (v) A commanding officer may consider releasing a Marine under his/
her command from the specific requirements of this regulation in the 
situations described below. A commanding officer may reconsider any 
prior decision made by himself/herself or by a prior commanding officer:
    (A) When the Marine cannot determine the whereabouts and welfare of 
the child concerned;
    (B) When it is apparent that the person requesting support for the 
child does not have physical custody of the child;
    (C) When the Marine has been the victim of a substantiated instance 
of physical abuse (this section applies only to a requirement to support 
a spouse, not dependent children. Commanding officers are strongly 
encouraged to consult the installation family counseling center 
concerning such issues. In addition, commanders should exercise extreme 
caution in denying dependent support in cases where the servicemember is 
also a perpetrator of spousal abuse.); or
    (D) The dependent is in jail.
    (vi) All command directed support waivers shall be in writing and a 
copy shall be provided to the disenfranchised family member by the 
command. The command shall also retain a copy. Alleged verbal support 
waivers shall be given no force or effect.
    (vii) The natural parents of an adopted child are relieved of the 
obligation to support the child as such duty is imposed on the adoptive 
parent. A Marine who contemplates the adoption of a child should be 
aware of the legal obligation to provide continuous support, once 
adopted, for such child during its minority.

[44 FR 42190, July 19, 1979, as amended at 65 FR 62617, Oct. 19, 2000]



Sec. 733.4  Complaints of nonsupport and insufficient support of dependents.

    (a) Upon receipt of a complaint alleging that a member is not 
adequately supporting his or her lawful dependents (spouse or children), 
the member will be interviewed and informed of the policy of the 
Department of the Navy concerning support of dependents. In the absence 
of a determination by a civil court or a mutual agreement of the 
parties, the applicable guide in Sec. 733.3 will apply. The member will 
be informed that his/her Navy or Marine Corps career may be in jeopardy 
if he/she does not take satisfactory action. The member may become 
ineligible to reenlist or extend enlistment (in the case of enlisted 
members), and may be subject to administrative or disciplinary action 
that may result in separation from the Navy or Marine Corps.
    (1) Waiver of support of spouse. If the member feels that he or she 
has legitimate grounds for a waiver of support for the spouse, the 
Director, Navy Family Allowance Activity or in the case of a member of 
the U.S. Marine Corps, the general court-martial convening authority, 
may grant such a waiver for support of a spouse (but not children) on 
the basis of evidence of desertion without cause or infidelity on the 
part of the spouse. The evidence may consist of--
    (i) U.S. Navy members. An affidavit of the service member, relative, 
disinterested person, public official, or law enforcement officer, and 
written admissions by the spouse contained in letters written by that 
spouse to the service member or other persons. However, affidavits of 
the service member and relatives should be supported by other 
corroborative evidence. All affidavits must be based upon the personal 
knowledge of the facts set forth; statements of hearsay, opinion, and 
conclusion are not acceptable as evidence.
    (ii) U.S. Marine Corps members. The Marine's commander may consider 
all pertinent facts and circumstances. The general court-martial 
convening authority my consider any reliable evidence including, but not 
necessarily limited to, the following: affidavits of the Marine, 
relatives, or other witnesses; admissions of the spouse, including 
verbal and written statements or letters written by the spouse to the 
Marine or other persons; pertinent photographs or court orders; and 
admissions by the person with whom the spouse allegedly had sexual 
liaisons. Witness statements should ordinarily state facts that were 
personally observed. Statements that merely state a

[[Page 367]]

conclusion without providing the personal observations on which the 
conclusion is based are generally unpersuasive.
    (iii) The request for waiver of support of a spouse should be 
submitted to the Director, Navy Family Allowance Activity or in the case 
of a member of the U.S. Marine Corps, the general court-martial 
convening authority, with a complete statement of the facts and 
substantiating evidence, and comments or recommendations of the 
commanding officer.
    (2) Action. After a written complaint that a member has failed or 
refused to furnish support for his or her spouse or children has been 
received, and the member has been counseled with regard to his/her 
rights and obligations in the support matter, continued failure or 
refusal, without justification, to furnish support for dependents in 
accordance with the provisions of a valid court order, written 
agreement, or, in the absence of a court order or agreement, the 
appropriate support guide set forth above, will be a basis for 
consideration of disciplinary or administrative action which may result 
in the member's separation from active service.
    (b) [Reserved]

[44 FR 42190, July 19, 1979, as amended at 65 FR 62618, Oct. 19, 2000]



Sec. 733.5  Determination of paternity and support of illegitimate children.

    (a) Illegitimate children. If the service member desires marriage, 
leave for this purpose is recommended whenever consistent with the needs 
or exigencies of the service. When the blood parents of an illegitimate 
child marry, the child is considered to be legitimized by the marriage 
unless a court finds the child to be illegitimate.
    (b) Judicial order or decree of paternity or support. Normally any 
order or decree which specifies the obligation to render support of 
illegitimate children will include within it a determination of 
paternity of such children; however, some jurisdictions provide for 
determinations of the legal obligation to support illegitimate children 
without a determination of paternity. Either type of order or decree 
falls within the scope of this paragraph. If a judicial order or decree 
of paternity or support is rendered by a United States or foreign court 
of competent jurisdiction against a member of the Navy or Marine Corps 
on active duty, the member concerned will be informed of his moral and 
legal obligations as well as his legal rights in the matter. The member 
will be advised that he is expected to render financial assistance to 
the child regardless of any doubts of paternity that the member may 
have. If the court order or decree specifies an amount of support to be 
provided the member will be expected to comply with the terms of such 
decree or order. If no amount is specified, support should be rendered 
in accordance with such reasonable agreement as may be made with the 
mother or legal guardian of the child or, in the absence of such 
agreement, in accordance with the applicable guide set forth above. If 
the member refuses to comply with the terms of the court order, 
administrative action will be taken as indicated in Sec. 733.4.
    (1) Court of competent jurisdiction. A court of competent 
jurisdiction is generally a court that has jurisdiction over the subject 
matter and the parties involved. As a general rule, the competency of 
the court to render the judicial order or decree may be tested by the 
enforceability of the order or decree. Normally, although not always, 
personal service of the court's process on the member is considered 
essential. With respect to a foreign judicial order or decree, the 
general rule is that where the defendant was a citizen or subject of the 
foreign country in which the order or decree was issued, the court may 
have acquired jurisdiction over the member by any mode of service or 
notice recognized as sufficient by the laws of that country. It should 
be noted, however, that an order or decree against a citizen or 
permanent resident of another country, without personal service or 
personal notice of the action to him or her, is null and void unless the 
member voluntarily submitted to the jurisdiction by appearing and 
contesting the action. In the event there is doubt as to the competency 
of the court to enter the order or decree, the question shall be 
referred to the Judge Advocate General.

[[Page 368]]

    (2) [Reserved]
    (c) Nonjudicial determination. In the absence of an adjudication of 
paternity or of a court-ordered obligation to furnish support, the 
member shall be privately consulted and asked, where appropriate, 
whether he or she admits either paternity of, or the legal obligation to 
support, the child or expected child. If the answer is affirmative, the 
member shall be informed that he or she is expected to furnish support 
as set forth in paragraph (b) of this section. Where paternity or the 
legal obligation to support is admitted by a male member, such member 
should be informed of his moral obligation to assist in the payment of 
prenatal expenses.
    (d) Members not on active duty. Allegations of paternity against 
members of the naval service who are not on active duty will be 
forwarded to the individual concerned in such a manner as to insure that 
the charges are delivered to the addressee only. The correspondence 
should be forwarded via the commandant of the naval district in which 
the member resides.
    (e) Former members. (1) If a certified copy of a judicial order or 
decree of paternity or support duly rendered by a United States or 
foreign court of competent jurisdiction against a former member of the 
Navy or Marine Corps is submitted, his or her last-known address will be 
furnished to the complainant with return of the correspondence and court 
order. The complainant will be informed of the date of discharge and 
advised that the individual concerned is no longer a member of the Navy 
or Marine Corps in any capacity.
    (2) Where there has been no court adjudication, the correspondence 
will be returned to the complainant with an appropriate letter stating 
that the individual is no longer a member of the Navy or the Marine 
Corps in any capacity and giving the date of his or her discharge or 
final separation except that the last-known address of the former member 
shall be furnished to the claimant if the complaint against the former 
member is supported by a document which establishes that the former 
member has made an admission or statement acknowledging paternity or 
responsibility for support of a child before a court of competent 
jurisdiction, administrative or executive agency, or official authorized 
to receive it. In cases where the complaint, along with the 
corroboration of a physician's affidavit, alleges and explains an 
unusual medical situation which makes it essential to obtain information 
from the alleged father in order to protect the physical health of 
either the prospective mother or the unborn child, the last-known 
address of the former member shall likewise be furnished to the 
claimant.

[44 FR 42190, July 19, 1979, as amended at 65 FR 62618, Oct. 19, 2000]