[Federal Register Volume 65, Number 203 (Thursday, October 19, 2000)]
[Rules and Regulations]
[Pages 62616-62618]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-26793]


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DEPARTMENT OF DEFENSE

Department of the Navy

32 CFR Part 733

RIN 0703-AA66


Assistance to and Support of Dependants; Paternity Complaints

AGENCY: Department of the Navy, DOD.

ACTION: Final rule.

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SUMMARY: The Department of the Navy is updating its regulation on 
assistance to and support of dependents and paternity complaints. 
Significant changes were made to Marine Corps specific provisions to 
reflect the language found in the Marine Corps Legal Administration 
Manual. Other changes reflect administrative and nomenclature changes.

DATES: Effective October 19, 2000.

ADDRESSES: Office of the Judge Advocate General (Code 13), 1322 
Patterson Ave SE, Suite 3000, Washington Navy Yard, DC 20374-5066.

FOR FURTHER INFORMATION CONTACT: Lieutenant Commander James L. Roth, 
JAGC, U.S. Navy, Head, Regulations and Legislation Branch, 
Administrative Law Division, Office of the Judge Advocate General (Code 
13), 1322 Patterson Ave SE, Suite 3000, Washington Navy Yard, DC 20374-
5066, (703) 604-8200.

SUPPLEMENTARY INFORMATION: Pursuant to the authority cited below, the 
Department of the Navy amends 32 CFR Part 733. This amendment provides 
notice that significant changes were made in sections 733.3 and 733.4 
to paragraphs applicable to the Marine Corps to reflect language found 
in the Marine Corps Legal Administration Manual (MCO 5800.16A 
(LEGADMINMAN)). Additionally, throughout Part 733 the term ``basic 
allowance for quarters'' was changed to ``basic allowance for 
housing'', as well as other administrative changes. It has been 
determined that invitation of public comment on this amendment would be 
impracticable and unnecessary, and it is therefore not required under 
the public rulemaking provisions of 32 CFR Part 336 or Secretary of the 
Navy Instruction 5720.45. Interested persons, however, are invited to 
comment in writing on this amendment. All written comments received 
will be considered in making subsequent amendments or revisions of 32 
CFR Part 733, or the instructions on which they are based. Changes may 
be initiated on the basis of comments received. Written comments should 
be addressed to Lieutenant Commander James L. Roth, JAGC, U.S. Navy, 
Head, Regulations and Legislation Branch, Administrative Law Division, 
Office of the Judge Advocate General (Code 13), 1322 Patterson Ave SE, 
Suite 3000, Washington Navy Yard, DC 20374-5066. It has been determined 
that this final rule is not a ``significant regulatory action'' as 
defined in Executive Order 12866.

Executive Order 13132, Federalism

    It has been determined that this rule does not have sufficient 
Federalism implications to warrant the preparation of a Federalism 
Assessment. The provisions contained in this rule will have little or 
no direct effect on States or local governments.

Regulatory Flexibility Act

    This rule will not have a significant economic impact on a 
substantial number of small entities for purposes of the Regulatory 
Flexibility Act (5 U.S.C. Chapter 6).

Paperwork Reduction Act

    This rule does not impose collection of information requirements 
for purposes of the Paperwork Reduction Act (44 U.S.C. Chapter 35, 5 
CFR Part 1320).

List of Subjects in 32 CFR Part 733

    Alimony, Child support, Housing, Marital status, Military 
personnel.

    For the reasons set forth in the preamble, amend part 733 of title 
32 of the Code of Federal Regulations as follows:

[[Page 62617]]

PART 733--ASSISTANCE TO AND SUPPORT OF DEPENDENTS; PATERNITY 
COMPLAINTS

    1. The authority citation for 32 CFR part 733 is revised to read as 
follows:

    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.


Sec. 733.1  [Amended]

    2. In Sec. 733.1, remove the words ``basic allowance for quarters'' 
and add, in their place, the words ``basic allowance for housing 
(BAH)'' in the section heading.


Secs. 733.1, 733.2, and 733.3  [Amended]

    3. In addition to the amendments set forth above, in 32 CFR 733 
remove the words ``basic allowance for quarters'' and add, in their 
place, the word ``BAH'' in the following places:
    a. Section 733.1(a).
    b. Section 733.2.

    4. Amend Sec. 733.3 as follows:
    a. In paragraph (a)(2), revise the sixth sentence.
    b. Redesignate paragraph (a)(2)(i) as paragraph (b) and revise it.
    c. Add a new paragraph (c).
    The revisions and addition read as follows:


Sec. 733.3  Information and policy on support of dependents.

    (a) * * *
    (2) * * * The support scales set forth in paragraphs (b) and (c) of 
this section are not intended as a fixed rule.
* * * * *
    (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.
    (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 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.
    (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

[[Page 62618]]

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.

    5. In Sec. 733.4, revise paragraph (a)(1) to read as follows:


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

    (a) * * *
    (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 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.
* * * * *


Sec. 733.5  [Amended]

    6. In Sec. 733.5, remove the next to last sentence in paragraph (b) 
introductory text.

    Dated: October 10, 2000.
C.G. Carlson,
Major, U.S. Marine Corps, Alternate Federal Register Liaison Officer.
[FR Doc. 00-26793 Filed 10-18-00; 8:45 am]
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