B-198174 L/M, APR 23, 1980

B-198174 L/M, APR 23, 1980

PRECIS-UNAVAILABLE

BARRY GOLDWATER, UNITED STATES SENATE:

REFERENCE IS MADE TO YOUR COMMUNICATION OF MARCH 7, 1980, REQUESTING A REPORT ON MATTERS MENTIONED IN A LETTER TO YOU DATED FEBRUARY 29, 1980, FROM YOUR CONSTITUENT, MR. CARL H. SPITZER, 610 NORTH BEDFORD DRIVE, TUCSON, ARIZONA 85710. HE IS APPARENTLY CONCERNED ABOUT THE EFFECT A RECENT DECISION OF THIS OFFICE (B-192470, JANUARY 24, 1980 (59 COMP.GEN. )), WOULD HAVE ON SURVIVOR BENEFIT COVERAGE IN HIS SITUATION.

ACCORDING TO MR. SPITZER, HE IS A LIEUTENANT COLONEL IN THE U. S. ARMY RESERVE (RETIRED) AND WILL BECOME ELIGIBLE TO RECEIVE RETIRED PAY EFFECTIVE HIS 60TH BIRTHDAY. HE STATES THAT HE RECENTLY ELECTED COVERAGE UNDER THE SURVIVOR BENEFIT PLAN (SBP) PURSUANT TO PUBLIC LAW 95-397. STATES FURTHER THAT HE HAS BEEN A FULL-TIME EMPLOYEE OF THE FEDERAL GOVERNMENT SINCE 1955 AND EXPRESSES CONCERN THAT THE DECISION IN QUESTION MIGHT CAUSE HIS SPOUSE TO LOSE SURVIVOR BENEFITS UNDER THE MILITARY SBP IF, WHEN HE RETIRES FROM THE CIVIL SERVICE, SURVIVOR COVERAGE UNDER CIVIL SERVICE SYSTEM BECOMES EFFECTIVE.

THE DECISION IN QUESTION WAS RENDERED IN RESPONSE TO A REQUEST FOR RECONSIDERATION OF AN EARLIER DECISION, B-192470, JANUARY 3, 1979. THAT EARLIER DECISION, COPY ENCLOSED, WHICH WAS AFFIRMED IN THE JANUARY 24, 1980 DECISION, INVOLVED A SERVICE MEMBER RETIRED FROM ACTIVE DUTY, WHO ELECTED INTO THE MILITARY SBP AND THEREAFTER RETIRED FROM THE CIVIL SERVICE, HAVING WAIVED RECEIPT OF MILITARY RETIRED PAY SO AS TO INCLUDE HIS YEARS OF MILITARY SERVICE IN HIS CIVIL SERVICE RETIREMENT ANNUITY COMPENSATION. HE ALSO ELECTED TO RETAIN SURVIVOR COVERAGE UNDER THE CIVIL SERVICE SURVIVOR ANNUITY PLAN. WE HELD THEREIN, THAT IF SUCH A MEMBER DIES WHILE WAIVER OF MILITARY RETIRED PAY IS IN EFFECT, NO MILITARY SBP ANNUITY IS PAYABLE TO HIS SURVIVORS SINCE THEY ARE FULLY COVERED BY THE CIVIL SERVICE SURVIVOR ANNUITY PLAN.

THE PROVISIONS OF THE MILITARY SBP GOVERNING IN DECISIONS B-192470, SUPRA, WERE THOSE CONTAINED IN 10 U.S.C. 1450(D), WHICH PROVIDES:

"(D) IF, UPON THE DEATH OF A PERSON TO WHOM SECTION 1448 OF THIS TITLE APPLIES, THAT PERSON HAD IN EFFECT A WAIVER OF HIS RETIRED OR RETAINER PAY FOR THE PURPOSES OF SUBCHAPTER III OF CHAPTER 83 OF TITLE 5, AN ANNUITY UNDER THIS SECTION SHALL NOT BE PAYABLE UNLESS, IN ACCORDANCE WITH SECTION 8339(J) OF TITLE 5, HE NOTIFIED THE CIVIL SERVICE COMMISSION THAT HE DID NOT DESIRE ANY SPOUSE SURVIVING HIM TO RECEIVE AN ANNUITY UNDER SECTION 8341(B) OF THAT TITLE."

THE KEY WORDS ARE "HAD IN EFFECT A WAIVER OF HIS RETIRED OR RETAINER PAY" FOR CIVIL SERVICE RETIREMENT ANNUITY COMPUTATION PURPOSES. AN EMPLOYEE OF THE FEDERAL GOVERNMENT MUST MEET THE COMBINATION OF AGE AND YEARS OF FEDERAL SERVICE AS SET FORTH IN 5 U.S.C. 8336, IN ORDER TO RETIRE UNDER THE CIVIL SERVICE SYSTEM AND RECEIVE AN IMMEDIATE ANNUITY. IF THAT INDIVIDUAL HAD MILITARY SERVICE TIME, HE IS AUTHORIZED TO INCLUDE IT IN THE COMPUTATION TO MAKE UP THE REQUIRED YEARS OF SERVICE. GENERALLY, HOWEVER, IF AN INDIVIDUAL IS RECEIVING MILITARY RETIRED PAY, IN ORDER TO INCLUDE HIS MILITARY SERVICE IN THAT COMPUTATION UNDER THOSE PROVISIONS HE MUST WAIVE RECEIPT OF THAT RETIRED PAY. IF HE HAD PREVIOUSLY ELECTED SURVIVOR ANNUITY COVERAGE UNDER THE MILITARY SBP AND THEN ACCEPTS SURVIVOR COVERAGE UNDER THE CIVIL SERVICE RETIREMENT SYSTEM, AND THEN DIES WHILE THE WAIVER OF MILITARY RETIRED PAY IS IN EFFECT, SURVIVOR BENEFITS UNDER THE MILITARY SBP ARE NOT PAYABLE.

IT APPEARS FROM MR. SPITZER'S LETTER THAT THE MILITARY RETIRED PAY HE WOULD BE ENTITLED TO WOULD BE THAT AUTHORIZED BY CHAPTER 67 OF TITLE 10, U.S.C. (10 U.S.C. 1331-1337). IF THAT IS THE CASE, IT APPEARS THAT THE TWO DECISIONS REFERRED TO ABOVE WOULD NOT BE APPLICABLE TO HIM. THE PROVISIONS OF LAW GOVERNING THE USE OF MILITARY YEARS OF SERVICE FOR CIVILIAN RETIREMENT PURPOSES (5 U.S.C. 8332(C)), SPECIFICALLY EXEMPT CHAPTER 67 RETIREMENTS FROM THE MILITARY RETIRED PAY WAIVER REQUIREMENT. THUS, IF AN INDIVIDUAL IS ELIGIBLE TO RECEIVE OR IS RECEIVING RETIRED PAY UNDER CHAPTER 67, AND THEN RETIRES FROM THE CIVIL SERVICE, HE MAY INCLUDE HIS MILITARY YEARS OF SERVICE IN THE CIVIL SERVICE RETIREMENT COMPUTATION WITHOUT HAVING TO WAIVE RECEIPT OF HIS MILITARY RETIRED PAY.

FOR THE PURPOSES OF SURVIVOR BENEFIT COVERAGE, IF A MEMBER SO RETIRED HAD ELECTED MILITARY SBP COVERAGE, IT WOULD APPEAR THAT HE COULD THEREAFTER ACCEPT SURVIVOR COVERAGE UNDER THE CIVIL SERVICE RETIREMENT SYSTEM WITHOUT JEOPARDIZING HIS MILITARY SBP COVERAGE. AND, IN THE EVENT OF HIS DEATH, IT WOULD APPEAR THAT SO LONG AS HE HAD ELECTED INTO BOTH SURVIVOR ANNUITY SYSTEMS, HIS QUALIFIED SURVIVORS COULD RECEIVE BENEFITS FROM BOTH SYSTEMS.

WHILE IT APPEARS THAT MR. SPITZER'S RETIREMENT WOULD BE BASED ON THE PROVISIONS CONTAINED IN CHAPTER 67 OF THE CODE, WE DO NOT HAVE THE OFFICIAL DOCUMENTATION BY THE ARMY ESTABLISHING HIS RETIREMENT ELIGIBILITY. THEREFORE, NOTHING STATED HEREIN SHOULD BE CONSTRUED BY MR. SPITZER AS CONCLUSIVELY ESTABLISHING HIS RIGHTS UNDER THE MILITARY SBP OR THE CIVIL SERVICE SURVIVOR BENEFIT PROGRAM OR BOTH. IN THE CIRCUMSTANCES, WE SUGGEST THAT, IF HE HAS ANY FURTHER QUESTIONS REGARDING HIS INDIVIDUAL MILITARY SBP PARTICIPATION, HE DIRECT THEM TO THE U. S. ARMY FINANCE AND ACCOUNTING CENTER.

WE TRUST THE FOREGOING INFORMATION SERVES THE PURPOSE OF YOUR INQUIRY. THE ENCLOSURES WITH YOUR COMMUNICATION ARE RETURNED HEREWITH.