B-121548, NOVEMBER 26, 1954, 34 COMP. GEN. 255

B-121548: Nov 26, 1954

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

A CHILD MUST HAVE BEEN LEGALLY ADOPTED PRIOR TO THE EFFECTIVE DATE OF THE ACT IN ORDER TO BE ENTITLED TO SUCH PAYMENTS. THE RECORDS SHOW THAT THE ADOPTION PROCEEDINGS IN THE CASE OF BETTY LOU ANDRESKI WERE COMPLETED ON FEBRUARY 27. WHO IS UNDER EIGHTEEN YEARS OF AGE AND UNMARRIED. OR A CHILD OVER EIGHTEEN YEARS OF AGE AND UNMARRIED WHO IS INCAPABLE OF SELF-SUPPORT BECAUSE OF BEING MENTALLY DEFECTIVE OR PHYSICALLY INCAPACITATED IF THAT CONDITION EXISTED PRIOR TO REACHING AGE EIGHTEEN AND REFERS ONLY TO AN ACTIVE MEMBER'S CHILD WHO WAS BORN AND IS LIVING AT THE DATE OF RETIREMENT OF THE ACTIVE MEMBER OR TO A RETIRED MEMBER'S CHILD WHO WAS BORN AND IS LIVING AT THE EFFECTIVE DATE OF HIS ACT IN THE CASE OF A RETIRED MEMBER AT THE EFFECTIVE DATE OF THE ACT. ( ITALICS SUPPLIED.).

B-121548, NOVEMBER 26, 1954, 34 COMP. GEN. 255

PAY - RETIRED - ANNUITIES FOR DEPENDENTS - ADOPTED CHILDREN WHILE THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, WHICH PROVIDES THAT A RETIRED MEMBER OF THE UNIFORMED SERVICES MAY ELECT TO RECEIVE A REDUCED AMOUNT OF RETIRED PAY TO PROVIDE ANNUITIES FOR DEPENDENTS, AUTHORIZES PAYMENT OF ANNUITIES TO ADOPTED CHILDREN, A CHILD MUST HAVE BEEN LEGALLY ADOPTED PRIOR TO THE EFFECTIVE DATE OF THE ACT IN ORDER TO BE ENTITLED TO SUCH PAYMENTS.

ACTING COMPTROLLER GENERAL WEITZEL TO LT. COL. EUGENE PALETZ, DEPARTMENT OF THE ARMY, NOVEMBER 26, 1954:

BY FIRST ENDORSEMENT DATED SEPTEMBER 22, 1954, THE CHIEF OF FINANCE FORWARDED YOUR LETTER OF AUGUST 25, 1954, FINCS-C 201 ANDRESKI, THOMAS T., RA 2170932, SUBMITTING FOR DECISION A VOUCHER STATED IN THE AMOUNT OF $94.48, REPRESENTING ANNUITY PAYMENTS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 401, FOR THE MONTHS OF APRIL, MAY, AND JUNE 1954 IN FAVOR OF BETTY LOU ANDRESKI, AN ADOPTED CHILD OF MASTER SERGEANT THOMAS A. ANDRESKI, RETIRED, WHO DIED APRIL 17, 1954.

IT APPEARS THAT AS OF APRIL 13, 1954, THE FORMER RETIRED ENLISTED MAN EXERCISED AN ELECTION OF OPTIONS UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, ELECTING COMBINED OPTIONS 1 AND 4 AND 2 AND 4, EACH AT ONE-FOURTH OF HIS REDUCED RETIRED PAY. FOR THE PURPOSE OF THE COMBINED OPTIONS 2 AND 4, HE LISTED TWO ADOPTED CHILDREN, BETTY LOU ANDRESKI, BORN SEPTEMBER 8, 1946, AND ELEANOR ANDRESKI, BORN JUNE 8, 1938. THE RECORDS SHOW THAT THE ADOPTION PROCEEDINGS IN THE CASE OF BETTY LOU ANDRESKI WERE COMPLETED ON FEBRUARY 27, 1954.

THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 ESTABLISHED A PLAN WHEREBY AN ACTIVE OR RETIRED MEMBER OF THE REGULAR AND RESERVE COMPONENTS OF THE UNIFORMED SERVICES MIGHT ELECT, WITHIN CERTAIN SPECIFIED PERIODS, DEPENDING UPON HIS LENGTH OF SERVICE AND STATUS AS AN ACTIVE OR RETIRED MEMBER, TO RECEIVE A REDUCED AMOUNT OF RETIRED PAY DURING HIS LIFETIME TO PROVIDE ANNUITIES FOR HIS "WIDOW, CHILD, OR CHILDREN.'

SECTION 2 (F) OF THE STATUTE, 67 STAT. 501, PROVIDES THAT:

THE TERM "CHILD" MEANS A LEGITIMATE CHILD, A STEPCHILD IN FACT DEPENDENT UPON THE MEMBER FOR SUPPORT, OR A LEGALLY ADOPTED CHILD, WHO IS UNDER EIGHTEEN YEARS OF AGE AND UNMARRIED, OR A CHILD OVER EIGHTEEN YEARS OF AGE AND UNMARRIED WHO IS INCAPABLE OF SELF-SUPPORT BECAUSE OF BEING MENTALLY DEFECTIVE OR PHYSICALLY INCAPACITATED IF THAT CONDITION EXISTED PRIOR TO REACHING AGE EIGHTEEN AND REFERS ONLY TO AN ACTIVE MEMBER'S CHILD WHO WAS BORN AND IS LIVING AT THE DATE OF RETIREMENT OF THE ACTIVE MEMBER OR TO A RETIRED MEMBER'S CHILD WHO WAS BORN AND IS LIVING AT THE EFFECTIVE DATE OF HIS ACT IN THE CASE OF A RETIRED MEMBER AT THE EFFECTIVE DATE OF THE ACT. ( ITALICS SUPPLIED.)

A SIMILAR RESTRICTION WAS IMPOSED IN SECTION 2 (E) OF THE ACT, 67 STAT. 501, WHICH PROVIDES THAT THE TERM "WIDOW" REFERS ONLY TO THE SPOUSE AT THE EFFECTIVE DATE OF THE ACT IN THE CASE OF A MEMBER PREVIOUSLY RETIRED. THE EVIDENT PURPOSE OF THOSE RESTRICTIONS WAS TO PRECLUDE ANNUITY PAYMENTS TO PERSONS WHO WERE NON-DEPENDENTS OF THE RETIRED MEMBER WHEN THE LAW WAS ENACTED. THAT WOULD PREVENT THE ABUSE OF MARRIAGES (OR ADOPTIONS) COUPLED WITH ELECTIONS MADE IN CONTEMPLATION OF IMMINENT DEATH CONFERRING VALUABLE AND CONTINUING BENEFITS OF SUCH NON-DEPENDENTS AT LARGE COST TO THE GOVERNMENT AND LITTLE COST TO THE RETIRED MEMBER, NOTWITHSTANDING THAT THE COST TO THE RETIRED MEMBER WAS REQUIRED TO BE COMPUTED ON AN ACTUARIAL BASIS.

TO BE ENTITLED TO AN ANNUITY PAYMENT A CHILD MUST BE A LEGITIMATE CHILD, OR A STEPCHILD IN FACT DEPENDENT UPON THE MEMBER FOR SUPPORT, OR A LEGALLY ADOPTED CHILD, AND UNDER 18 YEARS OF YEAR, EXCEPT THAT AN ANNUITY MAY BE PROVIDED FOR A CHILD OVER 18 YEARS OF AGE AND UNMARRIED IF THE CHILD IS INCAPABLE OF SELF-SUPPORT BECAUSE MENTALLY DEFECTIVE OR PHYSICALLY INCAPACITATED, WHERE THAT CONDITION EXISTED PRIOR TO AGE 18. THE "CHILD," HOWEVER, MUST HAVE BEEN BORN AND LIVING ON THE DATE OF RETIREMENT IN THE CASE OF AN ACTIVE MEMBER OR ON THE EFFECTIVE DATE OF THE ACT IN THE CASE OF A RETIRED MEMBER. SINCE THE TERM "CHILD" AS USED IN THIS LATTER LIMITATION OBVIOUSLY HAS REFERENCE TO A CHILD AS OTHERWISE DEFINED IN THE QUOTED SECTION 2 (F), THE CONCLUSION APPEARS THAT, FOR PURPOSES OF THE STATUTE, THE CHILD MUST HAVE HAD A STATUS EITHER AS A LEGITIMATE CHILD, OR AS A DEPENDENT STEPCHILD, OR AS A LEGALLY ADOPTED CHILD, AS OF THE DATE OF RETIREMENT OR THE EFFECTIVE DATE OF THE ACT, AS THE CASE MAY BE.

BETTY LOU ANDRESKI WAS NOT THE LEGALLY ADOPTED CHILD OF MASTER SERGEANT THOMAS T. ANDRESKI, RETIRED, ON NOVEMBER 1, 1953, THE EFFECTIVE DATE OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, AND, THEREFORE, MAY NOT BE REGARDED AS HIS CHILD FOR THE PURPOSE OF RECEIVING ANNUITY PAYMENTS UNDER THE STATUTE.

IT FOLLOWS THAT PAYMENT IS NOT AUTHORIZED ON THE SUBMITTED VOUCHER, WHICH WILL BE RETAINED IN THIS OFFICE.