B-126138, MARCH 21, 1956, 35 COMP. GEN. 521

B-126138: Mar 21, 1956

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MILITARY PERSONNEL - SURVIVORSHIP ANNUITIES FOR ADOPTED CHILDREN - EVIDENCE REQUIREMENTS THE FILING OF THE AMENDATORY BIRTH CERTIFICATE ISSUED TO A MEMBER OF THE UNIFORMED SERVICES FOR A LEGALLY ADOPTED CHILD IS SUFFICIENT EVIDENCE OF THE CHILD'S DATE OF BIRTH AND LEGAL ADOPTION TO ESTABLISH SURVIVORSHIP ANNUITY ON BEHALF OF AN ADOPTED CHILD UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953. 1956: REFERENCE IS MADE TO LETTER DATED NOVEMBER 21. FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING A DECISION WHETHER IT WILL BE SUFFICIENT FOR A MEMBER OF THE UNIFORMED SERVICES WHO ELECTS TO RECEIVE REDUCED RETIRED PAY IN ORDER TO PROVIDE AN ANNUITY FOR A LEGALLY ADOPTED CHILD.

B-126138, MARCH 21, 1956, 35 COMP. GEN. 521

MILITARY PERSONNEL - SURVIVORSHIP ANNUITIES FOR ADOPTED CHILDREN - EVIDENCE REQUIREMENTS THE FILING OF THE AMENDATORY BIRTH CERTIFICATE ISSUED TO A MEMBER OF THE UNIFORMED SERVICES FOR A LEGALLY ADOPTED CHILD IS SUFFICIENT EVIDENCE OF THE CHILD'S DATE OF BIRTH AND LEGAL ADOPTION TO ESTABLISH SURVIVORSHIP ANNUITY ON BEHALF OF AN ADOPTED CHILD UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953.

TO THE SECRETARY OF DEFENSE, MARCH 21, 1956:

REFERENCE IS MADE TO LETTER DATED NOVEMBER 21, 1955, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING A DECISION WHETHER IT WILL BE SUFFICIENT FOR A MEMBER OF THE UNIFORMED SERVICES WHO ELECTS TO RECEIVE REDUCED RETIRED PAY IN ORDER TO PROVIDE AN ANNUITY FOR A LEGALLY ADOPTED CHILD, UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, TO FILE ONLY AN AMENDATORY BIRTH CERTIFICATE (WITHOUT COPY OF DECREE OF ADOPTION) TO SUBSTANTIATE THE DATE OF BIRTH AND THE LEGAL ADOPTION OF THE CHILD.

THE UNIFORMED SERVICES CONTINGENCY OPTION ACT COMMITTEE, DEPARTMENT OF DEFENSE, IN COMMITTEE ACTION NO. 4, STATES THAT IN VIEW OF THE AUDIT REQUIREMENTS SET FORTH IN OUR DIVISION OF AUDITS LETTER DATED SEPTEMBER 30, 1953, ALL DEPARTMENTS NOW REQUIRE, FOR THE PURPOSES OF SURVIVOR ANNUITIES, THAT THE AGE AND RELATIONSHIP OF AN ADOPTED CHILD BE SUBSTANTIATED BY BOTH A BIRTH CERTIFICATE AND A CERTIFIED COPY OF THE DECREE OF ADOPTION. THE COMMITTEE ALSO STATES THAT WHILE AN AMENDATORY BIRTH CERTIFICATE IS ISSUED IN ALL CASES WHERE THE ADOPTION PROCEEDINGS AND THE BIRTH OF THE CHILD OCCUR WITHIN THE UNITED STATES, A COPY OF THE ADOPTION DECREE IS NOT ALWAYS GIVEN TO THE ADOPTIVE PARENTS AT THE TIME OF ADOPTION AND IN SOME CASES A COPY OF THE ADOPTION DECREE SUBSEQUENTLY CAN BE OBTAINED ONLY BY A COURT ORDER ISSUED FOR GOOD CAUSE. THE COMMITTEE STATES FURTHER, IN SUBSTANCE, THAT SINCE THE AMENDATORY BIRTH CERTIFICATE IN ALL CASES SHOWS THE CORRECT DATE AND PLACE OF BIRTH, THE GIVEN NAME OF THE CHILD SELECTED BY THE ADOPTIVE PARENTS, AND THE NAMES OF THE ADOPTIVE PARENTS, THE AMENDATORY BIRTH CERTIFICATE ALONE SHOULD BE CONSIDERED SUFFICIENT TO ESTABLISH THE DATE OF BIRTH AND RELATIONSHIP OF THE ADOPTED CHILD TO THE SERVICE MEMBER.

THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, AS AMENDED, 37 U.S.C.A. 371-381, EFFECTIVE NOVEMBER 1, 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 IN ORDER TO PROVIDE ANNUITIES FOR HIS "WIDOW, CHILD, OR CHILDREN.'

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 EIGHTEEN YEARS OF AGE AND UNMARRIED, EXCEPT THAT AN ANNUITY MAY BE PROVIDED FOR A CHILD OVER EIGHTEEN 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 EIGHTEEN. THE "CHILD," HOWEVER, MUST HAVE BEEN BORN AND LIVING AND HAVE THE STATUS EITHER AS A LEGITIMATE CHILD, OR AS A DEPENDENT STEPCHILD, OR AS A LEGALLY ADOPTED CHILD, AS OF THE DATE OF RETIREMENT OF AN ACTIVE MEMBER, OR THE EFFECTIVE DATE OF THE ACT IN THE CASE OF A MEMBER RETIRED BEFORE SUCH EFFECTIVE DATE.

IT APPEARS THAT ALL MEMBERS WHO RETIRED PRIOR TO THE EFFECTIVE DATE OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT HAVE LONG SINCE SUBMITTED THE REQUIRED EVIDENCE IN THE CASE OF ADOPTED CHILDREN OR HAVE BEEN BARRED FROM MAKING ELECTIONS AND THAT ALL ACTIVE MEMBERS MUST MAKE THEIR ELECTIONS EITHER PRIOR TO OR AT THE TIME OF RETIREMENT. IT APPEARS ALSO THAT THE ELECTION FORM WILL SHOW WHETHER THE CHILDREN LISTED THEREON ARE ADOPTED; THAT PROOF OF CHILDREN'S AGES WILL BE SUBMITTED AT OR BEFORE THE TIME OF RETIREMENT; AND THAT AMENDATORY BIRTH CERTIFICATES FOR ADOPTED CHILDREN ARE NOT ISSUED UNTIL THE COMPLETION OF THE ADOPTION PROCEEDINGS.

FOR SUCH REASONS IT IS BELIEVED THAT, IN THE AUDIT OF RETIRED PAY ACCOUNTS, THE FILING OF AN AMENDATORY BIRTH CERTIFICATE ALONG WITH THE MEMBER'S STATEMENTS ON HIS ELECTION FORM GENERALLY SHOULD BE SUFFICIENT TO SUBSTANTIATE THE DATE OF BIRTH AND CLAIMED RELATIONSHIP OF AN ADOPTED CHILD. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE, IT BEING UNDERSTOOD, OF COURSE, THAT ADDITIONAL EVIDENCE MAY BE REQUIRED IN ANY CASE WHERE UNUSUAL CIRCUMSTANCES SUGGEST THE NEED FOR SUCH EVIDENCE.