B-129194, OCTOBER 18, 1956, 36 COMP. GEN. 325

B-129194: Oct 18, 1956

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MILITARY PERSONNEL - RETIRED PAY - ANNUITY ELECTIONS FOR DEPENDENTS - ADOPTION OF CHILD BENEFICIARY THE ADOPTION OF A NATURAL CHILD OF A MEMBER OF THE UNIFORMED SERVICES BY A THIRD PERSON OR PERSONS PRIOR TO THE MEMBER'S DEATH TERMINATES THE CHILD -PARENT RELATIONSHIP SO THAT THE MEMBER NO LONGER HAS A CHILD WHO WOULD BE ELIGIBLE TO RECEIVE A SURVIVORSHIP ANNUITY ON THE MEMBER'S DEATH AND NO DEDUCTIONS FROM THE MEMBER'S RETIRED PAY FOR THE CHILD'S ANNUITY SHOULD BE MADE AFTER THE ADOPTION IS EFFECTED. THE ADOPTION OF A CHILD OF A MEMBER OF THE UNIFORMED SERVICES AFTER THE DEATH OF THE MEMBER IS NOT ONE OF THE EVENTS SPECIFIED IN THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953. 1956: FURTHER REFERENCE IS MADE TO LETTER OF SEPTEMBER 6.

B-129194, OCTOBER 18, 1956, 36 COMP. GEN. 325

MILITARY PERSONNEL - RETIRED PAY - ANNUITY ELECTIONS FOR DEPENDENTS - ADOPTION OF CHILD BENEFICIARY THE ADOPTION OF A NATURAL CHILD OF A MEMBER OF THE UNIFORMED SERVICES BY A THIRD PERSON OR PERSONS PRIOR TO THE MEMBER'S DEATH TERMINATES THE CHILD -PARENT RELATIONSHIP SO THAT THE MEMBER NO LONGER HAS A CHILD WHO WOULD BE ELIGIBLE TO RECEIVE A SURVIVORSHIP ANNUITY ON THE MEMBER'S DEATH AND NO DEDUCTIONS FROM THE MEMBER'S RETIRED PAY FOR THE CHILD'S ANNUITY SHOULD BE MADE AFTER THE ADOPTION IS EFFECTED. THE ADOPTION OF A CHILD OF A MEMBER OF THE UNIFORMED SERVICES AFTER THE DEATH OF THE MEMBER IS NOT ONE OF THE EVENTS SPECIFIED IN THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, WHICH WOULD TERMINATE A SURVIVORSHIP ANNUITY MADE BY THE MEMBER ON BEHALF OF THE CHILD, AND, THEREFORE, THE SURVIVING CHILD MAY CONTINUE TO RECEIVE THE ANNUITY AFTER ADOPTION.

TO THE SECRETARY OF THE NAVY, OCTOBER 18, 1956:

FURTHER REFERENCE IS MADE TO LETTER OF SEPTEMBER 6, 1956, FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES) REQUESTING AN ADVANCE DECISION CONCERNING THE EFFECT OF AN ADOPTION OF A SERVICE MEMBER'S NATURAL CHILD BY A THIRD PERSON, BEFORE OR AFTER THE DEATH OF THE SERVICE MEMBER, ON THE CHILD'S ELIGIBILITY TO RECEIVE AN ANNUITY UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501.

INVOLVED IN THE REQUEST FOR DECISION IS THE CASE OF CAROLYN ANN KULASINSKI, MINOR NATURAL DAUGHTER AND BENEFICIARY OF JAY G. SCARLETT, 985 42 105, RD3, U.S. NAVY ( RETIRED), WHO EXECUTED AN ELECTION OF OPTIONS 2 AND 4 AT ONE-HALF REDUCED RETIRED PAY. DEDUCTIONS WERE MADE FROM HIS RETIRED PAY FROM MARCH 1, 1954, THE EFFECTIVE DATE OF THE ELECTION, THROUGH OCTOBER 26, 1955, THE DATE OF HIS DEATH. THE CHILD WAS ADOPTED BY THE PRESENT HUSBAND OF THE CHILD'S MOTHER, FROM WHOM THE RETIRED MEMBER WAS DIVORCED AT THE TIME HE ELECTED THE ANNUITY FOR HIS CHILD, THE FINAL DECREE OF ADOPTION ( PENNSYLVANIA COURT) BEING DATED JANUARY 21, 1956. ANNUITY PAYMENTS WERE MADE ON BEHALF OF THE CHILD FOR THE PERIOD OCTOBER 1 TO DECEMBER 31, 1955.

SECTION 3 (A) 37 U.S.C. 372 (A), OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 PROVIDES THAT ACTIVE MEMBERS MAY ELECT-- * * * TO RECEIVE A REDUCED AMOUNT OF ANY RETIRED PAY WHICH MAY BE AWARDED HIM AS THE RESULT OF SERVICE IN HIS UNIFORMED SERVICE IN ORDER TO PROVIDE ONE OR MORE OF THE ANNUITIES SPECIFIED IN SECTION 4, PAYABLE AFTER HIS DEATH IN A RETIRED STATUS TO HIS WIDOW, CHILD, OR CHILDREN, IF SUCH WIDOW, CHILD, OR CHILDREN ARE LIVING AT THE DATE OF HIS RETIREMENT. * * * SECTION 3 (B), 37 U.S.C. 372 (B), PROVIDES THAT RETIRED MEMBERS AWARDED RETIRED PAY PRIOR TO THE DATE OF THE ACT MAY, WITHIN 180 DAYS AFTER ITS EFFECTIVE DATE ( NOVEMBER 1, 1953), ELECT TO RECEIVE A REDUCED AMOUNT OF RETIRED PAY IN ORDER TO PROVIDE ONE OR MORE OF THE ANNUITIES SPECIFIED IN SECTION 4, 37 U.S.C. 373,"PAYABLE AFTER HIS DEATH TO HIS WIDOW, CHILD, OR CHILDREN.'

SECTION 2 (F), 37 U.S.C. 371 (F), OF THE ACT PROVIDES IN PERTINENT PART:

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 * * *. SECTION 4 OF THE ACT AUTHORIZES THE SERVICE MEMBER TO ELECT VARIOUS OPTIONS, INCLUDING:

(2) AN ANNUITY PAYABLE TO OR ON BEHALF OF HIS SURVIVING CHILD OR CHILDREN, THE ANNUITY TO TERMINATE WHEN THERE CEASES TO BE AT LEAST ONE SUCH SURVIVING CHILD, UNMARRIED AND UNDER EIGHTEEN YEARS OF AGE, EXCEPT THAT IF THERE IS A CHILD, UNMARRIED AND OVER EIGHTEEN YEARS OF AGE INCAPABLE OF SELF-SUPPORT BECAUSE OF BEING MENTALLY DEFECTIVE OR PHYSICALLY INCAPACITATED AND THAT CONDITION EXISTED PRIOR TO HIS REACHING EIGHTEEN YEARS OF AGE, THE ANNUITY TO TERMINATE UPON HIS MARRIAGE, DEATH, OR RECOVERY FROM THE DISABILITY, WHICHEVER FIRST OCCURS. * * *

(4) AN ANNUITY PAYABLE UNDER THE SAME TERMS AND CONDITIONS AS SPECIFIED IN (1), (2), OR (3), OF THIS SUBSECTION, WITH THE ADDITIONAL PROVISION THAT NO FURTHER DEDUCTIONS SHALL BE MADE FROM THE RETIRED PAY OF THE MEMBER COMMENCING WITH THE FIRST DAY OF THE MONTH FOLLOWING THAT IN WHICH THERE WAS NO BENEFICIARY WHO WOULD HAVE BEEN ELIGIBLE TO RECEIVE, UPON THE DEATH OF THE MEMBER, AN ANNUITY PAYABLE UNDER THE ELECTION MADE BY HIM.

THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 CONTEMPLATES THAT THE BENEFITS PAYABLE TO SURVIVORS SHALL BE FINANCED WHOLLY FROM DEDUCTIONS MADE FROM THE RETIRED PAY OF PARTICIPATING MEMBERS AND CONTAINS PROVISIONS DESIGNED TO EFFECT THAT PURPOSE. BASICALLY, THE ACT ESTABLISHED A FORM OF GROUP INSURANCE FOR THE BENEFIT OF SURVIVING SPOUSES AND CHILDREN. THE BENEFITS PAYABLE TO SURVIVORS ARE NOT GRATUITIES BUT IN EFFECT REPRESENT INSURANCE BENEFITS PURCHASED BY THE PARTICIPATING RETIRED MEMBERS THROUGH DEDUCTIONS FROM THEIR RETIRED PAY.

SECTION 4 (C), 37 U.S.C. 373 (C), OF THE ACT PROVIDES THAT THE AMOUNT OF THE DEDUCTIONS SHALL BE COMPUTED IN EACH INDIVIDUAL CASE, AS OF THE DATE OF RETIREMENT IN THE CASE OF AN ACTIVE MEMBER AND AS OF THE DATE OF THE ELECTION IN THE CASE OF A RETIRED MEMBER, BY AN ACTUARIAL EQUIVALENT METHOD USING AS A BASIS APPROPRIATE ACTUARIAL TABLES. DEDUCTIONS MAY BE MADE ONLY ON BEHALF OF A CHILD LIVING AT DATE OF RETIREMENT OR ELECTION, AS APPROPRIATE, AND THE ACTUARIAL EQUIVALENT IS DETERMINED AS OF THAT DATE WITH RESPECT TO THE YOUNGEST CHILD. SUCH DEDUCTIONS WILL BE MADE FROM THE RETIRED PAY WITHOUT REGARD TO WHETHER THERE CONTINUES TO BE A DESIGNATED BENEFICIARY OR BENEFICIARIES ELIGIBLE TO RECEIVE THE ANNUITY OR ANNUITIES UNLESS THE MEMBER AFFIRMATIVELY ELECTS OPTION (4) TO TERMINATE DEDUCTIONS WHEN THERE IS NO LONGER A BENEFICIARY ELIGIBLE TO RECEIVE AN ANNUITY.

SECTION 2 (E), 37 U.S.C. 371 (E), STATES THAT THE TERM "WIDOW" * * * REFERS ONLY TO THE SPOUSE AT THE DATE OF RETIREMENT OF AN ACTIVE MEMBER OR TO THE SPOUSE AT THE EFFECTIVE DATE OF THIS ACT IN THE CASE OF A RETIRED MEMBER AT THE EFFECTIVE DATE OF THIS ACT.' CLEARLY, WHERE THE MARRIAGE IS TERMINATED BY DIVORCE OR ANNULMENT PRIOR TO THE MEMBER'S DEATH, THE RIGHT TO AN ANNUITY IS TERMINATED AND, IF OPTION (4) WERE ELECTED, THE DEDUCTIONS FROM RETIRED PAY LIKEWISE WOULD BE TERMINATED. SEE, FOR EXAMPLE, PARAGRAPH 11, AR 35-1365, NOVEMBER 22, 1955.

IN VIEW OF THE RIGHT OF A MEMBER TO ELECT OPTION 4 AND THE ELIGIBILITY OF A "STEPCHILD IN FACT DEPENDENT UPON THE MEMBER FOR SUPPORT," IT WOULD BE UNREASONABLE TO IMPUTE TO THE CONGRESS AN INTENTION THAT THE RETIRED MEMBER MUST CONTINUE TO HAVE HIS RETIRED PAY REDUCED IN THE CASE OF A STEPCHILD (ASSUMING IT TO BE THE MEMBER'S ONLY "CHILD") WHERE THE MOTHER IS DIVORCED FROM THE MEMBER AND THE RELATIONSHIP AND DEPENDENCY OF THE CHILD ARE THUS TERMINATED. SEE PARAGRAPH 102G OF THE REGULATIONS FOR THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953. FURTHERMORE, TO BE ELIGIBLE FOR AN ANNUITY, A CHILD MUST BE A "SURVIVING CHILD.' IF THE RELATIONSHIP BY AFFINITY HAS BEEN TERMINATED PRIOR TO THE MEMBER'S DEATH, OBVIOUSLY THE FORMER STEPCHILD NO LONGER BEARS ANY FILIAL RELATIONSHIP TO THE MEMBER AND CANNOT BE A SURVIVING CHILD. IT FOLLOWS NOT ONLY THAT SUCH A PERSON IS INELIGIBLE TO RECEIVE AN ANNUITY, BUT ALSO, IF OPTION 4 WAS ELECTED, THAT NO DEDUCTIONS SHOULD BE MADE FROM THE MEMBER'S RETIRED PAY IN SUCH CASES AFTER RELATIONSHIP BY AFFINITY HAS BEEN TERMINATED.

SUCH RESULT IN THE CASE OF A STEPCHILD IS VIEWED AS AN IMPORTANT BASIS FOR DETERMINING LEGISLATIVE INTENT IN ADOPTION CASES, ABSENT EXPRESS INDICATIONS OF THAT INTENT. CONGRESS DOUBTLESS INTENDED THAT THE SEVERAL CLASSES OF CHILDREN BE TREATED ALIKE, WITH THE SAME BASIC PRINCIPLES APPLIED TO THEM.

REGARDING THE EFFECT OF ADOPTION, IN 34 COMP. GEN. 601, 604, WE SAID:

GENERALLY, IN THIS COUNTRY, AN ADOPTION EFFECTS A LEGAL AS WELL AS A PRACTICAL SUBSTITUTION OF PARENTS. THE NATURAL PARENTS LOSE AND THE ADOPTIVE PARENTS RECEIVE OR ASSUME THE RIGHT TO THE CHILD'S CUSTODY, SERVICES, AND EARNINGS, AND RIGHT TO CONTROL THE CHILD, AND THE OBLIGATIONS OF MAINTENANCE, EDUCATION, ETC. THE CHILD OWES THE DUTIES ARISING OUT OF THE RELATIONSHIP TO HIS ADOPTIVE PARENTS AND NOT TO HIS NATURAL PARENTS. SEE VERNIER, AMERICAN FAMILY LAW, VOLUME IV, PAGE 405. THE PURPOSE OF THE STATUTORY ADOPTION SCHEMES OF THE VARIOUS STATES IS TO TRANSPLANT THE ADOPTED PERSON INTO THE FAMILY OF THE ADOPTER, THE PERSON THUS BEARING THE SAME LEGAL RELATIONSHIPS TO THE ADOPTIVE PARENTS AS DOES THEIR NATURAL CHILD. COMPARE CARPENTER V. UNITED STATES, 168 F.2D 369, AND SEE THE AUTHORITIES FOOTNOTED TO THAT CASE. SEE, ALSO, WOODWARD V. UNITED STATES, 341 U.S. 112. * * * AT PAGE 406, VERNIER STATES: * * * IF THE LEGISLATIVE INTENT (OF ADOPTION STATUTES) IS FOUND TO BE TO PERMIT A SUBSTITUTION OF PARENTS IN LEGAL EFFECT, IT WOULD SEEM CLEAR THAT THE LEGAL RIGHTS OF THE NATURAL PARENTS ARE CUT OFF BY THE ADOPTION. IN A NUMBER OF JURISDICTIONS * * * THE STATUTES EXPRESSLY STATE THAT THE NATURAL PARENTS ARE DIVESTED OF THEIR RIGHTS BY THE ADOPTION. IN THIRTY- ONE JURISDICTIONS THE STATUTES SEEM SUFFICIENT TO WORK A COMPLETE SEVERANCE OF LEGAL RELATIONSHIP BETWEEN NATURAL PARENT AND CHILD. * * *

THE CONSENT OF THE NATURAL PARENTS OR SURVIVING PARENT TO AN ADOPTION IS UNIFORMLY REQUIRED BY THE ADOPTION STATUTES. WHEN REQUIRED, SUCH CONSENT IS ORDINARILY HELD AN ESSENTIAL REQUISITE TO JURISDICTION ON THE PART OF THE COURT TO MAKE AN ORDER OF ADOPTION UNLESS CONDITIONS OR EXCEPTIONS EXIST (SUCH AS DESERTION OR NEGLECT BY NATURAL PARENTS) SPECIFICALLY PROVIDED BY THE STATUTE ITSELF, WHICH RENDER CONSENT UNNECESSARY. 1 AM. JUR., ADOPTION OF CHILDREN, SECTION 36; VERNIER, AMERICAN FAMILY LAWS, VOLUME 4, SECTION 259. IN THE ABSENCE OF SUCH CONSENT, ORDINARILY, THE ADOPTION MAY BE SET ASIDE AT THE INSTANCE OF THE NATURAL PARENTS. GENERAL, THEN, A NATURAL PARENT FULFILLING HIS OBLIGATIONS CAN PREVENT ADOPTION OF HIS CHILDREN BY OTHER PERSONS.

IT APPEARS, THEREFORE, THAT ORDINARILY, WHERE AN ADOPTION IS EFFECTED, THE NATURAL PARENTS CONSENT TO THE ADOPTION OF THEIR NATURAL CHILD BY A THIRD PERSON OR PERSONS AND THUS, IN EFFECT, AGREE TO FORFEIT THEIR RIGHTS AS NATURAL PARENTS. HENCE, A HOLDING THAT ADOPTION OF A NATURAL CHILD OF A SERVICE MEMBER BY A THIRD PERSON OR PERSONS PRIOR TO THE MEMBERS DEATH, LIKE THE TERMINATION OF STEPPARENT RELATIONSHIP BY THE MEMBER'S DIVORCE FROM THE CHILD'S MOTHER, RESTORES TO THE MEMBER A RIGHT TO RECEIVE THE FULL AMOUNT OF HIS RETIRED PAY (IF SUCH CHILD IS THE ONLY ELECTED) APPEARS TO BE CONSISTENT WITH THE LEGISLATIVE INTENT AND THE LANGUAGE OF THE STATUTE. ACCORDINGLY, IN SUCH CASES, NO DEDUCTIONS SHOULD BE MADE FROM THE MEMBER'S RETIRED PAY AFTER THE ADOPTION IS EFFECTED, SINCE THE MEMBER NO LONGER HAS A "CHILD" WHO WOULD BE ELIGIBLE TO RECEIVE AN ANNUITY UPON THE MEMBER'S DEATH. AND, OF COURSE, NO ANNUITY MAY BE PAID TO, OR ON BEHALF OF, SUCH CHILD.

THE ELIGIBILITY OF THE BENEFICIARIES TO RECEIVE AN ANNUITY IS DETERMINED AS OF THE DATE OF THE MEMBER'S DEATH. AT THAT TIME THE CHILD BENEFICIARY MUST NOT ONLY SURVIVE THE MEMBER BUT MUST THEN BE HIS "CHILD" AS DEFINED IN THE ACT, THAT IS, A LEGITIMATE CHILD, A STEPCHILD, OR AN ADOPTED CHILD. THE ACT SPECIFIES CERTAIN EVENTS WHICH WILL TERMINATE THE RIGHT OF A BENEFICIARY TO RECEIVE AN ANNUITY: REMARRIAGE OR DEATH IN THE CASE OF A WIDOW, AND DEATH, MARRIAGE, OR ATTAINMENT OF AGE 18 IN THE CASE OF A CHILD UNLESS THE CHILD IS INCAPABLE OF SELF-SUPPORT BECAUSE OF DISABILITY EXISTING PRIOR TO AGE 18, IN WHICH EVENT THE ANNUITY WILL TERMINATE ON MARRIAGE, DEATH, OR RECOVERY FROM THE DISABILITY. UNLIKE THE SOCIAL SECURITY ACT, AS AMENDED, WHICH CONTAINS EXPRESS PROVISIONS RESPECTING TERMINATION OF A CHILD'S SOCIAL SECURITY BENEFITS UPON ADOPTION (42 U.S.C. 402 (D) (, THE ACT MAKES NO PROVISION FOR TERMINATION OF THE ANNUITY UPON ADOPTION. COMPARE THE PROVISIONS OF THE FEDERAL EMPLOYEES' COMPENSATION ACT, WHICH IN CASES OF DECEASED EMPLOYEES PROVIDES FOR TERMINATION OF CHILDREN'S BENEFITS ONLY FOR DEATH, MARRIAGE, ATTAINMENT OF AGE 18, OR, IF OVER 18 AND INCAPABLE OF SELF-SUPPORT, BECOMING CAPABLE OF SELF-SUPPORT (5 U.S.C. 760 (D) (, AND FOR SIMILAR REASONS DURING A DISABLED EMPLOYEE'S LIFETIME IF THE CHILD "IS LIVING WITH THE EMPLOYEE OR RECEIVING REGULAR CONTRIBUTIONS TOWARDS HIS SUPPORT FROM THE EMPLOYEE.' 5 U.S.C. 756 (A) (2) (C).

SINCE THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 SPECIFICALLY PROVIDES FOR TERMINATION OF ANNUITIES FOR CERTAIN CAUSES ONLY, AND SINCE ADOPTION OF A DECEASED MEMBER'S CHILD BY A THIRD PERSON IS NOT ONE OF THE CAUSES ENUMERATED FOR TERMINATING A CHILD'S ANNUITY, IT IS OUR VIEW THAT SUCH AN ADOPTION, OCCURRING AFTER THE MEMBER'S DEATH, DOES NOT AFFECT THE CHILD'S RIGHT TO CONTINUE TO RECEIVE THE ANNUITY AFTER THE ADOPTION. ACCORDINGLY, PAYMENT OF THE ANNUITY ON BEHALF OF CAROLYN ANN KULASINSKI MAY BE RESUMED EFFECTIVE JANUARY 1, 1956.