B-155385, NOVEMBER 9, 1964, 44 COMP. GEN. 276

B-155385: Nov 9, 1964

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NO DEDUCTION IS REQUIRED TO BE MADE FROM HIS RETIRED PAY FOR THE MONTH OF JUNE. WERE HIS ONLY ELIGIBLE BENEFICIARIES AT THE TIME OF HIS RETIREMENT. WAS JUNE 1. THUS WHETHER DEDUCTIONS FROM ADMIRAL STUMP'S RETIRED PAY SHOULD HAVE CONTINUED THROUGH JUNE OR SHOULD HAVE TERMINATED AFTER MAY 1964. THAT NO DEDUCTION MAY BE MADE FROM HIS RETIRED OR RETAINER PAY AFTER THE LAST DAY OF THE MONTH IN WHICH THERE IS NO BENEFICIARY WHO WOULD BE ELIGIBLE FOR THE ANNUITY IF THE ELECTOR DIED. ELIGIBLE BENEFICIARIES ARE DEFINED IN 10 U.S.C. 1435 AND INCLUDE AMONG OTHERS. CHILDREN OF THE MEMBER WHO ARE "UNDER 18 YEARS OF AGE.'. THE TIME WHEN A PERSON ATTAINS A GIVEN AGE HAS BEEN GIVEN DIFFERENT INTERPRETATIONS AND THERE IS AUTHORITY FOR THE VIEW THAT THE EVENT OCCURS AT THE FIRST MOMENT OF THE DAY PRECEDING THE ANNIVERSARY OF HIS BIRTH.

B-155385, NOVEMBER 9, 1964, 44 COMP. GEN. 276

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - TERMINATION - CHILDREN REACHING EIGHTEEN YEARS OF AGE WHEN THE YOUNGEST CHILD OF A RETIRED NAVY OFFICER WHO ELECTED TO RECEIVE REDUCED RETIRED PAY TO PROVIDE SURVIVORSHIP ANNUITIES FOR HIS SONS REACHED THE AGES OF 18, ON JUNE 1, 1964, THE OFFICER NO LONGER HAD AN ELIGIBLE BENEFICIARY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1436, AND NO DEDUCTION IS REQUIRED TO BE MADE FROM HIS RETIRED PAY FOR THE MONTH OF JUNE, THE ELIGIBILITY OF THE YOUNGEST SON TO RECEIVE AN ANNUITY PURSUANT TO SECTION 1435 HAVING TERMINATED THE INSTANT BEFORE THE COMMENCEMENT OF HIS 18TH BIRTHDAY ON JUNE 1, 1964. IN THE ABSENCE OF A SHOWING OF INCAPABILITY OF SELF SUPPORT, AND SECTION 1434 (C) NOT CONTEMPLATING A DEDUCTION OF RETIRED PAY FOR A PARTICULAR MONTH IF ALL ELIGIBLE BENEFICIARIES HAD CEASED TO EXIST BEFORE THAT MONTH BEGAN.

TO COMMANDER M. L. CONNER, DEPARTMENT OF THE NAVY, NOVEMBER 9, 1964:

BY SECOND INDORSEMENT DATED OCTOBER 12, 1964, SUBMISSION NUMBER DO N-808, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF SEPTEMBER 22, 1964, REQUESTING AN ADVANCE DECISION AS TO THE DATE ON WHICH ADMIRAL FELIX B. STUMP, USN, RETIRED, SHOULD BE CONSIDERED AS HAVING NO ELIGIBLE BENEFICIARY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, CHAPTER 73, TITLE 10, U.S. CODE, SECTION 1431-1446.

YOU SAY THAT SINCE AUGUST 1, 1958, DATE OF RETIREMENT, ADMIRAL STUMP HAS RECEIVED REDUCED RETIRED PAY BY REASON OF HIS ELECTION OF OPTION 2 COMBINED WITH OPTION 4 AT 1/4 OF SUCH RETIRED PAY UNDER 10 U.S.C. 1431. THE COPY OF HIS ELECTION FORWARDED WITH YOUR LETTER DISCLOSES THAT HIS TWO CHILDREN, BORN FEBRUARY 2, 1942, AND JUNE 1, 1946, WERE HIS ONLY ELIGIBLE BENEFICIARIES AT THE TIME OF HIS RETIREMENT. THE OLDER CHILD BECAME 18 YEARS OF AGE AND INELIGIBLE IN FEBRUARY 1960, AND THE EIGHTEENTH BIRTHDAY OF THE YOUNGER CHILD, FELIX B. STUMP, JR., WAS JUNE 1, 1964. QUESTION ARISES AS TO WHETHER FOR THE PURPOSES OF 10 U.S.C. 1434 (C) AND 1435, HE BECAME 18 YEARS OF AGE ON JUNE 1, 1964, OR ON MAY 31, 1964, AND THUS WHETHER DEDUCTIONS FROM ADMIRAL STUMP'S RETIRED PAY SHOULD HAVE CONTINUED THROUGH JUNE OR SHOULD HAVE TERMINATED AFTER MAY 1964.

UNDER THE PROVISIONS OF 10 U.S.C. 1434 (C) ANY ANNUITY ELECTED UNDER SUBPARAGRAPH (A) OR ANY COMBINATION OF ANNUITIES UNDER SUBPARAGRAPH (B) MAY PROVIDE, AT THE ELECTOR'S OPTION, THAT NO DEDUCTION MAY BE MADE FROM HIS RETIRED OR RETAINER PAY AFTER THE LAST DAY OF THE MONTH IN WHICH THERE IS NO BENEFICIARY WHO WOULD BE ELIGIBLE FOR THE ANNUITY IF THE ELECTOR DIED. ELIGIBLE BENEFICIARIES ARE DEFINED IN 10 U.S.C. 1435 AND INCLUDE AMONG OTHERS, CHILDREN OF THE MEMBER WHO ARE "UNDER 18 YEARS OF AGE.'

THE TIME WHEN A PERSON ATTAINS A GIVEN AGE HAS BEEN GIVEN DIFFERENT INTERPRETATIONS AND THERE IS AUTHORITY FOR THE VIEW THAT THE EVENT OCCURS AT THE FIRST MOMENT OF THE DAY PRECEDING THE ANNIVERSARY OF HIS BIRTH. HOWEVER, WHERE STATUTORY RIGHTS ARE FIXED BY CERTAIN LIMITATIONS AS TO AGE, THE MEANING AND PURPOSE OF THE LAW MUST BE CONSIDERED RATHER THAN THE MERE APPLICATION OF A FIXED RULE. UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, IT WAS THE INTENT OF THE CONGRESS TO ALLOW SERVICEMEN TO PROVIDE AN ANNUITY FOR THEIR SURVIVING DEPENDENT MINOR CHILDREN IT APPARENTLY BEING CONTEMPLATED THAT CHILDREN "UNDER 18 YEARS OF AGE" BE CONSIDERED TO BE DEPENDENTS OF THE MEMBER WITHOUT THE NECESSITY OF PROOF OF DEPENDENCY SINCE IT WAS FURTHER PROVIDED THAT CHILDREN OVER 18 YEARS "INCAPABLE OF SUPPORTING THEMSELVES BECAUSE OF A MENTAL DEFECT OR PHYSICAL INCAPACITY EXISTING BEFORE THEIR EIGHTEENTH BIRTHDAY" WOULD CONTINUE TO BE ELIGIBLE TO RECEIVE THE ANNUITY UPON SUBMISSION OF APPROPRIATE PROOF. THUS THE STATUTE ESTABLISHES A DEFINITE INSTANT IN TIME WHEN ELIGIBILITY TO RECEIVE THE ANNUITY TERMINATES IN THE ABSENCE OF A SHOWING OF INCAPABILITY OF SELF-SUPPORT, THAT TIME BEING THE INSTANT BEFORE THE COMMENCEMENT OF THE EIGHTEENTH BIRTHDAY. WHILE IT APPEARS THAT FELIX B. STUMP, JR., WOULD HAVE CONTINUED TO QUALIFY AS AN ELIGIBLE BENEFICIARY IF HE HAD SUSTAINED AN INJURY ON MAY 31, 1964, WHICH RENDERED HIM PERMANENTLY INCAPABLE OF SELF-SUPPORT, NOTHING THAT HAPPENED ON HIS BIRTHDAY, JUNE 1, 1964, COULD HAVE PRODUCED THAT RESULT. WE VIEW 10 U.S.C. 1434 (C) AS NOT CONTEMPLATING A DEDUCTION OF RETIRED PAY FOR A PARTICULAR MONTH IF ALL ELIGIBLE BENEFICIARIES HAD CEASED TO EXIST BEFORE THAT MONTH BEGAN. SINCE FELIX B. STUMP, JR., BECAME INELIGIBLE TO RECEIVE AN ANNUITY BEFORE JUNE 1, 1964, NO DEDUCTION FROM ADMIRAL STUMP'S RETIRED PAY WAS REQUIRED FOR THE MONTH OF JUNE 1964.