B-155808, MAR. 15, 1965, 44 COMP. GEN. 551

B-155808, MAR. 15, 1965, 44 COMP. GEN. 551

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - BENEFICIARY ELIGIBILITY - INCOMPETENTS. PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - BENEFICIARY ELIGIBILITY - INCOMPETENTS. PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - BENEFICIARY ELIGIBILITY - INCOMPETENTS. PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - BENEFICIARY ELIGIBILITY - INCOMPETENTS AN INCOMPETENT SON OF A RETIRED MEMBER OF THE UNIFORMED SERVICES WHOSE MENTAL CONDITION EXISTED LONG BEFORE HIS 18TH BIRTHDAY AND WHO, WHILE WORKING AS A LABORER IN A FIRM WHERE HIS FATHER IS VICE PRESIDENT, EARNED A SUFFICIENT SUM TO SUPPORT HIMSELF DURING A PERIOD OF EMPLOYMENT IS NOT REQUIRED, BY REASON OF SUCH EMPLOYMENT IN HIS FATHER'S FIRM UNDER TEMPERED CONDITIONS, TO BE CONSIDERED AS CAPABLE OF SELF-SUPPORT, AND, THEREFORE, THE SON MAY BE CONSIDERED AN ELIGIBLE BENEFICIARY ENTITLED AFTER HIS FATHER'S DEATH TO AN ANNUITY ELECTED ON HIS BEHALF UNDER THE SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1331, ET SEQ. WHETHER A CHILD OF A MEMBER OF THE UNIFORMED SERVICES OVER 18 YEARS OF AGE IS CAPABLE OR INCAPABLE OF SELF-SUPPORT FOR PURPOSES OF ELIGIBILITY AS A BENEFICIARY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1435 (2) (B), IS FOR DETERMINATION FROM ALL THE FACTS IN THE PARTICULAR CASE BUT AFTER A CHILD OVER 18 YEARS HAS BEEN DETERMINED TO BE INCAPABLE OF SELF-SUPPORT EVIDENCE WARRANTING A CONCLUSION THAT THE CHILD IS CAPABLE OF SUSTAINING AN EARNING CAPACITY SUFFICIENT FOR HIS OWN PERSONAL NEEDS IS SUFFICIENT TO REMOVE THE CHILD FROM THE CATEGORY OF ONE INCAPABLE OF SELF-SUPPORT. FOR PURPOSES OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1331, ET SEQ., MEMBERS OF THE UNIFORMED SERVICES WHO HAVE MENTALLY INCOMPETENT CHILDREN OVER AGE OF 18, SHOULD BE REQUIRED TO MAKE REPORTS OF THE CONTINUED INCAPACITATION OF THE DEPENDENT FOR THE REASON THAT WHEN THE CHILD BECOMES SELF-SUPPORTING ELIGIBILITY AS A BENEFICIARY CEASES AND NO FURTHER DEDUCTIONS FROM THE MEMBER'S RETIRED PAY WOULD BE PROPER. REINSTATEMENT OF AN INCOMPETENT CHILD OF A MEMBER OF THE UNIFORMED SERVICES AS AN ELIGIBLE BENEFICIARY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1331, ET SEQ., IF A MENTAL DEFECT OR PHYSICAL DISABILITY REOCCURS AFTER TERMINATION OF BENEFITS EITHER BEFORE OR AFTER THE DEATH OF THE RETIRED MEMBER MAY NOT BE MADE IN THE ABSENCE OF ANY PROVISION THEREFOR IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN.

TO LIEUTENANT COLONEL P. M. CALLINAN, DEPARTMENT OF THE ARMY, MARCH 15, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 28, 1964, REQUESTING DECISION WHETHER IN THE CIRCUMSTANCES RELATED BELOW THE ADOPTED SON OF A RETIRED OFFICER IS AN ELIGIBLE BENEFICIARY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, CH. 73, TITLE 10, U.S.C. YOUR SUBMISSION, WHICH WAS ALLOCATED D.O. NUMBER A-817 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, ALSO PRESENTS SEVERAL OTHER QUESTIONS ARISING FROM THE PROBLEMS POSED IN THIS CASE.

THE OFFICER WAS PLACED ON THE RETIRED LIST EFFECTIVE JANUARY 1, 1962, UNDER THE PROVISIONS OF 10 U.S.C. 1331. PRIOR TO THAT DATE, ON APRIL 14, 1954, HE HAD ELECTED ANNUITY OPTIONS 3 AND 4 FOR ONE-HALF REDUCED RETIRED PAY IN FAVOR OF HIS WIFE AND SON. ON AUGUST 24, 1956, HE CHANGED HIS ELECTION (SEE 10 U.S.C. 1431 (C) ( TO PROVIDE AN ANNUITY FOR HIS SON ONLY AT ONE-HALF REDUCED RETIRED PAY COMBINED WITH OPTION 4 (DEDUCTIONS FROM RETIRED PAY TO BE DISCONTINUED WHEN THERE NO LONGER IS AN ELIGIBLE BENEFICIARY). THE ELECTION AS CHANGED BECAME OPERATIVE JANUARY 1, 1962, THE DATE THE OFFICER WAS PLACED ON THE RETIRED LIST.

THE RECORD SHOWS THAT THE OFFICER AND HIS WIFE BY ADOPTION ORDER ISSUED MARCH 15, 1946, IN THE DISTRICT COURT WERE DECLARED THE "ADOPTIVE" PARENTS OF A MINOR CHILD BORN JUNE 21, 1945. THE SON'S EIGHTEENTH BIRTHDAY WAS REACHED ON JUNE 21, 1963, AND THE BASIC QUESTION WHICH ARISES IS WHETHER HE MAY BE CONSIDERED AS AN ELIGIBLE BENEFICIARY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN SINCE THAT DATE.

THE APPLICABLE STATUTORY PROVISIONS PRESCRIBING THE ELIGIBLE BENEFICIARIES UNDER THE ACT ARE CONTAINED IN SECTION 1435, TITLE 10, U.S.C. SECTION 1435 PROVIDES AS FOLLOWS:

ONLY THE FOLLOWING PERSONS ARE ELIGIBLE TO BE MADE THE BENEFICIARIES OF, OR TO RECEIVE PAYMENTS UNDER, AN ANNUITY ELECTED UNDER THIS CHAPTER BY A MEMBER OF THE ARMED FORCES:

(1) THE SPOUSE OF THE MEMBER ON THE DATE WHEN THE MEMBER IS RETIRED OR BECOMES ENTITLED TO RETIRED OR RETAINER PAY OR, IF THE MEMBER WAS ALREADY RETIRED OR ENTITLED TO RETIRED OR RETAINER PAY ON NOVEMBER 1, 1953, THE SPOUSE ON THAT DATE.

(2) THE CHILDREN OF THE MEMBER WHO ARE---

(A) UNMARRIED;

(B) UNDER 18 YEARS OF AGE OR INCAPABLE OF SUPPORTING THEMSELVES BECAUSE OF MENTAL DEFECT OR PHYSICAL INCAPACITY EXISTING BEFORE THEIR EIGHTEENTH BIRTHDAY;

(C) LEGITIMATE OR ADOPTED CHILDREN OF, OR STEPCHILDREN IN FACT DEPENDENT FOR THEIR SUPPORT UPON, THE MEMBER;

(D) LIVING ON THE DATE WHEN THE MEMBER IS RETIRED OR BECOMES ENTITLED TO RETIRED OR RETAINER PAY OR, IF THE MEMBER WAS ALREADY RETIRED OR ENTITLED TO RETIRED OR RETAINER PAY ON NOVEMBER 1, 1953, LIVING ON THAT DATE; AND

(E) BORN ON OR BEFORE THE DATE PRESCRIBED IN CLAUSE (D).

INASMUCH AS THE SON OTHERWISE APPEARS TO MEET THE REQUIREMENTS OF SECTION 1435, HIS ELIGIBILITY TO CONTINUE AS AN ELIGIBLE BENEFICIARY UNDER THE ACT AFTER REACHING HIS EIGHTEENTH BIRTHDAY ON JUNE 21, 1963, IS DEPENDENT UPON WHETHER HE IS TO BE CONSIDERED AS INCAPABLE OF SUPPORTING HIMSELF BECAUSE OF A MENTAL DEFECT EXISTING BEFORE HIS EIGHTEENTH BIRTHDAY. THUS, THE ISSUE IS WHETHER, IN VIEW OF THE PARTICULAR CIRCUMSTANCES IN HIS CASE, THE SON'S STATUS PROPERLY MAY BE VIEWED AS WITHIN THE SCOPE OF SECTION 1435/2) (B).

TWO MEDICAL STATEMENTS (COPIES RECEIVED AS ENCLOSURES WITH YOUR LETTER OF OCTOBER 28, 1964) HAVE BEEN SUBMITTED BY DR. * * *. IN THE FIRST OF THESE STATEMENTS DATED JANUARY 17, 1964, THE DOCTOR STATED:

I CERTIFY THAT I AM A LICENSED PHYSICIAN, AUTHORIZED TO PRACTICE MEDICINE UNDER THE LAWS OF THE STATE OF * * *. I FURTHER CERTIFY THAT * * * HAS BEEN ONE OF MY PATIENTS SINCE SAID WAS APPROXIMATELY TWO YEARS OF AGE.

IT IS THE OBSERVATION AND OPINION OF THE UNDERSIGNED THAT * * * HAS BEEN MENTALLY RETARDED SINCE CHILDHOOD AND THE CONDITION EXISTED FOR MANY YEARS BEFORE HIS EIGHTEENTH BIRTHDAY. IT IS MY OPINION THAT DURING THE CALENDAR YEAR OF 1962, * * * WAS NOT CAPABLE OF SELF SUPPORT, AND THAT ON OR ABOUT JUNE 1, 1963, WITH SUITABLE COUNSEL AND GUIDANCE, HE BECAME CAPABLE OF SELF-SUPPORT WITH LIMITED EARNINGS, WHEN PLACED IN A SITUATION WHERE HE WORKS WITH HIS HANDS.

THE DOCTOR'S SECOND STATEMENT DATED OCTOBER 14, 1964, IS AS FOLLOWS:

* * * HAS BEEN ONE OF MY PATIENTS SINCE HE WAS APPROXIMATELY TWO YEARS OF AGE. IT HAS BEEN MY OBSERVATION THAT HE HAS BEEN MENTALLY RETARDED SINCE CHILDHOOD. THE CAUSE OF HIS RETARDATION IS UNKNOWN. I AM INFORMED BY HIS PARENTS THAT HE HAD EXTREMELY HIGH FEVER AT AGE SIX MONTHS. I AM ALSO INFORMED BY HIS PARENTS THAT HE NEARLY DROWNED AT AGE SIX YEARS AND THAT HE WAS REVIVED BY ARTIFICIAL RESPIRATION. THERE IS ALSO THE POSSIBILITY THAT THE OXYGEN SUPPLY TO THE BRAIN WAS MOMENTARILY CUT OFF AT BIRTH. MY OPINION EITHER OF THE ABOVE EVENTS COULD HAVE CAUSED HIS CONDITION.

A THIRD MEDICAL STATEMENT FURNISHED IS THAT OF * * *, CLINICAL PSYCHOLOGIST. THE PSYCHOLOGICAL SUMMARY OF THE TESTS ADMINISTERED AT THE REQUEST OF THE OFFICER DISCLOSES THAT HIS SON "SCORED IN THE MENTAL DEFECTIVE RANGE OF INTELLIGENCE * * * EQUIVALENT TO AN OVERALL FUNCTIONING MENTAL AGE OF 11.02 YEARS.'

THE PSYCHOLOGIST REPORTED THAT HIS PATIENT "HAS INCULCATED CONVENTIONAL MANNERS, MORALS AND MORES, WITH SOME INDICATIONS THAT HE IS OVERSTRIVING IN AN ATTEMPT TO MEET THE EXPECTATIONS OF OTHER PEOPLE SO THAT AT TIMES, HE EXPERIENCES UNCOMFORTABLE SUBJECTIVE TENSION AND ANXIETY.' THE DOCTOR FURTHER STATED THAT THE OFFICER'S SON "IS A FAIRLY GOOD OBSERVER OF HIS ENVIRONMENT WITH INDICATIONS THAT HE WILL CONTINUE TO LEARN NEW MATERIAL SLOWLY WITH PATIENT, UNDERSTANDING, NONTHREATENING GUIDANCE AND SUPERVISION. HIS REACTION TIMES ARE SLOW AND UNDUE PRESSURE ON HIM TO PERFORM TASKS WITHIN SET TIME LIMITS SHOULD BE MINIMIZED.' IN CONCLUSION, THE DOCTOR OBSERVED THAT "THE PATIENT WILL REQUIRE SPECIAL CONSIDERATION, TRAINING AND GUIDANCE. PLACING HIM IN SITUATIONS WHERE HE MIGHT RECEIVE PERSONAL INJURY SHOULD BE CAREFULLY SUPERVISED AND MINIMIZED. THERE ARE INDICATIONS THAT THIS YOUNG MAN CAN BECOME PARTIALLY SELF-MAINTAINING BUT WILL NEED ASSISTANCE THROUGHOUT HIS LIFE IN THE MANAGEMENT OF HIS MORE COMPLEX BUSINESS AND PERSONAL AIRS.'

THE OFFICER IN RESPONSE TO THE SEVERAL REQUESTS FROM YOUR OFFICE FOR COMPLETE INFORMATION IN THE MANNER HAS SUPPLIED THE FOLLOWING INFORMATION. IN HIS LETTER OF JANUARY 30, 1962, WHEN HIS SON WAS THEN ABOUT 16 YEARS AND 7 MONTHS OF AGE, HE STATED "THIS DEPENDENT IS A RETARDED CHILD WHO IS PRESENTLY ATTENDING A SPECIAL EDUCATION CLASS IN A HIGH SCHOOL. IT IS MY BELIEF THAT HE WILL ATTAIN A STATUS OF SELF SUPPORT.'

IN HIS LETTER DATED FEBRUARY 17, 1964, THE OFFICER STATED THAT HIS SON HAD BEEN WORKING SINCE JUNE 1, 1963, AS A LABORER ON A CONSTRUCTION JOB, ON A HOURLY WAGE BASIS, AND THAT HIS EARNINGS JUNE THROUGH DECEMBER 1963 WERE $1,514.56. THE OFFICER ADDED THAT HIS PARENTAL CONTRIBUTION (APPARENTLY ESTIMATED) TOWARDS HIS SON'S SUPPORT AMOUNTED TO $1,200 PER YEAR. IN A LETTER DATED JULY 7, 1964, THE OFFICER ADVISED YOUR OFFICE THAT HIS SON'S EARNINGS FOR THE PERIOD JANUARY 1, 1964, THROUGH JUNE 30, 1964, TOTALED $1,715.36. IN PARAGRAPH 2 OF THAT SAME LETTER THE OFFICER ADDED:

2. IT IS DESIRED TO MAKE THE FOLLOWING STATEMENTS OF FACT RELATIVE TO HIS EMPLOYMENT.

(A) * * * HAS BEEN EMPLOYED AS A LABORER ON A CONSTRUCTION PROJECT FOR THE PAST YEAR BY THE * * * OF WHICH COMPANY THE UNDERSIGNED IS VICE PRESIDENT.

* * * WILL BE LAID OFF FRIDAY JULY 10, BECAUSE THE PROJECT UPON WHICH HE HAS BEEN EMPLOYED WILL BE COMPLETED.

(B) HE WILL BE REEMPLOYED WHEN ANOTHER SUITABLE VACANCY OCCURS.

HENCE, AS POINTED OUT IN PARAGRAPH 8 OF YOUR LETTER, THE SON'S EARNINGS DURING THE 12-MONTH PERIOD IMMEDIATELY FOLLOWING HIS EIGHTEENTH BIRTHDAY IN JUNE 1963 WAS SLIGHTLY IN EXCESS OF $3,200.

THE LAST LETTER WHICH YOU APPEAR TO HAVE RECEIVED FROM THE OFFICER IMMEDIATELY PRIOR TO SUBMITTING THE MATTER HERE FOR DECISION WAS HIS LETTER OF OCTOBER 14, 1964, TOGETHER WITH THE MEDICAL STATEMENTS OF THAT SAME DATE FROM THE DOCTORS. IN HIS LETTER OF OCTOBER 14, 1964, THE OFFICER ADDED THE FOLLOWING INFORMATION:

A. THE CAUSE OF * * * MENTAL CONDITION. SEE LETTER 14 OCTOBER 1964 DR. * * *, M.D., FAMILY PHYSICIAN ... ENCL. NO. 1

B. ACTUAL MENTAL AGE LEVEL. SEE REPORT OF * * *, CLINICAL PSYCHOLOGIST, 14 OCTOBER 1964. ENCL. NO. 2

C. HIS PROGRESS TOWARD CAPABILITY OF SELF-SUPPORT HAS BEEN CONSTANT ALTHOUGH VERY SLOW.

D. THE WORK HE PERFORMED FOR THE COMPANY OF WHICH I AM VICE PRESIDENT WAS A PART OF THE VOCATIONAL TRAINING PROGRAM FOR RETARDED CHILDREN IN THE SPECIAL EDUCATION CLASS OF THE * * * HIGH SCHOOL, * * *. IT IS THE POLICY OF THE SCHOOL TO OBTAIN JOBS FOR THESE CHILDREN DURING THEIR FINAL SCHOOL YEAR, WHENEVER POSSIBLE.

E. HIS CONDITION IS SUCH THAT HE COULD BE HIRED BY OTHER FIRMS PROVIDED THE EMPLOYER WAS INTERESTED IN HIRING THE HANDICAPPED, AND PROVIDED HIS IMMEDIATE SUPERIOR UNDERSTOOD THIS TYPE OF PERSON, AND HAD THE NECESSARY PATIENCE TO TRAIN HIM FOR A PARTICULAR JOB WITHIN HIS CAPABILITY TO DO.

F. HE IS CAPABLE ONLY OF PERFORMING TASKS THAT ARE MADE TO FIT WITHIN HIS CAPABILITIES.

IT WAS POINTED OUT IN DECISION OF NOVEMBER 10, 1964, B-154831, 44 COMP. GEN. 280, THAT THE ORIGINAL LANGUAGE OF H.R. 5304, 83D CONGRESS, WHICH WAS LATER ENACTED INTO LAW AS THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 (NOW CH. 73, TITLE 10, U.S. CODE), REFERRED IN SECTIONS 2/F) AND 4/A) (2) AND (3) ONLY TO A CHILD OR CHILDREN UNDER 18 YEARS OF AGE AND UNMARRIED. UNDER THOSE PROVISIONS THE ANNUITY COULD HAVE BEEN PAID ONLY UP TO THE TIME THE CHILD REACHED THE AGE OF 18. THE BILL WAS AMENDED (SEE 99 CONG. REC. 6364-5) BY ADDING TO SECTION 2/F) THE PHRASE "OR A CHILD OVER 18 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 " TOGETHER WITH SIMILAR CHANGES IN CLAUSES (2) AND (3) OF SECTION 4/A). THE LEGISLATIVE HISTORY SHOWS THAT THE AMENDMENTS WERE INTENDED TO MAKE IT POSSIBLE FOR AN INDIVIDUAL IN A UNIFORMED SERVICE WHO MAY HAVE A CRIPPLED CHILD, A PHYSICALLY HANDICAPPED CHILD, OR A MENTALLY DEFICIENT CHILD, TO TAKE CARE OF THAT CHILD EVEN THOUGH SUCH CHILD MAY BE OVER 18 YEARS OF AGE.

IN DECISION OF AUGUST 28, 1959, B-140260, TO WHICH YOU MAKE SPECIFIC REFERENCE IN PARAGRAPH 18 OF YOUR LETTER, IT WAS HELD THAT THE CHILD IN THAT CASE (A MENTALLY DEFECTIVE DAUGHTER THEN OVER 40 YEARS OF AGE WHO, MANY YEARS PREVIOUSLY, HAD WORKED "SPASMODICALLY") PROPERLY COULD BE VIEWED AS AN ELIGIBLE BENEFICIARY UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT SINCE THE EVIDENCE OF RECORD "MAY BE ACCEPTED AS ESTABLISHING THAT THE DAUGHTER PRESENTLY IS INCAPABLE OF SELF-SUPPORT BECAUSE OF A MENTAL DEFECT EXISTING PRIOR TO HER EIGHTEENTH BIRTHDAY.'

YOU STATE THAT "IN VIEW OF THIS APPARENTLY LIBERAL CONSTRUCTION OF THE STATUTE AND REGULATIONS" DOUBT EXISTS WHETHER:

A. THE CHILD HERE INVOLVED * * * SHOULD BE CONSIDERED AN ELIGIBLE BENEFICIARY, IF HE SHOULD SURVIVE HIS FATHER; AND

B. WHAT CRITERIA SHOULD BE ESTABLISHED AS A BASIS FOR DETERMINING THAT A CHILD IS NO LONGER INCAPABLE OF SELF-SUPPORT; AND

C. WHETHER REPORTS OF CONTINUED INCAPACITATION SHOULD BE REQUIRED AFTER THE CHILD PASSES AGE 18, WHILE THE RETIRED MEMBER LIVES; AND

D. WHAT BEARING, IF ANY, DOES THE CHILD'S EARNING CAPACITY PRIOR TO RECOVERY, HAVE ON HIS ELIGIBILITY FOR BENEFITS; AND

E. WHAT DEGREE OF DISABILITY MUST EXIST OR REMAIN AS A BASIS FOR DETERMINING THAT A CHILD IS INCAPACITATED FOR SELF-SUPPORT OR THAT CONTINUED INCAPACITATION EXISTS; AND

F. WHETHER ELIGIBILITY CAN BE RESTORED, IF THE MENTAL DEFECT OR PHYSICAL DISABILITY REOCCURS, AFTER TERMINATION EITHER BEFORE OR AFTER DEATH OF THE RETIRED MEMBER.

THE LEGISLATIVE HISTORY OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 IS ENTIRELY SILENT AS TO WHAT WAS CONTEMPLATED BY THE PHRASE "INCAPABLE OF SELF-SUPPORT" NOW CODIFIED IN 10 U.S.C. 1435/2) (B) AS "INCAPABLE OF SUPPORTING THEMSELVES.' AS INDICATED IN PARAGRAPH 17 OF YOUR LETTER, CONGRESS HAS EVIDENCED IN A NUMBER OF OTHER STATUTORY PROVISIONS A SIMILAR CONCERN FOR CHILDREN 18 YEARS OF AGE OR OLDER WHO ARE INCAPABLE OF SELF-SUPPORT BY REASON OF A PHYSICAL OR MENTAL DEFECT THAT WAS PRESENT BEFORE REACHING THEIR EIGHTEENTH BIRTHDAY. SEE 5 U.S.C. 760 AND 38 U.S.C. 101 (4) (B) AND 414/A) (1958 ED., SUPP. V).

UNDER THE SOCIAL SECURITY ACT (SUBCHAPTER II--- FEDERAL OLD-AGE, SURVIVORS, AND DISABILITY INSURANCE BENEFITS) CHILD'S INSURANCE BENEFITS ARE PRESCRIBED WHERE A CHILD IS UNDER A ,DISABILITY" WHICH BEGAN BEFORE REACHING THE AGE OF 18 AND SUCH CHILD IS DEPENDENT UPON THE PARENT BENEFICIARY UNDER THE ACT SUBJECT TO CERTAIN PRESCRIBED CONDITIONS NOT MATERIAL HERE. SEE 42 U.S.C. 402/D) (1). THE TERM "DISABILITY" IS DEFINED IN SECTION 423/C) (2), TITLE 42, U.S. CODE, AS MEANING "INABILITY TO ENGAGE IN ANY SUBSTANTIAL GAINFUL ACTIVITY BY REASON OF ANY MEDICALLY DETERMINABLE PHYSICAL OR MENTAL IMPAIRMENT WHICH CAN BE EXPECTED TO RESULT IN DEATH OR TO BE OF LONG-CONTINUED AND INDEFINITE DURATION.' THE FEDERAL COURTS HAVE ON MANY OCCASIONS CONSIDERED THE PROVISIONS OF SECTION 423/C) (2), TITLE 42, U.S.C. GENERALLY THE PHRASE "INABILITY TO ENGAGE IN ANY SUBSTANTIAL GAINFUL ACTIVITY" HAS BEEN MEASURED NOT ON THE BASIS OF COMPLETE HELPLESSNESS, BUT ON WHETHER THE INDIVIDUAL CONCERNED IS UNABLE BY REASON OF A MEDICALLY DETERMINABLE PHYSICAL OR MENTAL IMPAIRMENT TO ENGAGE IN SUBSTANTIAL GAINFUL ACTIVITY COMMENSURATE WITH HIS AGE, EDUCATIONAL ATTAINMENTS, TRAINING, EXPERIENCE, AND MENTAL AND PHYSICAL CAPABILITIES. SEE TEETER V. FLEMMING, 270 F.2D 871 (1959). SUCH A DETERMINATION, IT WAS POINTED OUT IN KERNER V. FLEMMING, 238 F.2D 916 (1960), REQUIRES RESOLUTION OF TWO ISSUES, NAMELY, WHAT CAN THE INDIVIDUAL DO, AND WHAT EMPLOYMENT OPPORTUNITIES ARE THERE FOR AN INDIVIDUAL WHO CAN DO ONLY WHAT THAT INDIVIDUAL CAN DO. THE COURT FURTHER POINTED OUT IN THE KERNER CASE THAT "MERE THEORETICAL ABILITY TO ENGAGE IN SUBSTANTIAL GAINFUL ACTIVITY IS NOT ENOUGH IF NO REASONABLE OPPORTUNITY FOR THIS IS AVAILABLE.'

IN BRAUN V. RIBICOFF, 292 F.2D 354 (1961), A CASE INVOLVING A PHYSICAL DISABILITY INCURRED BEFORE REACHING AGE 18, THE REPORT OF A PSYCHIATRIC EXAMINATION ON WHICH THE COURT RELIED READS, IN PART, AS FOLLOWS:

THE QUESTION OF HIS (BRAUN-S) EMPLOYABILITY IS DIFFICULT TO ANSWER. GIVEN THE RIGHT KIND OF EMPLOYER, THAT IS, ONE WHOM THE PATIENT MIGHT RESPECT AND WHO IS UNDERSTANDING, KIND AND YET FIRM, IT IS POSSIBLE THAT THIS PATIENT MIGHT BE ABLE TO PERFORM GAINFUL WORK. IT IS ADMITTED, HOWEVER, THAT SUCH FORTUNATE CIRCUMSTANCES WOULD BE HARD TO OBTAIN; SO, THAT FOR ALL PRACTICAL PURPOSES, THIS YOUNG MAN MIGHT BE REGARDED AS UNEMPLOYABLE.

IN REACHING A CONCLUSION IN FAVOR OF BRAUN THE COURT STATED:

BRAUN HAS PROVED HIS INABILITY TO ENGAGE IN ANY SUBSTANTIAL GAINFUL ACTIVITY AT THE PRESENT TIME OR IN THE FUTURE. INDEED THERE IS NO SUBSTANTIAL EVIDENCE IN THIS RECORD THAT HE POSSESSES THE ABILITY TO OBTAIN EMPLOYMENT OR TO ENGAGE IN ANY SUBSTANTIAL GAINFUL ACTIVITY AT PRESENT OR IN THE FUTURE. ALL THE EVIDENCE MUST BE EXAMINED AND WEIGHED. THE PRESENT AND THE FUTURE MUST BE LOOKED TO AS WELL AS THE PAST. TRUE, BRAUN ON OCCASION HAS HAD GAINFUL ACTIVITY; HIS LONGEST PERIOD OF EMPLOYMENT BEING, AS WE HAVE STATED, 18 MONTHS AS A TRUCK DRIVER.

THE COURT REJECTED THE VALIDITY OF THE ARGUMENT "THAT SOME GAINFUL EMPLOYMENT IN THE PAST AUGERS GAINFUL EMPLOYMENT IN THE FUTURE" IN VIEW OF OTHER EVIDENCE AS TO BRAUN'S DISABILITY.

ANOTHER CASE DECIDED ON SOMEWHAT THE SAME GROUNDS IN WELLS V. CELEBREZZE, 209 F.SUPP. 444 (1962). PART OF THE EVIDENCE IN THAT CASE WAS THE STATEMENT OF AN OFFICER OF THE EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA, A PUBLIC EMPLOYMENT AGENCY, THAT "IT IS IMPOSSIBLE FOR OUR OFFICE TO FIND MISS WELLS ANY WORK.'

IN FERRAN V. FLEMMING, 293 F.2D 568 (1961), IT WAS STATED:

IF THERE IS NO MARKET FOR THE SERVICES HE (THE CLAIMANT) IS ABLE TO RENDER, THEN HE IS TRULY DISABLED WITHIN THE MEANING OF THE STATUTE.

SEE, ALSO, BLEVINS V. FLEMING (FLEMMING), 180 F.SUPP. 287 (1960) AND TURNER V. RIBICOFF, 224 F.SUPP. 284 (1963). IN THE LATTER CASE IT WAS HELD THAT:

* * * IT MUST BE REASONABLY POSSIBLE, NOT MERELY CONCEIVABLE, THAT CLAIMANT CAN ENGAGE IN SUBSTANTIAL GAINFUL EMPLOYMENT OR ACTIVITY BEFORE HIS CLAIM CAN BE DENIED.

AS TO SPASMODIC OR INFREQUENT ACTIVITY, THE COURT CONCLUDED IN EDWARDS V. CELEBREZZE, 220 F.SUPP. 79 (1963), THAT "SUBSTANTIAL GAINFUL ACTIVITIES" PRECLUDING ESTABLISHMENT OF DISABILITY MEANS "PERFORMANCE OF SUBSTANTIAL SERVICE WITH REASONABLE REGULARITY IN SOME COMPETITIVE EMPLOYMENT AND DOES NOT CONTEMPLATE COMPLETE HELPLESSNESS.' TO THE SAME EFFECT IS CAMPBELL V. FLEMMING, 192 F.SUPP. 62 (1961). SEE, ALSO, RANDALL V. FLEMMING, 192 F.SUPP. 111 (1961), WHERE IT WAS POINTED OUT THAT:

* * * THE FACT THAT A CLAIMANT WAS WILLING TO ENGAGE IN EMPLOYMENT RATHER THAN REMAIN IDLE * * * DOES NOT PRECLUDE RECOVERY OF DISABILITY INSURANCE BENEFITS UNDER THE ACT.

WE DO NOT VIEW THE PHRASE "INCAPABLE OF SUPPORTING THEMSELVES" IN 10 U.S.C. 1435/2) (B) AS CONSTITUTING A MUCH MORE STRINGENT STATUTORY STANDARD THAN THE "INABILITY TO ENGAGE IN ANY SUBSTANTIAL GAINFUL ACTIVITY" LANGUAGE CONTAINED IN 42 U.S.C. 423/C) (2).

WHILE THERE ARE BASIC DIFFERENCES IN THE LANGUAGE AND THE PURPOSES OF THE TWO STATUTES, IT IS OUR VIEW THAT THE GENERAL PRINCIPLES OUTLINED IN THE SEVERAL COURT DECISIONS ABOVE REFERRED TO, RELATING TO THE PROVISIONS OF 42 U.S.C. 423/C) (2), PROPERLY MAY BE APPLIED IN CONNECTION WITH THE PROVISIONS OF 10 U.S.C. 1435/2) (B).

AS PREVIOUSLY STATED, THE RECORD IN THIS CASE DISCLOSES THAT THE SON'S MENTAL CONDITION WAS IN EVIDENCE LONG BEFORE HE REACHED HIS EIGHTEENTH BIRTHDAY ON JUNE 21, 1963, AND THEREFORE THE QUESTION PRESENTED IS WHETHER HE HAS BEEN INCAPABLE OF SUPPORTING HIMSELF SINCE REACHING AGE 18.

ONE OF THE BASIC FACTORS TO CONSIDER IS THAT OF EARNING POWER. THE OFFICER'S SON WAS EMPLOYED DURING THE INCLUSIVE PERIOD JUNE 1963 TO JULY 10, 1964, RECEIVING A TOTAL OF APPROXIMATELY $3,325. THIS REPRESENTS AN EARNING CAPACITY AVERAGING ABOUT $232 PER MONTH AND STANDING ALONE, THE CONCLUSION MIGHT BE REACHED THAT HE HAD BECOME CAPABLE OF SELF-SUPPORT. HOWEVER, SUCH A CONCLUSION MUST BE QUALIFIED WITH THE KNOWLEDGE THAT THE FATHER IS VICE-PRESIDENT OF THE * * * FOR WHICH THE SON WORKED AS A LABORER. IT SEEMS ONLY REASONABLE TO ASSUME THAT THE FATHER EXERCISED A SUFFICIENT DEGREE OF CONTROL TO SECURE THE EMPLOYMENT AND TEMPER THE WORKING CONDITIONS ENCOUNTERED BY THE SON DURING SUCH PERIOD OF EMPLOYMENT. THE PARTICULAR PROJECT ON WHICH THE SON WAS ENGAGED WAS COMPLETED IN JULY 1964 AND THERE IS NO INDICATION IN THE RECORD THAT HE HAS SUBSEQUENTLY BEEN EMPLOYED OR HAD ANY EMPLOYMENT OPPORTUNITIES UP TO OCTOBER 14, 1964, THE DATE OF THE OFFICER'S LAST LETTER TO YOUR OFFICE.

WHILE IT MAY BE THAT THE SON'S EARNINGS FROM JUNE 1963 TO JULY 1964 WERE SUFFICIENT TO MEET HIS PERSONAL FINANCIAL NEEDS DURING THAT PARTICULAR PERIOD, NO FIRM BASIS IS PRESENTED TO CONCLUDE THAT EMPLOYMENT AS A LABORER IN HIS FATHER'S FIRM UNDER CIRCUMSTANCES INDICATED ABOVE CONSTITUTED A TRUE AND ACCURATE TEST OF HIS ABILITY FOR SELF-SUPPORT. THESE CIRCUMSTANCES WE DO NOT VIEW THE RECORD AS IT PRESENTLY STANDS AS ESTABLISHING THAT THE SON IS CAPABLE OF SUPPORTING HIMSELF. HENCE, AT THE PRESENT TIME HE IS CONSIDERED AN ELIGIBLE BENEFICIARY WHO, IF HIS SITUATION REMAINS UNCHANGED, WOULD BE ENTITLED TO AN ANNUITY UPON HIS FATHER'S DEATH. IF, AT SOME LATER TIME, HE BECOMES CAPABLE OF SELF- SUPPORT WITHIN THE MEANING OF THE STATUTE, HE WOULD NO LONGER BE AN ELIGIBLE BENEFICIARY. QUESTION (A) IS ANSWERED ACCORDINGLY.

WHETHER A CHILD IS CAPABLE OR INCAPABLE OF SELF-SUPPORT FOR PURPOSES OF 10 U.S.C. 1435/2) (B) IS A MATTER FOR DETERMINATION FROM ALL THE FACTS OF THE PARTICULAR CASE. ONCE IT HAS BEEN DETERMINED THAT A CHILD OVER 18 YEARS OF AGE IS INCAPABLE OF SELF-SUPPORT, EVIDENCE WARRANTING A CONCLUSION THAT THE CHILD ACTUALLY IS CAPABLE OF SUSTAINING AND EARNING CAPACITY SUFFICIENT FOR HIS OWN PERSONAL NEEDS WOULD BE SUFFICIENT TO REMOVE THE CHILD FROM THE CATEGORY OF ONE INCAPABLE OF SELF-SUPPORT. QUESTION (B) IS ANSWERED ACCORDINGLY.

THE ANSWER TO QUESTION (C) IS IN THE AFFIRMATIVE. WHEN THE CHILD BECOMES SELF-SUPPORTING ELIGIBILITY CEASES UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN AND NO FURTHER DEDUCTIONS WOULD BE PROPER IN THE RETIRED PAY OF THE MEMBER CONCERNED. SEE 32 CFR 48.505 (JANUARY 1, 1964).

AS TO QUESTIONS (D) AND (E), SEE THE ANSWERS TO (A) AND (B) ABOVE.

QUESTION (F) IS ANSWERED IN THE NEGATIVE. WE FIND NO PROVISION IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN FOR REINSTATEMENT AS AN ELIGIBLE BENEFICIARY IN THE CIRCUMSTANCES SET FORTH IN THIS QUESTION.