B-165095, OCTOBER 1, 1968, 48 COMP. GEN. 167

B-165095, OCTOBER 1, 1968, 48 COMP. GEN. 167

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - TERMINATION - CHILDREN REACHING EIGHTEEN YEARS OF AGE THE RIGHT OF A DESIGNATED BENEFICIARY TO THE ANNUITY PAYMENTS PROVIDED UNDER 10 U.S.C. 1431-1436, CONTINUING WHILE "UNDER 18 YEARS OF AGE" AND CEASING THE FIRST INSTANT THE EIGHTEENTH ANNIVERSARY OF BIRTH IS REACHED, THE ELIGIBILITY OF THE DAUGHTER OF A DECEASED MEMBER OF THE UNIFORMED SERVICES TO THE ANNUITY PAYMENTS PROVIDED FOR HER CEASED THE FIRST INSTANT SHE REACHED THE EIGHTEENTH ANNIVERSARY OF HER BIRTH ON MAY 1, 1968 AND SHE IS ENTITLED TO RETAIN THE ANNUITY PAYMENT MADE FOR THE MONTH OF APRIL BUT SHE IS NOT ENTITLED TO A PAYMENT FOR THE MONTH OF MAY, 10 U.S.C. 1437 PROVIDING THAT "NO ANNUITY OCCURS FOR THE MONTH IN WHICH ENTITLEMENT THERETO ENDS.' PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - TERMINATION - CHILDREN FOR OTHER THAN AGE UPON THE MARRIAGE OR DEATH ON MARCH 1, 1968 OF THE DAUGHTER OF A DECEASED MEMBER OF THE UNIFORMED SERVICES WHO IS ENTITLED TO ANNUITY PAYMENTS PURSUANT TO 10 U.S.C. 1431-1436 UNTIL HER EIGHTEENTH BIRTHDAY ON MAY 1, 1968, HER ENTITLEMENT TO ANNUITY PAYMENTS CEASED WITH THE OCCURRENCE OF THE EVENT AND, THEREFORE, ENTITLEMENT TO THE ANNUITY PAYMENT FOR THE MONTH OF MARCH DID NOT ACCRUE.

TO COMMANDER D. G. SUNDBERG, DEPARTMENT OF THE NAVY, OCTOBER 1, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 26, 1968 (XO: HWM: MLO 7220/274 04 46), REQUESTING AN ADVANCE DECISION IN THE CASE OF THE LATE CHIEF QUARTERMASTER DEMPS GORDY, USNFR, 274 04 46, CONCERNING THE QUESTION AS TO WHEN HIS CHILD, ANGELA GORDY, CEASED TO BE ENTITLED TO RECEIVE ANNUITY PAYMENTS UNDER THE UNIFORM SERVICES CONTINGENCY OPTION ACT OF 1953, CH. 393, 67 STAT. 501 (NOW THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431), IN THE CIRCUMSTANCES SET FORTH IN YOUR LETTER. YOUR LETTER WAS FORWARDED TO THIS OFFICE BY SECOND ENDORSEMENT OF THE COMPTROLLER OF THE NAVY, DATED AUGUST 20, 1968, AND HAS BEEN ASSIGNED SUBMISSION NUMBER DO-N 1016 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS SHOWN THAT MR. GORDY WAS TRANSFERRED TO THE FLEET RESERVE IN AUGUST 1947, AND THAT ON NOVEMBER 10, 1953, HE MADE A VALID ELECTION OF OPTION 2 AT ONE-HALF OF HIS REDUCED RETIRED PAY UNDER SECTION 4 OF THE CONTINGENCY OPTION ACT. YOU REPORT THAT HE DIED ON JANUARY 17, 1956, AND WAS SURVIVED BY A DAUGHTER, ANGELA GORDY, BORN MAY 1, 1950, IN WHOSE NAME ANNUITY PAYMENTS WERE ESTABLISHED EFFECTIVE JANUARY 1, 1956. IT IS INDICATED THAT SUCH ANNUITY PAYMENTS HAVE BEEN MADE FOR EACH MONTH FOLLOWING THAT DATE TO AND INCLUDING MAY 1968.

IT APPEARS THAT SINCE ANGELA'S EIGHTEENTH BIRTHDAY WAS ON MAY 1, 1968, THE ANNUITY CHECK FOR MAY 1968 WAS ERRONEOUSLY ISSUED AND THE REFUND OF THAT PAYMENT HAS BEEN REQUESTED FROM HER GUARDIAN. THE PRIMARY QUESTION PRESENTED IS WHETHER A REFUND OF THE ANNUITY PAYMENT FOR APRIL 1968 SHOULD ALSO BE REQUESTED, ON THE BASIS THAT SHE MAY HAVE BECOME INELIGIBLE TO RECEIVE ANNUITY PAYMENTS DURING THE MONTH OF APRIL RATHER THAN IN MAY, 44 COMP. GEN. 276, BEING CITED AS HAVING POSSIBLE APPLICATION. ADDITIONALLY YOU REQUEST A DECISION AS TO THE MONTH IN WHICH MISS GORDY'S ENTITLEMENT WOULD HAVE TERMINATED HAD SHE MARRIED OR DIED ON MARCH 1, 1968.

AMONG THE ELIGIBLE BENEFICIARIES DESIGNATED IN 10 U.S.C. 1435 ARE CHILDREN OF THE MEMBER WHO ARE "UNMARRIED" AND "UNDER 18 YEARS OF AGE.' SECTION 1437 PROVIDES IN PERTINENT PART THAT "NO ANNUITY ACCRUES FOR THE MONTH IN WHICH ENTITLEMENT THERETO ENDS.'

THE QUESTION CONSIDERED IN 44 COMP. GEN. 276 WAS SIMILAR TO THAT HERE INVOLVED IN THAT BOTH ARE FOR DETERMINATION ON THE BASIS OF WHEN THE MEMBER'S CHILD CEASED TO BE "UNDER 18 YEARS OF AGE.' WE THERE SAID THAT THE STATUTE ESTABLISHED A DEFINITE INSTANT IN TIME WHEN ELIGIBILITY TO RECEIVE THE ANNUITY WOULD TERMINATE IN THE ABSENCE OF A SHOWING OF INCAPABILITY OF SELF-SUPPORT EXISTING PRIOR TO THE DEPENDENT'S EIGHTEENTH BIRTHDAY. WHILE IT WAS CONCLUDED THAT SUCH TIME WAS THE INSTANT BEFORE THE COMMENCEMENT OF THE CHILD'S EIGHTEENTH BIRTHDAY, THERE WAS NO INTENTION OF INTIMATING ANYTHING MORE THAN THAT AT ON TIME ON THE CHILD'S EIGHTEENTH BIRTHDAY WAS HE AN ELIGIBLE BENEFICIARY. THE RULE APPLIED IN THAT CASE WAS THAT, UPON THE OCCURRENCE OF THE SPECIFIED EVENT, A DEDUCTION FROM RETIRED PAY UNDER 10 U.S.C. 1434 (C) WOULD NOT BE MADE FOR THE MONTH IN WHICH SUCH EVENT OCCURRED, THAT EVENT BEING THE EIGHTEENTH ANNIVERSARY OF THE DEPENDENT'S BIRTHDAY, JUNE 1, 1964.

IN THE PRESENT CASE, THE RIGHT OF THE ANNUITANT UNDER 10 U.S.C. 1435 CONTINUED SO LONG AS SHE WAS "UNDER 18 YEARS OF AGE" AND CEASED THE FIRST INSTANT SHE REACHED THE EIGHTEENTH ANNIVERSARY OF HER BIRTH. SINCE HER BIRTHDAY OCCURRED DURING THE MONTH OF MAY, THAT BECAME THE MONTH IN WHICH ENTITLEMENT ENDED AND YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

INSOFAR AS THE SECOND QUESTION IS CONCERNED, THE SPECIFIC EVENT OF MARRIAGE OR DEATH OF AN OTHERWISE ELIGIBLE ANNUITANT ALSO OCCURS ON A CERTAIN DATE. CONSEQUENTLY, UNTIL THE EVENT OCCURS, AN ANNUITANT'S RIGHT TO THE ANNUITY WOULD CONTINUE. THEREFORE IF THE EVENT OF MARRIAGE OR DEATH HAD OCCURRED ON THE FIRST DAY OF MARCH, ENTITLEMENT TO THE ANNUITY WOULD NOT HAVE ACCRUED FOR THAT MONTH.