B-178931, MAY 13, 1974, 53 COMP GEN 857

B-178931, MAY 13, 1974, 53 COMP GEN 857

PAY - RETIRED - SURVIVOR BENEFIT PLAN - SURVIVOR BENEFIT PLAN V. CIVIL SERVICE RETIREMENT SURVIVORSHIP PLAN UNDER PROVISIONS OF 10 U.S.C. 1450(D), SURVIVOR BENEFIT PLAN ANNUITY ELECTED BY RETIREE WHO WAIVES MILITARY RETIRED PAY FOR USE OF MILITARY CREDITS TO INCREASE HIS CIVIL SERVICE RETIREMENT BENEFITS, IS NOT PAYABLE UNLESS RETIREE ELECTS NOT TO PARTICIPATE IN CIVIL SERVICE RETIREMENT SURVIVORSHIP PLAN; NOR IS IT REQUIRED UNDER PROVISIONS OF 10 U.S.C. 1452(E) THAT DEPOSITS BE MADE UNDER SURVIVOR BENEFIT PLAN IN SUCH CIRCUMSTANCES UNLESS RETIREE ELECTS NOT TO PARTICIPATE IN CIVIL SERVICE RETIREMENT SURVIVORSHIP PLAN.

IN THE MATTER OF ELIGIBILITY TO RECEIVE BOTH MILITARY AND CIVIL SERVICE SURVIVOR BENEFITS, MAY 13, 1974:

THIS ACTION IS IN RESPONSE TO LETTER DATED JUNE 13, 1973, FROM THE ACTING ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING AN ADVANCE DECISION CONCERNING THE AMOUNTS OF SURVIVOR COVERAGE UNDER THE NEW SURVIVOR BENEFIT PLAN, AUTHORIZED BY PUBLIC LAW 92-425, APPROVED SEPTEMBER 21, 1972, 86 STAT. 706, 10 U.S.C. 1447-1455, IN THE CIRCUMSTANCES DESCRIBED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 479.

THE QUESTION PRESENTED IN THE COMMITTEE ACTION IS AS FOLLOWS:

IS A RETIREE WHO WAIVES RETIRED PAY FOR USE OF MILITARY CREDITS TO INCREASE HIS CIVIL SERVICE RETIREMENT BENEFITS, ELIGIBLE FOR SURVIVOR BENEFIT COVERAGE IN AN AMOUNT WHICH, WHEN COMBINED WITH THE SURVIVOR COVERAGE ELECTED FROM HIS CIVILIAN RETIREMENT, EXCEEDS THE AMOUNT OF COVERAGE THAT WOULD OTHERWISE BE APPLICABLE HAD HE ELECTED THE MAXIMUM COVERAGE FROM HIS CIVIL SERVICE RETIREMENT?

THE DISCUSSION CONTAINED IN THE COMMITTEE ACTION INDICATES THAT UNDER THE PROVISIONS OF 10 U.S.C. 1450(D) AND 10 U.S.C. 1452(E) A SURVIVOR BENEFIT PLAN ANNUITY SHALL NOT BE PAYABLE AND THE RETIREE IS NOT REQUIRED TO MAKE DEPOSITS OF SURVIVOR BENEFIT PLAN COVERAGE ELECTED WHEN HE HAS SURVIVOR COVERAGE FROM HIS CIVILIAN RETIREMENT.

THE COMMITTEE ACTION STATES THAT THE COUNSEL FOR THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, BY MEMORANDUM DATED JANUARY 5, 1973, ADDRESSED TO THE DEPUTY ASSISTANT SECRETARY OF DEFENSE (MILITARY PERSONNEL POLICY), ADVISED THAT THE PROVISIONS OF THE SURVIVOR BENEFIT PLAN REFERRED TO ABOVE, ARE APPLICABLE ONLY WHEN COVERAGE UNDER THE CIVIL SERVICE PLAN EQUALS OR EXCEEDS THOSE BENEFITS ELECTED UNDER THE SURVIVOR BENEFIT PLAN. IT IS FURTHER STATED THAT AS A RESULT, A RETIREE MAY HAVE COVERAGE UNDER BOTH THE CIVILIAN AND MILITARY RETIREMENT PLANS WHEN COVERAGE UNDER THE MILITARY EXCEEDS COVERAGE UNDER THE CIVILIAN. IT IS INDICATED THAT SUPPORT FOR THIS POSITION COMES FROM SENATE REPORT NO. 92- 1089, AT PAGE 26. HOWEVER, IT IS ALSO INDICATED THAT THE SAME PAGE OF THE REPORT CONTAINS THE STATEMENT THAT S. 3905 WOULD NOT ALLOW A DUPLICATION OF SURVIVOR BENEFITS BASED ON THE SAME YEARS OF SERVICE.

THE DISCUSSION IN THE COMMITTEE ACTION POINTS OUT THAT IF IT IS INTENDED THAT THERE SHOULD NOT BE A DUPLICATION OF BENEFITS BASED ON THE SAME YEARS OF SERVICE, THEN IT WOULD SEEM THAT WHERE A RETIREE HAS WAIVED MILITARY RETIRED PAY FOR CIVIL SERVICE ANNUITY PURPOSES AND HAS ELECTED SURVIVOR BENEFIT COVERAGE FROM BOTH RETIREMENT SYSTEMS (WITH THE MILITARY PLAN PROVIDING GREATER COVERAGE THAN THE CIVILIAN PLAN), THAT THE COMBINED COVERAGE FROM BOTH PLANS SHOULD NOT EXCEED THE MAXIMUM COVERAGE THAT WOULD BE AVAILABLE FROM THE CIVILIAN PLAN. TO DO OTHERWISE WOULD PRODUCE A DUPLICATION OF BENEFITS BASED ON THE SAME YEARS OF SERVICE.

OUR REVIEW OF A COPY OF THE MEMORANDUM OF JANUARY 5, 1973, CITED IN THE COMMITTEE ACTION, REVEALS THAT THE SUBJECT OF THAT MEMORANDUM WAS WHETHER PUBLIC LAW 92-425 AND ITS LEGISLATIVE HISTORY PROVIDED ANY BASIS FOR STIPULATING A REQUIRED AMOUNT OF SURVIVOR COVERAGE UNDER THE CIVIL SERVICE RETIREMENT PLAN WHEN A WAIVER WAS IN EFFECT. NO MENTION OF ENTITLEMENT TO BOTH ANNUITIES IS CONTAINED THEREIN.

SUBSECTION 1450(D) OF TITLE 10, U.S. CODE, PROVIDES AS FOLLOWS:

(D) IF, UPON THE DEATH OF A PERSON TO WHOM SECTION 1448 OF THIS TITLE APPLIES, THAT PERSON HAD IN EFFECT A WAIVER OF HIS RETIRED OR RETAINER PAY FOR THE PURPOSES OF SUBCHAPTER III OF CHAPTER 83 OF TITLE 5, AN ANNUITY UNDER THIS SECTION SHALL NOT BE PAYABLE UNLESS, IN ACCORDANCE WITH SECTION 8339(I) OF TITLE 5, HE NOTIFIED THE CIVIL SERVICE COMMISSION THAT HE DID NOT DESIRE ANY SPOUSE SURVIVING HIM TO RECEIVE AN ANNUITY UNDER SECTION 8341(B) OF THAT TITLE.

SUBSECTION 1452(E) OF TITLE 10, U.S. CODE, PROVIDES AS FOLLOWS:

(E) WHEN A PERSON WHO HAS ELECTED TO PARTICIPATE IN THE PLAN WAIVES HIS RETIRED OR RETAINER PAY FOR THE PURPOSES OF SUBCHAPTER III OF CHAPTER 83 OF TITLE 5, HE SHALL NOT BE REQUIRED TO MAKE THE DEPOSIT OTHERWISE REQUIRED BY SUBSECTION (D) AS LONG AS THAT WAIVER IS IN EFFECT UNLESS, IN ACCORDANCE WITH SECTION 8339(I) OF TITLE 5, HE HAS NOTIFIED THE CIVIL SERVICE COMMISSION THAT HE DOES NOT DESIRE ANY SPOUSE SURVIVING HIM TO RECEIVE AN ANNUITY UNDER SECTION 8341(B) OF TITLE 5.

SUBSECTION 1450(D) PRECLUDES THE PAYMENT OF AN ANNUITY UNDER THE SURVIVOR BENEFIT PLAN WHEN A RETIRED MEMBER HAS IN EFFECT A WAIVER OF RETIRED PAY FOR THE PURPOSE OF INCLUDING HIS MILITARY SERVICE IN THE COMPUTATION OF HIS CIVIL SERVICE ANNUITY, UNLESS HE SPECIFICALLY NOTIFIES THE CIVIL SERVICE COMMISSION THAT HE DOES NOT DESIRE A SURVIVOR ANNUITY UNDER THE CIVIL SERVICE RETIREMENT SYSTEM. ALSO, UNDER THE PROVISIONS OF 10 U.S.C. 1452(E) WHILE A RETIRED MEMBER HAS A WAIVER OF RETIRED PAY IN EFFECT AND HAS NOT NOTIFIED THE CIVIL SERVICE COMMISSION THAT HE DOES NOT DESIRE COVERAGE UNDER THE CIVIL SERVICE SURVIVOR ANNUITY PLAN, PREMIUM DEPOSITS ARE NOT NECESSARY UNDER THE SURVIVOR BENEFIT PLAN. THIS IN EFFECT PROVIDES COVERAGE FOR HIS SURVIVOR UNDER THE CIVIL SERVICE PROGRAM.

ON PAGE 26 OF SENATE REPORT NO. 92-1089, SEPTEMBER 6, 1972, REFERRED TO IN THE COMMITTEE ACTION THE FOLLOWING IS SET FORTH:

MILITARY RETIREES WHO, AFTER RETIREMENT, WORK IN THE FEDERAL CIVIL SERVICE AND SUBSEQUENTLY BECOME ELIGIBLE TO RETIRE FROM THE CIVIL SERVICE MAY WAIVE THEIR MILITARY RETIRED PAY AND USE THEIR MILITARY YEARS OF SERVICE TO INCREASE THEIR CIVIL SERVICE BENEFITS. S. 3905 WOULD NOT ALLOW A DUPLICATION OF SURVIVOR BENEFITS BASED ON THE SAME YEARS OF SERVICE. HOWEVER, WHILE THE WAIVER OF MILITARY RETIRED PAY IS IN EFFECT, THE MILITARY MEMBER WOULD BE REQUIRED TO CONTINUE CONTRIBUTING TO THE MILITARY SURVIVOR BENEFIT PLAN EVEN THOUGH THESE SAME YEARS OF SERVICE ARE USED AS THE BASIS FOR CONTRIBUTIONS IN THE CIVIL SERVICE SURVIVOR BENEFIT PLAN. THIS PROVISION IN S. 3905 REQUIRES THE MEMBER TO CONTRIBUTE TO TWO PLANS BASED ON THE SAME YEARS OF SERVICE WHILE PROHIBITING BENEFITS FROM FLOWING FROM THE TWO PLANS BASED ON THESE SAME YEARS OF SERVICE.

THE COMMITTEE AGREES THAT DUPLICATION OF BENEFITS SHOULD BE PRECLUDED; HOWEVER, IT FURTHER BELIEVES THAT DUPLICATION OF CONTRIBUTIONS SHOULD ALSO BE PRECLUDED. TO ACHIEVE THE OBJECTIVE, THE COMMITTEE RECOMMENDS A REVISION TO S. 3905. WHEN A MILITARY RETIREE WAIVES HIS MILITARY RETIRED PAY TO INCREASE CIVIL SERVICE RETIREMENT BENEFITS AND ELECTS TO JOIN THE CIVIL SERVICE RETIREES SURVIVOR BENEFIT PLAN, HE WOULD CEASE TO CONTRIBUTE TO THE MILITARY PLAN DURING THE TIME HIS WAIVER IS IN EFFECT. THE COMMITTEE INTENDS THAT THE WAIVER OF CONTRIBUTIONS BE EFFECTIVE ONLY IF THE MEMBER JOINS THE CIVIL SERVICE SURVIVOR BENEFIT PLAN AT LEAST AT THE SAME LEVEL OF SURVIVOR PROTECTION AS HE WAS CARRYING UNDER THE MILITARY PLAN.

FURTHERMORE, ON PAGE 52 OF SENATE REPORT NO. 92-1089 A DEFINITIVE STATEMENT CONCERNING THE LEGISLATIVE INTENT OF 10 U.S.C. 1450(D) IS SET FORTH, WHICH IS AS FOLLOWS:

SUBSECTION (D) PROVIDES THAT IF A MEMBER WHO HAD ELECTED PARTICIPATION IN THE PLAN BECOMES A FEDERAL CIVIL SERVICE EMPLOYEE AND RETIRES FROM CIVIL SERVICE USING HIS MILITARY SERVICE IN COMPUTING HIS CIVIL SERVICE RETIREMENT ANNUITY, AN ANNUITY UNDER THE PROPOSED SURVIVOR BENEFIT PLAN SHALL BE PAYABLE ONLY IF THE MEMBER DOES NOT ELECT TO PARTICIPATE IN THE CIVIL SERVICE RETIREMENT-SURVIVORSHIP PLAN.

THE EXPRESS LANGUAGE OF 10 U.S.C. 1450(D) AS WELL AS THE EXPLANATION OF THAT SECTION IN SENATE REPORT NO. 92-1089 CLEARLY PRECLUDES PAYMENT OF A SURVIVOR BENEFIT PLAN ANNUITY WHERE THERE IS IN EFFECT A WAIVER OF RETIRED PAY FOR THE PURPOSE OF INCREASING CIVIL SERVICE RETIREMENT BENEFITS UNLESS AT THE TIME OF CIVILIAN RETIREMENT THE EMPLOYEE ELECTED NOT TO PROVIDE AN ANNUITY FOR HIS SPOUSE IN ACCORDANCE WITH 5 U.S.C. 8341(B). THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.