B-178973, APR 9, 1974, 53 COMP GEN 758

B-178973: Apr 9, 1974

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WIDOWER'S BENEFIT IS NOT SUBJECT TO SAME REDUCTION AS WIDOW'S BENEFIT WHEN THERE IS ONE DEPENDENT CHILD SINCE WIDOWER RECEIVES NO SOCIAL SECURITY BENEFIT COMPARABLE TO "MOTHER'S BENEFIT" RECEIVED BY A WIDOW UNDER SOCIAL SECURITY LAWS. 1974: THIS ACTION IS IN RESPONSE TO LETTER DATED JUNE 20. FROM THE ACTING ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING AN ADVANCE DECISION CONCERNING WHETHER THE TERM "WIDOWER" IS SYNONYMOUS WITH "WIDOW" FOR PURPOSES OF REDUCING SURVIVOR BENEFIT ANNUITIES UNDER 10 U.S.C. 1451(A) IN THE CIRCUMSTANCES DISCUSSED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 476. THE QUESTION PRESENTED IN THE COMMITTEE ACTION IS AS FOLLOWS: IN THE APPLICATION OF SECTION 1451(A) U.S.C. 10.

B-178973, APR 9, 1974, 53 COMP GEN 758

PAY - RETIRED - ANNUITY ELECTION FOR DEPENDENTS - SURVIVOR BENEFIT PLAN WIDOWER FOR PURPOSES OF 10 U.S.C. 1451(A) WHICH PROVIDES FOR DEDUCTION FROM SURVIVOR ANNUITY UNDER SURVIVOR BENEFIT PLAN OF AMOUNT EQUAL TO SOCIAL SECURITY SURVIVOR BENEFIT COMPUTED ON BASIS OF MEMBER'S MILITARY SERVICE ONLY, WIDOWER'S BENEFIT IS NOT SUBJECT TO SAME REDUCTION AS WIDOW'S BENEFIT WHEN THERE IS ONE DEPENDENT CHILD SINCE WIDOWER RECEIVES NO SOCIAL SECURITY BENEFIT COMPARABLE TO "MOTHER'S BENEFIT" RECEIVED BY A WIDOW UNDER SOCIAL SECURITY LAWS.

IN THE MATTER OF DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 476, APRIL 9, 1974:

THIS ACTION IS IN RESPONSE TO LETTER DATED JUNE 20, 1973, FROM THE ACTING ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING AN ADVANCE DECISION CONCERNING WHETHER THE TERM "WIDOWER" IS SYNONYMOUS WITH "WIDOW" FOR PURPOSES OF REDUCING SURVIVOR BENEFIT ANNUITIES UNDER 10 U.S.C. 1451(A) IN THE CIRCUMSTANCES DISCUSSED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 476.

THE QUESTION PRESENTED IN THE COMMITTEE ACTION IS AS FOLLOWS:

IN THE APPLICATION OF SECTION 1451(A) U.S.C. 10, AS ADDED BY PUB. L. 92- 425, IS THE TERM "WIDOWER" SYNONYMOUS WITH "WIDOW" FOR PURPOSES OF REDUCING SURVIVOR BENEFIT ANNUITIES BY THAT PORTION OF SOCIAL SECURITY BENEFIT ATTRIBUTABLE TO MILITARY SERVICE?

IN THE DISCUSSION SET FORTH IN THE COMMITTEE ACTION IT IS INDICATED THAT THERE APPEARS TO BE SOME DOUBT AS TO WHETHER AN ANNUITY TO A WIDOWER AT ANY AGE WITH ONLY ONE DEPENDENT CHILD IS SUBJECT TO REDUCTION UNDER THE PROVISIONS OF 10 U.S.C. 1451(A).

IT IS STATED IN THE COMMITTEE ACTION THAT THE FIRST SENTENCE OF 10 U.S.C. 1451(A) PROVIDES THAT IF A WIDOW OR WIDOWER IS UNDER AGE 62 OR THERE IS A DEPENDENT CHILD, THE ANNUITY PAYABLE TO THE WIDOW, WIDOWER OR DEPENDENT CHILD UNDER SECTION 1450 SHALL BE EQUAL TO 55 PERCENT OF THE BASE AMOUNT. IN COMMENTING ON THE SECOND SENTENCE OF THE SECTION IT IS POINTED OUT THAT REFERENCE IS MADE ONLY TO A WIDOW WITH ONE DEPENDENT CHILD BEING SUBJECT TO A REDUCTION OF THE ANNUITY EQUAL TO THE "MOTHER'S BENEFIT" TO WHICH A WIDOW WOULD BE ENTITLED UNDER THE SOCIAL SECURITY ACT. THE THIRD SENTENCE OF 10 U.S.C. 1451(A) PROVIDES THAT WHEN A WIDOW OR WIDOWER REACHES AGE 62, OR THERE IS NO DEPENDENT CHILD, WHICHEVER OCCURS LATER, THE MONTHLY ANNUITY SHALL BE REDUCED BY AN AMOUNT EQUAL TO THE SOCIAL SECURITY SURVIVOR BENEFIT IF ANY TO WHICH THE WIDOW OR WIDOWER WOULD BE ENTITLED.

REFERENCE IS MADE IN THE COMMITTEE ACTION TO PAGE 31 OF SENATE REPORT NO. 92-1089, SEPTEMBER 6, 1972, WHEREIN LANGUAGE IS QUOTED WHICH APPEARS TO INDICATE THAT THE SENATE ARMED SERVICES COMMITTEE CONSIDERED REDUCTIONS WHERE THERE IS A DEPENDENT CHILD ONLY IN THE CASE OF WIDOW. IT IS ALSO POINTED OUT IN THE COMMITTEE ACTION THAT THE SOCIAL SECURITY ADMINISTRATION HAS ADVISED THAT A WIDOW, UNDER LAWS APPLICABLE TO THE SOCIAL SECURITY ADMINISTRATION, IS PRESUMED TO HAVE BEEN SUPPORTED BY THE HUSBAND AND MAY RECEIVE A "MOTHER'S BENEFIT," BUT THAT SECTION 402 OF TITLE 42, U.S. CODE, DOES NOT PROVIDE A SIMILAR BENEFIT TO A WIDOWER WITH A DEPENDENT CHILD.

THE COMMITTEE ACTION ALSO INDICATES THAT THERE IS NOTHING IN THE LAW OR LEGISLATIVE HISTORY WHICH INDICATES THAT THE TERM "WIDOWER" IS TO BE CONSIDERED AS SYNONYMOUS WITH "WIDOW" IN THE APPLICATION OF 10 U.S.C. 1451(A).

THE SURVIVOR BENEFIT PLAN ESTABLISHED BY PUBLIC LAW 92-425, 10 U.S.C. 1447, WAS DESIGNED TO BUILD ON THE INCOME MAINTENANCE FOUNDATION OF THE SOCIAL SECURITY SYSTEM IN ORDER TO PROVIDE SURVIVOR COVERAGE TO MILITARY WIDOWS AND DEPENDENT CHILDREN IN A STATED AMOUNT FROM RETIREMENT INCOME DERIVED BY A MEMBER FROM HIS MILITARY SERVICE. SINCE THE GOVERNMENT CONTRIBUTES SUBSTANTIAL AMOUNTS TO THE SOCIAL SECURITY SYSTEM ON BEHALF OF MEMBERS OF THE UNIFORMED SERVICES IT WAS DETERMINED THAT THERE SHOULD BE AN OFFSET AGAINST THE SURVIVOR BENEFIT PLAN ANNUITIES WHEN A SURVIVOR BECOMES ENTITLED TO SOCIAL SECURITY SURVIVORSHIP BENEFITS. SEE PAGE 29, SENATE REPORT NO. 92-1089, SEPTEMBER 6, 1972. THUS, WHEN SURVIVORS WHO ARE RECEIVING ANNUITIES UNDER THIS PLAN RECEIVE SOCIAL SECURITY SURVIVOR BENEFITS OR BECOME ENTITLED TO RECEIVE SUCH BENEFITS A REDUCTION OF THE ANNUITY UNDER THE PLAN IS REQUIRED AND IS CALCULATED ON THE BASIS OF THE SOCIAL SECURITY SURVIVORSHIP BENEFIT WHICH WOULD BE ATTRIBUTABLE SOLELY TO A RETIRED MEMBER'S YEARS OF MILITARY SERVICE. IN THIS REGARD, IT IS TO BE NOTED THAT THE ACTUAL SOCIAL SECURITY BENEFIT TO WHICH A SURVIVOR IS ENTITLED IS NOT AFFECTED BY THIS COMPUTATION.

THUS, IT WOULD LOGICALLY FOLLOW THAT THERE WOULD NOT BE A SETOFF UNDER THE SURVIVOR BENEFIT PLAN UNLESS THERE WAS A SURVIVOR ENTITLEMENT UNDER THE SOCIAL SECURITY ACT.

WHILE THE ANNUITY PAYABLE TO EITHER WIDOW OR WIDOWER WHO REACHES AGE 62 IS REDUCED BY WHATEVER SOCIAL SECURITY BENEFIT HE OR SHE IS ENTITLED TO RECEIVE, WE UNDERSTAND WHEN THERE IS A DEPENDENT CHILD, THE WIDOW IS ENTITLED TO A "MOTHER'S BENEFIT" UNDER THE SOCIAL SECURITY ACT BUT NO BENEFIT COMPARABLE TO THE "MOTHER'S BENEFIT" IS PAYABLE TO A WIDOWER. THEREFORE, IT SEEMS CLEAR THAT IN ENACTING SECTION 1451(A) OF TITLE 10, U.S. CODE, THE CONGRESS WAS AWARE THAT SUCH BENEFIT DID NOT EXIST AND FOR THAT REASON CHOSE TO REFER ONLY TO A "WIDOW" WITH REGARD TO THAT PORTION OF THE OFFSET PROVISION RELATING TO A WIDOW WITH ONE DEPENDENT CHILD.

ACCORDINGLY, THE QUESTION IS ANSWERED IN THE NEGATIVE.