B-179018, MAY 10, 1974, 53 COMP GEN 847

B-179018, MAY 10, 1974, 53 COMP GEN 847

PAY - RETIRED - SURVIVOR BENEFIT PLAN - ELECTION STATUS - RECALLED TO ACTIVE DUTY IN THE CASE OF A SERVICE MEMBER WHO IS RETIRED AFTER THE PASSAGE OF THE SURVIVOR BENEFIT PLAN, 10 U.S.C. 1447-1455, IS IMMEDIATELY RECALLED TO ACTIVE DUTY AND THEN DIES WHILE SERVING ON THAT DUTY, ENTITLEMENT TO A SURVIVOR BENEFIT ANNUITY WOULD ACCRUE ONLY UNDER THE PROVISIONS OF 10 U.S.C. 1448(D). PAY - RETIRED - SURVIVOR BENEFIT PLAN - EFFECT OF VETERANS ADMINISTRATION BENEFITS WHERE A SURVIVING SPOUSE IS ELIGIBLE TO RECEIVE A SURVIVOR ANNUITY UNDER 10 U.S.C. 1448(D), SUCH LANGUAGE CONTAINED THEREIN WHICH RELATES TO THE ELIGIBILITY OF A SPOUSE TO RECEIVE DIC PAYMENTS FROM THE VETERANS ADMINISTRATION, WHEN CONSIDERED IN CONJUNCTION WITH THE OTHER PORTIONS OF SUBSECTION (D), MUST BE CONSTRUED ONLY AS PROHIBITING PAYMENT OF A SBP ANNUITY WHERE THE AMOUNT OF VA BENEFITS UNDER 38 U.S.C. 411(A) EXCEED THE MAXIMUM ANNUITY OTHERWISE PAYABLE UNDER 10 U.S.C. 1448(D). PAY - RETIRED - SURVIVOR BENEFIT PLAN - LIMITATIONS - SPOUSE WHERE ENTITLEMENT TO A SURVIVOR BENEFIT ANNUITY ACCRUES UNDER 10 U.S.C. 1448(D) AND THAT IS THE ONLY BASIS FOR COVERAGE UNDER THE PLAN, BY VIRTUE OF THE LIMITATIONS CONTAINED THEREIN, ONLY THE OTHERWISE ELIGIBLE SURVIVING SPOUSE WOULD BE ENTITLED TO AN ANNUITY AND SUCH ANNUITY WOULD TERMINATE UPON THAT SPOUSE'S DEATH OR LOSS OF ELIGIBILITY. PAY - RETIRED - SURVIVOR BENEFIT PLAN - ELECTION STATUS - RECALLED TO ACTIVE DUTY WHERE A SERVICE MEMBER ELECTS TO PROVIDE COVERAGE UNDER THE SURVIVOR BENEFIT PLAN FOR SPOUSE AND CHILDREN, IS RETIRED AND RECALLED TO ACTIVE DUTY AFTER A BREAK IN SERVICE AFTER CONTRIBUTING TO THE PLAN AND THEN DIES WHILE SERVING ON THAT DUTY, THE ELIGIBLE SPOUSE HAS A BASIC RIGHT TO THE COVERAGE ELECTED BY THE MEMBER UNDER 10 U.S.C. 1448(A) AND PAYMENT UNDER 10 U.S.C. 1450(A)(1) AND UPON THE DEATH OF THE SPOUSE THE SURVIVING DEPENDENT CHILDREN WOULD HAVE A BASIC CONTINUATION RIGHT TO PAYMENT UNDER 10 U.S.C. 1450(A)(2) DURING THE REMAINING PERIOD OF THEIR DEPENDENCY AS DEFINED IN 10 U.S.C. 1447(5). PAY - RETIRED - SURVIVOR BENEFIT PLAN - CHILDREN WHERE A MEMBER WHO AFTER RETIREMENT HAS CONTRIBUTED TO THE PLAN AND AFTER A BREAK IN SERVICE IS RECALLED TO ACTIVE DUTY AND DIES WHILE SERVING ON THAT DUTY, THE SURVIVING SPOUSE WHO IS ELIGIBLE TO RECEIVE THE ANNUITY ELECTED UNDER 10 U.S.C. 1448(A) WOULD HAVE ALTERNATE RIGHT TO RECEIVE THE ANNUITY AUTHORIZED UNDER 10 U.S.C. 1448(D), IF SUCH ANNUITY WOULD PROVIDE THE GREATER BENEFIT.

IN THE MATTER OF COVERAGE UNDER THE SURVIVOR BENEFIT PLAN FOR CERTAIN CLASSES OF SURVIVORS, MAY 10, 1974:

THIS ACTION IS IN RESPONSE TO LETTER DATED APRIL 12, 1974, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION CONCERNING THE COVERAGE FOR A WIFE AND CHILDREN, OR CHILDREN ONLY, UNDER THE PROVISIONS OF THE SURVIVOR BENEFIT PLAN, 10 U.S.C. 1447-1455, IN THE CIRCUMSTANCES DISCUSSED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 503, ENCLOSED WITH THE REQUEST.

THE FIRST QUESTION POSED IN THE COMMITTEE ACTION IS:

IN THE CASE OF A MEMBER WHO RETIRED AFTER PASSAGE OF THE SURVIVOR BENEFIT PLAN (SBP) AND WAS IMMEDIATELY RECALLED TO ACTIVE DUTY, AND WHO ON RETIREMENT ELECTED COVERAGE FOR WIFE AND CHILDREN OR CHILDREN ONLY, WOULD ENTITLEMENT TO THE ANNUITY ACCRUE UNDER 10 U.S.C. 1448(A) OR 10 U.S.C. 1448(D), SHOULD THE MEMBER DIE DURING SUCH SERVICES?

THE DISCUSSION IN THE COMMITTEE ACTION STATES THAT 10 U.S.C. 1448(A) AND PARAGRAPH 201A OF DEPARTMENT OF DEFENSE DIRECTIVE 1332.27, JANUARY 4, 1974, SPECIFY THAT A MEMBER WITH DEPENDENTS IS AUTOMATICALLY COVERED UNDER THE PLAN WHEN HE BECOMES ENTITLED TO RETIRED PAY, UNLESS HE ELECTS NOT TO PARTICIPATE BEFORE THE FIRST DAY FOR WHICH HE IS ELIGIBLE FOR THAT PAY. FURTHER, THAT UNDER THE CONCEPT IT WOULD APPEAR THAT THE CHILDREN OF A MEMBER WHO UPON RETIREMENT ELECTED COVERAGE FOR HIS WIFE AND CHILDREN OR CHILDREN ONLY, WOULD CONTINUE TO HAVE COVERAGE UPON HIS RECALL TO ACTIVE DUTY.

DOUBT IS EXPRESSED IN THE COMMITTEE ACTION, HOWEVER, WHEN CONSIDERATION IS GIVEN TO THE PROVISIONS OF 10 U.S.C. 1448(D). IN THIS REGARD, THE DISCUSSION STATES THAT MUCH CAN BE FOUND IN THE LEGISLATIVE HISTORY CONCERNING MEMBERS WHO ARE ELIGIBLE TO RETIRE AND WHO DIE WHILE SERVING ON ACTIVE DUTY, BUT, NOTHING IS CONTAINED THEREIN RELATIVE TO THE PURPOSE FOR INCLUDING IN THAT SUBSECTION MEMBERS WHO DIE ON ACTIVE DUTY AFTER THEY BECOME ENTITLED TO RETIRED PAY.

THE SURVIVOR BENEFIT PLAN, AS ENACTED BY PUBLIC LAW 92-425, WAS TO ESTABLISH A NEW SYSTEM OF SURVIVOR PROTECTION FOR DEPENDENT FAMILIES OF MEMBERS OF THE MILITARY SERVICE WHO ARE PRESENT AND FUTURE RETIREES AS WELL AS ACTIVE DUTY MEMBERS WHO ARE RETIREMENT ELIGIBLES. ADDITIONALLY, IT WAS TO PROVIDE A GUARANTEED MINIMUM ANNUAL INCOME TO WIDOWS OF MILITARY MEMBERS WHO RETIRED AND DIED PRIOR TO THE ENACTMENT OF PUBLIC LAW 92-425.

SUBSECTION 1448(D) OF TITLE 10, U.S. CODE, PROVIDES:

(D) IF A MEMBER OF AN ARMED FORCE DIES ON ACTIVE DUTY AFTER HE HAS BECOME ENTITLED TO RETIRED OR RETAINER PAY, OR AFTER HE HAS QUALIFIED FOR THAT PAY EXCEPT THAT HE HAS NOT APPLIED FOR OR BEEN GRANTED THAT PAY, AND HIS SPOUSE IS ELIGIBLE FOR DEPENDENCY AND INDEMNITY COMPENSATION UNDER SECTION 411(A) OF TITLE 38 IN AN AMOUNT THAT IS LESS THAN THE ANNUITY THE SPOUSE WOULD HAVE RECEIVED UNDER THIS SUBCHAPTER IF IT HAD APPLIED TO THE MEMBER WHEN HE DIED, THE SECRETARY CONCERNED SHALL PAY TO THE SPOUSE AN ANNUITY EQUAL TO THE DIFFERENCE BETWEEN THAT AMOUNT OF COMPENSATION AND 55 PERCENT OF THE RETIRED OR RETAINER PAY TO WHICH THE OTHERWISE ELIGIBLE SPOUSE DESCRIBED IN SECTION 1450(A)(1) OF THIS TITLE WOULD HAVE BEEN ENTITLED IF THE MEMBER HAD BEEN ENTITLED TO THAT PAY BASED UPON HIS YEARS OF ACTIVE SERVICE WHEN HE DIED.

IN DISCUSSING SUBSECTION 1448(D) ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES, REPRESENTATIVE PIKE STATED IN PART:

A SPECIAL SECTION OF THE BILL PROVIDES THAT IN THE CASE OF PERSONNEL STILL ON ACTIVE DUTY WHO ARE ELIGIBLE FOR RETIREMENT ON LENGTH OF SERVICE WHOSE POTENTIAL SURVIVOR ANNUITY WOULD BE MORE THAN THE DEPENDENCY AND INDEMNITY COMPENSATION PAID TO SURVIVORS OF ACTIVE-DUTY PERSONNEL OF LIKE GRADE AND YEARS OF SERVICE, A SUPPLEMENTAL ANNUITY PAYMENT SUFFICIENT TO MAKE UP THE DIFFERENCE WOULD BE PAID ***.

WE ADDED THIS SECTION BECAUSE WE DID NOT WANT A SITUATION TO OCCUR WHERE ONE WHO REMAINS ON ACTIVE DUTY EARNS LESS SURVIVOR BENEFITS THAN SOMEBODY WHO RETIRED AT THE SAME GRADE AND WITH THE SAME YEARS OF SERVICE.

SEE CONGRESSIONAL RECORD OF OCTOBER 21, 1971, PAGE H 9871.

THE LEGISLATIVE HISTORY OF PUBLIC LAW 92-425 HAS CLEARLY SHOWN A DELINEATION OF THE TYPES OF COVERAGE AVAILABLE UNDER THE PLAN AND THAT IT WAS THE EXPRESS INTENT OF CONGRESS TO INSURE THE FACT THAT SPOUSES OF ALL ACTIVE DUTY PERSONNEL SHALL AUTOMATICALLY HAVE COVERAGE IN THE EVENT OF THE MEMBER'S DEATH WHILE SERVING ON ACTIVE DUTY. SUBSECTION 1448(A), BY ITS OWN LIMITING LANGUAGE IS APPLICABLE ONLY AFTER A MEMBER BECOMES "ENTITLED TO RETIRED OR RETAINER PAY," AND A MEMBER WHO IMMEDIATELY IS RECALLED TO ACTIVE DUTY FOLLOWING HIS RETIREMENT, ALTHOUGH QUALIFIED FOR RETIRED PAY, HAS NO PRESENT ENTITLEMENT THERETO. ON THE OTHER HAND SUBSECTION 1448(D) IN PART PROVIDES COVERAGE WHERE A MEMBER OF AN ARMED FORCE DIES WHILE SERVING ON ACTIVE DUTY AFTER QUALIFYING FOR SUCH PAY. THUS, IN A SITUATION WHERE A MEMBER IS RETIRED AND IMMEDIATELY RECALLED TO ACTIVE DUTY WITHOUT A BREAK IN SERVICE AND THEREAFTER DIES WHILE SERVING ON THAT DUTY, THE MORE REASONABLE CONCLUSION IS THAT ENTITLEMENT TO A SURVIVOR BENEFIT ANNUITY WOULD ACCRUE ONLY UNDER THE PROVISIONS OF 10 U.S.C. 1448(D). QUESTION 1 IS ANSWERED ACCORDINGLY. CF. 53 COMP. GEN. 470 (1974).

THE SECOND QUESTION ASKED IS:

IF THE ANSWER TO QUESTION 1 IS 10 U.S.C. 1448(D), WOULD THE ANSWER BE THE SAME IF THE SPOUSE IS NOT ELIGIBLE FOR DEPENDENCY AND INDEMNITY COMPENSATION (DIC) UNDER SECTION 411(A) OF TITLE 38, U.S. CODE?

THE DISCUSSION IN THE COMMITTEE ACTION EXPRESSES THE VIEW THAT A STRICT INTERPRETATION OF 10 U.S.C. 1448(D) WOULD SEEM TO REQUIRE A DETERMINATION THAT A SPOUSE MUST BE ELIGIBLE FOR DIC BEFORE ENTITLEMENT TO A SURVIVOR ANNUITY CAN ACCRUE. HOWEVER, DOUBT IS EXPRESSED AS TO THE VALIDITY OF SUCH AN INTERPRETATION WHEN THE LEGISLATIVE HISTORY OF THAT SUBSECTION IS CONSIDERED.

THE PORTION OF SUBSECTION 1448(D) WHICH GIVES RISE TO THE QUESTION IS AS FOLLOWS:

*** AND HIS SPOUSE IS ELIGIBLE FOR DEPENDENCY AND INDEMNITY COMPENSATION UNDER SECTION 411(A) OF TITLE 38 IN AN AMOUNT THAT IS LESS THAN THE ANNUITY THE SPOUSE WOULD HAVE RECEIVED UNDER THIS SUBCHAPTER IF IT HAD APPLIED TO THE MEMBER WHEN HE DIED ***.

THE LEGISLATIVE HISTORY OF THE SURVIVOR BENEFIT PLAN, PARTICULARLY WITH REGARD TO SUBSECTION 1448(D), INDICATES CONGRESSIONAL AWARENESS THAT MOST IF NOT ALL SURVIVORS OF ACTIVE DUTY PERSONNEL RECEIVE SOME SURVIVOR BENEFIT PAYMENTS THROUGH THE DEPENDENCY AND INDEMNITY COMPENSATION PROGRAM OF THE VETERANS ADMINISTRATION. HOWEVER, IT WAS RECOGNIZED THAT SUCH VA PROGRAM IS WEIGHTED IN TERMS OF LOW-RANKING AND SHORT-TERM PERSONNEL AND THAT IN CASES OF SENIOR ENLISTED AND OFFICER GRADES OF LONGER YEARS OF SERVICE, THE LEVEL OF BENEFITS FALLS OFF SHARPLY IN TERMS OF THEIR VALUE AS AN INCOME REPLACEMENT.

IN SENATE REPORT NO. 92-1089, COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, DATED SEPTEMBER 6, 1972, ON PAGE 15, IT IS STATED THAT:

*** THE SPOUSE OF A SERVICE MEMBER, WHO IS ELIGIBLE TO RETIRE FOR LONGEVITY (AFTER 20 YEARS OF SERVICE) BUT DIES ON ACTIVE DUTY, WILL BE PAID 55 PERCENT OF THE MEMBER'S EARNED RETIRED PAY. THE PAYMENT WILL RECOGNIZE THAT DIC MAY BE PAYABLE BY THE VETERANS ADMINISTRATION (VA) BY OFFSETTING THE DIC PAYMENT FROM THE 55 PERCENT OF RETIRED PAY. ***

SIMILAR WORDING IS CONTAINED ON PAGE 51 OF THE SAME REPORT.

THE BASIC CONCEPT OF THE SURVIVOR BENEFIT PLAN WAS TO INSURE PROTECTION TO SURVIVORS OF MILITARY PERSONNEL UP TO 55 PERCENT OF THEIR OTHERWISE EARNED RETIRED PAY IF THEY SHOULD DIE WHILE SERVING ON ACTIVE DUTY. THEREFORE, WHEN THE BEFORE-QUOTED LANGUAGE OF SUBSECTION (D) IS CONSIDERED IN CONJUNCTION WITH OTHER PORTIONS OF THE SAME SUBSECTION, PARTICULARLY THAT PORTION WHICH MANDATES THAT THE SECRETARY CONCERNED "SHALL PAY TO THE SPOUSE AN ANNUITY EQUAL TO THE DIFFERENCE BETWEEN THAT AMOUNT OF COMPENSATION AND 55 PERCENT OF THE (MEMBER'S) RETIRED OR RETAINER PAY *** BASED UPON HIS YEARS OF ACTIVE SERVICE WHEN HE DIED" AND ON THE ASSUMPTION THAT THE SPOUSE IS NOT OTHERWISE INELIGIBLE FOR AN ANNUITY UNDER THE PLAN, IT IS OUR VIEW THAT SUCH LANGUAGE SHOULD BE CONSTRUED ONLY AS PROHIBITING PAYMENT OF A SURVIVOR BENEFIT ANNUITY TO A SPOUSE WHERE THE AMOUNT OF BENEFIT PAYABLE UNDER 38 U.S.C. 411(A) WOULD EXCEED THE MAXIMUM AMOUNT OF ANNUITY OTHERWISE PAYABLE UNDER SUBSECTION 1448(D). QUESTION 2 IS ANSWERED ACCORDINGLY.

THE THIRD QUESTION ASKED IS:

IF ENTITLEMENT TO THE ANNUITY ACCRUES UNDER 10 U.S.C. 1448(D), WOULD THE CHILDREN CONTINUE TO RECEIVE SEP COVERAGE?

THE DISCUSSION IN THE COMMITTEE ACTION STATES THAT ON THE FACE OF SUBSECTION 1448(D) AN ANNUITY IS PROVIDED ONLY TO THE ELIGIBLE SPOUSE. HOWEVER, THE OPINION IS EXPRESSED THEREIN THAT 10 U.S.C. 1450 REFERS TO ALL OF SECTION 1448 AND PROVIDES THAT AN ANNUITY SHALL BE PAID TO THE SURVIVING DEPENDENT CHILDREN IN EQUAL SHARES, IF THE ELIGIBLE WIDOW OR WIDOWER IS DEAD, DIES, OR OTHERWISE BECOMES INELIGIBLE." THE DISCUSSION ALSO POINTS OUT THAT WHILE THE LEGISLATIVE HISTORY SHOWS THAT IT WAS INTENDED THAT THE SURVIVING SPOUSE OF A MEMBER WHO DIES ON ACTIVE DUTY SHOULD NOT RECEIVE FEWER BENEFITS THAN THE SURVIVING SPOUSE OF A MEMBER IN RETIREMENT, NO MENTION IS MADE OF PROVIDING AN ANNUITY TO SURVIVING DEPENDENT CHILDREN WHERE SUCH SURVIVING SPOUSE DIES OR OTHERWISE BECOMES INELIGIBLE, NOR IS MENTION MADE OF PROVIDING AN ANNUITY TO SURVIVING DEPENDENT CHILDREN WHERE THE MEMBER DIES WITHOUT A SPOUSE WHILE SERVING ON ACTIVE DUTY. IN THIS REGARD, THE DISCUSSION INDICATES THAT IT WOULD APPEAR THAT IN ORDER TO BE CONSISTENT WITH THE INTENT OF CONGRESS IN ENACTING SUBSECTION 1448(D) THE PAYMENT OF AN ANNUITY TO THE SURVIVING DEPENDENT CHILDREN IN THE LATTER CASE WOULD BE CALLED FOR AND THAT IN THE CASE OF A MEMBER WHO, IN HIS ELECTION, HAD SPECIFICALLY PROVIDED COVERAGE FOR HIS CHILDREN, EFFECT SHOULD BE GIVEN TO THE MEMBER'S INTENTION.

IN OUR DECISION 53 COMP. GEN. 470 (1974) WITH REGARD TO SUBSECTION 1448(D), WE SAID:

*** IT WAS THE EXPRESS INTENTION OF CONGRESS TO INSURE THE FACT THAT THE SPOUSES OF ALL ACTIVE DUTY PERSONNEL SHALL AUTOMATICALLY BE PROVIDED WITH COVERAGE IN THE EVENT OF THE MEMBER'S DEATH WHILE SERVING ON ACTIVE DUTY, WITHOUT THE NECESSITY OF HAVING TO SPECIFICALLY ELECT THAT COVERAGE.

THUS, IT IS OUR VIEW THAT SINCE THE LEVEL OF SURVIVOR BENEFIT COVERAGE UNDER SUBSECTION 1448(D) IS SPECIFICALLY SET AT THE MAXIMUM LEVEL AVAILABLE UNDER THE LAW, AND SUCH PAYMENT IS AUTOMATIC, THE EXISTENCE OR NONEXISTENCE OF AN ELECTION IS NOT DETERMINATIVE OF THE RIGHT OF AN ELIGIBLE SURVIVOR TO RECEIVE AN ANNUITY UNDER THIS SUBSECTION.

IT IS TO BE OBSERVED THAT SPECIFIC REFERENCE IS MADE IN SUBSECTION 1448(D) TO COVERAGE FOR A SURVIVING SPOUSE OF A MEMBER WHO DIES WHILE SERVING ON ACTIVE DUTY, HOWEVER, NO MENTION IS MADE OF COVERAGE FOR A "CHILD" OR "CHILDREN" SIMILARLY SITUATED. IN THIS REGARD, PAGE 14 OF SENATE REPORT NO. 92-1089 CONTAINS A LIST OF THOSE WHO ARE AND ARE NOT TO BE COVERED UNDER THE PLAN. ITEM 2 OF THE LIST STATES:

WIDOWS OF RETIREMENT-ELIGIBLE MEMBERS WHO DIE ON ACTIVE DUTY AFTER ENACTMENT OF THE BILL ARE COVERED AUTOMATICALLY. *** DEPENDENT CHILDREN OF RETIREMENT-ELIGIBLE MEMBERS WHO DIE OR DIED ON ACTIVE DUTY ARE NOT COVERED.

IT IS THEREFORE OUR VIEW THAT IN THE FACTUAL SITUATION DESCRIBED IN QUESTION 1, WHERE THE ONLY BASIS FOR COVERAGE UNDER THE PLAN IS BY VIRTUE OF 10 U.S.C. 1448(D), ONLY THE ELIGIBLE SURVIVING SPOUSE WOULD BE ENTITLED TO AN ANNUITY. ACCORDINGLY, QUESTION 3 IS ANSWERED IN THE NEGATIVE.

THE FOURTH QUESTION PRESENTED IS:

WOULD THE ANSWERS BE THE SAME FOR A MEMBER WHO WAS RECALLED AFTER A BREAK IN SERVICE AFTER CONTRIBUTING TO THE PLAN?

THE COMMITTEE ACTION SUGGESTS THAT THE PROVISIONS OF 10 U.S.C. 1452(D), WHICH PROVIDE FOR WAIVER OF PAYMENT OF COSTS OF COVERAGE WHEN THE MEMBER IS RETURNED TO ACTIVE DUTY FOR A PERIOD OF MORE THAN 30 DAYS, MAY HAVE SOME BEARING ON THE MATTER.

SUBSECTION 1448(A) PROVIDES THAT THE PLAN APPLIES TO A PERSON WHO IS MARRIED OR HAS A DEPENDENT CHILD "WHEN HE BECOMES ENTITLED TO RETIRED OR RETAINER PAY." THUS, IN A SITUATION WHERE A MEMBER RETIRES AND IS IN AN INACTIVE STATUS HAVING PREVIOUSLY ELECTED TO PARTICIPATE IN THE PLAN AND BECOMES ENTITLED TO RETIRED OR RETAINER PAY, THE BASIC COVERAGE UNDER THE PLAN FOR THE ELIGIBLE SURVIVORS IS BY VIRTUE OF THE PROVISIONS OF 10 U.S.C. 1448(A), WITH PAYMENT TO BE MADE IN ACCORDANCE WITH 10 U.S.C. 1450, WHICH PROVIDES IN PERTINENT PART:

(A) *** A MONTHLY ANNUITY UNDER SECTION 1451 OF THIS TITLE SHALL BE PAID TO -

(1) THE ELIGIBLE WIDOW OR WIDOWER;

(2)THE SURVIVING DEPENDENT CHILDREN IN EQUAL SHARES, IF THE ELIGIBLE WIDOW OR WIDOWER IS DEAD, DIES, OR OTHERWISE BECOMES INELIGIBLE UNDER THIS SECTION:

THE ABOVE-QUOTED PROVISIONS CLEARLY ESTABLISH THE BASIC MINIMUM ANNUITY RIGHTS WHICH EXIST IN THE ELIGIBLE SURVIVING SPOUSE. FURTHER, THAT UPON THE SPOUSE'S DEATH OR LOSS OF ELIGIBILITY, AND ON THE ASSUMPTION THAT THE MEMBER ELECTED TO PROVIDE COVERAGE FOR HIS CHILDREN, THE THEN SURVIVING DEPENDENT CHILD OR CHILDREN WOULD BE ENTITLED TO SUCCEED TO THE ANNUITY ELECTED BY THE MEMBER. HOWEVER, SINCE THE SURVIVOR BENEFIT PLAN WAS ENACTED FOR THE PURPOSE OF PROVIDING A NEW AND MORE COMPREHENSIVE SYSTEM OF SURVIVOR PROTECTION TO DEPENDENT FAMILIES OF MEMBERS AND TO COMPLETELY REPLACE THE THEN CURRENT SURVIVOR ANNUITY PROGRAMS, THE ENTIRE SCHEME OF THE LAW MUST BE CONSIDERED AND CONSTRUED IN A MANNER THAT WOULD SUPPORT THAT PURPOSE, EXCEPT WHERE SPECIFIC CONGRESSIONAL CONSTRAINTS ARE IMPOSED.

THUS, IN A SITUATION WHERE A MEMBER WHO IS RETIRED AFTER HAVING ELECTED TO PARTICIPATE IN THE PLAN HAS BEEN IN RECEIPT OF RETIRED PAY AND IS SUBSEQUENTLY RECALLED TO ACTIVE DUTY, SHOULD HE DIE WHILE SERVING ON THAT DUTY, IT IS OUR VIEW THAT WHILE THE ELIGIBLE SURVIVING SPOUSE HAS A BASIC RIGHT TO COVERAGE BY VIRTUE OF 10 U.S.C. 1448(A), SINCE THE MEMBER DIED WHILE SERVING ON ACTIVE DUTY AFTER BECOMING ENTITLED TO THAT RETIRED PAY, ALTERNATIVE COVERAGE UNDER 10 U.S.C. 1448(D) WOULD BE AVAILABLE TO THAT SURVIVING SPOUSE DURING THE PERIOD OF SUCH ELIGIBILITY SHOULD THE ELECTED COVERAGE UNDER SUBSECTION (A) BE LESS THAN THAT STATUTORILY MANDATED UNDER SUBSECTION (D).

IF PAYMENT IS MADE UNDER SUBSECTION (D) AS OUTLINED ABOVE, AND THE MEMBER HAD PREVIOUSLY ELECTED TO PROVIDE COVERAGE FOR HIS SURVIVING DEPENDENT CHILD OR CHILDREN UNDER 10 U.S.C. 1448(A), SHOULD SUCH ELIGIBLE SPOUSE DIE OR OTHERWISE BECOME INELIGIBLE, THE SURVIVING DEPENDENT CHILD OR CHILDREN MAY BEGIN TO RECEIVE THE ANNUITY AS PRECRIBED IN 10 U.S.C. 1450(A)(2), AT THE RATE PREVIOUSLY ELECTED BY THE MEMBER, DURING THE REMAINING PERIOD OF THEIR DEPENDENCY AS DEFINED IN 10 U.S.C. 1447(5). SEE IN THIS CONNECTION DECISIONS OF DECEMBER 6, 1973, 53 COMP. GEN. 420, AND JANUARY 10, 1974, 53 COMP. GEN. 461.

YOUR FOURTH QUESTION IS ANSWERED ACCORDINGLY.