B-179115, MAY 1, 1974, 53 COMP GEN 818

B-179115: May 1, 1974

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MAY PROVIDE IMMEDIATE COVERAGE FOR HIS SPOUSE REGARDLESS OF 2- YEAR LIMITATION UNDER 10 U.S.C. 1447(3)(A) PROVIDED ELECTION IS MADE WITHIN THE TIME LIMITATION STATED IN SECTION 3(B) OF THE ACT. 1974: THIS ACTION IS IN RESPONSE TO A REQUEST FOR AN ADVANCE DECISION FROM CHIEF. WHICH WAS FORWARDED TO THIS OFFICE BY LETTER DATED JULY 3. IT IS STATED IN THE SUBMISSION THAT THE MEMBER RETIRED FROM THE UNITED STATES AIR FORCE ON SEPTEMBER 30. WHO WAS BORN ON DECEMBER 12. THAT ELECTION CERTIFICATE WAS RECEIVED AT THE AIR FORCE ACCOUNTING AND FINANCE CENTER ON NOVEMBER 10. DEDUCTIONS WERE MADE FROM COLONEL BURDICK'S RETIRED PAY BEGINNING DECEMBER 1. WHICH WE UNDERSTAND WERE IN THE AMOUNT OF $55.72 PER MONTH.

B-179115, MAY 1, 1974, 53 COMP GEN 818

PAY - RETIRED - ANNUITY ELECTION FOR DEPENDENTS - SURVIVOR BENEFIT PLAN TWO-YEAR LIMITATION - EFFECTIVE DATE RETIRED MEMBER WHO MARRIES SUBSEQUENT TO RETIREMENT BUT PRIOR TO EFFECTIVE DATE OF SURVIVOR BENEFIT PLAN UNDER PUBLIC LAW 92-425 (SEPTEMBER 21, 1972), MAY PROVIDE IMMEDIATE COVERAGE FOR HIS SPOUSE REGARDLESS OF 2- YEAR LIMITATION UNDER 10 U.S.C. 1447(3)(A) PROVIDED ELECTION IS MADE WITHIN THE TIME LIMITATION STATED IN SECTION 3(B) OF THE ACT, AS AMENDED BY SECTION 804 OF PUBLIC LAW 93-155.

IN THE MATTER OF THE SURVIVOR BENEFIT PLAN, MAY 1, 1974:

THIS ACTION IS IN RESPONSE TO A REQUEST FOR AN ADVANCE DECISION FROM CHIEF, ACCOUNTING AND FINANCE DIVISION, COMPTROLLER, AIR FORCE ACCOUNTING AND FINANCE CENTER, WHICH WAS FORWARDED TO THIS OFFICE BY LETTER DATED JULY 3, 1973, FROM HEADQUARTERS, UNITED STATES AIR FORCE, CONCERNING THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN FAVOR OF LIEUTENANT COLONEL WILLIAM A. BURDICK, USAF, RETIRED, SSAN XXX-XX-XXXX, REPRESENTING DEDUCTIONS MADE FROM HIS RETIRED PAY FOR COVERAGE FOR HIS WIFE UNDER THE PROVISIONS OF THE SURVIVOR BENEFIT PLAN, 10 U.S.C. 1447 1455, AS ADDED BY PUBLIC LAW 92-425, EFFECTIVE SEPTEMBER 21, 1972, 86 STAT. 706, IN THE CIRCUMSTANCES DESCRIBED. THE REQUEST HAS BEEN ASSIGNED AIR FORCE SUBMISSION NO. DO-AF-1196 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS STATED IN THE SUBMISSION THAT THE MEMBER RETIRED FROM THE UNITED STATES AIR FORCE ON SEPTEMBER 30, 1967, UNDER THE PROVISIONS OF 10 U.S.C. 8911. ON NOVEMBER 6, 1972, HE SUBMITTED A "SURVIVOR BENEFIT PLAN ELECTION CERTIFICATE - BY EXISTING RETIREE," BY WHICH HE ELECTED COVERAGE FOR HIS WIFE AND CHILD, IT APPEARING THEREIN THAT COLONEL BURDICK MARRIED HIS PRESENT WIFE ON AUGUST 19, 1971, AND HIS ELECTION CERTIFICATE DOES NOT SHOW ANY CHILDREN BY THIS MARRIAGE. HOWEVER, HIS CERTIFICATE DOES LIST AN UNMARRIED DEPENDENT DAUGHTER, WHO WAS BORN ON DECEMBER 12, 1958. THAT ELECTION CERTIFICATE WAS RECEIVED AT THE AIR FORCE ACCOUNTING AND FINANCE CENTER ON NOVEMBER 10, 1972, AND DEDUCTIONS WERE MADE FROM COLONEL BURDICK'S RETIRED PAY BEGINNING DECEMBER 1, 1972, WHICH WE UNDERSTAND WERE IN THE AMOUNT OF $55.72 PER MONTH, REPRESENTING A COST OF $53.50 FOR HIS SPOUSE, PLUS $2.22 FOR HIS CHILD.

IT IS INDICATED THAT COLONEL BURDICK CONTENDS THAT THE MONTHLY DEDUCTION REPRESENTING THE COST OF COVERAGE FOR HIS WIFE SHOULD NOT BE MADE DURING ANY PERIOD THAT HIS WIFE WAS NOT AN ELIGIBLE BENEFICIARY UNDER THE PLAN. RATHER, THAT THE DEDUCTION FOR THE COST OF HER COVERAGE SHOULD HAVE BEGUN EFFECTIVE THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SHE BECAME ELIGIBLE FOR A SURVIVOR BENEFIT PLAN ANNUITY.

THE SUBMISSION QUESTIONS THE PROPRIETY OF SUCH A PROCEDURE, INDICATING THAT THERE EXISTS A LACK OF AUTHORITY FOR DELAYING THE COST OF COVERAGE UNTIL THE BENEFICIARY BECOMES ELIGIBLE.

COLONEL BURDICK'S CONTENTION APPEARS TO BE BASED ON THE LANGUAGE CONTAINED IN 10 U.S.C. 1447(3)(A) WHICH LIMITS ELIGIBILITY OF A WIDOW TO RECEIVE AN ANNUITY UNDER THE PLAN TO A WIDOW WHO WAS MARRIED TO A MEMBER FOR AT LEAST 2 YEARS IMMEDIATELY BEFORE HIS DEATH AND THE FACT THAT SINCE HE DID NOT MARRY HIS PRESENT WIFE UNTIL AUGUST 19, 1971, A DATE AFTER HE HAD RETIRED AND BECAME ENTITLED TO RETIRED PAY AND HAD NO CHILDREN BY THAT MARRIAGE, HIS WIFE WOULD NOT QUALIFY AS AN ELIGIBLE BENEFICIARY UNDER THE PLAN UNTIL SHE WAS MARRIED TO HIM FOR 2 YEARS, OR UNTIL AUGUST 19, 1973.

BASICALLY, THE SURVIVOR BENEFIT PLAN, AS ENACTED BY PUBLIC LAW 92 425, WAS TO PROVIDE SURVIVOR PROTECTION TO DEPENDENT FAMILIES OF MEMBERS OF THE MILITARY SERVICE WHO WOULD BE RETIRING ON AND AFTER THE EFFECTIVE DATE OF THE PLAN (SEPTEMBER 21, 1972), AND WAS TO COMPLETELY REPLACE THE THEN CURRENT SURVIVOR ANNUITY PROGRAMS FOR SUCH PROSPECTIVE RETIREES, INCLUDING THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. COVERAGE UNDER THE PLAN, HOWEVER, MADE AVAILABLE TO MILITARY PERSONNEL WHO WERE RETIRED PRIOR TO THE EFFECTIVE DATE OF THE PLAN BY VIRTUE OF SUBSECTION 3(B) OF PUBLIC LAW 92-425, AS AMENDED BY SECTION 804 OF PUBLIC LAW 93-155 (10 U.S.C. 1455(B)), WHICH PROVIDED THAT A PERSON RECEIVING RETIRED PAY ON THE EFFECTIVE DATE OF THE ACT MAY ELECT TO PARTICIPATE IN THE PLAN, IF SUCH ELECTION IS MADE WITHIN 18 MONTHS OF ITS EFFECTIVE DATE, OR, BY MARCH 21, 1974.

IN H. REPORT NO. 92-481, COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, DATED SEPTEMBER 16, 1971, ON PAGES 11 AND 12, THE FOLLOWING STATEMENT WAS MADE CONCERNING PARTICIPATION BY THE THEN PRESENT RETIREES:

THE BILL (H.R. 10670) PROVIDES THAT ALL PRESENT RETIREES COULD JOIN THE PROGRAM REGARDLESS OF AGE. THOSE PRESENTLY ON THE RETIREMENT ROLLS WOULD BE GIVEN A YEAR FROM THE DATE OF ENACTMENT OF THE LEGISLATION IN WHICH TO ELECT TO JOIN THE NEW PLAN.

RETIREES WOULD BEGIN IMMEDIATE DEDUCTIONS FROM THEIR RETIRED PAY BUT WOULD NOT HAVE TO PAY BACK ANY ADDITIONAL AMOUNT BECAUSE OF AGE OR MEET ANY MINIMUM PERIOD OF PARTICIPATION.

ON PAGE 14 OF S. REPORT NO. 92-1089, COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, DATED SEPTEMBER 6, 1972, TO ACCOMPANY S. 3905, PORTIONS OF WHICH EVENTUALLY BECAME A PART OF PUBLIC LAW 92-425, IT IS STATED THAT, "SPOUSES AND DEPENDENT CHILDREN OF MEMBERS WHO ARE RETIRED PRIOR TO THE ENACTMENT OF THE BILL ARE COVERED IF THE MEMBER CHOOSES COVERAGE FOR THEM WITHIN ONE YEAR AFTER ENACTMENT OF THE BILL."

IN CONNECTION WITH THE ABOVE, SUBSECTION 3(E) OF PUBLIC LAW 92-425 (10 U.S.C. 1455(E)) PROVIDED IN PERTINENT PART:

(E) AN ELECTION MADE UNDER SUBSECTION (A) OR (B) OF THIS SECTION IS EFFECTIVE ON THE DATE IT IS RECEIVED BY THE SECRETARY CONCERNED ***.

BASED ON THE APPLICABLE LANGUAGE OF SECTION 3 OF THE ACT AND ITS LEGISLATIVE HISTORY, IT IS OUR VIEW THAT THE LIMITATION CONTAINED IN 10 U.S.C. 1447(3), RESTRICTING THE ELIGIBILITY OF A SURVIVING SPOUSE TO RECEIVE AN ANNUITY UNDER THE PLAN, DOES NOT APPLY TO SURVIVING SPOUSES OF SUBSECTION 3(B) PARTICIPANTS, IN CASES WHERE SUCH SPOUSE WAS MARRIED TO THE RETIRED MEMBER PRIOR TO THE EFFECTIVE DATE OF THE ACT. CF. 53 COMP. GEN. 470 (1974). THEREFORE, SINCE MRS. BURDICK WAS MARRIED TO THE MEMBER ON AUGUST 19, 1971, SHE BECAME AN IMMEDIATE ELIGIBLE BENEFICIARY UNDER THE PLAN ON THE DATE THAT THE MEMBER'S ELECTION WAS RECEIVED BY THE AIR FORCE.

ACCORDINGLY, SINCE IT WOULD APPEAR THAT DEDUCTIONS WERE PROPERLY MADE FROM THE MEMBER'S RETIRED PAY, HE WOULD NOT BE ENTITLED TO A REFUND OF THOSE AMOUNTS. THE VOUCHER ENCLOSED WITH THE SUBMISSION WILL BE RETAINED HERE.