B-180551, MAR 7, 1975, 54 COMP GEN 709

B-180551: Mar 7, 1975

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PAY - RETIRED - SURVIVOR BENEFIT PLAN - SPOUSE - REMARRIAGE AFTER AGE 60 WHEN WIDOW WHO IS RECEIVING SUPPLEMENTAL SURVIVOR BENEFIT PLAN (SBP) ANNUITY PAYMENT UNDER 10 U.S.C. 1448(D) AND THEN REMARRIES AFTER AGE 60. ANNUITY UNDER SBP MAY STILL BE PAID SINCE RESTRICTIONS IN 10 U.S.C. 1448(D) APPLYING TO ELIGIBILITY FOR DIC HAVE BEEN CONSTRUED ONLY AS PROHIBITING PAYMENT OF AN SBP ANNUITY TO THE EXTENT THAT THE AMOUNT OF THE SBP PLUS THE DIC PAYABLE WOULD EXCEED THE MAXIMUM ANNUITY PAYABLE UNDER SBP. SURVIVOR BENEFIT PLAN (SBP) ANNUITY PAYABLE AS A RESULT OF COVERAGE UNDER 10 U.S.C. 1448(D) SHOULD BE MADE IN THE SAME AMOUNT AS THE WIDOW WAS RECEIVING AT THE TIME LOSS OF DIC PAYMENTS OCCURRED.

B-180551, MAR 7, 1975, 54 COMP GEN 709

PAY - RETIRED - SURVIVOR BENEFIT PLAN - SPOUSE - REMARRIAGE AFTER AGE 60 WHEN WIDOW WHO IS RECEIVING SUPPLEMENTAL SURVIVOR BENEFIT PLAN (SBP) ANNUITY PAYMENT UNDER 10 U.S.C. 1448(D) AND THEN REMARRIES AFTER AGE 60, THEREBY LOSING ELIGIBILITY FOR DEPENDENCY AND INDEMNITY COMPENSATION (DIC) PAID UNDER 38 U.S.C. 411, ANNUITY UNDER SBP MAY STILL BE PAID SINCE RESTRICTIONS IN 10 U.S.C. 1448(D) APPLYING TO ELIGIBILITY FOR DIC HAVE BEEN CONSTRUED ONLY AS PROHIBITING PAYMENT OF AN SBP ANNUITY TO THE EXTENT THAT THE AMOUNT OF THE SBP PLUS THE DIC PAYABLE WOULD EXCEED THE MAXIMUM ANNUITY PAYABLE UNDER SBP. PAY - RETIRED - SURVIVOR BENEFIT PLAN - DEPENDENCY AND INDEMNITY COMPENSATION - IN CONJUNCTION WITH SBP - EFFECT OF WIDOW'S REMARRIAGE WHERE WIDOW LOSSES ELIGIBILITY FOR DEPENDENCY AND INDEMNITY COMPENSATION (DIC) PAID UNDER 38 U.S.C. 411 BY REASON OF REMARRIAGE AFTER AGE 60, SURVIVOR BENEFIT PLAN (SBP) ANNUITY PAYABLE AS A RESULT OF COVERAGE UNDER 10 U.S.C. 1448(D) SHOULD BE MADE IN THE SAME AMOUNT AS THE WIDOW WAS RECEIVING AT THE TIME LOSS OF DIC PAYMENTS OCCURRED, SINCE THE LEGISLATIVE HISTORY OF SBP INDICATES THAT WIDOWS OF MEMBERS DYING ON ACTIVE DUTY ARE TO RECEIVE NO LESS THAN WIDOWS OF OTHER PARTICIPANTS IN THE SBP AND NO INDICATION IS GIVEN THAT THEY ARE TO RECEIVE ANY GREATER BENEFIT THAN OTHER WIDOWS WITH EXCEPTION OF COST FREE COVERAGE. PAY - RETIRED - SURVIVOR BENEFIT PLAN - DEPENDENCY AND INDEMNITY COMPENSATION - IN LIEU OF SBP - EFFECT OF WIDOW'S REMARRIAGE WHERE NO SURVIVOR BENEFIT PLAN (SBP) ANNUITY IS PAYABLE UNDER 10 U.S.C. 1448(D) BECAUSE DEPENDENCY AND INDEMNITY COMPENSATION (DIC) IS GREATER, WIDOW'S ENTITLEMENT TERMINATES PERMANENTLY, SINCE A WIDOW COVERED UNDER 10 U.S.C. 1448(A) IN THE SAME CIRCUMSTANES IS ENTITLED TO REFUND OF DEDUCTIONS FROM MEMBER'S RETIRED PAY AND CONGRESS WHILE PROVIDING THAT WIDOWS OF MEMBERS ELIGIBLE TO RETIRE WHO DIE WHILE ON ACTIVE DUTY SHOULD NOT RECEIVE A SURVIVOR ANNUITY LESS THAN THAT OF WIDOWS OF MEMBERS WHO DID RETIRE, IT DOES NOT APPEAR THAT THE BENEFIT OF ONLY A TEMPORARY TERMINATION UNDER THESE CIRCUMSTANCES WAS INTENDED. PAY - RETIRED - SURVIVOR BENEFIT PLAN - CHILDREN - NO ELIGIBLE SPOUSE WHERE THERE IS NO ELIGIBLE SPOUSE, A DEPENDENT CHILD OR CHILDREN ARE NOT ENTITLED TO AN ANNUITY UNDER 10 U.S.C. 1448(D) SINCE NO MENTION IS MADE TO COVERAGE FOR A CHILD OR CHILDREN UNDER THAT PROVISION AND THE LEGISLATIVE HISTORY OF THE SBP INDICATES SUCH COVERAGE WAS NOT INTENDED. PAY - RETIRED - SURVIVOR BENEFIT PLAN - CHILDREN - STATUS AFTER DEATH OR REMARRIAGE OF ELIGIBLE SPOUSE WHEN AN ELIGIBLE WIDOW WITH DEPENDENT CHILDREN IS RECEIVING AN ANNUITY UNDER 10 U.S.C. 1448(A) WHICH IS REDUCED UNDER 10 U.S.C. 1450(C) BECAUSE OF DIC ENTITLEMENT AND THE WIDOW LOSES ELIGIBILITY BECAUSE OF DEATH OR REMARRIAGE, THE DEPENDENT CHILD OR CHILDREN ARE NOT ENTITLED TO AN ANNUITY UNLESS DEPENDENT CHILD COVERAGE WAS ELECTED BY THE MEMBER AND THE ADDITIONAL COSTS FOR SUCH COVERAGE WERE ASSESSED.

IN THE MATTER OF THE SURVIVOR BENEFIT PLAN, MARCH 7, 1975:

THIS ACTION IS IN RESPONSE TO A LETTER FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION ON SEVERAL QUESTIONS CONCERNING THE APPLICATION OF 10 U.S.C. 1448 (A) AND (D) OF THE SURVIVOR BENEFIT PLAN (SBP), 10 U.S.C. 1447-1455 (SUPP. II, 1972), TO WIDOWS AND DEPENDENT CHILDREN OF MEMBERS ENROLLED IN THE PLAN AND THOSE MEMBERS ELIGIBLE FOR RETIREMENT WHO DIE ON ACTIVE DUTY. THE QUESTIONS AND A DISCUSSION THEREOF ARE CONTAINED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 500, ENCLOSED WITH THE LETTER.

THE QUESTIONS AND DISCUSSION WILL BE PRESENTED AND ANSWERED SEPARATELY FOR CONVENIENCE. QUESTION 1 IS AS FOLLOWS:

1. IF THE WIDOW IS RECEIVING THE SUPPLEMENTAL SBP ANNUITY PAYMENT UNDER 10 U.S.C. 1448(D) AND THEN REMARRIES AFTER AGE 60, THEREBY LOSING HER ELIGIBILITY FOR DIC BECAUSE OF THE REMARRIAGE, DOES HER ELIGIBILITY FOR THE SBP ANNUITY TERMINATE SIMULTANEOUSLY WITH THE TERMINATION OF DIC? THE DISCUSSION CONTAINED IN THE COMMITTEE ACTION, IT IS POINTED OUT THAT 10 U.S.C. 1450(B) AND SECTION 301B OF THE DEPARTMENT OF DEFENSE REGULATIONS FOR THE SBP PROVIDE THAT ANNUITY PAYMENTS CONTINUE IF REMARRIAGE OCCURS AFTER AGE 60. HOWEVER, THESE PROVISIONS ALSO STATE THAT AN ANNUITY TERMINATES ON THE FIRST DAY OF THE MONTH IN WHICH ELIGIBILITY FOR AN SBP ANNUITY IS LOST. IT IS INDICATED IN THE DISCUSSION THAT IF ELIGIBILITY FOR AN ANNUITY UNDER 10 U.S.C. 1448(D) IS CONTINGENT ON THE WIDOW'S ELIGIBILITY FOR DEPENDENCY AND INDMENITY COMPENSATION (DIC), UNDER 38 U.S.C. 411, IT WOULD APPEAR THAT THE LEGAL ENTITLEMENT TO SBP TERMINATES ON THE FIRST DAY OF THE MONTH IN WHICH ELIGIBILITY IN LOST, RATHER THAN SIMULTANEOUSLY WITH THE TERMINATION OF DIC. THERE IS ALSO NOTED IN THE COMMITTEE ACTION THAT 10 U.S.C. 1450(B) CAN BE CONSTRUED THAT THE WIDOW'S ELIGIBILITY FOR AN ANNUITY DOES NOT TERMINATE UPON REMARRIAGE, IF THE REMARRIAGE OCCURS AFTER AGE 60. SUBSECTION 1448(D) OF TITLE 10, U.S. CODE, PROVIDES AS FOLLOWS: (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 OUR DECISION, 53 COMP. GEN. 847 (1974), WE STATED THAT IT WAS OUR VIEW THAT THE LANGUAGE OF THE PORTION OF SUBSECTION 1448(D) WHICH REFERS TO ELIGIBILITY FOR COMPENSATION UNDER SECTION 411(A) MUST BE CONSTRUED AS PROHIBITING PAYMENT OF A SURVIVOR BENEFIT ANNUITY TO A SPOUSE ONLY WHERE THE AMOUNT OF THE BENEFIT PAYABLE UNDER 38 U.S.C. 411(A) WOULD EXCEED THE MAXIMUM ANNUITY OTHERWISE PAYABLE UNDER SUBSECTION 1448(D). FURTHERMORE, AS POINTED OUT IN THE COMMITTEE ACTION, 10 U.S.C. 1450(B) PROVIDES IN EFFECT THAT ENTITLEMENT TO AN ANNUITY WOULD BE TERMINATED ON REMARRIAGE OF WIDOW RECEIVING SUCH AS ANNUITY, ONLY IF THE REMARRIAGE OCCURRED BEFORE THE WIDOW REACHED 60 YEARS OF AGE. THUS, IT IS OUR VIEW THAT THE ANNUITY PAYABLE UNDER THE ABOVE-OUTLINED CIRCUMSTANCES WOULD NOT TERMINATE WHEN THE WIDOW REMARRIES AFTER REACHING AGE 60. QUESTION 1 IS ANSWERED IN THE NEGATIVE. QESTION 2 IS AS FOLLOWS: 2. IF QUESTION 1 IS ANSWERED IN THE NEGATIVE, WHAT IS THE AMOUNT OF SBP ANNUITY PAYABLE? IN S. REPORT NO. 92- 1089, COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, SEPTEMBER 6, 1972, AT PAGE 15, THE FOLLOWING IS SET OUT IN CONNECTION WITH WHAT WAS LATER ENACTED AS SUBSECTION 1448(D). *** 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. IN VIEW OF THE ABOVE, IT APPEARS CLEAR THAT A GUARANTEED AMOUNT OF 55 PERCENT OF THE RETIRED PAY A MEMBER WOULD HAVE BEEN ENTITLED TO RECEIVE, WAS INTENDED TO BE PAID TO THE SURVIVING SPOUSE UNDER 10 U.S.C. 1448(D), ALTHOUGH THE AMOUNT COULD BE COMPOSED OF BOTH ANNUITY AND DIC PAYMENTS. HOWEVER, WE MUST ADD THAT THE LEGISLATIVE HISTORY OF SUBSECTION 1448(D) OF TITLE 10, UNITED STATES CODE, INDICATES THAT THE CONGRESS INTENDED THAT WIDOWS OF MEMBERS WHO ARE RETIREMENT ELIGIBLE BUT DIE ON ACTIVE DUTY BE GIVEN NOT LESS THAN THE WIDOWS OF THOSE MEMBERS WHO DIE IN RETIREMENT (SEE 53 COMP. GEN. 470 (1974)), BUT THERE IS NO INDICATION THAT THERE WAS ANY INTENT ON THE PART OF THE CONGRESS TO GRANT THESE WIDOWS A GREATER LEVEL OF BENEFITS, OTHER THAN COST FREE COVERAGE, THAN THAT AUTHORIZED TO WIDOWS OF MEMBERS WHO PARTICIPATED IN THE SBP UNDER 10 U.S.C. 1448(A). UNDER THE PROVISIONS OF 10 U.S.C. 1450(C), A WIDOW OR WIDOWER WHO IS ENTITLED TO DIC COMPENSATION MAY BE PAID AN ANNUITY UNDER THE SBP, BUT ONLY IN AN AMOUNT THAT THE ANNUITY OTHERWISE PAYABLE WOULD EXCEED THE DIC PAYMENTS. SUBSECTION 1450(E) OF THE SAME TITLE PROVIDES IN THE SECOND AND THIRD SENTENCES THEREOF THAT IF BECAUSE OF SUBSECTION (C) OF SECTION 1450, THE ANNUITY PAYABLE IS LESS THAN THE AMOUNT OF ANNUITY ESTABLISHED UNDER THE PLAN, THE ANNUITY PAYABLE WILL BE RECALCULATED AND THE AMOUNT OF DEDUCTIONS FROM THE MEMBER'S RETIRED PAY NEEDED TO PROVIDE THAT RECALCULATED ANNUITY WILL BE DETERMINED AND THE DIFFERENCE BETWEEN THAT AMOUNT AND THAT ACTUALLY PAID BY THE MEMBER FOR COVERAGE WILL BE REFUNDED TO THE WIDOW. THUS, IF A MEMBER PROVIDED COVERAGE FOR HIS SPOUSE UNDER THE PROVISIONS OF 10 U.S.C. 1448(A) AND BECAUSE OF DIC PAYMENTS SHE RECEIVED AN SBP ANNUITY IN AN AMOUNT LESS THAN THAT ELECTED AND PAID FOR BY THE MEMBER, SUCH WIDOW WOULD RECEIVE A REFUND OF PART OF THE MEMBER'S CONTRIBUTION TO THE PLAN. IF THE WIDOW THEN LOST ELIGIBILITY FOR DIC BY REASON OF REMARRIAGE AFTER AGE 60, SHE WOULD ONLY BE ENTITLED TO AN SBP ANNUITY ON THE BASIS OF THE COVERAGE PAID FOR AND NOT REFUNDED. IT IS OUR VIEW THAT A SIMILAR INTERPRETATION MUST BE APPLIED IN CASES INVOLVING WIDOWS ENTITLED TO AN SBP ANNUITY UNDER THE PROVISIONS OF 10 U.S.C. 1448(D), EVEN THOUGH NO DEDUCTIONS HAD BEEN WITHHELD OR NO PREMIUMS WERE PAID FOR THE COVERAGE. THUS, IN THE CIRCUMSTANCES DESCRIBED IN QUESTION 1, THE WIDOW WOULD CONTINUE TO RECEIVE AN ANNUITY UNDER THE SBP IN THE SAME AMOUNT AS SHE WAS RECEIVING PRIOR TO THE LOSS OF ELIGIBILITY FOR DIC. QUESTION 2 IS ANSWERED ACCORDINGLY. QUESTION 3 IS AS FOLLOWS: 3. IF NO SBP ANNUITY IS PAYABLE UNDER 10 U.S.C. 1448(D) BECAUSE DIC IS GREATER, IS THE WIDOW'S ENTITLEMENT TO AN SBP ANNUITY TERMINATED PERMANENTLY AS IN THE CASE OF RETIREE'S WIDOW? THE DISCUSSION IN THE COMMITTEE ACTION POINTS OUT THAT UNDER THE DEPARTMENT OF DEFENSE REGULATIONS, NO ENTITLEMENT EXISTS UNDER THE PLAN, IF THE WIDOW OF A RETIREE IS ELIGIBLE FOR DIC IN A GREATER AMOUNT THAN WOULD HAVE BEEN PAID UNDER THE PLAN. IT IS STATED THAT THE REGULATIONS ALSO PROVIDE THAT THE ENTITLEMENT TO THE ANNUITY IS TERMINATED PERMANENTLY UNDER SUCH CIRCUMSTANCES. IT IS INDICATED THAT THERE APPEARS TO BE NO STATUTORY PROVISION DIRECTLY ADDRESSING THIS ISSUE, NOTING, HOWEVER, THAT THE FIRST SENTENCE OF 10 U.S.C. 1450(E) PROVIDES THAT: IF NO ANNUITY UNDER THIS SECTION IS PAYABLE BECAUSE OF SUBSECTION (C), ANY AMOUNTS DEDUCTED FROM THE RETIRED OR RETAINER PAY OF THE DECEASED UNDER SECTION 1452 OF THIS TITLE SHALL BE REFUNDED TO THE WIDOW OR WIDOWER. *** IT IS FURTHER POINTED OUT IN THE DISCUSSION IN THE COMMITTEE ACTION THAT THE LEGISLATIVE HISTORY OF THE ABOVE-QUOTED PROVISION INDICATES THAT CONGRESS INTENDED THAT ALL DEDUCTIONS FROM THE MEMBER'S RETIRED PAY BE REFUNDED WHEN A POTENTIAL BENEFICIARY UNDER SBP IS ENTITLED TO RECEIVE DIC IN AN AMOUNT EQUAL TO OR GREATER THAN THE ANNUITY PAYABLE UNDER THE SBP AND THAT THE ELIGIBILITY OF A WIDOW WHOSE HUSBAND CONTRIBUTED TO THE PLAN, WOULD BE PERMANENTLY TERMINATED SINCE PROVISION IS MADE FOR REFUND OF THE AMOUNTS DEDUCTED FROM THE RETIRED OR RETAINER PAY. THE DISCUSSION GOES ON TO SAY THAT IT WOULD SEEM THAT THE ELIGIBILITY OF A WIDOW TO RECEIVE AN ANNUITY UNDER 10 U.S.C. 1448(D) WHOSE HUSBAND DIED ON ACTIVE DUTY AND THEREFORE NEVER CONTRIBUTED TO THE PLAN, WOULD ALSO TERMINATE PERMANENTLY WHEN DIC PAYMENTS EQUAL TO OR EXCEEDING THE ANNUITY WHICH WOULD HAVE BEEN PAID UNDER THE SBP. SUBSECTION 1450(C) OF TITLE 10, U.S. CODE, PROVIDES AS FOLLOWS: (C) IF, UPON THE DEATH OF A PERSON TO WHOM SECTION 1448 OF THIS TITLE APPLIES, THE WIDOW OR WIDOWER OF THAT PERSON IS ALSO ENTITLED TO COMPENSATION UNDER SECTION 411(A) OF TITLE 38, THE WIDOW OR WIDOWER MAY BE PAID AN ANNUITY UNDER THIS SECTION, BUT ONLY IN THE AMOUNT THAT THE ANNUITY OTHERWISE PAYABLE UNDER THIS SECTION WOULD EXCEED THAT COMPENSATION. THUS, IF DIC COMPENSATION EXCEEDS THE ANNUITY NO ANNUITY PAYMENT MAY BE MADE UNDER THE SBP. AS PREVIOUSLY INDICATED, THE LEGISLATIVE HISTORY OF 10 U.S.C. 1448(D) INDICATES THAT THE CONGRESS INTENDED THAT THE WIDOW OR WIDOWER OF A MEMBER WHO DIES ON ACTIVE DUTY AND WHO IS ELIGIBLE FOR RETIREMENT WILL RECEIVE THE SAME ANNUITY ON THE SAME BASIS AS THE SPOUSE OF A MEMBER WHO HAD ALREADY RETIRED AND WAS PARTICIPATING IN THE PLAN. THEREFORE, SINCE SUBSECTION 1450(E) OF 10 U.S.C. PROVIDES THAT WHEN THE DIC COMPENSATION EXCEEDS THE ANNUITY AND NO ANNUITY IS PAYABLE, THE AMOUNTS DEDUCTED FROM A MEMBER'S RETIRED PAY IN ORDER TO PROVIDE THE COVERAGE UNDER THE PLAN WILL BE REFUNDED TO THE WIDOW OR WIDOWER, IT IS OUR VIEW THAT CONGRESS DID NOT INTEND TO PROVIDE ANY ADDITIONAL BENEFITS, OTHER THAN COST FREE COVERAGE, TO THE SPOUSES OF MEMBERS ELIGIBLE TO RETIRE BUT WHO DIE ON ACTIVE DUTY. ACCORDINGLY, QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE. QUESTION 4 IS AS FOLLOWS: 4. IF THERE IS NO ELIGIBLE SPOUSE, IS THE DEPENDENT CHILD OR CHILDREN, AS DEFINED IN 10 U.S.C. 1447(5), ELIGIBLE TO RECEIVE AN ANNUITY UNDER 10 U.S.C. 1448(D)? IN THE DISCUSSION CONTAINED IN THE COMMITTEE ACTION IT IS INDICATED THAT THE ABOVE QUESTION WAS RAISED BECAUSE SUBSECTION 1448(D) PROVIDES AN ANNUITY ONLY TO THE ELIGIBLE SPOUSE, BUT, SUBSECTION 1450(A)(2) REFERS TO ALL OF SECTION 1448 AND PROVIDES THAT AN ANNUITY TO "THE SURVIVING DEPENDENT CHILDREN IN EQUAL SHARES, IF THE ELIGIBLE WIDOW OR WIDOWER IS DEAD, DIES, OR OTHERWISE BECOMES INELIGIBLE." IT IS ALSO INDICATED IN THE COMMITTEE ACTION THAT THE LEGISLATIVE HISTORY OF SUBSECTION 1448(D) INDICATES THAT THE CONGRESS INTENDED THAT THE SPOUSE OF AN ACTIVE DUTY MEMBER SHOULD NOT RECEIVE FEWER BENEFITS THAN THE SPOUSE OF A RETIRED MEMBER. IT IS ALSO POINTED OUT THAT NO MENTION IS MADE OF PROVIDING AN ANNUITY TO SURVIVING DEPENDENT CHILDREN WHERE THE SPOUSE DIES OR OTHERWISE BECOMES INELIGIBLE, ALTHOUGH PROVIDING THIS BENEFIT WOULD APPEAR TO BE CONSISTENT WITH INTENT OF CONGRESS IN ENACTING SUBSECTION 1448(D). THE COMMITTEE ACTION STATES FURTHER, THAT SINCE THERE ARE NUMEROUS REFERENCES IN THE LEGISLATIVE HISTORY TO ONLY THE SPOUSE OF AN ACTIVE DUTY MEMBER BEING ENTITLED TO AN ANNUITY UNDER SECTION 1448(D), IT WOULD SEEM THAT CONGRESS DID NOT CONTEMPLATE THE NEED FOR PROVIDING AN ANNUITY TO SUCH DEPENDENT CHILDREN. IN 53 COMP. GEN. 847, QUESTION 3, WE STATED THAT SINCE NO REFERENCE WAS MADE IN SUBSECTION 1448(D) TO A CHILD OR CHILDREN, BUT ONLY TO THE SPOUSE OF A MEMBER WHO IS ELIGIBLE FOR RETIREMENT AND DIES ON ACTIVE DUTY AND SINCE IT WAS SPECIFICALLY STATED ON PAGE 14 OF S. REPORT NO. 92-1089, SUPRA, THAT COVERAGE UNDER SUBSECTION (D) WAS NOT INTENDED FOR DEPENDENT CHILDREN, WE CONCLUDED THEREIN THAT ONLY THE ELIGIBLE SPOUSE WOULD BE ENTITLED TO AN ANNUITY UNDER SUBSECTION 1448(D). ACCORDINGLY, QUESTION 4 IS ANSWERED IN THE NEGATIVE. QUESTIONS 5 AND 6 WILL BE STATED AND ANSWERED TOGETHER SINCE THEY ARE INTERRELATED. 5. IF AN ELIGIBLE WIDOW WITH DEPENDENT CHILDREN IS RECEIVING AN ANNUITY UNDER 10 U.S.C. 1448(A) WHICH IS REDUCED UNDER 10 U.S.C. 1450(C) BECAUSE OF DIC ENTITLEMENT AND THE WIDOW BECOMES INELIGIBLE (BECAUSE OF REMARRIAGE OR DEATH), ARE THE ELIGIBLE CHILDREN ENTITLED TO RECEIVE AN ANNUITY UNDER 10 U.S.C. 1448(A)? QUESTION 6 IS AS FOLLOWS: 6. IF QUESTION 5 IS ANSWERED IN THE AFFIRMATIVE, ARE THE ELIGIBLE DEPENDENT CHILDREN ENTITLED TO RECEIVE IN EQUAL SHARES THE FULL AMOUNT OF THE ANNUITY OR THE REDUCED ANNUITY? IN THE COMMITTEE ACTION IT IS NOTED THAT WITH RESPECT TO QUESTIONS 5 AND 6, THERE IS SOME CONFUSION AS TO WHETHER DEPENDENT CHILDREN IN SUCH A CASE ARE ENTITLED TO RECEIVE AN ANNUITY, NOTWITHSTANDING THE CLEAR LANGUAGE OF SECTION 1450(A)(2). IT IS STATED IN THE COMMITTEE ACTION THAT THE LEGISLATIVE HISTORY OF PUBLIC LAW 92-425 INDICATES THAT THE DEPENDENT CHILDREN ARE ENTITLED TO AN ANNUITY UNDER 10 U.S.C. 1448(A) ONLY IF THE RETIRED MEMBER HAD PAID AN ADDITIONAL CHARGE FOR SUCH COVERAGE. IT IS ALSO INDICATED IN THE DISCSSION THAT CURRENT DEPARTMENT OF DEFENSE REGULATIONS PROVIDE THAT A RETIRED MEMBER MAY ELECT TO PROVIDE HIS DEPENDENT CHILDREN WITH AN ANNUITY SHOULD THE ELIGIBLE SPOUSE DIE OR OTHERWISE BECOME INELIGIBLE TO RECEIVE AN ANNUITY. IN VIEW OF THIS, IT IS NOTED IN THE COMMITTEE ACTION THAT IT APPEARS THAT DEPENDENT CHILDREN IN QUESTION 5 WOULD NOT BE ENTITLED TO RECEIVE AN ANNUITY UNDER 10 U.S.C. 1448(A) UNLESS THE RETIRED MEMBER HAD ELECTED TO COVER THEM AND PAID THE ADDITIONAL CHARGE FOR SUCH COVERAGE. ON THE BASIS OF THE DISCUSSION IN THE COMMITTEE ACTION, IT APPEARS THAT QUESTION 5 IS LIMITED TO THOSE SITUATIONS WHERE SPECIFIC COVERAGE FOR A WIDOW AND DEPENDENT CHILD WAS NOT MADE AND THE ADDITIONAL COST FOR THE DEPENDENT CHILD WAS NOT ASSESSED. THE ANSWER TO THIS QUESTION IS LIMITED TO THAT EXTENT. SUBSECTION 1452(A) OF TITLE 10, U.S. CODE, PROVIDES THE BASIS FOR DEDUCTIONS FROM RETIRED OR RETAINER PAY OF A MEMBER IN ORDER TO PROVIDE COVERAGE FOR SURVIVORS. IN THE ABOVE-NOTED SECTION A FORMULA IS PROVIDED FOR COMPUTATION OF THE AMOUNT BY WHICH RETIRED OR RETAINER PAY IS TO BE REDUCED IN THE CASE OF A RETIRED MEMBER WHO HAS AN ELIGIBLE SPOUSE OR WHO HAS AN ELIGIBLE SPOUSE AND DEPENDENT CHILD OR CHILDREN. THAT SECTION ALSO PROVIDES, HOWEVER, THAT THE FORMULA FOR COMPUTING COST OF COVERAGE WILL BE INCREASED BY AN AMOUNT PRESCRIBED IN REGULATION BY THE SECRETARY OF DEFENSE SO LONG AS THERE IS AN ELIGIBLE SPOUSE AND DEPENDENT CHILD. SUBSECTION 1452(B) OF THAT TITLE PROVIDES THAT, IN CASES WHERE THERE IS NO ELIGIBLE SPOUSE BUT THERE IS AN ELIGIBLE DEPENDENT CHILD, THE MEMBER'S RETIRED PAY OR RETAINER PAY WILL BE REDUCED BY AN AMOUNT PRESCRIBED UNDER REGULATIONS OF THE SECRETARY OF DEFENSE. IN THIS CONNECTION, IT SHOULD BE NOTED THAT ON PAGE 25 OF S. REPORT NO. 92-1089, THE COMMENT IS MADE THAT THE BILL AS INTRODUCED PROVIDED COVERAGE FOR DEPENDENT CHILDREN IN THE SAME MANNER AS FOR THE SPOUSE AT THE SAME MONTHLY COST FOR THE SAME BENEFIT LEVEL. IT WAS POINTED OUT IN THAT REPORT THAT THE MEMBER ELECTING SUCH COVERAGE MUST CONTRIBUTE TO THE PLAN FOR LIFE, EVEN THOUGH ELIGIBILITY FOR BENEFITS IS LIMITED, IN MOST CASES OF DEPENDENT CHILDREN, UNTIL THEY REACH AGE 22. THE COMMITTEE THEN RECOMMENDED THE FOLLOWING WHICH WAS ADOPTED AND IS NOW CODIFIED IN SUBSECTIONS 1452(A) AND (B) OF TITLE 10: WHILE THE COMMITTEE AGREES THAT THE LEGISLATION SHOULD PROVIDE A BENEFIT TO DEPENDENT CHILDREN, IT ALSO BELIEVES THAT IT SHOULD BE ACCOMPLISHED ON THE BASIS OF A SELF-FINANCING PLAN. SPECIFICALLY, THE COMMITTEE RECOMMENDS THAT THE BASIC PLAN IN THE BILL APPLY TO THE SPOUSE. FOR A SLIGHT ADDITIONAL CHARGE (ABOVE THE CHARGE FOR SPOUSE COVERAGE), THE MEMBER COULD COVER THE SPOUSE AND DEPENDENT PLAN IN THE BILL APPLY TO THE SPOUSE. FOR A SLIGHT ADDITIONAL CHARGE (ABOVE THE CHILDREN. IF THERE WERE NO SPOUSE, THE MEMBER COULD COVER DEPENDENT CHILDREN. THE COST OF DEPENDENT CHILDREN'S COVERAGE, IN BOTH CASES, WOULD BE BASED ON THE ACTUARIAL COST OF PROVIDING BENEFITS AND WOULD TERMINATE WHEN THE CHILDREN NO LONGER ARE ELIGIBLE FOR BENEFITS. IN VIEW OF THE ABOVE EXPRESSED INTENT OF THE CONGRESS, IT APPEARS THAT THE COVERAGE FOR A DEPENDENT CHILD OR CHILDREN WOULD BE POSSIBLE ONLY IF SPECIFIC COVERAGE FOR A DEPENDENT CHILD HAD BEEN ELECTED AND THE ATTENDANT COSTS ASSESSED FROM THE MEMBER'S RETIRED PAY. THUS, IF NO COVERAGE HAD BEEN ELECTED FOR DEPENDENT CHILDREN, THEY WOULD NOT BE ENTITLED TO RECEIVE AN ANNUITY ON THE BASIS OF THE COVERAGE PROVIDED FOR THE SPOUSE UNDER 10 U.S.C. 1448(A) NOTWITHSTANDING THE PROVISIONS OF 10 U.S.C. 1450(A)(2). ACCORDINGLY, QUESTION 5 IS ANSWERED IN THE NEGATIVE AND QUESTION 6 REQUIRES NO ANSWER.