B-215768, JAN 22, 1985, 64 COMP.GEN. 203

B-215768, JAN 22, 1985, 64 COMP.GEN. 203

PAY - RETIRED - SURVIVOR BENEFIT PLAN - SPOUSE - SOCIAL SECURITY OFFSET THE SURVIVOR BENEFIT PLAN IS AN INCOME MAINTENANCE PROGRAM FOR THE FAMILIES OF DECEASED SERVICE MEMBERS. SOCIAL SECURITY "OFFSET" PROVISIONS WERE INCLUDED IN THIS PROGRAM BECAUSE ANNUITIES ARE INTENDED TO COMPLEMENT A PLAN PARTICIPANT'S SOCIAL SECURITY COVERAGE. NO REDUCTION OF AN ANNUITY BY THIS OFFSET IS APPROPRIATE, HOWEVER, IF THE SOCIAL SECURITY ADMINISTRATION DETERMINES THAT THE ANNUITANT IS COMPLETELY INELIGIBLE FOR SOCIAL SECURITY SURVIVOR BENEFITS. THEREFORE, AN ANNUITY OFFSET IS NOT REQUIRED IN THE CASE OF AN ARMY RESERVE SERGEANT'S WIDOW WHO WAS DETERMINED INELIGIBLE FOR SOCIAL SECURITY SURVIVOR BENEFITS BECAUSE OF HER RECEIPT OF A GOVERNMENTAL PENSION BASED ON HER OWN EMPLOYMENT.

MATTER OF: MARY E. BRANHAM, JANUARY 22, 1985:

THE QUESTION PRESENTED IS WHETHER A MILITARY SURVIVOR BENEFIT PLAN ANNUITY MAY PROPERLY BE SUBJECTED TO REDUCTION UNDER SOCIAL SECURITY OFFSET PROVISION CONTAINED IN THE PLAN EVEN THOUGH THE SOCIAL SECURITY ADMINISTRATION HAS DETERMINED THAT THE ANNUITANT IS NOT ENTITLED TO SOCIAL SECURITY SURVIVOR BENEFITS. /1/ WE CONCLUDE THAT THE SURVIVOR BENEFIT PLAN ANNUITY IS NOT SUBJECT TO REDUCTION IN THOSE CIRCUMSTANCES.

BACKGROUND

MRS. MARY E. BRANHAM IS THE SURVIVING SPOUSE OF SERGEANT MAJOR ROY L. BRANHAM, USAR (RETIRED). PRIOR TO HIS DEATH SERGEANT BRANHAM HAD BECOME QUALIFIED FOR RETIREMENT WITH PAY AS A MEMBER OF THE ARMY RESERVE, AND HE HAD ELECTED TO PARTICIPATE IN THE SURVIVOR BENEFIT PLAN, THUS CHOOSING TO RECEIVE MILITARY RETIRED PAY AT A REDUCED RATE IN ORDER TO PROVIDE THE ANNUITY AUTHORIZED BY THAT PLAN FOR HIS WIFE IF SHE SURVIVED HIM.

MRS. BRANHAM IS A RETIRED FEDERAL EMPLOYEE AND IS ENTITLED TO A CIVIL SERVICE ANNUITY IN HER OWN RIGHT. FOLLOWING HER HUSBAND'S DEATH, A SOCIAL SECURITY ADMINISTRATION CLAIMS REPRESENTATIVE MADE A DETERMINATION THAT SHE WAS INELIGIBLE FOR SOCIAL SECURITY SURVIVOR BENEFITS BECAUSE OF HER STATUS AS A CIVIL SERVICE ANNUITANT, UNDER PROVISIONS OF THE SOCIAL SECURITY LAWS AND REGULATIONS APPLICABLE TO CERTAIN PERSONS RECEIVING PENSIONS BASED ON GOVERNMENTAL EMPLOYMENT NOT COVERED BY SOCIAL SECURITY. /2/

ARMY FINANCE AND ACCOUNTING OFFICIALS HAVE DETERMINED THAT MRS. BRANHAM IS ENTITLED TO A SURVIVOR BENEFIT PLAN ANNUITY. DOUBTS HAVE ARISEN, HOWEVER, CONCERNING THE MATTER OF WHETHER THAT ANNUITY SHOULD BE REDUCED UNDER A SOCIAL SECURITY "OFFSET" PROVISION OF THE SURVIVOR BENEFIT PLAN BY AN AMOUNT EQUAL TO THE SOCIAL SECURITY SURVIVOR BENEFIT THAT WOULD APPARENTLY OTHERWISE HAVE BEEN PAID TO HER BASED ON HER MARRIAGE TO SERGEANT BRANHAM, BUT FOR THE FACT THAT SHE IS ALSO ENTITLED TO THE CIVIL SERVICE ANNUITY BASED ON HER OWN EMPLOYMENT.

ANALYSIS AND CONCLUSION

THE SURVIVOR BENEFIT PLAN, 10 U.S.C. SECS. 1447-1455, IS AN INCOME MAINTENANCE PROGRAM FOR THE FAMILIES OF DECEASED SERVICE MEMBERS. THE PROVISION OF THIS STATUTORY PLAN BROUGHT INTO QUESTION HERE, SUBSECTION 1451(A)(3), PRESCRIBES A FORMULA FOR THE REDUCTION OF AN ANNUITY PAYABLE TO A SURVIVING SPOUSE PREDICATED ON--

*** THE AMOUNT OF THE SURVIVOR BENEFIT, IF ANY, TO WHICH THE WIDOW OR WIDOWER WOULD BE ENTITLED UNDER TITLE II OF THE SOCIAL SECURITY ACT (42 U.S.C. 401 ET SEQ.) BASED SOLELY UPON SERVICE BY THE PERSON CONCERNED

THE CONGRESS INCLUDED THIS SOCIAL SECURITY "OFFSET" PROVISION IN THE SURVIVOR BENEFIT PLAN LEGISLATION BECAUSE MEMBERS OF THE UNIFORMED SERVICES HAVE SOCIAL SECURITY COVERAGE, AND ANNUITIES UNDER THE PLAN WERE GENERALLY DESIGNED TO COMPLEMENT SOCIAL SECURITY BENEFITS. /3/

WE HAVE CONSISTENTLY HELD THAT THIS OFFSET AGAINST A SURVIVOR BENEFIT PLAN ANNUITY IS TO BE BASED ON SOCIAL SECURITY BENEFITS ATTRIBUTABLE TO THE MILITARY SERVICE OF THE DECEASED PLAN PARTICIPANT TO WHICH THE ANNUITANT "WOULD BE ENTITLED," EVEN IF THE ANNUITANT MAY NOT HAVE ACTUALLY APPLIED FOR SUCH BENEFITS AND MAY OTHERWISE, FOR EXAMPLE, HAVE ELECTED INSTEAD TO RECEIVE SOCIAL SECURITY PAYMENTS BASED ON PERSONAL EMPLOYMENT OR THE EMPLOYMENT OF SOME THIRD PERSON. /4/ WE HAVE ALSO EXPRESSED THE VIEW, HOWEVER, THAT AN OFFSET IS INAPPROPRIATE IF THE SOCIAL SECURITY ADMINISTRATION HAS MADE A DETERMINATION THAT THE ANNUITANT IS INELIGIBLE FOR SUCH BENEFITS. /5/

IN THE PRESENT CASE, THE SOCIAL SECURITY ADMINISTRATION MADE A DETERMINATION THAT MRS. BRANHAM HAD NO ELIGIBILITY FOR OR ENTITLEMENT TO SOCIAL SECURITY SURVIVOR BENEFITS IN ANY AMOUNT WHATEVER DURING THE PERIOD IN QUESTION. THAT DETERMINATION IS NOT SUBJECT TO REVIEW BY THE DEPARTMENT OF THE ARMY, OR BY US. /6/

AS INDICATED, THE SOCIAL SECURITY ADMINISTRATION'S DETERMINATION WAS BASED ON PROVISIONS OF LAW AND REGULATION WHICH PLACE RESTRICTIONS ON THE SOCIAL SECURITY SURVIVOR BENEFITS PAYABLE TO CERTAIN PERSONS RECEIVING PENSIONS BASED ON GOVERNMENTAL EMPLOYMENT. WE ARE UNAWARE OF ANY SIMILAR PROVISION CONTAINED IN THE SURVIVOR BENEFIT PLAN, HOWEVER, WHICH MIGHT OPERATE TO REDUCE AN ANNUITY UNDER THE PLAN ON ACCOUNT OF THE RECIPIENT'S INDEPENDENT AND CONCURRENT ENTITLEMENT TO A CIVIL SERVICE ANNUITY.

AS FURTHER INDICATED, THE SURVIVOR BENEFIT PLAN WAS DESIGNED AS A FAMILY INCOME MAINTENANCE PROGRAM, AND SOCIAL SECURITY OFFSET PROVISIONS WERE INCLUDED BECAUSE PLAN ANNUITIES WERE INTENDED TO COMPLEMENT SERVICE MEMBERS' SOCIAL SECURITY COVERAGE. HERE, THE DETERMINATION WAS THAT MRS. BRANHAM WOULD NOT BE ELIGIBLE FOR OR ENTITLED TO ANY SOCIAL SECURITY SURVIVOR BENEFITS AS THE RESULT OF SERGEANT BRANHAM'S DEATH, SO THAT THERE APPEARS TO BE NO BASIS FOR A REDUCTION IN THE AMOUNT OF HER SURVIVOR BENEFIT PLAN ANNUITY UNDER THE SOCIAL SECURITY OFFSET PROVISION SPECIFICALLY BROUGHT INTO QUESTION, OR FOR ANY OTHER REASON.

ACCORDINGLY, WE CONCLUDE THAT MRS. BRANHAM'S SURVIVOR BENEFIT PLAN ANNUITY WAS NOT SUBJECT TO REDUCTION. THE VOUCHER PRESENTED FOR DECISION IS RETURNED FOR PAYMENT, IF OTHERWISE CORRECT.

/1/ THIS ACTION IS IN RESPONSE TO A REQUEST RECEIVED FROM MR. J. E. BOONE, SPECIAL DISBURSING AGENT, U.S. ARMY FINANCE AND ACCOUNTING CENTER, FOR AN ADVANCE DECISION CONCERNING THE PROPRIETY OF CERTIFYING A VOUCHER FOR PAYMENT IN THE AMOUNT OF $1,087.50 IN FAVOR OF MRS. MARY E. BRANHAM, WHICH AMOUNT REPRESENTS ADDITIONAL SURVIVOR BENEFIT PLAN ANNUITY MONEYS DUE TO HER FOR THE PERIOD ENDING MAY 31, 1984, IF IT IS CONCLUDED THAT HER ANNUITY IS NOT SUBJECT TO THE SOCIAL SECURITY OFFSET. THE REQUEST WAS FORWARDED HERE BY THE OFFICE OF THE COMPTROLLER OF THE ARMY AFTER IT WAS ASSIGNED SUBMISSION NUMBER DO-A 1443 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

/2/ 42 U.S.C. SEC. 4026)(4)(A) AND 20 C.F.R. SEC. 404.408A.

/3/ SEE, GENERALLY, S. REP. NO. 1089, 92D CONG., 2D SESS. 29, REPRINTED IN 1972 U.S.C. CONG. & AD. NEWS 3288, 3304; H.R. REP. NO. 481, 92D CONG., 1ST SESS. 14 (1971).

/4/ SEE, GENERALLY, MARY L. LOTT, 60 COMP.GEN. 129, 132 (1980); MARJORIE S. NESTER, 58 COMP.GEN. 795 (1979); MARY K. BITTERMAN AND CARMEN K. (KINCAID) KLIMES, 57 COMP.GEN. 339, 341-343 (1978).

/5/ MARY K. BITTERMAN AND CARMEN K. (KINCAID) KLIMES, 57 COMP.GEN. AT 340 -341.

/6/ SEE 42 U.S.C. SEC. 405; 20 C.F.R. SEC. 404.900 ET SEQ.