B-233379, Feb 9, 1990

B-233379: Feb 9, 1990

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A dependent child may receive an annuity if the child is covered under the annuity not chosen by the widow. Bay - Eligibility for Survivor Benefit Plan Annuity: This is in response to a request from the Air Force Accounting and Finance Center for an advance decision on the propriety of making payments under the Survivor Benefit Plan (SBP). Since his widow is receiving an SBP annuity on the basis of a subsequent marriage to another member. /1/ For the reasons presented below. She then became ineligible to receive SBP and Colonel Bay's children were entitled to the annuity. The question presented to us is whether the children of Colonel Bay are eligible to receive the SBP annuity through Colonel Bay's coverage since Ms.

B-233379, Feb 9, 1990

MILITARY PERSONNEL - Pay - Survivor benefits - Annuity payments - Eligibility DIGEST: When a member elects coverage under the Survivor Benefit Plan (SBC) for his spouse and child, the child may not receive the annuity unless the widow becomes ineligible to receive the annuity under 10 U.S.C. 1450(b). Since a widow of two members cannot receive two SBP annuities but must choose one of them, she becomes ineligible to receive the other. Therefore, a dependent child may receive an annuity if the child is covered under the annuity not chosen by the widow.

Amy L. Bay - Eligibility for Survivor Benefit Plan Annuity:

This is in response to a request from the Air Force Accounting and Finance Center for an advance decision on the propriety of making payments under the Survivor Benefit Plan (SBP), 10 U.S.C. Secs. 1447 55, to the eligible children of the late Colonel Jerry L. Bay, USAC, retired, since his widow is receiving an SBP annuity on the basis of a subsequent marriage to another member. /1/ For the reasons presented below, SBP payments may be made to the children of Colonel Bay if they meet the age and school attendance requirements of the statute.

Colonel Bay elected both "spouse" and "child" coverage under the SBP. His widow, Mary Faye Craft, received SBP payments from the time of his death until she married Major General Robert E. Sadler, USAF, retired. Since she married General Sadler before she reached age 55, she then became ineligible to receive SBP and Colonel Bay's children were entitled to the annuity. When General Sadler died in 1988, she became eligible to receive SBP payments either through Colonel Bay or General Sadler. She elected to receive payments under General Sadler's SBP coverage. The question presented to us is whether the children of Colonel Bay are eligible to receive the SBP annuity through Colonel Bay's coverage since Ms. Craft elected not to receive payments based on that SBP coverage. The disbursing officer expresses doubt in the matter in view of our decision Sergeant Pearlow Howard, B-191524, June 30, 1978, in which we held that a widow who is not receiving an SBP annuity because of Dependency and Indemnity Compensation payments was not ineligible for the SBP annuity for the purposes of allowing a child to receive the annuity.

In cases involving both "spouse" and "child" coverage 10 U.S.C. Sec. 1450(a)(2) provides that the member's child or children are entitled to the annuity if the widow "is dead, dies, or otherwise becomes ineligible under this section." The phrase "otherwise becomes ineligible" refers to subsection (b) of 10 U.S.C. Sec. 1450, which provides that a widow who remarries prior to age 55 becomes ineligible to receive further SBP payments but that payments may be resumed if the subsequent marriage is terminated by death, annulment, or divorce. However, if the widow also is eligible to receive an SBP annuity through the subsequent marriage, she cannot receive both annuities but must elect which to receive.

Our decision Sergeant Pearlow Howard involved SBP coverage for spouse and child. The widow was precluded by 10 U.S.C. Sec. 1450(c) from receiving SBP payments because she was receiving Dependency and Indemnity Compensation in an amount greater than the SBP annuity to which she was entitled. We held that in order for the child to receive the SBP annuity the widow must be considered otherwise ineligible under the terms of 10 U.S.C. Sec. 1450(b). Under that provision a widow who remarries before a stipulated age becomes ineligible until the latter marriage is terminated. Since the widow in that case had not remarried she was not ineligible and therefore the child could not receive the annuity until such time as the widow remarried prior to the stipulated age or died.

In the present situation, Mary Faye Craft is the widow of two members who had SBP coverage. Under 10 U.S.C. Sec. 1450(b), she may not receive both SBP annuities but must choose which to receive. Since she has chosen to receive the annuity through General Sadler's coverage, she is now ineligible by virtue of 10 U.S.C. Sec. 1450(b) to receive an annuity through Colonel Bay's coverage.

Accordingly, the annuity may be paid to Colonel Bay's children if otherwise eligible.

/1/ The Department of Defense Military Pay and Allowance Committee has assigned the number DO-AF-1490, to the case for control purposes