B-238482.2 September 18, 1992

B-238482.2 September 18, 1992

MILITARY PERSONNEL Pay Death gratuities Eligibility Statutes of limitation Applicability The Uniformed Services Contingency Option Act of 1953, 67 Stat. 501 (1953), currently codified at 10 U.S.C. Sec. 1431 et seq, does not provide for retroactive establishment of survivor benefits where retired member failed to elect coverage within the law's deadline of 180 days after its passage. There are no exceptions to the filing requirement for situations beyond the member's control that may have contributed to missing the deadline. Survivor benefits therefore may not be provided for the survivors of a retired U.S. Navy member who failed to timely elect coverage while resident in China during a period when diplomatic relations between China and the United States had been severed.

Henry, Watz, Gardner and Sellars Victorian Square - Suite 314 401 West Main Street Lexington, Kentucky 40507

Attention: James W. Gardner

Gentlemen:

Your letter of March 18, 1992 appeals the determination of the Defense Finance and Accounting Service that no survivor benefits are payable to the heirs of Ah Doo, a deceased retired member of the U.S. Navy.

In B-238842, July 5, 1991, 70 Comp.Gen., we concluded that the barring act, 31 U.S.C. Sec. 3702(b), did not bar the payment of military retired pay and survivor benefits, if any, withheld from payment to Ah Doo, a retired Navy member who resided in China until his death in 1965, or to his survivors, during the period when relations between the United States and China were severed. Relations were severed in 1949 and renewed in 1989. We remanded the case to the Navy for settlement after its determination of the amounts of military retired pay and any survivor benefits actually withheld during the period in question and the proper payees of any such amounts.

A March 2, 1992 letter from the Defense Finance and Accounting Service confirms that back retired pay has been, in fact, paid to the proper beneficiary, as contemplated by our decision. The letter also states that "as no survivor benefits appear to have been elected, and no premiums were paid, we take the position that no such payments are owing."

You argue that it would not have been possible for Ah Doo to have elected or rejected survivor benefits or to have paid premiums for them during the period that diplomatic relations were severed between China and the United States. You request that survivor benefits be awarded and that any premiums due for the period between 1949, the year relations were terminated, and 1965, the year of Ah Doo's death, be deducted from the amount otherwise due the survivors.

We are not aware of any authority that would allow retroactive establishment of survivor benefits under the circumstances of this case. The Uniformed Services Contingency Option Act of 1953, 67 Stat. 501, (1953), currently codified at 10 U.S.C. Sec. 1431 et seq, initially provided survivor benefits for retired military members. That law permitted already retired military members to elect survivor benefit coverage within 180 days of its passage. The law, however, clearly requires that any such election have been made by the retired member within the time specified. It contains no exceptions for the occurrence of situations beyond the member's control that may have contributed to missing the deadline.

We accordingly must deny your request that survivor benefits be provided Ah Doo's survivors.

The Honorable Larry J. Hopkins Member, United States House of Representatives Vine Center Room 207 333 West Vine Street Lexington, Kentucky 40507-1696

Dear Mr. Hopkins:

In view of your interest in the request of James W. Gardner that survivor benefits be provided the heirs of Ah Doo, a deceased retired member of the U.S. Navy, we are enclosing a copy of our letter of today to Mr. Gardner.