Matter of: Lieutenant Colonel Hubert E. Marymee, USAF (Retired) --Survivor Benefit Plan Deductions File: B-243671 Date: October 8, 1992 72 Comp.Gen. 1

Matter of: Lieutenant Colonel Hubert E. Marymee, USAF (Retired) --Survivor Benefit Plan Deductions File: B-243671 Date: October 8, 1992 72 Comp.Gen. 1

MILITARY PERSONNEL Pay Payroll. deductions Survivor benefits Refunds Under 10 U.S.C Sec. 1452(b) the retired pay of a member who elects child- only Reserve Component Survivor Benefit Plan (RCSBP) coverage shall be reduced to provide coverage only as long as he has an eligible beneficiary. A retired reservist whose pay continued to be reduced after his daughter ceased to be eligible for an RCSBP annuity is entitled to a refund of amounts withheld from his retired pay since the time his child became ineligible for an annuity. Interest on such refund is not payable.

DECISION

In November 1978, the Air Force notified Lt. Col. Marymee that the law concerning SBP coverage had recently been amended to allow SBP coverage for reservists such as himself who qualified for retired pay but were under 60 years of age and, therefore, were not yet eligible to receive it. The information provided to him by the Air Force indicated that if he elected child-only coverage for his dependent daughter and if she became ineligible due to age before he began collecting retired pay at age 60, no deductions would be made from his retired pay for her coverage. Lt. Col. Marymee, whose daughter was 16 years old at that time, made that election.

In 1980 the Department of Defense (DOD) SBP policy was amended to require permanent SBP deductions from the retired pay of reservists who elect immediate child-only coverage where the child ceases to be an eligible beneficiary due to age.

Lt. Col. Marymee's daughter became ineligible for SBP coverage on March 24, 1985, her 22nd birthday, and the Air Force continued to make deductions from Lt. Col. Marymee's retired pay for SBP coverage for her. Lt. Col. Marymee requests termination of SBP deductions and a refund with interest of amounts already deducted.

The SBP program, 10 U.S.C. Secs. 1447-1455, is an income maintenance- program for the surviving dependents of deceased service members. Section 1452 (b) provides as follows concerning deductions from the retired pay of a member who elects child-only coverage:

"The retired pay of a person to whom section 1448 of this title applies who has a dependent child but does not have an eligible spouse or former spouse . . . but has elected to provide an annuity for dependent children only, shall, as long as he has an eligible dependent child, be reduced by an amount prescribed under regulations of the Secretary of Defense."

Reservists qualified for retired pay but not yet eligible to receive it due to age became entitled to elect immediate coverage for their dependents effective October l, 1978. Pub. L. No. 95-397, Sec. 202, 92 Stat. 843, 844. At the time of implementation, premiums were deducted from a reservist's retired pay only for as long as he had an eligible child. Because many children of reservists lose eligibility due to age before their sponsors begin receiving retired pay at age 60, the potential exists for such children to receive free coverage for the period they were eligible. In recognition of this potential, DOD changed its policy and revised its SBP cost tables effective January l, 1980, to provide for permanent deductions for reservists' children, even after the children become ineligible due to age. DOD states that the policy change was necessary to administer Reserve Component SBP on an actuarially sound basis and to charge reservists for their children's coverage in a fair manner. The deductions made from a member's retired pay do not exceed the actuarially computed-cost of providing coverage for dependent children during their period of eligibility. The deductions are simply extended over a longer period of time for payment. We understand that the amount deducted from Lt. Col. Marymee's retired pay is less than $3 per month.

However, deduction of premiums from the retired pay of a member with child-only coverage when he no longer has an eligible beneficiary ignores the unambiguous language of 10 U.S.C. Sec. 1452(b) which provides that the reduction in retired pay shall continue only as long as he or she has an eligible beneficiary. We recognize that DOD's 1980 policy change was intended to make the program fair and actuarially sound. However, we cannot ignore the plain language of the statute. Accordingly, the amounts improperly deducted from Lt. Col. Marymee's retired pay should be refunded to him.

Lt. Col. Marymee also claims interest on the amounts to be refunded. However, it is well settled that the government may not pay interest on claims unless the statute involved Specifically provides for payment of interest. M. Rene Santoni, B-187877, April 14, 1977. Since the SBP law does not provide for payment of interest on refunded premiums, Lt. Col. Marymee may not Properly be paid interest.

Accordingly, SBP deductions from Lt. Col. Marymee's retired pay for coverage of his daughter should be terminated, and the amounts improperly deducted should be refunded without interest.

At the same time, we appreciate DOD's contention that continuing deductions from reservists' retired pay is the only way to administer Reserve Component SBP in a fair and actuarially sound manner. We have therefore written to the Chairmen of the Armed Services Committees of both Houses of Congress to inform them of the problem.