B-204845 L/M, DEC 3, 1981

B-204845 L/M, DEC 3, 1981

DIGEST: THE MINIMUM INCOME PROVISIONS OF SECTION 4 OF PUBLIC LAW 92-425, 86 STAT. 712, 10 U.S.C. 1448 NOTE, WHILE NOT ACTUALLY PART OF THE SURVIVOR BENEFIT PLAN (SBP), 10 U.S.C. 1447-1455, AS ESTABLISHED BY SECTIONS 1 AND 3 OF THE SAME ACT, IS AN ADJUNCT TO THE PLAN. ITS PURPOSE WAS TO HELP STABLIZE THE MINIMUM INCOME OF A CERTAIN CLASS OF WIDOWS OF RETIRED MILITARY MEMBERS WHO WERE NOT ELIGIBLE TO RECEIVE AN SBP ANNUITY, WITHOUT COST CHARGE TO THEM.

STROM THURMOND, UNITED STATES SENATE:

WE REFER TO YOUR LETTER DATED AUGUST 18, 1981, WITH ENCLOSURES, REQUESTING A REPORT ON MATTERS MENTIONED IN CORRESPONDENCE TO YOU FROM MRS. MILDRED F. HOWELL, ROUTE 2, LAMAR, SOUTH CAROLINA 29069, THE WIDOW OF A RETIRED AIR FORCE MEMBER. THE QUESTION INVOLVES HER ENTITLEMENT TO RECEIVE ADDITIONAL MINIMUM INCOME ANNUITY PAYMENTS UNDER THE PROVISIONS OF SECTION 4 OF PUBLIC LAW 92-425, SEPTEMBER 21, 1972, 86 STAT. 706, 712-713, AS AMENDED (10 U.S.C. 1448 NOTE).

THE MATTER OF MRS. HOWELL'S ENTITLEMENT WAS THE SUBJECT OF A LETTER DATED MARCH 24, 1981, BY OUR CLAIMS GROUP ADDRESSED TO THE AIR FORCE ACCOUNTING AND FINANCE CENTER, AUTHORIZING THEM TO MAKE PAYMENT OF A MINIMUM INCOME ANNUITY TO HER BEGINNING WITH AUGUST 18, 1974. HOWEVER, THAT LETTER ALSO ADVISED THE AIR FORCE THAT UNDER PROVISIONS OF THE BARRING ACT OF OCTOBER 9, 1940, AS AMENDED, 31 U.S.C. 71A, PAYMENTS FOR THE PERIOD PRIOR TO AUGUST 18, 1974, WERE BARRED SINCE HER CLAIM FOR THE ANNUITY WAS FIRST RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON AUGUST 18, 1980, AND THE BARRING ACT BARS CLAIMS RECEIVED MORE THAN 6 YEARS AFTER THEY FIRST ACCRUED.

YOU EXPRESS THE VIEW THAT ANNUITIES UNDER THE SURVIVOR BENEFIT PLAN ARE ENTITLEMENTS AND NOT CLAIMS, SINCE THE ONLY THING REQUIRED TO INITIATE A SURVIVOR BENEFIT PLAN ANNUITY FOLLOWING THE DEATH OF A PARTICIPANT, IS THE FILING OF AN APPLICATION. YOU ALSO EXPRESS THE BELIEF THAT CONGRESS DID NOT INTEND TO DENY A MILITARY WIDOW HER ANNUITY DUE TO LACK OF KNOWLEDGE, REGARDLESS OF TIME, ESPECIALLY IF THE PARTICIPANT PAID FOR THE ENTITLEMENT.

THE SURVIVOR BENEFIT PLAN AS ESTABLISHED BY SECTION 1 OF PUBLIC LAW 92-425, 86 STAT. 706 (10 U.S.C. 1447-1455), WAS ENACTED PRIMARILY TO PROVIDE A MEANS WHEREBY MILITARY MEMBERS WHO INITIALLY BECOME ENTITLED TO RETIRED PAY ON AND AFTER SEPTEMBER 21, 1972, COULD PURCHASE AT RETIREMENT, INCOME PROTECTION FOR THEIR SURVIVING DEPENDENTS BASED UPON A SELECTED PERCENTAGE OF THEIR RETIRED PAY ENTITLEMENT NOT TO EXCEED 55 PERCENT. IN ADDITION, PROVISION WAS MADE IN SECTION 3 OF THE ACT (86 STAT. 711, 10 U.S.C. 1448 NOTE), TO PERMIT MEMBERS ALREADY IN A RETIRED OR RETAINER PAY STATUS AT THE TIME OF ENACTMENT OF THE SURVIVOR BENEFIT PLAN, TO ELECT TO PARTICIPATE IN THE PLAN ON THE SAME BASIS AS THOSE AUTHORIZED TO DO SO IN SECTION 1 OF THE ACT.

ACCORDING TO THE INFORMATION ON RECORD, MRS. HOWELL WAS THE WIDOW OF A RETIRED SERVICE MEMBER WHO DIED BEFORE ENACTMENT OF THE SURVIVOR BENEFIT PLAN. THEREFORE, THE PROVISIONS OF THE SURVIVOR BENEFIT PLAN WERE NOT APPLICABLE TO HER. THE BENEFITS FOR WHICH SHE APPARENTLY WAS ELIGIBLE WERE THOSE PROVIDED FOR IN SECTION 4 OF THE ACT (86 STAT. 712, 10 U.S.C. 1448 NOTE), WHICH IS AN ADJUNCT TO THE SURVIVOR BENEFIT PLAN.

SECTION 4 OF PUBLIC LAW 92-425, WAS ENACTED TO HELP STABILIZE THE MINIMUM INCOME OF A CERTAIN CLASS OF WIDOWS WHO WERE NOT ELIGIBLE FOR A SURVIVOR BENEFIT PLAN ANNUITY. IN ORDER FOR THESE WIDOWS OF NONPARTICIPATING MEMBERS TO BE ELIGIBLE FOR A MINIMUM INCOME ANNUITY, SUBSECTION 4(A) REQUIRED THAT: (1) THE MEMBER UPON WHOSE DEATH THE BENEFIT ARISES MUST HAVE BEEN ENTITLED TO RETIRED OR RETAINER PAY AT HIS DEATH AND THAT THE PROSPECTIVE BENEFICIARY MUST HAVE BECOME HIS WIDOW NOT LATER THAN THE FIRST ANNIVERSARY OF ENACTMENT OF PUBLIC LAW 92-425 (SEPTEMBER 21, 1973); (2) THE WIDOW MUST BE ELIGIBLE FOR A PENSION UNDER SUB-CHAPTER III OF CHAPTER 15 OF TITLE 38, UNITED STATES CODE, OR SECTION 9(B) OF THE VETERANS PENSION ACT OF 1959; AND (3) HER ANNUAL INCOME - AS DEFINED IN THE SECTION - MUST BE LESS THAN $1,400 (WHICH HAS BEEN SUBSEQUENTLY INCREASED BY VARIOUS AMENDMENTS). IF THE PROSPECTIVE BENEFICIARY MEETS THOSE QUALIFICATIONS, SHE IS ENTITLED TO THE MINIMUM INCOME BENEFIT UNDER SUBSECTION 4(B) WHICH PROVIDES THAT THE BENEFIT PAYABLE IS THE DIFFERENCE BETWEEN THE WIDOW'S ANNUAL INCOME AND THE MINIMUM INCOME ESTABLISHED. THE STATUTE MAKES NO PROVISIONS FOR ANY CHARGE TO THE RETIRED MEMBER FOR THESE BENEFITS.

NOT EVERY WIDOW OF A RETIRED MILITARY MEMBER WHO DIED ON OR BEFORE SEPTEMBER 21, 1973, AND WHO WAS NOT A SURVIVOR BENEFIT PLAN PARTICIPANT BECAME ENTITLED TO RECEIVE MINIMUM INCOME BENEFIT. BUT THOSE WHO DID MUST ASSERT A CLAIM FOR SUCH BENEFITS.

IN THAT REGARD, SECTION 305 OF THE ACT OF JUNE 1921, CH. 18, 42 STAT. 24, 31 U.S.C. 71, PROVIDES THAT ALL CLAIMS AGAINST THE UNITED STATES SHALL BE ADJUSTED AND SETTLED IN THE GENERAL ACCOUNTING OFFICE. IN CONJUNCTION THEREWITH, THE BARRING ACT, 31 U.S.C. 71A, AS AMENDED, IMPOSES TIME CONSTAINTS ON THAT SETTLEMENT AUTHORITY AND PROVIDES IN PART THAT -

"EVERY CLAIM OR DEMAND *** COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE *** SHALL BE FOREVER BARRED UNLESS SUCH CLAIM *** SHALL BE RECEIVED IN SAID OFFICE WITHIN 6 YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED ***."

THUS, RECEIPT OF A CLAIM IN THE GENERAL ACCOUNTING OFFICE WITHIN 6 YEARS OF ACCRUAL CONSTITUTES A CONDITION PRECEDENT TO A CLAIMANT'S RIGHT TO HAVE IT CONSIDERED ON ITS MERITS. WE HAVE NO AUTHORITY TO WAIVE ANY OF THE PROVISIONS OF THE BARRING ACT OR MAKE ANY EXCEPTIONS TO THE TIME LIMITATION IT IMPOSES. IF THE CLAIM IS FOR BENEFITS SUCH AS THE MINIMUM INCOME BENEFITS PAYABLE UNDER SECTION 4, PUBLIC LAW 92 425, THE RIGHT TO PAYMENT ACCRUES FROM DAY TO DAY. THUS, WE MAY ONLY CERTIFY FOR PAYMENT CLAIMS FOR PAST DUE AMOUNTS WHICH ARE NOT MORE THAN 6 YEARS OLD.

WHILE IT IS UNFORTUNATE THAT MRS. HOWELL MAY HAVE BEEN UNAWARE OF HER ENTITLEMENT TO THESE BENEFITS EARLIER, HER CLAIM WAS RECORDED AS FIRST RECEIVED BY THE GENERAL ACCOUNTING OFFICE ON AUGUST 18, 1980. THEREFORE, WE WERE REQUIRED TO ADVISE THE AIR FORCE ACCOUNTING AND FINANCE CENTER THAT PAYMENTS DUE COULD BE MADE, EXCEPT THAT AMOUNTS ACCRUED FOR THE PERIOD PRIOR TO AUGUST 18, 1974, WERE BARRED.

WE UNDERSTAND THAT A LUMP-SUM PAYMENT WAS MADE TO MRS. HOWELL FOR THE PERIOD OF AUGUST 18, 1974, TO AUGUST 18, 1980, AND REGULAR CURRENT MINIMUM INCOME ANNUITY PAYMENTS BEGAN WITH THE SEPTEMBER 1980 PAYMENT. WE PRESUME THAT SINCE THAT TIME MRS. HOWELL HAS BEEN RECEIVING BENEFITS TO THE EXTENT AUTHORIZED BY SECTION 4 OF THE ACT ON A MONTHLY BASIS.

WE APPRECIATE MRS. HOWELL'S FRUSTRATION IN FINDING THAT PART OF HER CLAIM CAN NO LONGER BE CONSIDERED, BUT THE BARRING ACT LEAVES US NO CHOICE.