B-179712, JUN 5, 1974, 53 COMP GEN 918

B-179712, JUN 5, 1974, 53 COMP GEN 918

PAY - RETIRED - SURVIVOR BENEFIT PLAN - CHILDREN - BLIND WHEN A DECEASED SERVICE MEMBER'S CHILD IS RECEIVING WELFARE AND SOCIAL SECURITY PAYMENTS BASED ON A DETERMINATION OF BLINDNESS AND THAT CONDITION IS INDICATED TO HAVE EXISTED SINCE BIRTH, SUCH PAYMENTS MAY NOT BE CONSIDERED AS CONSTITUTING SUBSTANTIAL GAINFUL ACTIVITY SO AS TO DISQUALIFY THE CHILD AS AN ELIGIBLE ANNUITANT UNDER 10 U.S.C. 1435(2)(B) TO RECEIVE AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431, ET SEQ. PAY - RETIRED - SURVIVOR BENEFIT PLAN - CHILDREN - BLIND WHETHER A CHILD OF A DECEASED MEMBER OF THE UNIFORMED SERVICE, WHO IS OVER 18 YEARS OF AGE, IS OR IS NOT CAPABLE OF SELF-SUPPORT IN BLINDNESS OR OTHER PHYSICAL DISABILITY CASES, WHERE SUCH CONDITION ANTEDATED THE 18TH BIRTHDAY, FOR THE PURPOSES OF ESTABLISHING ELIGIBILITY AS AN ANNUITANT UNDER 10 U.S.C. 1435(2)(B), SUCH ISSUE IS FOR RESOLUTION BASED ON ALL FACTS IN EACH PARTICULAR CASE AND NO SPECIFIC GUIDELINES CAN BE ESTABLISHED.

IN THE MATTER OF ELIGIBILITY FOR ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, JUNE 5, 1974:

THIS ACTION IS IN RESPONSE TO A LETTER DATED AUGUST 28, 1973, WITH ENCLOSURES (FILE REFERENCE RPTA) FROM THE CHIEF, ACCOUNTING AND FINANCE DIVISION, UNITED STATES AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO 80205, REQUESTING AN ADVANCE DECISION CONCERNING THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $6,099.95, IN THE CASE OF DOLORES HUMES, REPRESENTING ANNUITY PAYMENTS PURSUANT TO THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN (RSFPP), 10 U.S.C. 1431 1446 AND HAS BEEN ASSIGNED AIR FORCE SUBMISSION NO. DO-AF-1203 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE SUBMISSION INDICATES THAT PRIOR TO HIS DEATH ON FEBRUARY 8, 1970, THE CLAIMANT'S FATHER, LIEUTENANT COLONEL PATRICK J. HUMES, USAF (RETIRED), ELECTED OPTIONS 2 AND 4 UNDER THE RSFPP. THE MEMBER WAS SURVIVED BY THREE CHILDREN, DENISE, REGINA AND DOLORES, WHO ON THE DATE OF THE MEMBER'S DEATH MAY HAVE BEEN ENTITLED TO THE ANNUITY. DENISE BECAME 18 YEARS OF AGE ON MARCH 8, 1970, AND WAS PAID ONE-HALF OF THE ANNUITY FOR THE MONTH OF FEBRUARY 1970. REGINA, WHO WAS PHYSICALLY INCAPACITATED WITH CEREBRAL PALSY FROM THE TIME OF BIRTH, WAS PAID THE OTHER ONE-HALF OF THE ANNUITY FOR THE MONTH OF FEBRUARY 1970, AND ALL FULL ANNUITY FROM MARCH 1970 TO THE DATE OF HER DEATH, JUNE 20, 1972. DOLORES HAS NOT RECEIVED ANY OF THE ANNUITY, WHICH IS STATED IN THE SUBMISSION TO BE $219.16 PER MONTH.

THE SUBMISSION FURTHER STATES THAT DOLORES WAS BORN ON MARCH 28, 1950, AND THAT A CERTIFICATE OF AN EXAMINING PHYSICIAN DATED MARCH 25, 1961, STATED THAT DOLORES HAD POOR VISION SINCE BIRTH AND THAT "THE VISUAL FUNCTION OF THIS YOUNG GIRL IS SO POOR THAT SHE WILL NOT BE ECONOMICALLY INDEPENDENT AT ANYTIME DURING HER LIFE." IN THIS REGARD, IT APPEARS FROM THE SUBMISSION THAT THE MEMBER WAS DOLORES' SOLE SUPPORT PRIOR TO HIS DEATH. IT ALSO APPEARS FROM THE SUBMISSION THAT IN A LETTER DATED JANUARY 28, 1972, FROM DOLORES' BROTHER IT IS STATED THAT DOLORES IS LEGALLY BLIND AND IS "LIVING INDEPENDENTLY." FURTHER, THAT DOLORES CURRENTLY RECEIVES FINANCIAL AID FROM THE SAN DIEGO COUNTY DEPARTMENT OF WELFARE IN THE AMOUNT OF $232 A MONTH AND SOCIAL SECURITY BENEFITS.

THE SUBMISSION STATES THAT IN 44 COMP. GEN. 551 (1965) WE HELD THAT THE ISSUE AS TO WHETHER A CHILD IS INCAPABLE OF SELF-SUPPORT FOR PURPOSES OF 10 U.S.C. 1435(2)(B) IS A MATTER FOR DETERMINATION FROM ALL THE FACTS. FURTHER, THAT THE PHRASE IN SECTION 1435(2)(B) "INCAPABLE OF SUPPORTING THEMSELVES" SHOULD BE APPLIED IN THE LIGHT OF AVAILABLE INTERPRETATIONS BY THE FEDERAL COURTS OF SIMILAR PROVISIONS IN OTHER LAWS, FOR EXAMPLE, UNDER THE PROVISIONS OF THE SOCIAL SECURITY ACT WHERE THE STATUTORY PHRASE USED IS "INABILITY TO ENGAGE IN ANY SUBSTANTIAL GAINFUL ACTIVITY BY ANY MEDICALLY DETERMINABLE PHYSICAL OR MENTAL IMPAIRMENT ***," AND THAT THE GENERAL PRINCIPLES OUTLINED IN THE SEVERAL COURT CASES CITED THEREIN MAY PROPERLY BE APPLIED IN CONNECTION WITH PROVISIONS OF SECTION 1435(2)(B).

THE VIEW EXPRESSED IN THE SUBMISSION IS THAT THE COURT CASES MENTIONED IN CONNECTION WITH 44 COMP. GEN. 551 (1965) TURNED ON THE CONCEPT OF THE REASONABLE POSSIBILITY OF THE CLAIMANT BEING ABLE TO ENGAGE IN SUBSTANTIAL GAINFUL ACTIVITY WITH REASONABLE REGULARITY AS OPPOSED TO INTERMITTENT OR INFREQUENT GAINFUL ACTIVITY. THE SUBMISSION CONTINUES AS FOLLOWS:

*** THERE WAS NO INDICATION THAT "INDEPENDENCE" BECAUSE OF INCOME FROM OTHER THAN A REASONABLY REGULAR EMPLOYMENT CAPABILITY HAD A BEARING ON THE DECISIONS, ESPECIALLY WHERE THE OTHER INCOME WAS RELATED TO AND RECEIVED BECAUSE OF THE DISABILITY, AS APPEARS TO BE THE CASE HERE. MOREOVER, THE FACT THAT AWARDS ARE CURRENTLY PAYING FROM CALIFORNIA STATE AID FOR THE BLIND AND FROM SOCIAL SECURITY WOULD SEEM TO INDICATE A SITUATION OF INCAPABILITY OF SELF-SUPPORT.

FINALLY, THE SUBMISSION DIRECTS ATTENTION TO 44 COMP. GEN. 280 (1964) WHEREIN IT WAS STATED THAT THE LANGUAGE OF THE STATUTE APPEARS TO BE ADDRESSED TO THE SITUATIONS OF CHILDREN WHO MUST NECESSARILY LOOK TO THEIR PARENT MEMBER FOR THEIR SUPPORT, WHO HAD NO INDEPENDENT SOURCE OF INCOME, AND WHO ARE DEPENDENT BECAUSE OF BEING INCAPABLE OF SUPPORTING THEMSELVES DUE TO A MENTAL DEFECT EXISTING PRIOR TO THEIR 18TH BIRTHDAYS.

SECTION 1435 OF TITLE 10, U.S. CODE, PROVIDES IN PERTINENT PART:

ONLY THE FOLLOWING PERSONS ARE ELIGIBLE TO BE MADE THE BENEFICIARIES OF, OR TO RECEIVE PAYMENTS UNDER, AN ANNUITY ELECTED UNDER THIS SUBCHAPTER BY A MEMBER OF THE ARMED FORCES:

(2) THE CHILDREN OF THE MEMBER WHO ARE -

(B) *** INCAPABLE OF SUPPORTING THEMSELVES BECAUSE OF A *** PHYSICAL INCAPACITY EXISTING BEFORE THEIR EIGHTEENTH BIRTHDAY ***.

CONCERNING THE EFFECT OF RECEIVING WELFARE AND SOCIAL SECURITY PAYMENTS ON THE ABILITY TO SUPPORT ONESELF, THIS OFFICE DEFINED THE PHRASE "INCAPABLE OF SUPPORTING THEMSELVES" FOUND IN 10 U.S.C. 1435(2)(B) AS BEING EQUIVALENT TO THE PHRASE "INABILITY TO ENGAGE IN ANY SUBSTANTIAL GAINFUL ACTIVITY" RELATING TO THE PROVISIONS OF 42 U.S.C. 423(C)(2). SEE 44 COMP. GEN. 551, 556 (1965). WE DO NOT BELIEVE THAT, IN THE CIRCUMSTANCES DESCRIBED IN THE SUBMISSION, THE RECEIPT OF WELFARE OR SOCIAL SECURITY PAYMENTS SHOULD BE CONSIDERED AS CONSTITUTING "SUBSTANTIAL GAINFUL ACTIVITY." INSTEAD, THIS FACT SHOULD BE CONSIDERED AS EVIDENCE OF AN INABILITY TO OBTAIN AND MAINTAIN SUITABLE EMPLOYMENT. THEREFORE, IT IS OUR VIEW THAT THE CLAIMANT IS FULLY QUALIFIED AS AN ELIGIBLE ANNUITANT UNDER THE PROVISIONS OF 10 U.S.C. 1435(2)(B), AND HAS BEEN SO QUALIFIED SINCE THE DEATH OF THE MEMBER ON FEBRUARY 8, 1970.

CONCERNING THE AMOUNT DUE THE CLAIMANT, WE SHOULD POINT OUT THAT 10 U.S.C. 1434 PROVIDES IN PART THAT THE ANNUITY IS PAYABLE IN EQUAL SHARES TO, OR ON BEHALF OF, THE SURVIVING CHILDREN ELIGIBLE FOR THE ANNUITY AT THE TIME EACH PAYMENT IS DUE, ENDING WHEN THERE IS NO SURVIVING CHILD. DETERMINING THE AMOUNT DUE, CONSIDERATION MUST BE GIVEN TO THE FACT THAT ON THE BASIS OF THE RECORD BEFORE US IT APPEARS THAT THERE WERE THREE ELIGIBLE BENEFICIARIES FROM FEBRUARY 8, 1970, TO MARCH 8, 1970, AND TWO ELIGIBLE BENEFICIARIES FROM MARCH 9, 1970, TO JUNE 20, 1972. THEREFORE, THE CLAIMANT WOULD BE ENTITLED TO ONE-THIRD OF THE TOTAL MONTHLY ANNUITY PAYMENT DUE PRIOR TO MARCH 8, 1970, AND ONE-HALF OF THE TOTAL ANNUITY PAYMENT DUE FROM MARCH 9, 1970, TO JUNE 20, 1972. BEGINNING JUNE 21, 1972, SHE IS ENTITLED TO THE ENTIRE MONTHLY ANNUITY. WE SHOULD ALSO POINT OUT THAT THE FACT THAT HER SHARE OF THE ANNUITY WAS ERRONEOUSLY PAID TO HER SISTERS DOES NOT PREVENT PAYMENT TO THE CLAIMANT. IN THIS REGARD, UNDER THE CONCURRENT AUTHORITY CONTAINED IN 10 U.S.C. 1442, WE AGREE IN ADVANCE NOT TO OBJECT TO WAIVER OF RECOVERY OF THE ERRONEOUS PAYMENTS IN THIS CASE.

ACCORDINGLY, SETTLEMENT SHOULD ISSUE IN FAVOR OF THE CLAIMANT, IF OTHERWISE CORRECT.

WITH REGARD TO THE REQUEST FOR SPECIFIC GUIDELINES IN "BLINDNESS" CASES IN DETERMINING THE ENTITLEMENT TO RSFPP ANNUITIES, WE STATED IN 44 COMP. GEN. 551, 558 (1965) THAT:

WHETHER A CHILD IS CAPABLE OR INCAPABLE OF SELF-SUPPORT FOR PURPOSES OF 10 U.S.C. 1435(2)(B) IS A MATTER FOR DETERMINATION FROM ALL THE FACTS OF THE PARTICULAR CASE. ***

THEREFORE, WE WILL NOT ISSUE SPECIFIC GUIDELINES FOR ANY TYPE OF PHYSICAL INCAPACITY BECAUSE IT IS OUR VIEW THAT THE PARTICULAR CIRCUMSTANCES OF AN INDIVIDUAL'S SITUATION MUST BE CONSIDERED BEFORE A DETERMINATION CAN BE MADE AS TO WHETHER A PERSON'S STATUS MAY PROPERLY BE VIEWED AS BEING WITHIN THE SCOPE OF SECTION 1435(2)(B).