B-239434.2, Mar 27, 1991

B-239434.2, Mar 27, 1991

MILITARY PERSONNEL - Pay - Survivor benefits - Annuity payments - Eligibility - Unborn child

DIGEST

Claim for SBP Annuity - Jessica Ann Kile:

We have been asked to render an advance decision regarding the eligibility of Jessica Ann Kile, daughter of Staff Sergeant Todd A. Kile, USAF (Retired)(Deceased), for a Survivor Benefit Plan (SBP) annuity. For the reasons presented below, she is eligible for an SBP annuity.

On December 13, 1988, Staff Sergeant Kile, whose wife was pregnant with their first child, elected an SBP annuity for his child only. Two days later, he was placed on the Temporary Disability Retired List due to a terminal illness. He died on February 26, 1989; and Jessica was born April 17, 1989. The Air Force asks whether an unborn child may be elected as an SBP beneficiary and when SBP costs would accrue.

The Department of Defense Military Pay and Allowance Committee has assigned the number DO-AF-1501 to the request for control purposes. The definition of "dependent child" in 10 U.S.C. Sec. 1447(5) does not mention the situation of a child "en ventre sa mere", that is, a posthumous child. The legislative history of the SBP is likewise silent on that issue. However, in prior decisions we have discussed the rights of posthumous children and the effect of the birth of posthumous children on the rights of others.

In Staff Sergeant Martin P. Roberts, Jr., USA, (Retired)(Deceased), 60 Comp.Gen. 240 (1981), we dealt with the eligibility of a widow for an SBP annuity. In order to qualify as a "widow" under 10 U.S.C. Sec. 1447(3), a woman if she was not married to the member at the time he became eligible for retired or retainer pay, must have been married to the member for at least a year immediately before his death or be the mother of issue of that marriage. In 60 Comp.Gen. 240, the second Mrs. Roberts was not eligible for an SBP annuity at her husband's death because they had not been married for a year, but she became eligible at the birth of his child over 5 months later.

In Colonel Angus B. MacLean, USA (Retired), 62 Comp.Gen. 553 (1983), we discussed a member who had elected spouse and child coverage during his first marriage. Deductions for his daughter from that marriage ceased when she ceased to be a dependent child. When Colonel MacLean remarried and had another child, we said that that child was automatically covered by SBP and would have been even, if he had been born after Colonel MacLean's death. See 62 Comp.Gen. at 557.

In 34 Comp.Gen. 415 (1955), we paid a death gratuity to a member's child who was born 2 months after the member's death. In that decision, we quoted the court's statement in In re Seabolt, 113 F.2d 766, 771 (W.D.N.C. 1902), that a posthumous child is a child in being at the death of his father and therefore can be a beneficiary of his father.

In B-177471, Jan. 19, 1973, we questioned the propriety of a child only SBP election by a married service member in the absence of a clear statement of Congressional intent to allow such an election. Specialist Raymond C. Maltos, USA, Retired, (Deceased), B-184678, Aug. 18, 1976, we stated that such an election was not proper. We note that the SBP law was clarified in Pub. L. No. 94-496, 90 Stat. 2375 (1976) to allow child-only SBP election by married members. Our statements regarding such elections should be modified in light of the clarification of 10 U.S.C. Sec. 1448(a). Staff Sergeant Kile elected his unborn child alone to receive an SBP annuity, and his wife was notified of the election in accordance with 10 U.S.C. Sec. 1448(a)(3)(A). Although the definition of "dependent child" in 10 U.S.C. Sec. 1447(5) does not address the issue of posthumous children, our office has recognized the existance of a posthumous child in determining the eligibility of a widow for an SBP annuity. See 60 Comp.Gen. 240, supra. We have stated that a member's posthumous child would automatically be covered by the SBP if the member had elected to cover earlier children. See 62 Comp.Gen. 553, supra. We have paid a death gratuity to a posthumous child. See 34 Comp.Gen. 415, supra. Likewise, Jessica Ann Kile is entitled to an SBP annuity.

Costs would accrue as in the normal course of events on the first day of the first month after the SBP election was received by the Air Force. See Department of Defense Directive No. 1332.27, January 4, 1974.

The Committee's questions are answered accordingly. The enclosed voucher with proper cost reductions may be paid if otherwise correct.