B-242157, Aug 14, 1991

B-242157, Aug 14, 1991

MILITARY PERSONNEL - Pay - Survivor benefits - Annuity payments - Eligibility DIGEST: Retired member is informally advised that based on B-188932, December 23, l977, a surviving spouse of retired member who validly elected into Survivor Benefit Plan to provide spouse coverage and later retired from Foreign Service with spouse coverage under the retirement system is entitled to payment of both annuities because of the absence of law comparable to 10 U.S.C. Sec. 1452(e) (applicable to Civil Service) permitting termination of SBP participation.

Msgt. Ralph B. Hartwell, USAF (retired):

Mr. Hartwell:

This responds to your letter dated October 31, l990 inquiring whether the widow of a retired armed forces member who subsequently joined the Foreign Service may receive full survivor benefits under both the military Survivor Benefit Plan (SBP) and the Foreign Service Retirement and Disability System (FSRDS).

Since your questions are merely hypothetical at this point and you do not make a specific claim, you are not entitled to a decision by the Comptroller General. See 31 U.S.C. Sec. 3702 (l988). However, to assist you in financial planning, we provide the following information.

Your letter seeks clarification of 59 Comp.Gen. 225 (l980) where we held that the survivors of a retired armed forces member who waives military retired pay for the purposes of gaining credit for military duty under the Civil Service Retirement and Disability System (CSRDS), and accepts survivor coverage under that system, may not also receive SBP benefits. In reaching that decision, we noted that 10 U.S.C. Sec. 1450(d) prohibits payment of SBP benefits to members who have waived military retirement to receive credit under CSRDS, unless they have declined coverage under the Civil Service survivor plan. Additionally, payments for SBP coverage are not required when a waiver of military retired pay is in effect unless coverage under the Civil Service survivor plan has been declined. See 10 U.S.C. Sec. 1452(e). You ask whether this holding also applies when survivor benefits under FSRDS, rather than CSRDS, are at issue.

In Matter of DOD Military Pay and Allowance Action No. 536, B-188932, December 23, l977, we decided that a surviving spouse of a deceased individual who was a valid participant in both military and foreign service survivor annuity programs is entitled to payment of benefits under both programs. We found that the language of 10 U.S.C. Sec. 1452(e) does not provide for termination of required payments for SBP coverage incident to waiver of military retirement to participate in FSRDS, but only to participate in CSRDS. In the absence of a reference in title 10 regarding Foreign Service survivor annuities, the provisions of 10 U.S.C. Sec. 1452(a) and (d) require a retired member to continue to make deposits for SBP coverage even though the member waived receipt of retired pay to receive credit for military service under FSRDS, and is covered under the Foreign Service survivor annuity program. We noted that survivors should qualify to receive benefits under SBP if retirees are required to continue to make contributions towards the SBP fund, despite waiver of military retired pay for credit under FSRDS.

Following the issuance of the l977 decision, we advised Congress that under the SBP law, duplicate survivor annuity benefits were possible where the FSRDS was involved and suggested possible legislative changes. However, Congress to date has not acted upon the proposal.

Accordingly, we believe our December, l977 decision, copy enclosed, accurately reflects the current law and was unaffected by our holding in 59 Comp.Gen. 225.