B-179316, OCT 7, 1974, 54 COMP GEN 266

B-179316, OCT 7, 1974, 54 COMP GEN 266

PAY - RETIRED - SURVIVOR BENEFIT PLAN - RETIRED PRIOR TO EFFECTIVE DATE OF SBP - MARRIAGE PRIOR TO FIRST ANNIVERSARY DATE OF SBP A SERVICE MEMBER WHO WAS RETIRED PRIOR TO THE EFFECTIVE DATE OF THE SURVIVOR BENEFIT PLAN AND WHO MARRIES PRIOR TO THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE OF THE PLAN MAY PROVIDE IMMEDIATE COVERAGE FOR HIS SPOUSE REGARDLESS OF THE 2-YEAR LIMITATION UNDER 10 U.S.C. 1447(3)(A), PROVIDED SUCH AN ELECTION IS MADE WITHIN THE TIME LIMITATION STATED IN SUBSECTION 3(B) OF THE ACT, AS AMENDED BY SECTION 804 OF PUBLIC LAW 93 135.

IN THE MATTER OF A WIFE'S ANNUITY ELIGIBILITY UNDER THE SURVIVOR BENEFIT PLAN, OCTOBER 7, 1974:

THIS ACTION IS IN RESPONSE TO A LETTER FROM THE PRINCIPAL DEPUTY ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING AN ADVANCE DECISION CONCERNING THE ELIGIBILITY OF A SPOUSE TO RECEIVE AN ANNUITY UNDER THE PROVISIONS OF THE SURVIVOR BENEFIT PLAN (SBP), 10 U.S.C. 1447 1455, AS ADDED BY PUBLIC LAW 92-425, EFFECTIVE SEPTEMBER 21, 1972, 86 STAT. 706, IN THE CIRCUMSTANCES DESCRIBED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 489, ENCLOSED WITH THE SUBMISSION.

THE QUESTIONS PRESENTED IN THE COMMITTEE ACTION ARE AS FOLLOWS:

1. DOES THE TWO YEAR PROVISO INVOLVING THE WIFE'S ELIGIBILITY FOR AN SBP ANNUITY APPLY WHEN THE MEMBER MARRIES AFTER RETIREMENT BUT BEFORE THE EFFECTIVE DATE OF THE SBP LEGISLATION?

2. WOULD THE ANSWER TO QUESTION ONE EQUALLY APPLY IF THE MARRIAGE OCCURRED AFTER 20 SEPTEMBER 1972 AND BEFORE 21 SEPTEMBER 1973?

WITH REGARD TO THE FIRST QUESTION, IN OUR DECISION, 53 COMP. GEN. 818 (1974), WE CONSIDERED THE ISSUE INVOLVING THE IMMEDIATE ELIGIBILITY OF A SPOUSE UNDER THE SURVIVOR BENEFIT PLAN IN THE CASE OF A MEMBER WHO RETIRED FROM THE UNITED STATES AIR FORCE ON SEPTEMBER 30, 1967, MARRIED HIS PRESENT WIFE ON AUGUST 19, 1971, AND WHERE THERE WAS NO ISSUE BORN OF THE MARRIAGE. WE STATED THEREIN THAT MILITARY PERSONNEL WHO WERE RECEIVING RETIRED PAY PRIOR TO THE EFFECTIVE DATE OF THE ACT COULD ELECT TO PARTICIPATE IN THE PLAN BY VIRTUE OF SUBSECTION 3(B) OF PUBLIC LAW 92-425, AS AMENDED BY SECTION 804 OF PUBLIC LAW 93-155, EFFECTIVE NOVEMBER 16, 1973, 87 STAT. 605, 615, IF SUCH ELECTION WAS MADE WITHIN 18 MONTHS OF THE EFFECTIVE DATE, OR BY MARCH 21, 1974, AND THAT BY VIRTUE OF SUBSECTION 3(E) OF PUBLIC LAW 92-425 SUCH AN ELECTION MADE UNDER SUBSECTION 3(B) BECAME EFFECTIVE ON THE DATE RECEIVED BY THE SECRETARY CONCERNED. U.S.C. 1448 NOTE.

BASED ON THE LANGUAGE OF THOSE SUBSECTIONS AND THEIR LEGISLATIVE HISTORY, WE CONCLUDED THEREIN THAT THE LIMITATION CONTAINED IN 10 U.S.C. 1447(3), RESTRICTING THE ELIGIBILITY OF A SURVIVING SPOUSE TO RECEIVE ANNUITY UNDER THE PLAN, DOES NOT APPLY TO SURVIVING SPOUSES OF SUBSECTION 3(B) PARTICIPANTS, IN CASES WHERE SUCH SPOUSE WAS MARRIED TO THE RETIRED MEMBER PRIOR TO THE EFFECTIVE DATE OF THE ACT AND THAT SUCH SPOUSE BECAME AN IMMEDIATE ELIGIBLE BENEFICIARY UNDER THE PLAN ON THE DATE THE MEMBER'S ELECTION WAS RECEIVED BY THE AIR FORCE.

THE FIRST QUESTION, THEREFORE, IS ANSWERED ACCORDINGLY.

WITH REGARD TO THE SECOND QUESTION, THE COMMITTEE ACTION STATES THAT FROM THE LEGISLATIVE HISTORY OF PUBLIC LAW 92-425, IT APPEARS THAT IT WAS THE INTENTION OF CONGRESS TO BUILD PROVISOS INTO THE LAW THAT WOULD BEST SERVE ALL MEMBERS HAVING OR WHO HAD ATTAINED RETIREMENT RIGHTS. FURTHER, THERE WERE ALSO INTRODUCED PROTECTIVE PROVISOS, FOR EXAMPLE, THE CONGRESS DID NOT INTEND THAT "DEATH BED" MARRIAGES AND ELECTIONS SHOULD SERVE AS A WINDFALL FOR POTENTIAL ANNUITANTS. HOWEVER, IT DOES NOT APPEAR THAT MARRIAGES ENTERED INTO PRIOR TO ENACTMENT OF THIS LEGISLATION COULD HAVE BEEN ENTERED INTO ON ACCOUNT OF THE POTENTIAL "WINDFALL" BENEFITS.

SUBSECTION 3(B) OF PUBLIC LAW 92-425, PROVIDES THAT ANY PERSON WHO IS ENTITLED TO RETIRED OR RETAINER PAY ON THE EFFECTIVE DATE OF THE ACT MAY ELECT TO PARTICIPATE IN THE PLAN IF SUCH ELECTION IS MADE WITHIN 1 YEAR OF THE DATE OF ENACTMENT. AS PREVIOUSLY NOTED, THAT 1-YEAR PERIOD WAS SUBSEQUENTLY EXTENDED TO 18 MONTHS BY PUBLIC LAW 93-155, WHICH EXPIRED ON MARCH 21, 1974. IN ADDITION, THE FOURTH SENTENCE OF THAT SUBSECTION PROVIDES THAT:

A PERSON WHO IS NOT MARRIED OR DOES NOT HAVE A DEPENDENT CHILD ON THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE OF THIS ACT, BUT WHO LATER MARRIES OR ACQUIRES A DEPENDENT CHILD MAY ELECT TO PARTICIPATE IN THE PLAN UNDER THE FOURTH SENTENCE OF SECTION 1448(A) OF THAT TITLE (TITLE 10, UNITED STATES CODE).

IN OUR DECISION 53 COMP. GEN. 818 (1974), WE EXPRESSED THE VIEW THAT COVERAGE UNDER THE PLAN FOR MILITARY PERSONNEL WHO WERE RETIRED PRIOR TO THE EFFECTIVE DATE OF THE PLAN IS ONLY BY VIRTUE OF SUBSECTION 3(B) OF PUBLIC LAW 92-425, INDICATING THAT IN THE ABSENCE OF ANY OTHER PROVISION IN THAT ACT WHICH WOULD RESTRICT OR PROHIBIT SUCH PARTICIPATION, THE LIMITATIONS CONTAINED IN 10 U.S.C. 1447(3) WOULD NOT APPLY TO SUBSECTION 3(B) PARTICIPANTS.

IT CLEARLY INDICATED THAT THE BEFORE-QUOTED SENTENCE FROM SUBSECTION 3(B) PROVIDES A TIME LIMITATION WITHIN WHICH MILITARY PERSONNEL WHO WERE RETIRED PRIOR TO THE EFFECTIVE DATE OF PUBLIC LAW 92-425 MAY ELECT TO PARTICIPATE IN THE SURVIVOR BENEFIT PLAN. SINCE A RETIRED MEMBER'S ENTRANCE INTO THE PLAN IS AUTHORIZED ONLY UNDER THE PROVISIONS OF SECTION 1448 OF TITLE 10, U.S. CODE, OR SECTION 3 OF THE ACT AND SINCE PRE- EFFECTIVE DATE RETIREES, WHO ARE NOT MARRIED OR HAVE NOT ACQUIRED DEPENDENT CHILD BY "THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE OF THIS ACT," ARE LIMITED IN THEIR PARTICIPATION ELECTION THEREAFTER TO THE PROVISIONS OF THE FOURTH SENTENCE OF SUBSECTION 1448(A), SHOULD THEY LATER MARRY OR ACQUIRE A DEPENDENT CHILD, IT STANDS TO REASON THAT THEIR PARTICIPATION PRIOR TO THAT ANNIVERSARY DATE REMAINS BY VIRTUE OF SUBSECTION 3(B).

THEREFORE, IT IS OUR VIEW THAT A MEMBER WHO IS RETIRED PRIOR TO THE EFFECTIVE DATE OF THE ACT, AND WHO MARRIES PRIOR TO THE FIRST ANNIVERSARY OF THAT DATE (SEPTEMBER 21, 1973), MAY ELECT TO PARTICIPATE IN THE PLAN UNDER SUBSECTION 3(B) OF THE ACT. FURTHER, THE LIMITATION CONTAINED IN 10 U.S.C. 1447(3)(A) RESTRICTING THE ELIGIBILITY OF A SURVIVING SPOUSE TO RECEIVE AN ANNUITY WOULD NOT BE APPLICABLE.

THE SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE.