B-160876, APR. 18, 1967

B-160876, APR. 18, 1967

TO DISBURSING OFFICER, RETIRED PAY DEPARTMENT:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 26, 1967, AND ENCLOSURES, SUBMITTING FOR ADVANCE DECISION THE QUESTION WHETHER SAMUEL ROSS MILLER, JR., THE SON OF LIEUTENANT COMMANDER SAMUEL R. MILLER, UNITED STATES NAVY, RETIRED, IS AN ELIGIBLE BENEFICIARY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. YOUR REQUEST WAS ASSIGNED SUBMISSION NUMBER DO-N-942 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS STATED THAT COMMANDER MILLER WAS TRANSFERRED TO THE FLEET RESERVE IN JULY 1946; THAT HE WAS PLACED ON THE RETIRED LIST OF THE NAVY ON JUNE 1, 1952, UPON COMPLETION OF 30 YEARS' SERVICE AND ADVANCED TO THE RANK OF LIEUTENANT COMMANDER AS PROVIDED BY LAW. ON APRIL 24, 1954, HE EXECUTED AN ELECTION OF OPTION 2 FOR ONE-HALF REDUCED RETIRED PAY (COMBINED WITH OPTION 4) TO PROVIDE AN ANNUITY UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501-505 (THE ACT BECAME EFFECTIVE NOVEMBER 1, 1953), PAYABLE AFTER HIS DEATH IN A RETIRED STATUS TO HIS TWO CHILDREN, JANE ANN MILLER, BORN JANUARY 8, 1946, AND SAMUEL ROSS MILLER, JR., BORN OCTOBER 23, 1948.

THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 WERE CODIFIED IN CHAPTER 73, TITLE 10, U.S. CODE, BY THE ACT OF AUGUST 10, 1956, 70A STAT. 108-111. THE TITLE OF CHAPTER 73 WAS CHANGED TO RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN IN SECTION 1, PUB.L. 87-381, OCTOBER 4, 1961, 75 STAT. 810. THE CURRENT STATUTORY PROVISIONS RELATING TO OPTIONS 2 AND 4, ABOVE REFERRED TO, APPEAR IN 10 U.S.C. 1434 (A) AND (C) AS FOLLOWS:

"/A) THE ANNUITY THAT A PERSON IS ENTITLED TO ELECT UNDER SECTION 1431 OR 1432 OF THIS TITLE MAY BE 50, 25, OR 12 1/2 PERCENT, AS SPECIFIED BY THE ELECTOR AT THE TIME OF THE ELECTION, OF THE REDUCED AMOUNT OF HIS RETIRED OR RETAINER PAY. HE MAY MAKE THE ANNUITY PAYABLE---

"/2) 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 ELIGIBLE CHILD;

"/C)ANY ANNUITY UNDER SUBSECTION (A), OR ANY COMBINATION OF ANNUITIES UNDER SUBSECTION (B), MAY PROVIDE, AT THE ELECTOR'S OPTION, THAT NO DEDUCTION MAY BE MADE FROM HIS RETIRED OR RETAINER PAY AFTER THE LAST DAY OF THE MONTH IN WHICH THERE IS NO BENEFICIARY WHO WOULD BE ELIGIBLE FOR THE ANNUITY IF THE ELECTOR DIED.'

THE STATUS OF CHILDREN AS ELIGIBLE BENEFICIARIES IS SET FORTH IN SECTION 1435 PROVIDING:

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

"/2) THE CHILDREN OF THE MEMBER WHO ARE---

"/A) UNMARRIED;

"/B) UNDER 18 YEARS OF AGE OR INCAPABLE OF SUPPORTING THEMSELVES BECAUSE OF A MENTAL DEFECT OR PHYSICAL INCAPACITY EXISTING BEFORE THEIR EIGHTEENTH BIRTHDAY;

"/C) LEGITIMATE OR ADOPTED CHILDREN OF, OR STEPCHILDREN IN FACT DEPENDENT FOR THEIR SUPPORT UPON, THE MEMBER;

"/D) LIVING ON THE DATE WHEN THE MEMBER IS RETIRED OR BECOMES ENTITLED TO RETIRED OR RETAINER PAY OR, IF THE MEMBER WAS ALREADY RETIRED OR ENTITLED TO RETIRED OR RETAINER PAY ON NOVEMBER 1, 1953, LIVING ON THAT DATE; AND

"/E) BORN ON OR BEFORE THE DATE PRESCRIBED IN CLAUSE (D).'

JANE ANN MILLER'S ELIGIBILITY AS A BENEFICIARY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN TERMINATED WHEN SHE REACHED HER EIGHTEENTH BIRTHDAY ON JANUARY 8, 1964, AND THE ELIGIBILITY OF SAMUEL ROSS MILLER, JR., ALSO TERMINATED WHEN HE REACHED HIS EIGHTEENTH BIRTHDAY ON OCTOBER 23, 1966, UNLESS HE WAS INCAPABLE OF SUPPORTING HIMSELF BECAUSE OF A MENTAL DEFECT OR PHYSICAL INCAPACITY WHICH WAS IN EXISTENCE BEFORE HIS EIGHTEENTH BIRTHDAY. IN THIS LATTER RESPECT, THE ENCLOSURES RECEIVED WITH YOUR LETTER DISCLOSE THAT COMMANDER MILLER'S SON SUSTAINED A SEVERE HEAD (BRAIN) INJURY AND SPINAL DAMAGE IN AN AUTOMOBILE ACCIDENT IN FEBRUARY 1964.

YOUR FIRST QUESTION RAISES THE ISSUE WHETHER, IF INCAPABLE OF SELF SUPPORT BY REASON OF A MENTAL DEFECT OR PHYSICAL INCAPACITY EXISTING BEFORE HIS EIGHTEENTH BIRTHDAY, COMMANDER MILLER'S SON COMES WITHIN THE PURVIEW OF 10 U.S.C. 1435 (2) (B), BECAUSE SUCH DISABILITY WAS NOT PRESENT ON NOVEMBER 1, 1953. DOUBT CONCERNING THIS MATTER ARISES FROM THE DEFINITION OF THE TERM "CHILD" IN SECTION 102F, REGULATIONS FOR THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953. IN PERTINENT PART SECTION 102F PROVIDED THAT THE TERM "CHILD" MEANS:

"/1) A LEGITIMATE CHILD UNDER 18 YEARS OF AGE AND UNMARRIED.

"/4) A CHILD, AS DEFINED ABOVE, WHO IS OVER 18 YEARS OF AGE AND UNMARRIED, AND WHO IS INCAPABLE OF SELF-SUPPORT BECAUSE OF BEING MENTALLY DEFECTIVE OR PHYSICALLY INCAPACITATED IF THAT CONDITION EXISTED PRIOR TO REACHING AGE 18.

"/5) IN ALL CASES, THE TERM CHILD REFERS ONLY TO AN ACTIVE MEMBER'S CHILD, AS HERETOFORE DEFINED, WHO WAS BORN AND IS LIVING AND MEETS THE ABOVE REQUIREMENTS AT THE DATE OF RETIREMENT OF THE ACTIVE MEMBER, OR TO A RETIRED MEMBER'S CHILD WHO WAS BORN AND IS LIVING AND MEETS THE ABOVE REQUIREMENTS ON 1 NOVEMBER 1953.'

THE 1953 REGULATIONS WERE SUPERSEDED OCTOBER 4, 1961, BY REGULATIONS FOR THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN IMPLEMENTING PUBLIC LAW 87 -381. PROVISIONS SIMILAR TO THOSE CONTAINED IN THE 1953 REGULATIONS, ABOVE QUOTED, APPEAR IN SECTION 102E OF THE 1961 REGULATIONS.

THE MENTAL AND PHYSICAL DEFICIENCIES OF COMMANDER MILLER'S SON RESULTING FROM THE AUTOMOBILE ACCIDENT WHICH OCCURRED IN FEBRUARY 1964 WERE, OF COURSE, NOT IN EXISTENCE ON NOVEMBER 1, 1953. THEREFORE, IT WOULD SEEM THAT ON THAT DATE SAMUEL ROSS MILLER, JR., DID NOT MEET ALL OF THE REQUIREMENTS PRESCRIBED IN THE REGULATIONS AND HENCE, UNDER A LITERAL INTERPRETATION OF THOSE REGULATIONS HE WOULD BE PRECLUDED FROM BEING AN ELIGIBLE BENEFICIARY AFTER REACHING HIS EIGHTEENTH BIRTHDAY ON OCTOBER 23, 1966, NOTWITHSTANDING THE FACT THAT HIS MENTAL DEFECT AND PHYSICAL INCAPACITY CAME INTO EXISTENCE BEFORE HE REACHED THE AGE OF 18 YEARS WHICH IS ALL THAT THE SPECIFIC LANGUAGE OF THE LAW ACTUALLY REQUIRES. HOWEVER, IN VIEW OF THE RULE THAT REGULATIONS MUST NOT BE INCONSISTENT WITH, BUT MUST CONFORM TO, THE LAW ON WHICH THEY ARE BASED (32 COMP. GEN. 410-412), NOTHING CONTAINED IN THE ABOVE REGULATIONS WOULD BAR COMMANDER MILLER'S SON FROM QUALIFYING AS A BENEFICIARY IF HE OTHERWISE MEETS THE CONDITIONS PRESCRIBED IN 10 U.S.C. 1435 (2) (B). YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

AN ADDITIONAL QUESTION IS STATED AS FOLLOWS:

"ALSO, THERE IS DOUBT AS TO WHETHER HIS DISABILITY IS OF A NATURE AND EXTENT TO CAUSE HIM TO BE INCAPABLE OF SELF-SUPPORT.'

THE RECORD BEFORE THIS OFFICE ON THIS ASPECT OF THE MATTER CONSISTS SOLELY OF COPIES OF THE FOLLOWING: THREE LETTERS ADDRESSED BY COMMANDER MILLER ON JANUARY 26, 1966, MAY 8, 1966, AND AUGUST 31, 1966, RESPECTIVELY, TO THE U.S. NAVY FINANCE CENTER, CLEVELAND, OHIO; A CLINICAL REPORT (PSYCHOLOGIST) DATED JANUARY 6, 1966; A STATEMENT DATED MAY 5, 1966, FROM THE CHIEF OF ORTHOPEDIC SURGERY, U.S. NAVAL HOSPITAL, SAN DIEGO, CALIFORNIA; AND A STUDENT PROGRESS REPORT DATED OCTOBER 12, 1966, GRADE 12, MONTE VISTA SCHOOL, GROSSMONT UNION HIGH SCHOOL DISTRICT.

IN HIS LETTER OF AUGUST 31, 1966, COMMANDER MILLER STATES THAT HE HAS BEEN ADVISED THAT HIS SON "MAY HAVE TO UNDERGO BACK SURGERY TO RELIEVE DISCOMFORT AND PAIN SOMETIME IN THE NEAR FUTURE.' THE STUDENT PROGRESS REPORT ESTABLISHES THAT HIS SON WAS ATTENDING SCHOOL 11 DAYS BEFORE REACHING THE AGE OF 18 ON OCTOBER 23, 1966, BUT FURNISHES NO DEFINITE CLUE AS TO WHETHER THE SON HAS BEEN INCAPABLE OF SUPPORTING HIMSELF SINCE OCTOBER 23, 1966, BECAUSE OF MENTAL DEFECT OR PHYSICAL INCAPACITY EXISTING PRIOR TO REACHING HIS EIGHTEENTH BIRTHDAY.

THE CLEAREST DESCRIPTION OF THE SON'S CONDITION IS SET FORTH IN THE MAY 5, 1966, REPORT OF THE CHIEF OF ORTHOPEDIC SURGERY WHICH READS:

"THIS LAD WAS IN AN AUTOMOBILE ACCIDENT ON 15 FEBRUARY 1964 IN WHICH HE SUSTAINED A SEVERE HEAD INJURY AND A SEVERE COMPRESSION FRACTURE OF THE FIRST LUMBAR VERTEBRA. HE WAS UNCONSCIOUS FOR SEVERAL DAYS AND SINCE THAT TIME HE HAS SHOWN SIGNS OF SOME PERSONALITY CHANGE AND A POOR ATTENTION SPAN INDICATIVE OF ORGANIC BRAIN DAMAGE. PSYCHOMETRIC TESTS, A COPY OF WHICH IS ENCLOSED, INDICATE THAT HE IS OF AVERAGE INTELLIGENCE WHEN CLOSELY SUPERVISED; HOWEVER WHEN HE IS NOT HIS ATTENTION SOON WANDERS. THESE TESTS INDICATED THAT HE SHOWED THE MOTOR AND PERCEPTUAL SIGNS OF A BRAIN INJURED PERSON.

"EXAMINATION OF HIS BACK REVEALS A GIBBOUS AT THE DORSO-LUMBAR JUNCTION WITH APPROXIMATELY 30 DEGREES OF FORWARD ANGULATION AT THIS SITE DUE TO A HEALED SEVERE COMPRESSION FRACTURE OF THE FIRST LUMBAR VERTEBRA AND LESSER DAMAGE TO THE SECOND AND THIRD LUMBAR VERTEBRAE. THERE APPEARS TO BE CONSIDERABLE INVOLVEMENT OF THE POSTERIOR ELEMENTS WITH TRAUMATIC ARTHRITIS OF THE APOPHYSEAL JOINTS AT THIS LEVEL. HE HAS PAIN IN THIS REGION AFTER INACTIVITY AND ALSO AFTER ANY SUSTAINED ACTIVITY PARTICULARLY IF IT INVOLVES BENDING OR LIFTING. THERE IS A STRONG POSSIBILITY THAT HE WILL HAVE TO HAVE A SPINAL FUSION AT THIS LEVEL. I DO NOT FEEL THAT HE IS FIT FOR ANY WORK INVOLVING EXTENSIVE BENDING OR LIFTING OVER TEN TO TWENTY POUNDS.'

THE ABOVE QUOTED REPORT DEPICTS THE SITUATION AS OF MAY 5, 1966. THUS OVER FIVE MONTHS BEFORE COMMANDER MILLER'S SON REACHED THE AGE OF 18 ON OCTOBER 23, 1966, THERE WAS EVIDENCE OF HIS BRAIN INJURY TOGETHER WITH SPINAL DAMAGE RENDERING HIM UNFIT FOR ANY WORK INVOLVING EXTENSIVE BENDING OR LIFTING ANYTHING OVER 10 TO 20 POUNDS.

TO WHAT EXTENT THESE CONDITIONS CONTINUED TO AFFECT AND REDUCE HIS CAPABILITY OF SELF-SUPPORT IS NOT CLEARLY DISCLOSED IN THE RECORD BEFORE US. HOWEVER, THE EVIDENCE NOW PRESENTED RAISES SERIOUS DOUBT THAT SAMUEL ROSS MILLER, JR., HAS BEEN CAPABLE OF SELF-SUPPORT SINCE BECOMING 18 YEARS OF AGE AND IT APPEARS THAT SUCH INCAPABILITY AS EXISTS RESULTED FROM A MENTAL DEFECT OR PHYSICAL DISABILITY EXISTING BEFORE HIS EIGHTEENTH BIRTHDAY. THUS, AS AN ANSWER TO YOUR ADDITIONAL QUESTION, IT IS STATED THAT IT APPEARS HE HAS CONTINUED, AFTER REACHING THE AGE OF 18 YEARS ON OCTOBER 23, 1966, TO BE AN ELIGIBLE BENEFICIARY WITHIN THE MEANING OF 10 U.S.C. 1435 (2) (B).

IN THIS LATTER CONNECTION YOUR ATTENTION IS INVITED TO SECTION 505, REGULATIONS FOR THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN WHICH BECAME EFFECTIVE OCTOBER 4, 1961, PROVIDING AS FOLLOWS:

"A. ELIGIBILITY FOR THE ANNUITY WILL BE ESTABLISHED BY SUCH EVIDENCE AS MAY BE REQUIRED BY THE DEPARTMENT CONCERNED.

"B. IF A CHILD AS DEFINED IN SECTION 102E (4) IS A DESIGNATED ANNUITANT, THE DEPARTMENT CONCERNED SHALL REQUIRE PROOF THAT THE INCAPACITY FOR SELF- SUPPORT EXISTED PRIOR TO THE CHILD REACHING AGE 18, AND PROOF THAT CONTINUED INCAPACITATION EXISTS SHALL BE REQUIRED AT LEAST EVERY TWO YEARS AFTER THE CHILD PASSES THE AGE OF 18 YEARS.'

UNDER SUBSECTION B "PROOF THAT CONTINUED INCAPACITATION EXISTS" MAY BE REQUESTED AT ANY TIME AND IS REQUIRED NOT LESS FREQUENTLY THAN EVERY TWO YEARS AFTER THE CHILD PASSES THE AGE OF 18 YEARS. COMPARE DECISION OF MARCH 15, 1965, B-155808, 44 COMP. GEN. 551 (REFERENCE (F) IN LETTER OF JANUARY 26, 1967).