R and his wife died in February 1962, survived by three minor children. In March 1962, R's brother, the legal guardian of the children, filed application for child's insurance benefits on their behalf.
It was ascertained that each child might be entitled to monthly benefits of $83.30 beginning February 1962, by including in R's earnings remuneration for service as commissioned officer of the Reserve Corps of the Public Health Service during the period February 16, 1957, through June 23, 1958. If this remuneration is excluded from the computation of the child's benefits, each child would receive monthly benefits of $78.80 beginning February 1962.
Section 215(h) of the Social Security Act provides, as pertinent here, that remuneration paid for service to which the provisions of section 210(l)(1) apply and which is performed by an individual as a commissioned officer of the Reserve Corps of the Public Health Service after December 31, 1956, and prior to July 1, 1960, shall not be include din computing entitlement to or the amount of any monthly social security benefit for any months after June 1960 and prior to the first month with respect to which the Civil Service Commission certifies to the Secretary of Health, Education, and Welfare that by reason of a waiver filed, no further annuity will be paid to him, his wife, or his children, or if he has died, to his widow or children, under the Civil Service Retirement Act on the basis of such service. Section 215(h) further provides that if such individual does not file such waiver before he dies, then in the case of benefits for the month in which he died or any month thereafter, the waiver must be filed by his widow and by or on behalf of all his children, if any, and that such waiver shall be irrevocable. The waiver by a child shall be filed by the legal guardian or guardians of the children, or in the absence thereof, by the person (or persons) who has the children in his care.
The question is whether a waiver must be filed in order to include for monthly benefit purposes R's earnings for service from February 16, 1957, through June 23, 1958, in the Reserve Corps of the Public Health Service.
Under section 215(h), above, a waiver must be filed before earnings for service performed as a commissioned officer of the Reserve Corps of the Public Health Service after December 31, 1956, and prior to July 1, 1960, can be credited for monthly benefit purposes for months after June 1960. In the present case since R is dead, R's brother as legal guardian of the children, is the proper party to file the waiver on behalf of the children.
Accordingly, it is held that each child is entitled to benefits of $78.80 per month beginning February 1962 and that a waiver must be filed by their legal guardian, as provided in section 215(h) of the Act, in order to permit an increase in the amount of each child's benefit from $78.80 to $83.30 per month. If the waiver is filed, the children's benefits may be increased to this latter amount beginning no earlier than the first month with respect to which the Civil Service Commission certifies that by reason of the waiver no further annuity will be paid on the basis of R's service as a commissioned officer of the Reserve Corps of the Public Health Service.
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