N was on active naval service with the U.S. Navy from January 1934 to August 31, 1955, when he was honorably discharged. Upon discharge, he was awarded monthly retirement pay, the amount of which was based in part upon naval service extending from September 16, 1940, to August 31, 1955. However, he died 15 days after discharge and no benefits were ever actually paid under the Navy's award. His widow, R, filed application for social security benefits for herself and three children under age 18.
R and her children are eligible for the benefits claimed if N was insured at the time of his death. To be insured, N must have had wages or earnings from self-employment in a certain number of calendar quarters after 1936. Pay received for service in the U.S. armed forces before 1957 is not creditable in determining eligibility for social security benefits, and N had received no other wages or earnings from self-employment since 1936.
However, R asserts that N was insured by virtue of military service wage credits under section 217 of the Social Security Act. Section 217(a) provides that, under certain conditions, wages of $160 shall be deemed to have been paid a person for each month in which he was in the active military or naval service of the United States during World War II (September 16, 1940, to July 24, 1947, inclusive), but that (with exceptions not applicable here) these wage credits may not be granted if a benefit based in whole or in part upon such active military or naval service is determined to be payable by any department or agency of the United States (other than the Veterans' Administration). Section 217(e) contains a like provision with respect to service during the post-World War II period (July 25, 1947, through December 31, 1956).
Whether or not R and her children are entitled to social security benefits depends upon whether the award of monthly retirement pay, made to N by the Navy, and based partly upon N's active naval service in the World War II and post-World War II periods specified above, precludes granting of military service wage credits, even though no payment was actually made to N pursuant to such award.
Regulations No. 4, §§ 404.1309 and 404.1355, provide in effect that if a retirement or survivors' benefit has been determined to be payable by a Federal department or agency (other than the Veterans' Administration) on the basis of the active military or naval service of a veteran during either the World War II or post-World War II period, any benefits or lump sum on that veteran's earnings record shall (with exceptions not pertinent here) be determined without use of military service wage credits for that period; and they state expressly that his shall apply even though the Federal benefit has since been terminated. Thus, under the law and the regulations, such a determination by the other Federal agency precludes use of military service wage credits under the Social Security Act. This is true whether or not benefits were actually paid as a result of that determination.
The purpose and effect of this restriction are to prevent duplication of credits for military or naval service where another governmental agency has given credit for the military or naval service in an award of benefits. The restriction leaves no discretion to grant military service wage credits after the other agency's benefit has been determined to be payable; it is immaterial that the other agency's benefit was terminated before any payments were actually made.
Accordingly, it is held that military service wage credits may not be granted and R and her children are not entitled to benefits because N was not insured.
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