SSR 65-12: SECTIONS 216(i), 217(a) and (e), and 223. -- DISABILITY -- INSURED STATUS -- USE OF MILITARY SERVICE WAGE CREDITS

20 CFR 404.120 and 404.1310

SSR 65-12

The claimant, V, age 56, filed application on may 6, 1962, to establish a

period of disability insurance benefits. He submitted he was placed on the

disability retired list. The Marine corps certified that May 1, 1951,

through May 31, 1954, V received military retirement pay computed on a

formula which included a multiple of active service. In order to increase

his monthly income, V waived his military retirement pay effective June 1,

1954, Veteran's Administration compensation, based on 100 percent

disability. He was advised by the service department that should his

compensation be reduced or terminated, the retirement pay would be

reinstate. V had no civilian employment or self-employment. The medical

evidence submitted established that V is under a disability for purposes

of title II of the Social Security Act beginning May 1, 1951.

V seeks to establish a period of disability and entitlement to disability

insurance benefits under title II of the Social Security Act solely on the

basis of military service wage credits. The question presented is whether

military service wage credits for service during the World War II and post

World War II periods may be granted the claimant to establish quarters of

coverage an insured status either for purposes of establishing a period of

disability or for entitlement to disability insurance benefits.

To establish a period of disability under section 216(i) and to become

entitled to disability insurance benefits under section 223, a person must

entitled to disability insurance benefits under section 223, a person must

be fully insured and have 10 quarters of coverage in the 40 calendar

quarters ending with the calendar quarter in which his disability began or

in any subsequent calendar quarter. These quarters of coverage may be

acquired on the basis of earnings from employment or self-employment

covered under the provisions of title II of the Social Security Act.

efits under section 223, a person must

be fully insured and have 10 quarters of coverage in the 40 calendar

quarters ending with the calendar quarter in which his disability began or

in any subsequent calendar quarter. These quarters of coverage may be

acquired on the basis of earnings from employment or self-employment

covered under the provisions of title II of the Social Security Act.

Section 217(a)(1) provides in pertinent part as follows:

* * * * * * *

"(B) a benefit * * * which is based, in whole or in part, upon the active

military or naval service of such veteran during World War II is

determined by andy agency or wholly owned instrumentality of the United

States (other than the Veterans' Administration) to be payable by it under

any other law the United States or under a system established by such

agency or instrumentality. * * * The provisions of clause (B) shall * * *

not apply for purposes of section 216(i)(3)."

Section 217(d) defines the World War II period as beginning September 16,

1940 and ending the close of July 24, 1947. Section 217(e) sets forth

essentially the same provisions as section 217(a) except that they are

applicable to veterans who served in the active military or naval service

of the United States during the post-World War II period July 25, 1947

through December 31, 1956.

Section 404.1310 of the Social Security Administration Regulations (20

CFR 404.1310) provides in pertinent part:

* * * * * * *

Section 404.1311 of the Social Security Administration Regulations

provides that:

The Act clearly precludes the granting of military service credits where

such service is the basis for another benefit which has been determined

"to be payable" by an agency or wholly owned instrumentality of the United

States (other than the Veterans' Administration). In Sutherland v. Flemming , 189 F.Supp. 712, U.S.D.C., N.D., Ala., November 22, 1960,

the court stated:

provides that:

The Act clearly precludes the granting of military service credits where

such service is the basis for another benefit which has been determined

"to be payable" by an agency or wholly owned instrumentality of the United

States (other than the Veterans' Administration). In Sutherland v. Flemming , 189 F.Supp. 712, U.S.D.C., N.D., Ala., November 22, 1960,

the court stated:

The language of clause (B) in sections 217(a) and 217(e) of the Act is

broad. The use of words "a benefit" does not expressly limit its operation

to cases of contemporaneous payment of benefits by this agency and another

Federal agency. It is clear that once any benefit is determined to be

payable by another agency based on military and naval service in the

relevant periods, section 217(a) and 217(e) are not applicable. Sections

217(a) and 217(e) were designed to prevent the payment of social security

benefits upon the basis of a veteran's service where the same service is

being used as the basis of a benefit awarded by some other Federal agency

(other than the Veterans' Administration).

The evidence herein discloses that the award of V's retirement pay was

based in part on World War II Service and in part on post-World War II

service. Since the Marine Corps has determined a retirement benefit to be

payable to V based in whole or in part on such service in both periods,

sections 217(a) and 217(e) of the Act and the implementing regulations

specifically prohibit granting military service wage credits for monthly

social security benefits. This is true whether or not benefits are

actually paid under that determination. SSR 61-49 , C.B. 1960-61,

p. 110

mined a retirement benefit to be

payable to V based in whole or in part on such service in both periods,

sections 217(a) and 217(e) of the Act and the implementing regulations

specifically prohibit granting military service wage credits for monthly

social security benefits. This is true whether or not benefits are

actually paid under that determination. SSR 61-49 , C.B. 1960-61,

p. 110. Without wage credits for either period of service V has not met

the special earnings requirements of the Act in that he has not acquired

20 quarters of coverage in the 40-quarter period ending with the calendar

quarter in which his disability began or in any subsequent calendar

quarter and, therefore, he is not insured for purposes of disability

insurance benefits under section 223 of the Act.

However, both sections 217(a) and 217(e) provide that the restriction on

their applicability due to the award of another Federal benefit does not

apply for purposes of section 216(i)(3). Section 404.120 of the Social

Security Administration Regulations (20 CFR 404.120) expressly provides in

pertinent part that:

* * * * * * *

Thus, military service may service may result in wage credits and give

the veteran quarters of coverage needed for purposes of establishing a

period of disability, even though for other title II purposes the wage

credits could not be granted because another Federal benefit was based on

such military service. A period of disability may be advantageous to a

worker in several ways. Among other advantages, the period of disability

is excluded (under section 214(a) of the Act) in determining the number of

quarters of coverage he needs for fully insured status, and thus operates

to reduce the number otherwise required

t be granted because another Federal benefit was based on

such military service. A period of disability may be advantageous to a

worker in several ways. Among other advantages, the period of disability

is excluded (under section 214(a) of the Act) in determining the number of

quarters of coverage he needs for fully insured status, and thus operates

to reduce the number otherwise required. In the present case, for example,

if no period of disability is established, V would need 20 quarters of

coverage to be fully insured upon attaining age 62 in 1968; whereas, with

a period of disability beginning in 1951, V would need only 6 quarters of

coverage (which he conceivably could acquire by engaging in covered

employment or self-employment).

Accordingly, it is held that for purposes of establishing

entitlement to disability insurance benefits under section 223 of the Act,

no military service wage credits may be granted for V's service during the

period September 16, 1940, through April 30, 1951, since another Federal

agency has determined that a benefit is payable to him based on the same

service. It is further held , however, that for purposes of

establishing a period of disability under section 216(i)(3), V may be

granted military service wage credits for such service, that he has met

the earnings requirement for the establishment of a period of disability

and, having met the other pertinent requirements therefor, is entitled to

the establishment of a period of disability beginning May 1, 1951, the

date of onset of his disability.

[V instituted civil suit for review of Secretary's decision and on April

18, 1963, the Secretary's decision was affirmed without opinion. Preston v. Celebrezze U.S.D.C., S.D. of Fla. (No. 540-62-Civ.-DD)

(CCH U.I.R., Fed. Par 14,819).]