SSR 61-49. MILITARY SERVICE WAGE CREDITS -- EFFECT OF BENEFIT AWARDED BY ANOTHER FEDERAL AGENCY

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).

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.

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.