SSR 74-26c: SECTIONS 202(h)(1) and 214(a), 217 (42 U.S.C. 402(h)(1), 414(a) and 417) -- PARENT'S INSURANCE BENEFITS -- GRATUITOUS WAGE CREDITS FOR MILITARY SERVICE -- EXCLUSION OF SERVICE IN PHILIPPINE ARMY -- CONSTITUTIONALITY

20 CFR 404.1301

SSR 74-26c

Lagtapon v. Secretary , 481 F.2d 538 (Dist. of Colum.

1973)

PER CURIAM: Appellant has been trying to collect Parent's Insurance

Benefits under 42 U.S.C. §

401(h)(1) [1] from the Social

Security Administration based upon the service of his son who died in

World War II. Appellant's son had been a member of the Philippine Army

which was called into the service of the United States Army in 1941. The

Administration denied appellant's application for benefits in 1968, and

affirmed this denial after a hearing in 1969. Appellant then proceeded in

District Court to compel payment under 42 U.S.C. § 405(g), and that court

granted the Administration summary judgment. We agree that summary

judgment was properly granted.

Eligibility for Parent's Insurance Benefits under 42 U.S.C. § 402(h)(1)

requires, inter alia , that the claimant be a parent of "an

individual who died a fully insured individual." The phrase "fully insured

individual" includes one who has six "quarters of coverage." 42 U.S.C. §

414(a), which means that the insured must have earned $50 or more during 6

three-month periods. 42 U.S.C. § 413(a). Since there was no record of

appellant's son having been paid any wages during any three-month period,

appellant has attempted to qualify his son under a provision which states

that a veteran shall be deemed to have been paid $160 wages for each month

he "served in the active military or naval service of the United States

during World War II." 42 U.S.C. 217(a)(1). The impediment to appellant's

recovery, and the basis for the Administration and District Court

decisions, is that 38 U.S.C. § 107(a) expressly declares that

This section prevents appellant's son from qualifying as one who has

"served in the active military or naval service" for the purpose of

obtaining Social Security benefits.

e United States

during World War II." 42 U.S.C. 217(a)(1). The impediment to appellant's

recovery, and the basis for the Administration and District Court

decisions, is that 38 U.S.C. § 107(a) expressly declares that

This section prevents appellant's son from qualifying as one who has

"served in the active military or naval service" for the purpose of

obtaining Social Security benefits.

The Social Security benefits to parents of World War II veterans

contained in 42 U.S.C. § 417, were created in 1950 as part of the Social

Security Act Amendments, 64 Stat. 477, 512. The term "World War II

veteran" was defined to mean "any individual who served in the active

military or naval service of the United States during World War II." 42

U.s.C. § 417(d)(1). While the Philippine Army was placed in the active

military service with the United States Army in 1941 by a Presidential

Military Order, [2] we think it

is clear that the 1950 Social Security benefits were not intended to reach

members of the Philippine Army.

First, and most compelling, is the fact that in 1946 Congress

appropriated $200,000,000 to the Philippine Army with the express proviso

now codified in 38 U.S.C. § 107(a) that members of that army were to

receive no benefit from any law of the United States which conferred

"rights, privileges, or benefits" upon servicemen. Since the 1950 Social

Security Act Amendments do not specifically abrogate the language of this

proviso by expressly including members of the Philippine Army within the

ambit of the Amendments, there is no reason not to give that proviso its

clear effect. Second, the legislative history of the 1950 Amendments

indicates that the section extending Social Security benefits to World War

II veterans was intended to restore to servicemen who had been removed

from the civilian work force the Social Security benefits of which they

had been deprived because of their war service. S. REP. No. 1669, 81st

Cong., 2d Sess. 18 (1950)

its

clear effect. Second, the legislative history of the 1950 Amendments

indicates that the section extending Social Security benefits to World War

II veterans was intended to restore to servicemen who had been removed

from the civilian work force the Social Security benefits of which they

had been deprived because of their war service. S. REP. No. 1669, 81st

Cong., 2d Sess. 18 (1950). However, this purpose does not apply to

Philippine veterans, since they were not even covered by the Social

Security Act during the war, and thus could not have been deprived of any

benefits. [3]

Finally, appellant attacks the exclusion of Philippine servicemen from

the Social Security benefits given the United States servicemen as

unconstitutional. We find no merit in this argument. Congress clearly had

a rational basis for excluding Philippine servicemen from the 1950

Amendments, since as mentioned above, the purpose of restoring Social

Security benefits did not apply to such servicemen. Additionally, the

Philippines became an independent country in 1946, and Congress cannot be

faulted for not extending coverage of the Social Security Act to citizens

of another country. Nor can it be argued that this exclusion violates

appellant's due process rights. See Richardson v. Belcher , 404 U.S.

78 (1971).

Affirmed.

[1] This section provides in

part:

[2] C.F.R. Compilation 1938-1943

at 1307.

[3] See S. REP. No. 1669,

81st Cong., 2d Sess. at 10 (1950).