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approved by the Federal Security Administrator, Sept. 29, 1947, 12 F.R. 6551. ,

8 403.1003 Rights conferred under section 210 (a)_(a) Fully insured status, An individual who meets the requirements of section 210 (a) (see $ 403.1002) is deemed to have died a fully insured individual (see $ 403.201).

Example: V is honorably discharged from the Army in 1946 after 3 years of active service. He dies in 1948. He was never in covered employment.

V is deemed to have died a fully insured individual.

(b) Average monthly wage. An individual who meets the requirements of section 210 (a) (see $ 403.1002) is deemed to have an average monthly wage of not less than $160. Where the average monthly wage, computed on the basis of such an individual's wage record (see § 403.302), exceeds $160, benefits or a lump sum may be paid based on such higher average monthly wage provided that entitlement to such benefits or a lump sum may be established without recourse to section 210 of the act (see paragraph (a) of this section).

Example 1: V, who meets the requirements of section 210 (a), was fully insured on the basis of his wage record and had an average monthly wage of $100.

Benefits or a lump sum may be payable to qualified survivors computed on the basis of the average monthly wage of $160 provided under section 210.

Example 2: V, who meets the requirements of section 210 (a), was currently insured on the basis of his wage record and had an average monthly wage of $200. He is survived by a widow, W, age 30, and a child, C, age 5.

Upon filing applications for widow's cur- . rent and child's benefits, benefits may be paid to W and C if they are otherwise qualiiled for benefits, based on the average monthly wage of $200 because such benefits can be paid without recourse to section 210.

However, when W qualifies for widow's benefits at age 65, benefits will be paid based on the average monthly wage of $160 provided under section 210, since such benefits would not be payable to W except by recourse to the fully insured status provided under section 210.

(c) Increment years." An individual who meets the requirements of section 210 (a) (see $ 403.1002) is deemed for the purposes of section 209 (e) (2) of the act (see $ 403.301 (b)) to have been paid not less than $200 of wages in each calendar year in which he had 30 days or more of active service after September 16, 1940. The years on which the com

putation provided in section 209 (e) (2) of the act are based are referred to as "increment years."

If such individual was fully or currently insured on his wage record, and entitlement to the benefits or the lump sum payable could have been established without recourse to section 210 of the act (see paragraph (a) of this section), the "increment years" based on the wage record will be combined with those provided under section 210 of the act. Not more than one “increment year" may be allowed for any calendar year.

Example 1: V served in the Army from November 1, 1944, until his honorable discharge in March 1946. He died in August 1946 survived by a widow and child, age 5. He had never worked in covered employment.

Benefits will be computed on the basis of an average monthly wage of $160 plus 3 "increment years."

If V had been fully or currently insured on the basis of his wage record and had earned at least $200 of wages in the calendar year 1944, only 2 "increment years" for military service would be allowed even though he also had 30 days of active service in 1944. However, an “increment year" for 1944 would still be allowed based on the wage record.

Example 2: V, who meets the requirements of section 210 (a), was fully insured, had an average monthly wage of $165 and 3 "increment years" for 1941, 1942 and 1943 on the basis of his wage record. He also had 1 "Increment year" for military service in 1944. He died in March 1947.

Benefits or a lamp sum may be payable computed on the basis of the average monthly wage of $165 and the 3 "Increment years" shown on the wage record plus 1 "increment year" for military service.

Example 3: V, who meets the requirements of section 210 (a), was currently insured, had an average monthly wage of $200 and 3 "increment years" for 1941, 1942 and 1943 on the basis of his wage record. He also had 1 "increment year” for military service in 1944. He died in 1946 survived only by his widow, W, age 35.

Upon filing a timely application, a lump sum may be paid to W based on the average monthly wage of $200 and the 3 "increment years" shown on the wage record plus the "Increment year" for military service since a lump sum would be payable without recourse to section 210.

However, when w qualifies for a widow's monthly benefit at age 65, benefits will be paid only on the basis of the average monthly wage of $160 provided in section 210 and the "increment year" allowed for military service since such benefits would not be payable to W except by recourse to the fully insured status provided under section 210.

§ 403.1004 Meaning of terms—(a) An individual who has served in the active military or naval service of the United States

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includes any person, male or female, commissioned, enlisted, enrolled or drafted, who served in any of the armed forces of the United States, including the Army, Navy, Marine Corps, Coast Guard, or any of the components thereof. It does not include a member of units such as the Women's Army Auxiliary Corps (WAAC), Coast Guard Auxillary, Coast Guard Reserve (Temporary) or the Civil Air Patrol. [Preceding paragraph, in small type, superseded by following paragraph during period covered by this Supplement]

$ 403.1004 Meaning of terms. (a) An individual who has served in the active military or naval service of the United States includes any person, male or female, commissioned, enlisted, enrolled or drafted, who served in any of the armed forces of the United States, including the Army, Navy, Marine Corps, Coast Guard, or any of the components thereof. It does not include a member of units such as the Women's Army Auxiliary Corps (WAAC), Coast Guard Auxiliary, Coast Guard Reserve (Temporary) (except those members who served on active fulltime duty with military pay and allowances), or the Civil Air Patrol. [Paragraph (a) amended, Aug. 8, 1947, approved Aug. 13, 1947, 12 F.R. 5553]

(b) Active service of 90 days means one or more periods totalling at least 90 days (whether or not consecutive) which are served after September 15, 1940, and before the date of termination of World War II. Where 90 days were not served wholly after September 15, 1940, and before the date of termination of World War II, but such service began prior to September 16, 1940, and concluded on or after that date, or began prior to the date of termination of the war and concluded on or after that date, the requirements of active service of 90 days is met only if such service of 90 days was continuous. Active service of 90 days is not necessary in the case of a veteran who was in active service on or after September 16, 1940, or before the date of termination of the war, and who is separated therefrom by reason of a disability or injury incurred or aggravated in service in line of duty.

Example: Venters the Army on July 25, 1940, and continues in active service until his honorable discharge on October 31, 1940. 46 days of this service was performed beginning with September 16, 1940.

V has the requisite number of days of active service since he had more than 90 days of continuous service extending into the period beginning with September 16, 1940.

If V had been discharged on or after September 16, 1940, for a disability incurred in service in line of duty he would meet the

service requirement even though his period of service was less than 90 days. [Preceding paragraph and example, in small type, superseded by following paragraph and example during period covered by this Supplement]

(b) Active service of 90 days means one or more periods totaling at least 90 days (whether or not consecutive) which are served after September 15, 1940, and before July 25, 1947. Where 90 days were not served wholly after September 15, 1940, and before July 25, 1947, but such service began prior to September 16, 1940, and concluded on or after that date, or began prior to July 25, 1947, and concluded on or after that date, the requirement of active service of 90 days is met only if such service of 90 days was continuous. Active service of 90 days is not necessary in the case of a veteran who was in active service on or after Septem. ber 16, 1940, and before July 25, 1947, and who is separated therefrom by reason of a disability or injury incurred or aggravated in service in line of duty.

Example. V enters the Army on July 25, 1940, and continues in active service until his honorable discharge on October 31, 1940. 46 days of this service was performed beginning with September 16, 1940.

V has the requisite number of days of active service since he had more than 90 days of continuous service extending into the period beginning with September 16, 1940.

If V had been discharged on or after September 16, 1940, for a disability incurred in service in line of duty he would meet the service requirement even though his period of service was less than 90 days. [Paragraph (b) and example amended Sept. 24, 1947, approved Sept. 29, 1947, 12 F.R. 6551]

(c) Conditions other than dishonorable. An honorable discharge or separation from the active military or naval service is a discharge under "conditions other than dishonorable." Any other discharge or release from the active military or naval service of the United States is under "conditions other than dishonorable" except a discharge or release which is:

(1) A dishonorable discharge issued pursuant to a sentence of a general court martial of the Army, Navy, Marine Corps or Coast Guard; or

(2) A bad conduct discharge issued pursuant to a sentence of a general court martial of the Navy Marine Corps or Coast Guard; or

(3) For desertion; or

(4) In the case of an officer, by resignation accepted for the good of the seryice; or

(5) On the ground that the individual was a conscientious objector who refused to perform military duty or refused to wear the uniform or otherwise to comply with lawful orders of competent military authority; or

(6) By reason of a conviction by a civil court for treason, sabotage, espionage, murder, rape, arson, burglary, robbery, kidnaping, assault with intent to kill, assault with a dangerous weapon, or of an attempt to commit any of these crimes.

(d) Date of the termination of World War II means some future date proclaimed by the President as such date or specified in a concurrent resolution of the two Houses of Congress, whichever is the earlier. [Preceding paragraph, in small type, superseded by following paragraph during period covered by this Supplement]

(d) Date of the termination of World War II means, for the purposes of this subpart, July 25, 1947. [Paragraph (d) amended Sept. 24, 1947, approved Sept. 29, 1947, 12 F.R. 6551]

SECTION 210 (b) OF THE ACT (60 STAT. 979)

(1) If any pension or compensation is determined by the Veterans' Administration to be payable on the basis of the death of any individual referred to in subsection (a) of this section, any monthly benefits or lumpsum death payment payable under this title with respect to the wages of such individual shall be determined without regard to such subsection (a).

(2) Upon an application for benefits or a lump-sum death payment with respect to the death of any individual referred to in subsection (a), the Federal Security Administrator shall make a decision without regard to paragraph (1) of this subsection unless he has been notified by the Veterans' Administration that pension or compensation is determined to be payable by the Veterans' Administration by reason of the death of such individual. The Federal Security Administrator shall notify the Veterans Administration of any decision made by him authorizing payment, pursuant to subsection (a), of monthly benefits or of a lump-sum death payment. If the Veterans' Administration in any such case has made an adjudication or thereafter makes an adjudication that any pension or compensation is payable under any law administered by it, by reason of the death of any such individual, it shall notify the Federal Security Administrator, and the Administrator shall certify no further benefits for payment, or shall recompute the amount of any further benefits payable,

as may be required by paragraph (1) of this subsection. Any payments theretofore certified by the Federal Security Administrator pursuant to subsection (a) to any individual, not exceeding the amount of any accrued pension or compensation payable to him by the Veterans Administration, shall (notwithstanding the provisions of sec. 3 of the Act of August 12, 1935, as amended (U. S. C., 1940 edition, title 38, sec. 454a ) ) be deemed to have been paid to him by the Veterans' Administration on account of such accrued pension or compensation. No such payment certified by the Federal Security Administrator, and no payment certified by him for any month prior to the first month for which any pension or compensation is paid by the Veterans' Administration, shall be deemed by reason of this subsection to have been an erroneous payment.

8 403.1005 Relation of social security payments to Veterans Administration benefits-(a) Effect of payment of pension or compensation by Veterans Administration. If the Veterans' Administration determines under any law administered by it that any pension or compensation is payable (even though later terminated) to anyone on the basis of the death of a veteran who meets the requirements of section 210 (a) (see

403.1002), any benefits or a lump sum payable under title II with respect to the wages of such individual shall be determined without regard to section 210 of the act (see $$ 403.1002 and 403.1003). National Service or United States Government Life Insurance payments or burial allowance payments made by the Veterans' Administration are not considered pension or compensation.

Example: V, who meets the requirements of section 210 (a), had incurred a disability in service in line of duty. Burial expenses are paid by the Veterans' Administration. His wife and child are also receiving payments as beneficiaries of his National Service Life Insurance policy.

In the absence of a determination by the Veterans' Administration that pension or compensation is payable on the death of V. child's and widow's current benefits may be payable.

If the Veterans Administration determines that pension or compensation is payable on the death of V, benefits are payable only 1f V died either fully or currently insured on his wage record (see $ $ 403.201 and 403.202).

(b) Determination and certification of payments. An application for payment of benefits or a lump sum with respect to the death of an individual who meets the requirements of section 210 (a) (see § 403.1002) shall be determined without regard to section 210 (b) (1) of the act (see paragraph (a) of this section) unpursuant to section 210 (b) (2) against accrued pension or compensation, if any, payable by the Veterans' Administration.

However, if any payments were made to W for months when deductions or reductions should have been imposed (see subpart E of this chapter), such payments will be considered erroneous and recovery or adjustment thereof may be made (see subpart F of this chapter)

SECTION 210 (C) OF THE ACT (60 STAT. 980)

less the Administrator has been notified by the Veterans' Administration that pension or compensation is determined to be payable by the Veterans' Administration by reason of the death of such individual.

Upon such notification by the Veterans' Administration, the Administrator shall certify no further benefits for payment, or shall recompute the amount of any further benefits payable, as may be required by section 210 (b) (1) of the act (see paragraph (a) of this section).

Example: V has an average monthly wage of $100 and is currently insured at the time of his death. At the time his survivors file application for benefits, the Veterans' Administration has made no determination that pension or compensation is payable. It is determined that v mects the requirements of section 210 (a). Benefits are awarded computed on the basis of section 210 of the Act.

If the Veterans' Administration subsequently notifies the Administrator that pension or compensation is payable on the death of V, benefits under section 210 will be terminated and further benefits, if any, will be recomputed and paid on the basis of V's currently insured status and average monthly wage of $100.

(c) When payment is not deemed erroneous. Any payments certified to any individual in accordance with section 210 of the Act prior to notification to the Administrator by the Veterans' Administration that pension or compensation is determined to be payable (see paragraph (b) of this section), not exceeding the amount of any accrued pension or compensation payable to him by the Veterans' Administration, shall be deemed to have been paid to him by the Veterans' Administration on account of such accrued pension or compensation. No such payment certified by the Administrator and no payment certified by him for any month prior to the first month for which any pension or compensation is paid by the Veterans' Administration shall be deemed by reason of this section to have been an erroneous payment.

Example: Based on the death of V, monthly benefits under section 210 are certified to W beginning in January 1947. The Veterans' Administration notifies the Administrator in July that pension has been determined to be payable on the death of the same veteran. The amounts certified prior to receipt of notice are not recoverable by the Administrator, but are reported to the Veterans' Administration for such adjustment as it may direct

In the event any individual referred to in subsection (a) has died during such threeyear period but before the date of the enactment of this section:

(1) Upon application filed within six months after the date of the enactment of this section, any monthly benefits payable with respect to the wages of such individual (including benefits for months before such date) shall be computed or recomputed and shall be paid in accordance with subsection (a), in the same manner as though such application had been filed in the first month in which all conditions of entitlement to such benefits, other than the filing of an application, were met;

(2) If any individual who upon filing application would have been entitled to benefits or to a recomputation of benefits under paragraph (1) has died before the expiration of six months after the date of the enactment of this section, the application may be filled within the same period by any other individual entitled to benefits with respect to the same wages, and the nonpayment or underpayment to the deceased individual shall be treated as erroneous within the meaning of section 204;

(3) The time within which proof of dependency under section 202 (f) or any application under 202 (g) may be filed shall be not less than six months after the date of the enactment of this section; and

(4) Application for a lump-sum death payment or recomputation, pursuant to this section, of a lump-sum death payment certified by the Board or the Federal Security Administrator, prior to the date of the enactment of this section, for payment with respect to the wages of any such individual may be filed within a period not less than six months from the date of the enactment of this section or a period of two years after the date of the death of any individual specified in subsection (a), whichever is the later, and any additional payment shall be made to the same individual or individuals as though the application were an original application for a lump-sum death payment with respect to such wages.

No lump-sum death payment shall be made or recomputed with respect to the wages of an individual 11 any monthly benefit with respect to his wages is, or upon filing application would be, payable for the month in which he died; but except as otherwise specifically provided in this section no payment heretofore made shall be rendered erroneous by the enactment of this section.

$ 403.1006 Time of death of veteran as affecting application for and payment of benefits and a lump sum-(a) Monthly benefits-(1) Where death occurred on or after August 10, 1946. Where an individual who meets the requirements of section 210 (a) (see $ 403.1002) died on or after August 10, 1946, an application for benefits on account of such death is effective as provided in § 403.701 (f).

Example: V, who died in January 1947, meets the requirements of section 210 (a). If his widow and child fille applications in February, March, or April, they may become entitled to benefits beginning with January, but if they file in May, February is the first month for which they could become entitled.

(2) Where death occurred prior to August 10, 1946. Applications for benefits on account of the death of an individual who meets the requirements of section 210 (a) (see § 403.1002) and who died prior to August 10, 1946, shall be effective as stated below:

(1) If the application is filed after February 10, 1947, such application is effective as provided in § 403.701 (f) of this chapter.

Example: V, who died prior to August 10, 1946, meets the requirements of section 210 (a). His widow and child file for benefits in March 1947. The date of entitlement is December 1946.

(ii) If the application is filed on or before February 10, 1947, benefits payable with respect to the wages of such individual for any month in and after the month of death (including benefits for months before August 1946), shall be computed as provided under section 210 (see § 403.1003 (b) and (c)), or recomputed to make previously paid benefits for such months, if lesser in amount, equal to the amount payable under section 210.

Example: V, who meets the requirements of section 210 (a), dies in September 1943, fully insured on his wage record with an average monthly wage of $200. His widow and child, age 8, file in March 1944 and are entitled as of December 1943.

Upon filing under section 210 on or before February 10, 1947, they will be entitled to monthly benefits for September, October and November 1943, computed solely under section 210. The benefits based on the wage record will then be recomputed to include any "increment years" based on military service (see $ 403.1003 (c)), and the difference in the rate for the months from December 1943 to the month before filing

application under section 210 will be paid. Thereafter benefits will be payable at the recomputed rate.

II V's average monthly wage on the basis of his wage record was $100, benefits would be paid for September, October and November 1943, computed solely under section 210. The benefits based on the wage record will then be recomputed at the higher average monthly wage provided under section 210 and any "increment years" given by section 210 will be included. The difference in the rate for the months from December 1943 to the month before filing under section 210 will be paid. Thereafter benefits will be payable at the recomputed rate.

(iii) If any individual who upon filing application would have been entitled to benefits or to a recomputation of benefits under section 210 (c) (1) of the act (see subdivision (ii) of this subparagraph), dies on or before February 10, 1947, application may be filed on or before February 10, 1947, by any other individual entitled to benefits with respect to the same wages and the nonpayment or underpayment to the deceased individual, shall be treated as erroneous (see § 403.601),

Example: V, who die De ber 15, 1945, meets the requirements of section 210 (a). He is survived by a widow, W. and child, C. age 8. W dies in October 1946, without ever having fled an application for herself or C. If, on or before February 10, 1947, an application for benefits on behalf of C is filed, benefits which would have been payable to W will be added to C's benefits provided w's entitlement is established in all respects except for the filing of application.

(3) Filing of proof of dependency for parents' benefits. Where an individual who meets the requirements of section 210 (a) (see $ 403.1002) died before August 10, 1946, proof of parent's dependency and support (see $ 403.407 (a)) shall be filed on or before February 10, 1947, or within 2 years after the death of such individual, whichever is later.

Example: V, who died on December 20, 1941, meets the requirements of section 210 (a). Proof of parent's dependency must be filed on or before February 10, 1947.

If V died on December 20, 1945, such proof must be filed on or before December 20, 1947.

(b) Lump sums—(1) Where death occurred on or after August 10, 1946. Where an individual who meets the requirements of section 210 (a)

(see § 403.1002) died on or after August 10, 1946, an application for a lump-sum death payment shall, except as otherwise provided in § 403.701 (j), be filed within

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