N served honorably in the U.S. Navy from January, 1934 through August 31, 1955. He served actively during and after World War II. He received an honorable discharge. After he was discharged, he was awarded monthly retirement pay based, in part, on his naval service from September 26, 1940 through August 31, 1955. Sadly, he passed away a mere 15 days after his discharge. He had not received any of the retirement pay he was awarded.

After his death, his bereaved wife, R, applied for social security benefits for herself and her three children under age 18. In order to be eligible for such benefits based on N’s earnings record, N needed to have a certain number of quarters of credit under the social security system after 1936 (the Social Security Act was signed into law by President Franklin D. Roosevelt on August 14, 1935).

Pay received for services in the U.S. armed forces prior to 1957 are not creditable under the Social Security system. N had no non-military earnings from employment or self-employment after 1936.

But R argued that, under section 217(a) of the Social Security Act, under certain conditions, $160 of monthly wages shall be deemed to have been paid to persons in active military service during World War II (the period from September 26, 1940 through July 24, 1947). There was also a similar provision for the post World War II period from July 25, 1947 through December 31, 1956. However, such credits were not available if an agency or department of the federal government, other than the Veterans Administration, had determined that retirement benefits were payable to the military service member.

The purpose of this provision was to avoid duplication of benefits (or double dipping). Unfortunately for R and her children, this provision prevented their receipt of social security benefits, since another federal agency had determined that retirement benefits were payable to N, even though N had never actually received those benefits before he passed away.

See Social Security Ruling (SSR) 61-49.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.