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and shall be deemed filled with the Board sire to file an application for a payment on the date as of which the Social Secu- under this part, but has been deterred rity Administration certifies that such to his detriment by action of the Board application is deemed filed with that or of its employees from filing an appliagency.

cation upon the form prescribed by the (2) Where an individual files with the Board, such writing of the individual, if Social Security Administration a written subsequently supplemented by an applistatement which indicates an intention

cation duy executed upon the prescribed to claim monthly benefits or a lump sum, form, shall be considered by the Board either on his own behalf or on behalf of as a proper and suficient application some other person, and notice of such

within the meaning of 8 237.802: Prointention is communicated in writing to

vided, however, That: the Board by the Social Security Admin

(a) The action of the Board or of its istration, the Social Security Administra employees in deterring the individual tion's record of the individual's intention

from filing an application on the preshall, except where such individual or

scribed form shall have consisted of: such other person otherwise indicates,

(1) Failure to advise the individual be deemed an application filed with the properly as to the necessity for filing an Board on the date the Social Security

application on such prescribed form; or Administration's record was made: Pro

(2) Failure to furnish the individual vided, however, That such individual or with the appropriate application form; other person was eligible for a payment or under this part at the time such record

(3) Furnishing of correct information was made: Provided further, That an ap

that under an existing ruling (which was plication on a prescribed form is also fur subsequently reversed during the individnished to the Board.

ual's lifetime) entitlement was pre(3) In the case of any individual who

cluded: And, further provided, That:

(b) The individual, upon being corwould be entitled to benefits under subsection (a), (b), (c), or (d) of section 5

rectly advised by the Board as to the of the act upon filing proper application

necessity for filing an application on the therefor, the filing with the Administra

prescribed form, or as to a changed ruling tor of Veterans' Affairs by or on behalf

affecting his entitlement, and/or upon of such individual of an application for

being supplied with such prescribed form, benefits, on the form prescribed under

shall file said form with the Board dursection 601 of the Servicemen's and Vet

ing his lifetime and within 3 months erans' Survivor Benefits Act, shall satisfy

after the date on which such correct the requirement of subsection (j) of sec

advice was given him and/or such form tion 5 that an application for such bene

was mailed to him (whichever is the fits be filed, and shall be deemed filed

later), or within such additional time as with the Board on the date as of which

the Board may deem reasonable. such application would be deemed filed

(Board Order 47-860, 12 F.R. 6369, Sept. 26, with the Social Security Administration.

1947] (b) At Foreign Service office. Appli- 8 237.808 Application deemed to have cations from individuals residing outside been filed. the United States will be given effect as

An acceptable application shall be of the time they are received in a U.S.

deemed to have been filed in accordance Foreign Service office. The time of filing

with sections 237.802, 237.803, and 237.805 will be shown by a date-stamp or similar

by: evidence of receipt in the Foreign Serv

(a) The widow or widower of an emice office. If the claims material is not

ployee for an annuity under 8 237.406, sent via a foreign service office, the date

8 237.407, or 8 237.408, as the case may received by the Board will be the filing

be, and on behalf of the employee's date.

child (ren) for an annuity under $ 237.(Board Order 66-89, 20 F. R. 8728, May 27,

409, in the month in which the employee 1956, as amended by Board Order 80-12, 26

died: Provided, however, That the widow F.R. 1676, Feb. 26, 1960; Board Order 62-88, 27 F.R. 8328, Apr. 7, 1962)

or widower shall have been in receipt of

an annuity under Part 232 of this chapter 8 237.807 Individual deterred from

(disregarding the application of 232.402 filing application.

thereof) in the month next preceding the Where an individual has notified the month in which the employee died: ProBoard in writing of his intention or de- vided, further, That in the case of a

child, such child shall have been in such pay and allowances of personnel of the widow's care at the time the employee Army, Navy, Marine Corps, and Coast died.

Guard, including the retired and reserve (b) The widow of an employee for an components thereof; the Coast and Geoannuity under $ 237.406 in the month in detic Survey and the Public Health Serv.

h she attains age 60: Provided, how- ice, and civilian employees of the execuever, That such widow shall have been tive departments, independent establishin receipt of an annuity under $ 237.408 ments, and agencies, during periods of (disregarding the application of 8 237. absence from post of duty, and for other 702) in the month next preceding the purposes.” Section 2 of that act relates month in which she attains age 60.

to “Any person who is in active service [Board Order 14–153, 30 F.R. 270, Jan. 9, and is oficially reported as missing, miss1966)

ing in action, interned in a neutral coun

try, or captured by an enemy." Section & 237.809 Application where individual

5 of that act provides that "Upon the is incompetent.

expiration of 12 months from the date If an individual is a minor or is men the person is reported as missing, or tally incompetent, a person who is au missing in action, in the absence of an thorized to act in behalf of such individ. official report of the death of the missing ual pursuant to 8 266.4 or 8 266.5 of this person, the head of the department conchapter shall execute and file an appli- cerned is authorized to make a finding cation on behalf of such individual. It of death of such person.” such individual has himself Aled an ap- (b) Relation to application for lumpplication form, the person authorized to sum death payments. For the purposes act in behalf of such individual shall of 88 237.502(a) (3) and 237.503 (a) (3), 11 execute and file another application the deceased employee is a person to form. When this has been done, the ap whom section 2 of the act of March 7, plication filing date may be the date on 1942, is applicable, the two-year period which the first application form was re of limitation for the filing of an applicaceived by the Board.

tion runs from the date on which he was (Board Order 66–36, 80 F.R. 4061, Mar. 27, determined, under that act, to be dead. 1965)

(c) Relation to other matters. Except $ 237.810 Cancellation of application.

as provided in paragraph (b) of this

section, if the deceased employee is & The provisions of 88 210.11 and 210.12

person to whom section 2 of the act of of this chapter shall be applied to an

March 7, 1942, is applicable, he is, for application for an insurance annuity un

all purposes of this part, deemed to have der this part in the same manner as

died on the date determined pursuant applied to an application for an em

to that act to be the date or presumpployee annuity. (Board Order 66–36, 30 F.R. 4061, Mar. 27,

tive date of his death, so long as it does 1966)

not appear that he is in fact alive.

(12 F.R. 2027, Mar. 27, 1947, as amended by Subpart 1-Miscellaneous Board Order 60–12, 26 F.R. 1677, Feb. 26,

1960) 8 237.901 Statutory provisions. (See last sentence of section 5 (f) (1)

$ 237.903 Payment of insurance anof the act, quoted in 8 237.501.)

nuity in lump sum. ... An annuity under this section

If an insurance annuity is not more which is not in excess of $5 may, in the dis. than $5, it may, in the discretion of the cretion of the Board, be paid in a lump sum

Board, be paid in a lump sum equal to equal to its commuted value as the Board

its commuted value as determined by the shall determine. (60 Stat. 782; 45 U. 8. C.

Board. 228e) (Board Order 55-89, 20 F. R. 3728, May 27,

(12 F.R. 2027, Mar. 27, 1947) 1966)

§ 237.904 Meaning of “retirement $ 237.902 Act of March 7, 1942 (56 annuity”. Stat. 143, 144).

As used in this part, the term “retire(a) Provisions. The act of March 7. ment annuity” means an annuity under 1942 (56 Stat. . 143, 144) is entitled “An section 2 of the act awarded before or Act to provide for continuing payment of after its amendment, but not including 30-0600-71414

208

8 237.908 Escheat.

Any part of a payment under section 5 of the act which would otherwise escheat to a State shall not be allowed. (Board Order 60–12, 25 F.R. 1677, Feb. 26, 1960)

an annuity to a survivor pursuant to an election of a joint and survivor annuity. (Board Order 55-89, 20 F. R. 3723, May 27, 1955) & 237.905 Proof of continuance of dis

ability of child age 18 or over. (a) A child age 18 or over whose entitlement to a child's insurance annuity is based, in part, on his having a permanent physical or mental condition which is such that he is unable to engage in any regular employment, which disability began before he attained age 18, shall, as and whenever notified by the Board, submit additional proof of the continuance of his disability.

(b) The Board may at any time or times, while the child is in receipt of such an annuity, require that he submit to an examination to be made by a physician, or physicians, or a board of physicians, designated by the Board.

(c) The Board may also at any time or times, while the child is in receipt of such an annuity, require that he submit information relating to his employment, including self-employment, and earnings therefrom.

(d) If, while in receipt of an annuity such individual fails to comply with the requirements prescribed in paragraphs (a) and (b) of this section, his right to an annuity shall, except for good cause shown to the Board, cease. (Board Order 65–89, 20 F. R. 3728, May 27, 1955) § 237.906 Rounding of insurance an

nuity. When awarded on or after September 6, 1958, a monthly insurance annuity that is not a multiple of $0.10 shall be rounded to the next higher multiple of $0.10. (Board Order 60–12, 25 F.R. 1677, Feb. 26, 1960] $ 237.907 Effect of felonious homicide.

An individual who has been finally convicted by any court of competent jurisdiction of the felonious homicide of an employee shall not be entitled to any benefits under the act by reason of the death of such employee, and shall be considered non-existent in determining the entitlement of others to benefits based on the earnings of such employee. (Board Order 60-12, 26 F.R. 1877, Feb. 26, 1960)

PART 238_RESIDUAL LUMP-SUM

PAYMENTS Sec. 238.1 Statutory provisions. 238.2 Residual lump-sum payments. 238.3 Designation of beneficiary. 288.4 Election to have residual lump-sum

payment awarded. 238.5 Application for residual lump-sum

payment. 238.8 Meaning of "combined credits". 288.7 Act of March 7, 1942.

AUTHORITY: The provisions of this Part 298 issued under sec. 10, 50 Stat. 314, as amended; 45 U.S.C. 2283. $ 238.1 Statutory provisions.

Whenever It shall appear, with respect to the death of an employee on or alter January 1, 1947, that no benefits, or no further benefits, other than benefits payable to a widow. widower, or parent upon attaining age sixty at a future date, will be payable under this section or, pursuant to subsection (k) of this section, upon attaining ••• [the] age ... (of eligibility] at a future date, will be payable under title II of the Social Security Act, as amended, there shall be paid to such person or persons as the deceased employee may have designated by a writing fled with the Board prior to his or her death, or if there be no designation, to the following person (or, if more than one. in equal shares to the persons) whose relationship to the deceased employee will have been determined by the Board and who will not have died before receiving payment of the lump sum provided for in this paragraph:

(1) The widow or widower of the deceased employee who was living with such employee at the time of such empioyce's death; or

(11) I there be no such widow or widower, to any child or children of such employee; or

(111) I there be no such widow, widower, or child, to any grandchild or grandchildren of such employee; or

(1v) If there be no such widow, widower, child, or grandchild, to any parent or parents of such employee; or

(v) If there be no such widow, widower, child, grandchild, or parent, to any brother or sister of such employee; or

(vi) 11 there be no such widow, widower, child, grandchild, parent, brother, or sister, to the estate of such employee, a lump sum in an amount equal to the sum of 4 per centum of his or her compensation paid after December 31, 1986, and prior to Janu.

ary 1, 1947, plus 7 per centum of his or her compensation paid after December 31, 1946, and before January 1, 1959, plus 742 per centum of his or her compensation paid after December 31, 1958, and before January 1, 1962, plus 8 per centum of his or her compensation paid after December 31, 1961 (exclusive of compensation in excess of $300 for any month before July 1, 1954, and in excess of $350 for any month after June 30, 1954, and before the calender month (June 19591 next following the month in which this Act was amended in 1959 (May 1959), and in excess of $400 for any month after the month in which this Act was so amended and before the calendar month (November 1963] next following the month in which this Act was amended in 1963 (October 1963), and in excess of $450 for any month after the month in which this Act was so amended), minus the sum of all benefits paid to him or her, and to others deriving from him or her, during his or her life, or to others by reason of his or her death, under this Act, and pursuant to subsection (k) of this section, under title II of the Social Security Act, as amended: Provided, however, That I the employee is survived by a widow, widower, or parent who may upon attaining age sixty be entitled to further beneits under this section, or pursuant to subsection (k) of this section, upon attaining ... (the) age ... (of eligibility] be entitled to further benefits under title II of the Social Security Act, as amended, such lump sum shall not be paid unless such widow, widower, or parent makes and files with the Board an irrevocable election, in such form as the Board may prescribe, to have such lump sum paid in lieu of all benefits to which such widow, widower, or parent might otherwise become entitled under this section or, pursuant to subsection (k) of this section, under title I of the Social Security Act, as amended. Such election shall be legally effective according to its terms. Nothing in this section shall operate to deprive a widow, widower, or parent making such election of any insurance benefits under title II of the Social Security Act, as amended, to which such widow, widower, or parent would have been entitled had this section not been enacted. The term "benefits" as used in this paragraph includes all annuities payable under this Act, lump sums payable under paragraph (1) of this subsection, and insurance benefits and lump sum payments under title II of the Social Security Act, as amended, pursuant to subsection (k) of this section, except that the deductions of the benefits which, pursuant to subsection (k) (1) of this section, are paid under title II of the Social Security Act, during the life of the employee to him or to her and to others deriving from him or her, shall be limited to such portions of such benefits as are payable solely by reason of the inclusion of service As an employee in “employment” pursuant

to said subsection (k) (1). (Section 6(1) (2) of the act) (Board Order 60—29, 25 F.R. 2054, Mar. 10, 1960, as amended by Board Order 62-47, 27 F.R. 4878, May 24, 1962; Board Order 64-27, 29 F.R. 3228, Mar. 11, 1964) § 238.2 Residual lump-sum payments.

(a) Conditions of payment. A lump sum under section 5(1) (2) of the act (“residual") is payable to one or more of the persons described in paragraph (b) of this section if:

(1) The employee died on or after January 1, 1947; and

(2) No benefits, or no further benefits, will by reason of the employee's death be payable under Part 237 of this chapter, or under title II of the Social Security Act on the basis of combined credits: Provided, however, That if the employee is survived by a widow, widower, or parent who may be entitled to such benefits under the Railroad Retirement Act upon attaining age 60, or under the Social Security Act upon attaining the age of eligibility, the residual lump sum may nevertheless be paid if such widow, widower, or parent files an election in accordance with the provisions of $ 238.4; and

(3) The employee's percentage of compensation exceeds the benefits deductible.

(b) Persons entitled to receive payments. The following person or persons are, in the order named, entitled to a residual lump sum under the conditions stated in paragraph (a) of this section:

(1) Designated beneficiary. If the employee designated a beneficiary or beneficiaries in accordance with the provisions of $ 238.3, and such designee or designees survived the employee, payment of the residual lump sum shall be made in accordance with such designation, subject to the following conditions:

(i) If there is more than one designated beneficiary, each shall be paid an equal share of the residual lump sum, unless the percentage to be paid to each beneficiary is specified, in which case payment shall be made in the proportion specified.

(ii) If a designated beneficiary dies before receiving payment of the residual lump sum, such payment shall be made to the estate of the designee. In such case, if payment cannot be made under the provisions of Part 236 of this chapter, it shall be made only to a legal representative of the estate duly appointed

by the court having probate jurisdiction, or as may be ordered by such court, or as may be authorized by statute.

(2) Surviving relatives. If the employee died after September 1958 and either did not designate a beneficiary or was not survived by a designated beneficiary, payment of the residual lump sum shall be made to the following person, in the order named, whose relationship to the employee will have been determined by the Board and who will not have died before receiving such payment: Widow or widower who was living with the employee at the time of the employee's death; child; grandchild; parent; brother and sister. If there is more than one person in an equal degree of relationship, each such person shall be paid an equal share of the residual lump sum.

(3) Estate. If the employee died after September 1958 and a person or persons described in subparagraphs (1) and (2) of this paragraph are not entitled to payment of the residual lump sum, such payment shall be made to the

loyee's estate. In such case, if payment cannot be made under the provisions of Part 236 of this chapter, it shall be made only to a legal representative of the estate duly appointed by the court having probate jurisdiction, or as may be ordered by such court, or as may be authorized by statute.

(c) Amount of payment. The residual lump sum is an amount equal to the excess of the employee's percentage of compensation over the benefits deductible.

(d) Meaning of terms. As used in this section:

(1) The term “percentage of compensation" means, with respect to an employee who died after May 1959, the sum of the following:

(i) 4 percent of the employee's creditable compensation (see § 222.3(a) of this chapter) after December 31, 1936, and before January 1, 1947; and

(ii) 7 percent of the employee's creditable compensation after December 31, 1946, and before January 1, 1959; and

(ii) 772 percent of the employee's creditable compensation after December 31, 1958, and before January 1, 1962; and

(iv) 8 percent of the employee's creditable compensation after December 31. 1961.

(2) The term "benefits deductible" means, with respect to an employee, the sum of the following:

(1) All benefits paid to ine deceased employee and to others deriving from him during his lifetime 'under the Rall. road Retirement Act, and under the Social Security Act to the extent that such benefits are based on his service in the railroad industry; and

(ii) All annuities or parts of annui. ties waived by the employee and/or others deriving from him under the Railroad Retirement Act; and

(iii) All benefits paid to others on account of his death under the Railroad Retirement Act, whether or not on the basis of combined railroad and social security service, and under the Social Security Act if based on combined railroad and social security service. (Board Order 50–4, 15 F.R. 797, Feb. 14, 1950, as amended by Board Order 55-89, 20 F.R. 3723, May 27, 1955; Board Order 60-29, 25 F.R. 2054, Mar. 10, 1960; Board Order 62-47, 27 F.R. 4879, May 24, 1962; Board Order 64 27, 29 F.R. 3229, Mar. 11, 1964; Board Order 65–184, 30 F.R. 14594, Nov. 24, 1966) § 238.3 Designation of beneficiary.

(a) General. An employee may Alle with the Board a designation of a beneficiary or beneficiaries to receive any residual lump sum payable by reason of his death.

(b) Time of filing. A designation of beneficiary may be filed at any time after June 22, 1948, and on or before the date of the employee's death.

(c) Form. A designation of beneficiary must be made on the form prescribed by the Board for that purpose: Provided, however, That, if a writing, other than the form provided by the Board, signed by the designator is received by the Board within the time specified in paragraph (b) of this section, in which a clear and unambiguous designation of beneficiary is made in substantially the same manner as that provided on such form, and the designator dies without executing such form, the designation shall be given the same effect as if executed on such form.

(d) Witnessing. No effect shall be given to a designation of beneficiary which does not bear the signatures of two witnesses. neither of whom is named as beneficiary, unless the execution of the designation by the designator is proved to the satisfaction of the Board.

(e) Revocation or change. A revocation or change of a designation of ben. eficiary, or a designation of an additional or new beneficiary or beneficiaries, may be made, with or without the knowledge

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