§ 208.27 Disability annuitant to notify of recovery from disability and of employment or self-employment. It shall be the duty of an individual awarded an annuity upon the basis of permanent disability for any regular employment, or upon the basis of permanent disability for work in his regular occupation, to notify the Board before he attains age 65 of his recovery from such disability and of any employment or self-employment as prescribed in § 217.3 of this chapter. [Board Order 60-8, 25 FR 720, Jan. 28, 19601 § 208.29 Cessation of eligibility for disability annuities. (a) Eligibility for an annuity awarded to an individual upon the basis of having become permanently disabled for any regular employment, or upon the basis of having become permanently disabled for work in such individual's regular occupation, shall cease as of the last day of: (1) The month preceding the month such individual attains age 65; or E (2) The second month after the month in which medical recovery from such disability is found to have occurred; or (3) The month preceding the month in which such individual dies, regardless of such individual's age; or (4) The month in which the Board receives notice of such individual's failure to appear for, or submit to, a required examination; or (5) The month in which such individual was required to furnish the Board with any information relating to such individual's employment, earnings, and physical or mental condition, if such individual failed to furnish such information. (b) The annuity based upon the disability described in § 208.7(a)(3) or (4) of an individual who fails to relinquish such individual's rights to return to service in accordance with Part 216 of this chapter shall be suspended as of the end of the month in which such individual attains age 65. (c) Annuity payments which ceased by reason of noncompliance with one For more of the provisions of paragraphs (a)(4) and (5) of this section shall be restored if, within a reason able time, the annuitant shows good cause for such noncompliance. [45 FR 3260 Jan. 17, 1980] § 208.31 Cessation of disability annuity not prejudicial to further eligibility. The cessation pursuant to section 208.29 of a disability annuity shall not prejudice any rights of the individual, formerly in receipt of such annuity, to any annuity to which he may thereafter become entitled; and for such purpose, years of service acquired by such an individual whose annuity shall have so ceased prior to age 65 may be credited with the same effect as if no annuity had previously been awarded. [Board Order 60-8, 25 FR 720, Jan. 28, 1960] Sec. PART 209-MILITARY SERVICE 209.1 Statutory provisions. 209.3 Application for annuities based on military service. 209.4 Crediting of military service. 209.14 Verification of military service claimed. AUTHORITY: Secs. 3, 10, 50 Stat. 310, as amended, 314, as amended; 45 U.S.C. 228c, 228j. § 209.1 Statutory provisions. (a) For the purposes of determining eligibility for an annuity and computing an annuity, including a minimum annuity, there shall also be included in an individual's years of service, within the limitations hereinafter provided in this section, voluntary or involuntary military service of an individual within or without the United States during any war service period, including such military service prior to the date of enactment of this amendment: Provided, however, That such military service shall be included only subject to and in accordance with the provisions of subsection (b) of section 3, in the same manner as though military service were service rendered as an employee: Provided further, That an individual who entered military service prior to a war service period shall not be regarded as having been in military service in a war service period with respect to any part of the period for which he entered such military service. (b) For the purpose of this section and section 202, as amended, an individual shall be deemed to have been in "military service" when commissioned or enrolled in the active service of the land or naval forces of the United States and until resignation or discharge therefrom; and the service of any individual in any reserve component of the land or naval forces of the United States, while serving in the land or naval forces of the United States for any period, even though less than thirty days, shall be deemed to have been active service in such force during such period. (c) For the purpose of this section and section 202, as amended, a "war service period" shall mean (1) any war period, or (2) with respect to any particular individual, any period during which such individual (i) having been in military service at the end of the war period, was required to continue in military service, or (ii) was required by call of the President, or by an Act of Congress or regulation, order, or proclamation pursuant thereto, to enter and continue in military service, or (3) any period after September 7, 1939, with respect to which a state of national emergency was duly declared to exist which requires a strengthening of the national defense. (d) For the purpose of this section and section 202, as amended, a "war period" shall be deemed to have begun on whichever of the following dates is the earliest: (1) the date on which the Congress of the United States declared war; or (2) the date as of which the Congress of the United States declared that a state of war has existed; or (3) the date on which war was declared by one or more foreign states against the United States; or (4) the date on which any part of the United States or any territory under its jurisdiction was invaded or attacked by any armed force of one or more foreign states; or (5) the date on which the United States engaged in armed hostilities for the purpose of preserving the Union or of maintaining in any State of the Union a republican form of government. (e) For the purpose of this section and section 202, as amended, a "war period" shall be deemed to have ended on the date on which hostilities ceased. (f) Military service shall not be included in the years of service of an individual unless, prior to the beginning of his military service in a war service period and in the same calendar year in which such military service began, or in the next preceding calendar year, the individual rendered service for compensation to an employer or to a person service to which is otherwise creditable under this Act, or lost time as an employee for which he received remuneration, or was serving as an employee representative. (g) A calendar month in which an individual was in military service which may be included in the individual's years of service or service period, as the case may be, shall be counted as a month of service: Provided, however, That no calendar month shall be counted as more than one month of service. (h) [Reserved] (i) In the event military service is or has been used as the basis or as a partial basis for a pension, disability compensation, or any other gratuitous benefits payable on a periodic basis under any other Act of Congress, any annuity under this Act or the Railroad Retirement Act of 1935, which is based in part on such military service and is with respect to a calendar month for all or part of which such pension or other benefit is also payable, shall be reduced with respect to that month by the proportion which the number of years of service, by which such military service increases the years of service, or the service period, as the case may be, bears to the total years of service, or by the aggregate amount of such pension or other benefit with respect to that month, which ever would result in the smaller reduction. (j) Any department or agency of the United States maintaining records of military service, at the request of the Board, shall certify to the Board, with respect to any individual, the number of months of military service which such department or agency finds the individual to have had during any period or periods with respect to which the Board's request is made, the date and manner of entry into such military service, and the conditions under which such service was continued. Any department or agency of the United States which is authorized to make awards of pensions, disability compensation, or any other gratuitous benefits or allowances payable, on a periodic basis or otherwise, under any other Act of Congress on the basis of military service, at the request of the Board, shall certify to the Board, with respect to any individual, the calendar months for all or part of which any such pension, compensation, benefit, or allowance is payable to, or with respect to, the individual, the amounts of any such pension, compensation, benefit, or allowance, and the military service on which such pension, compensation, benefit, or allowance is based. Any certification made pursuant to the provisions of this subsection shall be conclusive on the Board: Provided, That if evidence inconsistent with any such certification is submitted, and the claim is in the course of adjudication or is otherwise open for such evidence the Board shall refer such evidence to the department or agency which made the original certification and such department or agency shall make such recertification as in its judgment the evidence warrants. Such recertification, and any subsequent recertifications, shall be conclusive, made in the same manner, and subject to the same conditions as an original certification. (k) No person shall be entitled to an annuity, or to an increase in an annuity, based on military service unless a specific claim for credit for military service is filed with the Board, and in no case shall an annuity, or an increase in an annuity, based on military service begin to accrue earlier than twelve months prior to the date on which such claim for credit for military service was filed with the Board nor before October 8, 1940: Provided, That this subsection shall not be construed to prevent payment of annuities with respect to accruals, not based on military service, prior to the date on which an annuity based on military service began to accrue. (1) An individual who, before the ninetyfirst day after the date on which this amendment of section 4 is enacted was awarded an annuity under the Railroad Retirement Act of 1937 or the Railroad Retirement Act of 1935, but who had rendered military service which, if credited, would have resulted in an increase in his annuity, may, notwithstanding the previous award of an annuity, file with the Board an application for an increase in such annuity based on his military service. Upon the filing of such application, if the Board finds that the military service thus claimed is creditable and would result in an increase in the annuity, the Board, notwithstanding the previous award, shall recertify the annuity on an increased basis in the same manner as though the provisions making military service creditable had been in effect at the time of the original certification subject, however, to the provisions of subsection (k) of this section. If the annuity previously awarded is a joint and survivor annuity, the increased annuity shall be a joint and survivor annuity of the same type, the actuarial value of the increase to be computed as of the effective date of the increase: Provided, however, That if on the date the increase begins to accrue the individual has no spouse for whom the election of the joint and survivor annuity was made, the increase on a single life basis shall be added to the individual's annuity. (m) [Reserved] (n) In addition to the amount authorized to be appropriated in subsection (a) of section 15 of this Act, there is hereby authorized to be appropriated to the Railroad Retirement Account for each fiscal year, beginning with the fiscal year ending June 30, 1941, (1) an amount sufficient to meet the additional cost of crediting military service rendered prior to January 1, 1937, and after June 30, 1963, and (2) an amount found by the Board to be equal to the amount of the total additional excise and income taxes which would have been payable during the preceding fiscal year under Subchapter B of Chapter 9 of the Internal Revenue Code, as amended, with respect to the compensation, as defined in such Subchapter B, of all individuals entitled to credit under the Railroad Retirement Acts, as amended, for military service after December 31, 1936, and prior to January 1, 1957, if each of such individuals, in addition to compensation actually earned, had earned such compensation in the amount of $160 in each calendar month in which he was in such military service during such preceding fiscal year and such taxes were measured by all such compensation without limitation as to amount earned by any individual in any one calendar month, and (3) an amount found by the Board to be equal to (A) the amount of the total additional excise and income taxes which would have been payable during the preceding fiscal year under chapter 22 of the Internal Revenue Code of 1954 with respect to the compensation, as defined in such chapter, of all individuals entitled (without regard to subsection (p)(1) of this section) to credit under this Act for military service after December 31, 1956, and before July 1, 1963, if each of such individuals, in addition to compensation actually paid, had been paid such compensation in the amount of $160 in each calendar month in which he was in such military service during such preceding fiscal year and such taxes were measured by all such compensation without limitation as to amount paid to any individual in any one calendar month, less (B) the amount of the taxes which were paid with respect to such military service under sections 3101 and 3111 of the Internal Revenue Code of 1954. The additional cost of crediting military service rendered prior to January 1, 1937, and after June 30, 1963, shall be determined as follows: (i) Determine the difference between the actuarial value of the benefit payable under this Act based in part on military service and the actuarial value of the benefit which would be payable to the same individual without regard to military service; (ii) with respect to military service rendered after June 30, 1963, adjust such difference by applying thereto the ratio of the total net level cost of all benefits under this Act to the portion thereof remaining after the exclusion of administrative expenses and interest charges on the unfunded accrued liability after taking into account the effects of section 5(k)(2); and (iii) subtract the actuarial value of such benefit based on the individual's military service as is includible in determinations made pursuant to section 5(k)(2). In calculating these actuarial values, the Board shall use such mortality tables and actuarial factors as it finds appropriate; the ratio referred to in clause (ii) of the preceding sentence shall be determined from time to time by the Board on the basis of actuarial estimates made in accordance with section 15; and all actuarial values shall be calculated as of the date on which the benefit based on military service begins to accrue and shall not thereafter be subject to change. All actuarial calculations in this subsection shall take into account interest at the rate used in the actuarial estimates referred to in the preceding sentence. The Railroad Retirement Board, as promptly as practicable after the enactment of this amendment, and thereafter annually, shall submit to the Bureau of the Budget estimates of such military service appropriations to be made to the account, in addition to the annual estimate by the Board, in accordance with subsection (a) of section 15 of this Act, of the appropriation to be made to the account to provide for the payment of annuities, pensions and death benefits not based on military service. The estimate made in any year with respect to military service rendered prior to January 1, 1937, and after June 30, 1963, shall be based on the cost, as determined in accordance with the above provisions, of annuities awarded or increased on the basis of such military service up to the close of the preceding fiscal year and not previously appropriated for, and shall take into account interest from the date the annuity began to accrue or was increased to the date or dates on which the amount appropriated is to be credited to the Railroad Retirement Account. In making the estimate for the appropriation for military service rendered after December 31, 1936 the Board shall take into account any excess or deficiency in the appropriation or appropriations for such service in any preceding fiscal year or years, with interest thereon. In determining pursuant to section 5(k)(2) for any fiscal year the total amount to be credited from the Railroad Retirement Account to the Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability Insurance Trust Fund, credit shall be given such Account for the amount of the taxes described in clause (3)(B) of the first sentence of this subsection and the amount of such taxes with respect to military service after June 30, 1963. The amount authorized to be appropriated to the Railroad Retirement Account pursuant to clause (2) of the first sentence of this subsection shall be reduced by the amounts credited to such Account pursuant to section 5(k)(2) for military service rendered before January 1, 1957, and the amounts so credited shall be considered as additional costs within the meaning of section 217(g) of the Social Security Act. In any determination made pursuant to section 5(k)(2), no further charges shail be made against the Trust Funds established by title II of the Social Security Act for military service rendered before January 1, 1957, and with respect to which appropriations authorized by clause (2) of the first sentence of this subsection shall have been credited to the Railroad Retirement Account, but the addition al benefit payments incurred by such 'Trust Funds by reason of such military service shall be taken into account in making any such determination. (0) Section 4, as herein amended shall be effective as of October 8, 1940. No rights shall be deemed to have accrued under section 4 which would not have accrued had this Act amending section 4 been enacted on October 8, 1940. (p) (1) Military service rendered by an individual after December 1956 shall be creditable under this section only if the number of such individual's years of service is ten or more (including, in such years of service, military service which, but for this subsection, would be creditable under this section). (2) In any case where an individual has completed ten or more years of service and such years of service include any military service rendered after December 1956, the Board shall as promptly as is practicable (A) notify the Secretary of Health, Education, and Welfare that such military service is creditable under this section and (B) specify the period or periods of the military service rendered after December 1956 which is so creditable. (q) Notwithstanding the provisions of this section and section 2(c)(2), military service rendered by an individual after December 1956 shall not be used in determining eligibility for, or computing the amount of, any annuity accruing under section 2 for any month if (1) any benefits are payable for that month under title II of the Social Security Act on the basis of such individual's wages and self-employment income, (2) such military service was included in the computation of such benefits, and (3) the inclusion of such service in the computation of such benefits resulted (for that month) in benefits not otherwise payable or in an increase in the benefits otherwise payable. (r) The Secretary concerned (as defined in section 102(9) of the Servicemen's and Veterans' Survivor Benefits Act) shall maintain such records, and furnish the Board upon its request with such information, regarding the months of any individual's military serv ice and the remuneration paid therefor, as may be necessary to enable the Board to carry out its duties under this section and sections 2 and 5. (Section 4 of the act) [12 FR 1135, Feb. 19, 1947. Redesignated at 13 FR 7738, Dec. 15, 1948, and amended by Board Order 55-89, 20 FR 3707, May 27, 1955; Board Order 59-189, 24 FR 9001, Nov. 5, 1959; Board Order 64-8, 29 FR 1384, Jan. 28, 1964] § 209.3 Application for annuities based on military service. No individual shall be entitled to an annuity, or to an increase in an annu ity, based on military service unless he has, in the manner provided in Part 210 of this chapter, filed an application claiming credit for military service on such form as the Board may prescribe. The application shall be filed within twelve months from the date on which such annuity or increase in an annuity is to begin to accrue, and may be filed by any individual, including individuals whose claims for annuities not based on military service have theretofore been granted or denied. In no event shall an annuity or increase in an annuity based on military service begin to accrue before October 8, 1940. [Board Order 64-8, 29 FR 1384, Jan. 28, 1964] § 209.4 Crediting of military service. (a) For the purposes of determining eligibility for and computing an annuity, a calendar month or part of a calendar month during which an individual was in the active military service of the United States in a war service period may be included in such individual's years of service as though service rendered to an employer, as defined in Part 202 of this chapter: Provided, however, That the individual, before his active military service in a war service period began and in the same calendar year in which such military service began or in the next preceding calendar year, rendered service as an employee, as defined in Part 203 of this chapter, to an employer or to a person service to which is creditable under the act; or lost time as an employee for which he received remuneration, which remuneration is creditable as compensation within the meaning of Part 222 of this chapter; or was serving as an employee representative, as defined in § 205.2 of this chapter: Provided further, That military service after 1936 shall be included before military service prior to 1937 unless the inclusion of such service after 1936 would result in an annuity in a lesser amount than an annuity exclusive of such service (see § 225.9 of this chapter): And provided further, That no calendar month shall be counted as more than one month of service. (b) Notwithstanding the provisions of this section, creditable military service rendered by an individual after December 1956 shall not be used in determining eligibility for and computing an annuity for any month if: (1) Any benefits are payable for that month under title II of the Social Security Act on the basis of such individual's earnings, (2) such military service was included in the computation of such benefits, and (3) the inclusion of such military service in the computation of such benefits resulted for such month in benefits not otherwise payable or in an increase in the benefits otherwise payable. (c) Notwithstanding the provisions of this section, creditable military service shall not be used in determining eligibility for or computing an annuity of an individual or his survivor if there is applicable to such individual any provision of the Act of September 1, 1954 (68 Stat. 1142, 70 Stat. 761) as amended by Pub. L. 87-299 (75 Stat. 640), prohibiting payment of annuities in cases involving the national security. [Board Order 59-189, 24 FR 9002, Nov. 5, 1959, as amended by Board Order 64-3, 29 FR 1384, Jan. 28, 1964] § 209.12 War service period. A war service period includes, with respect to any individual: (a) Any period during which the individual was required by call of the President, or by any act of Congress or regulation, order, or proclamation pursuant thereto, to enter and continue in military service, and (b) Any period of military service in a war period, providing the individual entered military service in such war period, and (c) Any period of military service immediately following a war period, whether or not such service was entered upon voluntarily, and prior to discharge from such service or reenlistment therein, providing the individual entered military service in such war period, and (d) Any period after September 7, 1939, with respect to which a state of national emergency was duly declared to exist which requires a strengthening of the national defense. 60-048 O-80-9 |