the Board or of its employees from filing an application upon the form prescribed by the Board, such writing of the individual, if subsequently supplemented by an application duly executed upon the prescribed form, shall be considered by the Board as a proper and sufficient application within the meaning of § 237.802: Provided, however, That:

(a) The action of the Board or of its employees in deterring the individual from filing an application on the prescribed form shall have consisted of:

(1) Failure to advise the individual properly as to the necessity for filing an application on such prescribed form; or

(2) Failure to furnish the individual with the appropriate application form;

or

(3) Furnishing of correct information that under an existing ruling (which was subsequently reversed during the individual's lifetime) entiItlement was precluded: And, further provided, That:

(b) The individual, upon being correctly advised by the Board as to the necessity for filing an application on the prescribed form, or as to a changed ruling affecting his entitlement, and/or upon being supplied with such prescribed form, shall file said form with the Board during his lifetime and within 3 months after the date on which such correct advice was given him and/or such form was mailed to him (whichever is the later), or within such additional time as the Board may deem reasonable.

[Board Order 47-350, 12 FR 6359, Sept. 25, 1947]

§ 237.808 Application deemed to have been filed.

An acceptable application shall be deemed to have been filed in accordance with §§ 237.802, 237.803, and 237.805 by:

(a) The widow or widower of an employee for an annuity under § 237.406, § 237.407, or § 237.408, as the case may be, and on behalf of the employee's child(ren) for an annuity under $237.409, in the month in which the employee died: Provided, however, That the widow or widower shall have been in receipt of an annuity under

part 232 of this chapter (disregarding the application of § 232.402 thereof) in the month next preceding the month in which the employee died: Provided, further, That in the case of a child, such child shall have been in such widow's care at the time the employee died.

(b) The widow of an employee for an annuity under § 237.406 in the month in which she attains age 60: Provided, however, That such widow shall have been in receipt of an annuity under § 237.408 (disregarding the application of § 237.702) in the month next preceding the month in which she attains age 60.

[Board Order 64-153, 30 FR 270, Jan. 9. 1965]

§ 237.809 Application where individual is

incompetent.

If an individual is a minor or is mentally incompetent, a person who is authorized to act in behalf of such individual pursuant to § 266.4 or § 266.5 of this chapter shall execute and file an application on behalf of such individual. If such individual has himself filed an application form, the person authorized to act in behalf of such individual shall execute and file another application form. When this has been done, the application filing date may be the date on which the first application form was received by the Board. [Board Order 65-36, 30 FR 4061, Mar. 27, 1965]

to its commuted value as the Board shall determine. (60 Stat. 732; 45 U.S.C. 228e) [Board Order 55-89, 20 FR 3723, May 27, 1955]

§ 237.902 Act of March 7, 1942 (56 Stat. 143, 144).

(a) Provisions. The act of March 7, 1942 (56 Stat. 143, 144) is entitled "An Act to provide for continuing payment of pay and allowances of personnel of the Army, Navy, Marine Corps, and Coast Guard, including the retired and reserve components thereof; the Coast and Geodetic Survey and the Public Health Service, and civilian employees of the executive departments, independent establishments, and agencies, during periods of absence from post of duty, and for other purposes." Section 2 of that act relates to "Any person who is in active service and is officially reported as missing, missing in action, interned in a neutral country, or captured by an enemy." Section 5 of that act provides that "Upon the expiration of 12 months from the date the person is reported as missing, or missing in action, in the absence of an official report of the death of the missing person, the head of the department concerned is authorized to make a finding of death of such person."

(b) Relation to application for lumpsum death payments. For the purposes of §§ 237.502(a)(3) and 237.503(a)(3), if the deceased employee is a person to whom section 2 of the act of March 7, 1942, is applicable, the two-year period of limitation for the filing of an application runs from the date on which he was determined, under that act, to be dead.

(c) Relation to other matters. Except as provided in paragraph (b) of this section, if the deceased employee is a person to whom section 2 of the act of March 7, 1942, is applicable, he is, for all purposes of this part, deemed to have died on the date determined pursuant to that act to be the date or presumptive date of his death, so long as it does not appear that he is in fact alive.

[12 FR 2027, Mar. 27, 1947, as amended by Board Order 60-12, 25 FR 1677, Feb. 26, 1960]

§ 237.903 Payment of insurance annuity in lump sum.

If an insurance annuity is not more than $5, it may, in the discretion of the Board, be paid in a lump sum equal to its commuted value as determined by the Board.

[12 FR 2027, Mar. 27, 1947]

§ 237.904 Meaning of "retirement annuity".

As used in this part, the term "retirement annuity" means an annuity under section 2 of the act awarded before or after its amendment, but not including an annuity to a survivor pursuant to an election of a joint and survivor annuity.

[Board Order 55-89, 20 FR 3722, May 27, 1955]

§ 237.905 Proof of continuance of disability 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 55-89, 20 FR 3723, May 27, 1955]

§ 237.906 Rounding of insurance annuity. 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 FR 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, 25 FR 1677, Feb. 26, 19601

$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 FR 1677, 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.

238.4 Election to have residual lump-sum payment awarded.

238.5 Application for residual lump-sum payment.

238.6 Meaning of "combined credits." 238.7 Act of March 7, 1942. 238.8 Payment of residual lump sum when Social Security Act lump sum is unpaid. AUTHORITY: Sec. 10, 50 Stat. 314, as amended; 45 U.S.C. 228j.

§ 238.1 Statutory provisions.

Whenever it shall appear, with respect to the death of an employee on or after 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 filed 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:

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

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

or

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

(iv) 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) If 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, 1936, and prior to January 1, 1947, plus 7 per centum of his or her compensation paid after December 31, 1946, and before January 1, 1959, plus 71⁄2 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 1959] 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 19631, 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 if the employee is survived by a widow, widower, or parent who may upon attaining age sixty be entitled to further benefits 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 II 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 5(f)(2) of the act)

[Board Order 60-29, 25 FR 2054, Mar. 10, 1960, as amended by Board Order 62-47, 27 FR 4878, May 24, 1962; Board Order 64-27, 29 FR 3228, Mar. 11, 1964]

§ 238.2 Residual lump-sum payments.

(a) Conditions of payment. A residual lump sum (an amount based on the employee's percentage of compensation) is payable to one or more of the persons described in paragraph (b) of this section under the following conditions:

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

(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. Notwithstanding this provision, the residual lump sum may nevertheless be paid:

(i) In accordance with the provisions of § 238.4 in cases where the surviving widow, widower, or parent elects the

residual lump sum in lieu of future monthly benefits; or

(ii) In accordance with the provision of § 238.8 in cases where the lump-sum death benefit under title II of the Social Security Act has not been paid. (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 relation

ship, 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 paragraphs (b) (1) and (2) of this section are not entitled to payment of the residual lump sum, such payment shall be made to the employee'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

(iii) 72 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:

(i) All benefits paid to the deceased employee and to others deriving from him during his lifetime under the Railroad 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 annuities 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 FR 797, Feb. 14, 1950, as amended by Board Order 55-89, 20 FR 3723, May 27, 1955; Board Order 60-29, 25 FR 2054, Mar. 10, 1960; Board Order 62-47, 27 FR 4879, May 24, 1962; Board Order 6427, 29 FR 3229, Mar. 11, 1964; Board Order 65-134, 30 FR 14594, Nov. 24, 1965; Board Order 73-4, 38 FR 3596, Feb. 8, 1973; 38 FR 6171, Mar. 7, 1973]

§ 238.3 Designation of beneficiary.

(a) General. An employee may file 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 beneficiary, or a designation of an additional or new beneficiary or beneficiaries, may be made, with or without the knowledge or consent of the previous beneficiary or beneficiaries, but to be valid must conform to, and be filed in accordance with, the provisions of the preceding paragraphs of this section