clause (2) of the first sentence of this subsection shall have been credited to the Railroad Retirement Account, but the additional 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 service 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, as 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 annuity, 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 & 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.

[Board Order 55-89, 20 FR 3707, May 27, 1955]

§ 209.13 War period.

A war period begins on the date on which the Congress of the United States declared war, or on the date as of which the Congress of the United States declared a state of war to have existed, or on the date on which war was declared by one or more foreign states against the United States, or on 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 on 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, whichever date is the earliest. A war period ends on the date on which hostilities shall have ceased.

(a) Spanish-American War. The war period of the Spanish-American War began April 21, 1898, and ended August 13, 1898.

(b) Philippine Insurrection. The war period of the Philippine Insurrection began February 4, 1899, and ended April 27, 1902.

(c) World War I. The war period of the World War began April 6, 1917, and ended November 11, 1918.

(d) World War II. The war period of World War II began December 7, 1941, and ended December 31, 1946.

[Board Order 55-89, 20 FR 3707, May 27, 1955]

§ 209.14 Verification of military service claimed.

Military service claimed, to be credited, shall be verified to the satisfaction of the Board by the following proof:

(a) An original certificate of discharge or release to inactive duty from a branch of the armed forces that shows the beginning and ending dates of an individual's active military serv

30-041 0 789

ice; or a certified copy of such a certificate made by the State, county or municipal agency or department in which the original certificate is recorded; or

(b) A certification from a branch of the armed forces that shows the beginning and ending dates of an individual's active military service; or

(c) A photocopy of the document described in paragraph (a) or (b) of this section.

[Board Order 59-189, 24 FR 9002, Nov. 5, 1959]

PART 210-EXECUTION AND FILING OF AN APPLICATION FOR AN ANNUITY

Sec.

210.1 Statutory provisions. 210.2 Application to be filed. 210.3 Filing date.

210.4 Signature on application form. 210.5 Presumptions from application. 210.6 Application filed with the Social Security Administration.

210.7 Application where individual is incompetent.

210.8 When an application is considered fully exhausted.

210.10 Alteration of application. 210.11 Cancellation of an application. 210.12 Effect of cancellation.

210.13 Applicant's file to be confidential.

AUTHORITY: Secs. 2, 10, 50 Stat. 309, as amended, 314, as amended; 45 U.S.C. 228b, 228j.

§ 210.1 Statutory provisions.

An annuity shall begin to accrue as of a date to be specified in a written application (to be made in such manner and form as may be prescribed by the Board and to be signed by the individual entitled thereto) (Sec. 2(c), 50 Stat. 310; 45 U.S.C.

228b(c))

[4 FR 1485, Apr. 7, 1939]

§ 210.2 Application to be filed.

(a) No individual, irrespective of his qualifications, shall receive an annuity unless, on or before the date of his death, his duly executed application upon such form as the Board may from time to time prescribe is filed with the Board: Provided, however, That a claim or application filed with the Social Security Administration, whether before or after the adoption of this section, for monthly insurance

of

benefits under title II of the Social Security Act (except an application for a disability insurance benefit where such benefit was terminated before the 120th month of railroad service was performed), based in whole or in part on service of an employee for an employer under the Railroad Retirement Act, shall be considered an application for an annuity duly filed with the Board: And Provided further, That a claim or application filed with the Social Security Administration on or before December 31, 1974, for monthly insurance benefits under title II of the Social Security Act, regardless whether such claim or application is based in whole or in part on service of an employee for an employer under the Railroad Retirement Act, shall be considered an application for an annuity duly filed with the Board if: (1) The individual filing such claim or application would have been entitled to an annuity under the Railroad Retirement Act as of the date of such filing if he had then filed an application with the Board, and (2) such individual elects to have such claim or application considered as an application for an annuity under the Railroad Retirement Act.

(b) Where an individual has notified the Board in writing of his intention or desire to file an application for an annuity, but has been deterred to his detriment by action of 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 paragraph (a) of this section: Provided, however, That:

(1) 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:

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

(ii) Failure to advise the individual that his written statement containing all the pertinent information called for by an application, though on a

form prescribed by the Board, is insufficient to serve as an application; or

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

or

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

(2) 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. (For regulations governing applications for insurance annuities and lump sums for survivors, see Part 237 of this chapter.)

[12 FR 1136, Feb. 19, 1947, as amended by Board Order 73-8, 38 FR 5631, Mar. 5, 1973; 42 FR 18058, Apr. 5, 1977]

§ 210.3 Filing date.

An application, filed in the manner and form prescribed in § 210.2, shall be considered filed with the Board on the date that it is received at an office of the Board, or the date that it is delivered to a field employee of the Board specifically authorized by a regional director to receive applications in the area where delivery is made, whichever date is earlier; or, in a case of an applicant who is not residing in the United States, the date his application is received at an office maintained outside the United States by the United States foreign service; or, in a case in which a claim or application filed with the Social Security Administration is, by virtue of § 210.2, an application for an annuity filed with the Railroad Retirement Board, the date on which such claim or application was filed with the Social Security Administration: Provided, however, That if in the adjudication of an application for an annuity it is determined that the ap

plicant died on a day observed by the Board as a non-work day and that his application was received through the mail at an office of the Board on the first business day following such nonwork day, the application shall be deemed to have been filed with the Board on such non-work day if it is established to the satisfaction of the Board that the application was mailed in sufficient time to have been received by the Board in the ordinary course of the mail on such non-work day had that day been a business day. [Board Order 62-33, 27 FR 3321, Apr. 7, 1962]

§ 210.4 Signature on application form.

The application form shall be signed personally by the applicant in his usual manner: Provided, however, That if the applicant is unable to sign his name because of physical inability or illiteracy, he shall then make his mark (X) and a witness shall affix the applicant's name. In every case the signature or mark shall either be executed and authenticated in such manner as the form provided may indicate or shall be executed before and authenticated by an employee of the Board duly designated and authorized to perform such services. In the event that the signature or any written portion of the application form is, within the judgment of the Board, substantially illegible or of doubtful authenticity, or, if in the judgment of the Board there are substantial omissions in the application form, the Board may require its reexecution or correction: Provided, further, That an application form that is reexecuted because the previous form was either not signed or improperly signed shall be returned and shall be received by the Board within 30 days after notice to correct such deficiency is mailed to the applicant; otherwise, the filing date of the application shall be the date on which such reexecuted application form is received by the Board. [Board Order 60-7, 25 FR 864, Feb. 2, 1960] § 210.5 Presumptions from application.

The receipt by the Board of a duly executed application form on or prior to the date of death of the applicant

in the absence of evidence to the contrary shall be conclusive evidence of the filing thereof by the applicant or in his behalf by his authority.

[4 FR 1485, Apr. 7, 1939]

§ 210.6 Application filed with the Social Security Administration.

(a) By an individual. (1) The date on which an individual files a claim or application with the Social Security Administration for old-age or disability insurance benefits based on less than ten years (120 months) of railroad service shall be considered the date on which an application is filed with the Board if the individual subsequently acquires 120 months of railroad service.

(2) In any such case, receipt of the following information from the Social Security Administration shall denote the filing of an application under the Railroad Retirement Act: the name and address of the applicant; the name of each employer involved who may be covered by the Railroad Retirement Act; the amount of benefits, if any, paid by the Social Security Administration on the basis of service with such employers; and the date the claim or application was filed with the Social Security Administration.

(3) The payments made by the Social Security Administration on the basis of compensation that had been used as wages are not erroneous for months prior to the time the individual acquired his 120th month of railroad service; such payments, however, if any, made for and subsequent to the individual's 120th month of railroad service shall be recovered from accrued annuities under the Railroad Retirement Act.

(b) By an individual's spouse. (1) The date on which the spouse of the individual described in paragraph (a) of this section files a claim or application with the Social Security Administration for a wife's or husband's insurance benefit, shall be considered the date on which the spouse files an application with the Board for a spouse's annuity.

(2) In any such case, receipt of the following information from the Social Security Administration shall denote

the filing of a spouse's application under the Railroad Retirement Act: The name and address of the individual's spouse; the amount of insurance benefits, if any, paid by the Social Security Administration to the individual's spouse; and the date the individual's spouse filed the claim or application with the Social Security Administration.

(3) The payments, if any, made by the Social Security Administration to such individual's spouse for and after the individual's 120th month of railroad service shall be recovered from accrued spouse's annuities under the Railroad Retirement Act.

[Board Order 60-7, 25 FR 864, Feb. 2, 1960; 25 FR 1398, Feb. 17, 1960, as amended by Board Order 62-33, 27 FR 3322, Apr. 7, 1962]

§ 210.7 Application where individual is incompetent.

In the event that an individual is mentally incompetent, a person recognized by the Board pursuant to § 266.5 of this chapter, a duly appointed guardian, conservator, committee, or other legal representative shall execute and file the application on his behalf. In the event that the mentally incompetent individual has himself filed an application form the person recognized by the Board pursuant to § 266.5 of this chapter, the duly appointed guardian, conservator, committee, or other legal representative shall execute and file another application form and when this has been done, the filing date of the application may be the date on which the first application form was received by the Board.

[Board Order 45-204, 10 FR 7159, June 15, 1945]

§ 210.8 When an application is considered fully exhausted.

(a) An application for an annuity shall be considered fully exhausted on the date of notice of the initial decision denying the applicant's claim if the notice of decision was dated after September 7, 1961, and was not appealed as prescribed in Part 260 of this chapter. If a timely appeal is taken from such an initial decision, the an