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B-179018, JUN 18, 1974, 53 COMP GEN 971

B-179018 Jun 18, 1974
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MADE AN ELECTION FOR THE PURPOSE OF BEING PLACED ON THE TEMPORARY DISABILITY RETIRED LIST AND WHOSE NAME IS REMOVED FROM THAT LIST FOR THE PURPOSE OF EITHER RESUMING FULL ACTIVE DUTY OR RETIREMENT FOR LENGTH OF SERVICE UNDER ANOTHER PROVISION OF LAW. ANY OPTION EXERCISED AND ELECTION MADE PRIOR TO PLACEMENT ON THAT LIST IS LIMITED TO THAT PURPOSE AND SUCH MEMBER MAY NOT BE BOUND THEREAFTER BY THOSE ACTIONS. PAY - RETIRED - SUBSEQUENT TO TEMPORARY DISABILITY RETIRED LIST REMOVAL - MEMBER NOT BOUND BY PRIOR SURVIVOR BENEFIT PLAN ELECTION WHEN A SERVICE MEMBER'S NAME IS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST AND IS RETURNED TO THE ACTIVE LIST FOR THE PURPOSE OF RETIREMENT FOR LENGTH OF SERVICE UNDER ANOTHER PROVISION OF LAW.

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B-179018, JUN 18, 1974, 53 COMP GEN 971

MILITARY PERSONNEL - RETIREMENT - TEMPORARY DISABILITY RETIREMENT - REMOVAL FROM LIST - MEMBER NOT BOUND BY PRIOR SURVIVOR BENEFIT PLAN ELECTION WHERE A SERVICE MEMBER EXERCISED HIS OPTION REGARDING PARTICIPATION IN THE SURVIVOR BENEFIT PLAN, 10 U.S.C. 1447-1455, AND MADE AN ELECTION FOR THE PURPOSE OF BEING PLACED ON THE TEMPORARY DISABILITY RETIRED LIST AND WHOSE NAME IS REMOVED FROM THAT LIST FOR THE PURPOSE OF EITHER RESUMING FULL ACTIVE DUTY OR RETIREMENT FOR LENGTH OF SERVICE UNDER ANOTHER PROVISION OF LAW, SINCE 10 U.S.C. 1448(C) TERMINATES HIS PARTICIPATION IN THE PLAN AT THAT TIME, ANY OPTION EXERCISED AND ELECTION MADE PRIOR TO PLACEMENT ON THAT LIST IS LIMITED TO THAT PURPOSE AND SUCH MEMBER MAY NOT BE BOUND THEREAFTER BY THOSE ACTIONS. PAY - RETIRED - SUBSEQUENT TO TEMPORARY DISABILITY RETIRED LIST REMOVAL - MEMBER NOT BOUND BY PRIOR SURVIVOR BENEFIT PLAN ELECTION WHEN A SERVICE MEMBER'S NAME IS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST AND IS RETURNED TO THE ACTIVE LIST FOR THE PURPOSE OF RETIREMENT FOR LENGTH OF SERVICE UNDER ANOTHER PROVISION OF LAW, SINCE THERE MAY EXIST SIGNIFICANT CHANGES IN THE MEMBER'S CIRCUMSTANCES SUBSEQUENT TO HIS INITIAL DECISION TO PARTICIPATE OR NOT PARTICIPATE IN THE SURVIVOR BENEFIT PLAN, HE IS TO BE TREATED AS A NEW PROSPECTIVE PARTICIPANT AND MUST BE GIVEN THE OPPORTUNITY TO FULLY REVIEW HIS FUTURE PARTICIPATION IN THE PLAN PRIOR TO SUCH RETIREMENT WITH POSITIVE ACTION TO BE TAKEN ADMINISTRATIVELY TO INSURE THAT THE DETAILS AND COSTS ARE FULLY UNDERSTOOD BY HIM.

IN THE MATTER OF SURVIVOR BENEFIT PLAN COVERAGE FOR TEMPORARY DISABILITY RETIRED LIST MEMBERS, JUNE 18, 1974:

THIS ACTION IS IN RESPONSE TO A LETTER FROM THE ACTING ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION CONCERNING THE APPLICATION OF THE SURVIVOR BENEFIT PLAN, 10 U.S.C. 1447-1455, TO A SERVICE MEMBER WHOSE NAME IS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST (TDRL) IN THE CIRCUMSTANCES DISCUSSED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 480, WHICH WAS ENCLOSED WITH THE REQUEST.

THE QUESTIONS SET FORTH IN THE COMMITTEE ACTION ARE:

WHAT IS THE PROPER APPLICATION OF THE SURVIVOR BENEFITS PLAN (SBP) TO A MEMBER REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST (TDRL) AND RESTORED TO ACTIVE DUTY FOR ONE OR MORE DAYS AND THEN RETIRED FOR LENGTH OF SERVICE UNDER ANOTHER PROVISION OF LAW? WOULD -

A. A PRIOR ELECTION BE TERMINATED AND MAXIMUM COVERAGE BECOME AUTOMATIC UNDER THE NEW RETIREMENT STATUS; OR

B. AN ELECTION IN EFFECT WHILE ON THE TDRL BE CONTINUED IN FORCE WITH COST AND ANNUITY RECOMPUTED, AS APPLICABLE, BASED ON THE RETIRED PAY ENTITLEMENT OF THE NEW RETIREMENT STATUS?

C. A MEMBER WHO INDICATED HE DID NOT DESIRE TO PARTICIPATE IN THE PLAN WHILE ON THE TDRL BE PERMITTED TO MAKE AN ELECTION TO BE COVERED DURING THE NEW RETIREMENT STATUS?

THE DISCUSSION IN THE COMMITTEE ACTION RECOGNIZES THAT UNDER 10 U.S.C. 1448(C), THE APPLICATION OF THE SURVIVOR BENEFIT PLAN TO A PERSON WHOSE NAME IS ON THE TEMPORARY DISABILITY RETIRED LIST TERMINATES WHEN HIS NAME IS REMOVED FROM THAT LIST AND HE IS NO LONGER ENTITLED TO RETIRED PAY. IS STATED IN THE DISCUSSION THAT PARAGRAPH 3E(3), SECTION III, APPENDIX OF DA CIRCULAR 608-41, OCTOBER 20, 1972, PROVIDES THAT FOR A PERSON WHO IS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST AND RESTORED TO ACTIVE DUTY, ANY SURVIVOR BENEFIT PLAN COVERAGE WILL END AND THE COSTS WILL NOT BE REFUNDED AND THAT FOR SUCH RESTORED MEMBERS, THE SURVIVOR BENEFIT PLAN WILL APPLY IN THE FUTURE AS FOR OTHER ACTIVE DUTY MEMBERS.

IN THIS REGARD, THE DISCUSSION POINTS OUT THAT A MEMBER REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST ALSO INCLUDES THOSE WHO ARE ELIGIBLE FOR RETIREMENT UNDER ANOTHER PROVISION OF LAW WHEN THEY WERE PLACED ON THE LIST, AND THAT, EXCEPT FOR RESERVISTS ELIGIBLE FOR RETIREMENT 10 U.S.C. 3911, 47 COMP. GEN. 141 (1967) HELD THAT MEMBERS MUST BE IN AN ACTIVE STATUS FOLLOWING REMOVAL FROM THE TEMPORARY DISABILITY RETIRED LIST IN ORDER TO BE RETIRED FOR LENGTH OF SERVICE. FURTHER, IT IS STATED THAT WHILE SUCH REQUIRED ACTIVE STATUS COULD BE FOR A MINIMUM PERIOD OF ONE DAY, NOTHING CAN BE FOUND IN REGULATIONS OR STATUTORY MATERIAL THAT PROVIDES INSTRUCTIONS CONCERNING THE APPLICATION OF COVERAGE UNDER THE SURVIVOR BENEFIT PLAN FOR THESE INDIVIDUALS.

SUBSECTION 1448(A) OF TITLE 10, U.S. CODE, PROVIDES IN PERTINENT PART:

(A) THE PLAN APPLIES TO A PERSON WHO IS MARRIED OR HAS A DEPENDENT CHILD WHEN HE BECOMES ENTITLED TO RETIRED OR RETAINER PAY UNLESS HE ELECTS NOT TO PARTICIPATE IN THE PLAN BEFORE THE FIRST DAY FOR WHICH HE IS ELIGIBLE FOR THAT PAY. IF A PERSON WHO IS MARRIED ELECTS NOT TO PARTICIPATE IN THE PLAN AT THE MAXIMUM LEVEL, THAT PERSON'S SPOUSE SHALL BE NOTIFIED OF THE DECISION. AN ELECTION NOT TO PARTICIPATE IN THE PLAN IS IRREVOCABLE IF NOT REVOKED BEFORE THE DATE ON WHICH THE PERSON FIRST BECOMES ENTITLED TO RETIRED OR RETAINER PAY. ***

IN OUR DECISION OF MAY 10, 1974, 53 COMP. GEN. 847, WE SAID WITH REGARD TO SUBSECTION 1448(A) THAT:

*** IN A SITUATION WHERE A MEMBER RETIRES AND IS IN AN INACTIVE STATUS HAVING PREVIOUSLY ELECTED TO PARTICIPATE IN THE PLAN AND BECOMES ENTITLED TO RETIRED OR RETAINER PAY, THE BASIC COVERAGE UNDER THE PLAN FOR THE ELIGIBLE SURVIVORS IS BY VIRTUE OF THE PROVISIONS OF 10 U.S.C. 1448(A), WITH PAYMENT TO BE MADE IN ACCORDANCE WITH 10 U.S.C. 1450 ***.

THE SURVIVOR BENEFIT PLAN WAS DESIGNED TO BUILD ON THE INCOME MAINTENANCE FOUNDATION OF THE SOCIAL SECURITY SYSTEM IN ORDER TO PROVIDE SURVIVOR COVERAGE TO MILITARY WIDOWS AND DEPENDENT CHILDREN IN A STATED AMOUNT FROM RETIREMENT INCOME DERIVED BY A MEMBER FROM HIS PAST MILITARY SERVICE. THIS CONTEMPLATES GENERALLY THE EXISTENCE OF A FINAL TYPE RETIREMENT WHERE A MEMBER, WHEN PLACED IN AN INACTIVE STATUS WHICH ENTITLES HIM TO RETIRED PAY, WOULD REMAIN IN THAT STATUS UNTIL HE DIES. IF, HOWEVER, A MEMBER IS RECALLED TO ACTIVE DUTY SUBSEQUENT TO SUCH A RETIREMENT, UPON RELEASE FROM THAT PERIOD OF ACTIVE DUTY HE WOULD RESUME HIS EARLIER INACTIVE STATUS WITH RETIRED PAY RECOMPUTED UNDER THE PROVISIONS OF 10 U.S.C. 1402.

WITH REGARD TO THE APPLICATION OF THE SURVIVOR BENEFIT PLAN TO THIS TYPE OF SITUATION, WE EXPRESSED THE VIEW IN 53 COMP. GEN. 847, SUPRA, IN CONNECTION WITH THE ANSWER TO QUESTION 4 THAT WHERE A MEMBER BECAME ENTITLED TO RETIRED PAY HAVING PREVIOUSLY ELECTED TO PARTICIPATE IN AND HAS CONTRIBUTED TO THE PLAN, THE BASIC RIGHTS OF THE DESIGNATED AND OTHERWISE ELIGIBLE SURVIVORS CONTINUE IRRESPECTIVE OF SUBSEQUENT CHANGES IN THE MEMBER'S STATUS.

SUCH IS NOT THE CASE WITH RESPECT TO MEMBERS WHOSE NAMES ARE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST. WHILE THERE IS NO QUESTION THAT THE SURVIVOR BENEFIT PLAN IS FOR APPLICATION TO SUCH MEMBERS AT THE TIME THEIR NAMES ARE PLACED ON THAT LIST (THEY ARE ENTITLED TO RETIRED PAY COMPUTED UNDER 10 U.S.C. 1401 DURING THAT TIME), SUBSECTION 1448(C) OF TITLE 10, U.S. CODE, PROVIDES:

(C) THE APPLICATION OF THE PLAN TO A PERSON WHOSE NAME IS ON THE TEMPORARY DISABILITY RETIRED LIST TERMINATES WHEN HIS NAME IS REMOVED FROM THAT LIST AND HE IS NO LONGER ENTITLED TO RETIRED PAY.

THE PURPOSE FOR ESTABLISHING THE TEMPORARY DISABILITY RETIRED LIST (10 U.S.C. 1202 AND 1205) WAS TO AUTHORIZE A LIMITED RETIREMENT STATUS FOR MEMBERS OF THE ARMED FORCES CALLED OR ORDERED TO ACTIVE DUTY AND WHO BECOME UNFIT TO PERFORM SUCH DUTY BECAUSE OF A PHYSICAL DISABILITY INCURRED WHILE ENTITLED TO BASIC PAY, BUT WHERE SUCH DISABILITY IS NOT DETERMINED TO BE OF A PERMANENT NATURE, WITH THE MAXIMUM PERIOD OF RETENTION ON THAT LIST LIMITED TO FIVE YEARS (10 U.S.C. 1210(B). OTHER THAN SITUATIONS INVOLVING IMMEDIATE TRANSFER TO THE PERMANENT DISABILITY RETIRED LIST, MEMBERS WHOSE NAMES ARE REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST ARE RETURNED TO THE ACTIVE LIST EITHER FOR THE PURPOSE OF RESUMING FULL ACTIVE DUTY OR IN ORDER TO QUALIFY THEM FOR RETIREMENT FOR LENGTH OF SERVICE UNDER OTHER PROVISIONS OF LAW. SEE 47 COMP. GEN. 141 (1967) AND 50 ID. 677 (1971).

THERE IS NO EXTENSIVE LEGISLATIVE HISTORY REGARDING THE APPLICATION OF THE PLAN TO MEMBERS WHOSE NAMES ARE ON THE TEMPORARY DISABILITY RETIRED LIST. HOWEVER, FOR MEMBERS WHOSE NAMES HAVE BEEN REMOVED FROM THAT LIST THE LEGISLATIVE POLICY IS CLEARLY AND UNEQUIVOCALLY STATED ON PAGE 33 OF HOUSE REPORT NO. 92-481, COMMITTEE ON THE ARMED FORCES, HOUSE OF REPRESENTATIVES, DATED SEPTEMBER 16, 1971, TO ACCOMPANY H.R. 10670, WHICH EVENTUALLY BECAME PUBLIC LAW 92-425, 86 STAT. 761, AS FOLLOWS:

*** A PERSON REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST CEASES TO PARTICIPATE IN THE PLAN WHEN HE IS NO LONGER ENTITLED TO RETIRED PAY. MEMBER TRANSFERRED FROM THE TEMPORARY DISABILITY RETIRED LIST TO THE PERMANENT DISABILITY RETIRED LIST CONTINUES IN THE PLAN SUBJECT TO CHANGES IN THE BASE AMOUNT ***.

SIMILAR WORDING IS CONTAINED ON PAGE 51 OF SENATE REPORT NO. 92-1089, COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, DATED SEPTEMBER 6, 1972.

FROM THE FOREGOING, IT IS APPARENT THAT IT WAS CONGRESSIONALLY RECOGNIZED THAT MEMBERS ON THE TEMPORARY DISABILITY RETIRED LIST ARE TO BE AFFORDED THE OPPORTUNITY TO OBTAIN SURVIVOR PROTECTION AS IN ALL OTHER RETIREMENT CASES, BUT THAT IT WAS ALSO RECOGNIZED THAT SUCH A STATUS ON THAT LIST WOULD BE FOR A LIMITED DURATION. THUS, WITH THE MANDATE THAT THE PLAN IS NO LONGER APPLICABLE TO A MEMBER WHOSE NAME IS REMOVED FROM THAT LIST AND RETURNED TO THE ACTIVE LIST, IT IS OUR VIEW THAT THE OPTION TO PARTICIPATE IN THE PLAN EXERCISED BY THE MEMBER AND HIS ELECTION MADE PRIOR TO HIS NAME BEING PLACED ON THE TEMPORARY DISABILITY RETIRED LIST WOULD ALSO BE OF LIMITED APPLICABILITY, SINCE HIS RETURN TO THE ACTIVE LIST WOULD BE FOR THE PURPOSE OF EITHER RESUMING FULL ACTIVE DUTY OR RETIRING FOR LENGTH OF SERVICE UNDER ANOTHER PROVISION OF LAW.

THEREFORE, WHERE A MEMBER, WHOSE NAME IS ON THE TEMPORARY DISABILITY RETIRED LIST, IS BEING RETURNED TO THE ACTIVE LIST FOR THE PURPOSE OF RETIREMENT FOR LENGTH OF SERVICE, ANY OPTION EXERCISED BY THE MEMBER WITH REGARD TO THE PLAN AND ELECTION MADE PRIOR TO PLACEMENT ON THAT LIST IS LIMITED TO THAT PURPOSE AND SUCH MEMBER MAY NOT BE BOUND THEREAFTER BY THOSE ACTIONS. FURTHER, SINCE CHANGED CIRCUMSTANCES MAY HAVE OCCURRED SUBSEQUENT TO THE TIME HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST AND SINCE SUBSECTION 1448(A) PROVIDES IN PART THAT, "IF A PERSON WHO IS MARRIED ELECTS NOT TO PARTICIPATE IN THE PLAN AT THE MAXIMUM LEVEL, THAT PERSON'S SPOUSE SHALL BE NOTIFIED OF THE DECISION," THE MEMBER MUST BE TREATED AS A NEW PROSPECTIVE PARTICIPANT AND MUST BE GIVEN THE OPPORTUNITY TO FULLY REVIEW HIS FUTURE PARTICIPATION IN THE PLAN, WITH POSITIVE ACTION TO BE TAKEN BY ADMINISTRATIVE OFFICERS TO INSURE THAT THE DETAILS OF THE PLAN, ITS BENEFITS AND THE COST OF PARTICIPATION ARE AGAIN FULLY EXPLAINED AND UNDERSTOOD BY THE MEMBER. CF. 53 COMP. GEN. 192 (1973).

YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.

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