B-130010, JULY 21, 1966, 46 COMP. GEN. 64

B-130010, JULY 21, 1966, 46 COMP. GEN. 64

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - TIME FOR ELECTION - ADVANCE RETIREMENT ELIGIBILITY KNOWLEDGE. PERSONS WHO WERE FORMER MEMBERS OF THE UNIFORMED SERVICES ON NOVEMBER 1, 1953 AND ARE AWARDED RETIRED PAY PURSUANT TO 10 U.S.C. 1331 1337 UPON REACHING AGE 60 ARE NOT ELIGIBLE TO ELECT A SURVIVOR'S ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN AFTER THE EXPIRATION OF 30 DAYS FOLLOWING NOTICE OF THE AWARD OF RETIRED PAY, 10 U.S.C. 1431 (B), PRESCRIBING A 90-DAY PERIOD FOR THE ELECTION OF AN ANNUITY INTENDED FOR MEMBERS WHO DO NOT KNOW WHETHER OR WHEN THEY WILL BE RETIRED UNTIL THEIR RETIREMENT IS APPROVED NOT APPLYING TO THOSE FORMER MEMBERS INCHOATELY ELIGIBLE FOR RETIREMENT UNDER SECTIONS 1331 1337, WHO IN ADVANCE OF REACHING RETIREMENT AGE KNOW OF THEIR ELIGIBILITY TO BE AWARDED RETIRED PAY AND THE EARLIEST TIME OF QUALIFYING AND, THEREFORE, CAN MAKE AN INTELLIGENT ELECTION WITHIN 30 DAYS FOLLOWING NOTICE OF THE AWARD OF RETIRED PAY.

TO THE SECRETARY OF THE ARMY, JULY 21, 1966:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 20, 1966, REQUESTING A DECISION WHETHER CAPTAIN JAMES W. JOHNSON, AUS, RETIRED, A FORMER MEMBER OF THE ARMY, MAY WITHIN 90 DAYS AFTER BEING AWARDED RETIRED PAY MAKE AN ELECTION UNDER THE PROVISIONS OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN TO PROVIDE AN ANNUITY FOR HIS BENEFICIARY. YOUR REQUEST FOR DECISION WAS ASSIGNED NO. SS-A 895 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT CAPTAIN JOHNSON WAS BORN ON NOVEMBER 30, 1903, AND HAS HAD NO MILITARY STATUS SINCE APRIL 27, 1945, ON WHICH DATE HIS COMMISSIONED STATUS TERMINATED; THAT HE APPLIED FOR RETIRED PAY BASED ON 20 YEARS' CREDITABLE SERVICE UNDER AUTHORITY OF 10 U.S.C. 1331 1337, ON JANUARY 26, 1965, AND ON MARCH 4, 1965, WAS GRANTED RETIRED PAY FROM DECEMBER 1, 1963, THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH HE REACHED AGE 60 (ALTHOUGH THE DATE OF NOTIFICATION OF AWARD OF RETIRED PAY IS NOT DISCLOSED); THAT ON APRIL 15, 1965, 42 DAYS AFTER RETIREMENT PAY WAS AWARDED HE ELECTED TO PARTICIPATE IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, SELECTING OPTIONS 1 AND 4 AT ONE-FOURTH OF REDUCED RETIRED PAY; THAT BY LETTER DATED MAY 3, 1965, THE ADJUTANT GENERAL INFORMED CAPTAIN JOHNSON THAT APPLICABLE REGULATIONS REQUIRE THAT PERSONS WHO HAD NO MILITARY STATUS ON NOVEMBER 1, 1953, BUT WHO HAD COMPLETED 20 YEARS OF QUALIFYING FEDERAL SERVICE AND WERE WAITING TO ATTAIN AGE 60 AND ULTIMATE ELIGIBILITY FOR RETIREMENT, MUST DELIVER THEIR ELECTIONS TO ARMY OFFICIALS OR MAIL THEM IN TIME TO BE POSTMARKED NOT LATER THAN 30 DAYS AFTER THE AWARD OF RETIRED PAY. YOU SAY, HOWEVER, THAT NO ARMY REGULATION CONTAINS A REFERENCE TO A 30-DAY ELECTION PERIOD.

SECTION 3/A) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, CH. 393, 67 STAT. 502, PROVIDED WITH RESPECT TO PERSONS WHO HAD PERFORMED THE SERVICE REQUISITE FOR QUALIFYING FOR RETIRED PAY UNDER THE PROVISIONS OF LAW NOW CODIFIED IN 10 U.S.C. 1331-1337 THAT:

A PERSON WHO IS A FORMER MEMBER ON THE EFFECTIVE DATE OF THE ACT AND WHO IS THEREAFTER AWARDED RETIRED PAY BY A UNIFORMED SERVICE MAY MAKE THE ELECTION AT THE TIME HE IS AWARDED THAT PAY.

IN DECISION OF MAY 11, 1955, 34 COMP. GEN. 582, WE SAID THAT THE PHRASE "AT THE -TIME" OF AWARD OF RETIRED PAY IN THE ABOVE-QUOTED PROVISION MEANT WITHIN A SHORT TIME AFTER SUCH AWARD, BUT THAT PERIOD OF 60 DAYS OR MORE WOULD BE TOO LONG A PERIOD TO ALLOW THE PERSONS CONCERNED TO MAKE THEIR ELECTIONS, AND THAT, IN FACT, THERE WOULD BE GRAVE DOUBT THAT ANY TIME IN EXCESS OF 30 DAYS AFTER AWARD OF RETIRED PAY TO FORMER MEMBERS REASONABLY COULD BE ALLOWED FOR THAT PURPOSE. IN DECISION OF FEBRUARY 8, 1957, 36 COMP. GEN. 586, WE HELD THAT FORMER MEMBERS WHOSE RECORDS ARE CORRECTED TO GRANT THEM RETIRED PAY RETROACTIVELY MAY NOT HAVE MORE THAN 30 DAYS FROM THE DATE OF NOTIFICATION OF THE AWARD OF RETIRED PAY TO MAKE A SURVIVOR'S ANNUITY ELECTION UNDER THE 1953 ACT.

INSOFAR AS IT MATERIAL HERE THE ABOVE-QUOTED PROVISION OF LAW WAS CODIFIED WITHOUT SUBSTANTIVE CHANGE IN 10 U.S.C. 1432 BY THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 109. NO CHANGE WAS MADE THEREIN BY THE ACT OF OCTOBER 4, 1961, PUBLIC LAW 87-381, 75 STAT. 810, WHICH CHANGED THE NAME OF THE PROGRAM TO RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN AND MADE CERTAIN CHANGES IN THE LAW PROVIDING GREATER FLEXIBILITY IN MAKING ORIGINAL ELECTIONS AND IN EFFECTING CHANGES IN ELECTIONS, ELIMINATED CERTAIN POOR RISKS FROM THE PROGRAM THEREBY IMPROVING THE FISCAL SOUNDNESS OF THE PROGRAM, AND SIMPLIFIED ADMINISTRATION BY AUTHORIZING, AMONG OTHER THINGS, THE ADMINSTRATIVE CORRECTION OF ADMINISTRATIVE ERRORS. AMONG THE CHANGES WAS THE ADDITION OF THE PROVISION NOW CONTAINED IN 10 U.S.C. 1431/B) THAT:

A MEMBER TO WHOM RETIRED PAY OR RETAINER PAY IS GRANTED RETROACTIVELY, AND WHO IS OTHERWISE ELIGIBLE TO MAKE AN ELECTION, MAY MAKE THE ELECTION WITHIN 90 DAYS AFTER RECEIVING NOTICE THAT SUCH PAY HAS BEEN GRANTED TO HIM.

YOU SAY THAT THE LEGISLATIVE HISTORY OF THE 1961 ACT, WHICH ADDED THAT PROVISION, INDICATES THAT THE 90-DAY PERIOD WAS INCLUDED TO OVERCOME THE ABOVE-CITED DECISIONS OF THIS OFFICE LIMITING THE ELECTION PERIOD TO 30 DAYS, POINTING OUT THAT THE DEPARTMENT OF DEFENSE REPRESENTATIVE INDICATED THAT THE 30-DAY PERIOD DID NOT GIVE SUFFICIENT TIME TO PROCESS THE CASE, COMPUTE COSTS, AND PROPERLY ADVISE THE RETIRED PERSON, CITING THE HEARINGS BEFORE SUBCOMMITTEE NO. 1 OF THE HOUSECOMMITTEE ON ARMED SERVICES ON H.R. 4329, 87TH CONG., 1ST SESS. 1753, AND THE HEARINGS BEFORE THE SENATE COMMITTEE ON ARMED SERVICES ON H.R. 6668, 87TH CONG., 1ST SESS. 35-36. YOU POINT OUT THAT THE EXAMPLE GIVEN BY A DEPARTMENT OF DEFENSE REPRESENTATIVE TO THE CONGRESSIONAL COMMITTEE CONSIDERING THE PROPOSED AMENDMENT WAS THAT OF A PERSON WHO HAD BEEN DISCHARGED, BUT WHO WAS SUBSEQUENTLY DETERMINED TO BE ELIGIBLE FOR PHYSICAL DISABILITY RETIREMENT AND WAS AWARDED RETIRED PAY RETROACTIVELY. YOU SUGGEST THAT THE BASIC REASON GIVEN BY THE DEPARTMENT OF DEFENSE FOR THE INCLUSION OF THE 90-DAY ELECTION PERIOD IN SECTION 1431/B) IS JUST AS APPLICABLE TO A PERSON WHO WAS A FORMER MEMBER ON NOVEMBER 1, 1953,"TO WHOM RETIRED PAY IS GRANTED RETROACTIVELY" AS IT IS TO A PERSON WHOSE RECORDS ARE CORRECTED UNDER 10 U.S.C. 1552 TO SHOW A RETROACTIVE AWARD OF RETIRED PAY UNDER ANY OTHER PROVISION OF LAW.

WE DO NOT BELIEVE THAT THE FACTUAL SITUATIONS ARE SIMILAR WITH RESPECT TO MAKING AN INTELLIGENT ELECTION. IN THE CASE OF MEMBERS AND FORMER MEMBERS OF THE ARMED SERVICES GRANTED DISABILITY RETIRED PAY RETROACTIVELY UNDER THE PROVISIONS OF 10 U.S.C. 1552 AND RELATED PROVISIONS OF LAW, THE MEMBER USUALLY DOES NOT KNOW WHETHER OR WHEN HE WILL BE RETIRED UNTIL HIS RETIREMENT IS APPROVED. SEE THE ABOVE- CITED HOUSE HEARINGS AT PAGES 1753 AND 1801. IN CONTRAST FORMER MEMBERS, SUCH AS CAPTAIN JOHNSON, AWARDED RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 1331-1337 WHOSE CASES ARE GOVERNED BY THE PROVISIONS OF 10 U.S.C. 1432 SHOULD KNOW WELL IN ADVANCE OF REACHING RETIREMENT AGE NOT ONLY THAT THEY ARE ELIGIBLE TO BE AWARDED RETIRED PAY BUT ALSO THE EARLIEST TIME (WHEN THEY REACH AGE 60 OR AT ANY TIME THEY CHOOSE THEREAFTER) THEY WILL QUALIFY THEREFOR, SINCE THEY SHOULD KNOW OR CAN ASCERTAIN LONG IN ADVANCE WHETHER THEY HAVE MET THE SERVICE REQUIREMENTS FOR SUCH RETIREMENT. HENCE, IN CASES OF RETIREMENT UNDER THE PROVISIONS OF 10 U.S.C. 1331-1337, THERE IS NO REASON WHY THE FORMER MEMBERS SHOULD NOT BE ABLE IN ALL CASES TO MAKE AN INTELLIGENT ELECTION WITHIN 30 DAYS AFTER AWARD OF RETIRED PAY. BY DELAYING APPLICATION FOR RETIREMENT SUCH FORMER MEMBERS CAN DEFER THE DATE OF AWARD OF SUCH PAY UNTIL AFTER RECEIPT OF THE PROPER INFORMATION NECESSARY FOR SUCH AN ELECTION AND RECEIVE RETIRED PAY RETROACTIVELY EFFECTIVE TO THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH RETIREMENT AGE IS REACHED. SEE DECISIONS IN 38 COMP. GEN. 146 AND 38 ID. 647.

THAT IT WAS NOT THE INTENT OF THE DEPARTMENT OF DEFENSE THAT THE ABOVE QUOTED PROVISION OF SECTION 1431/B) SHOULD APPLY TO PERSONS WHO WERE FORMER MEMBERS INCHOATELY ELIGIBLE FOR RETIRED PAY UNDER 10 U.S.C. 1331- 1337 ON THE EFFECTIVE DATE OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 SEEMS CLEAR FROM THE LETTER OF JANUARY 3, 1961, FROM THE DEPARTMENT OF THE AIR FORCE (WHICH HAD BEEN DESIGNATED AS THE REPRESENTATIVE OF THE DEPARTMENT OF DEFENSE FOR THE LEGISLATION WHICH CULMINATED IN THE 1961 LAW) FORWARDING TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES AND THE PRESIDENT OF THE SENATE A DRAFT AND EXPLANATION OF THE 1961 LEGISLATION, IN WHICH THIS STATEMENT CONCERNING RETROACTIVE ELECTIONS APPEARS:

(D) RETROACTIVE ELECTIONS.---UNDER PRESENT INTERPRETATION OF THE LAW MEMBERS TO WHOM RETIRED OR RETAINER PAY IS GRANTED RETROACTIVELY WOULD NOT BE ELIGIBLE TO PARTICIPATE UNLESS THEY HAD MADE AN ELECTION PRIOR TO THE TIME THE RETIRED PAY IS AWARDED.

THIS PROVISION HAS RESULTED IN MEMBERS BEING GRANTED RETROACTIVE RETIREMENT BENEFITS WITHOUT THE OPPORTUNITY TO ELECT PARTICIPATION IN THE PLAN THAT WOULD HAVE BEEN GIVEN THEM HAD THEY RETIRED IN THE NORMAL MANNER.

THE BILL PROVIDES THAT AN ELECTION IN SUCH CASES MAY BE MADE WITHIN 90 DAYS AFTER THE DATE OF RECEIPT OF NOTICE BY THE MEMBER THAT SUCH PAY HAS BEEN AWARDED HIM. (ITALICS SUPPLIED.)

INASMUCH AS PERSONS WHO WERE NOT MEMBERS ON NOVEMBER 1, 1953, AND WHO ARE THEREAFTER RETIRED UNDER THE PROVISIONS OF 10 U.S.C. 1331-1337 COULD NOT MAKE AN ELECTION PRIOR TO THE TIME RETIRED PAY IS AWARDED, WE DO NOT THINK THAT THE ABOVE-QUOTED PROVISION OF SECTION 1431/B) WAS INTENDED TO APPLY TO THEM. UNDER THE LAW A FORMER MEMBER INCHOATELY ELIGIBLE FOR RETIREMENT PAY UNDER THE PROVISIONS OF 10 U.S.C. 1331- 1337 WAS ELIGIBLE TO MAKE AN ELECTION OF A SURVIVOR'S ANNUITY AT THE TIME OF RETIREMENT, HAVING BEEN PRECLUDED FROM MAKING "AN ELECTION PRIOR TO THE TIME THE RETIRED PAY IS AWARDED", SINCE THE STATUTE EXPRESSLY AUTHORIZED HIM TO MAKE AN ELECTION ONLY "AT THE TIME HE IS GRANTED THAT PAY;" LIKEWISE, UNDER THE INTERPRETATION OF THE LAW THEN FOLLOWED SUCH A FORMER MEMBER COULD MAKE AN ELECTION WITHIN 30 DAYS AFTER "THE TIME THE RETIRED PAY IS GRANTED;, SEE 34 COMP. GEN. 582 AND 36 COMP. GEN. 586. ALSO, SINCE A FORMER MEMBER AWARDED RETIRED PAY CONTEMPORANEOUSLY OR RETROACTIVELY UNDER 10 U.S.C. 1331- 1337 WAS THERETOFORE AND IS NOW AFFORDED AN OPPORTUNITY TO ELECT TO PARTICIPATE IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN AT THE TIME HE IS GRANTED RETIRED PAY, OBVIOUSLY THE LAW HAS NOT RESULTED IN SUCH FORMER MEMBER "BEING GRANTED RETROACTIVE RETIREMENT BENEFITS WITHOUT THE OPPORTUNITY TO ELECT PARTICIPATION IN THE LAN" IN SUCH CASES, WHICH THE SECRETARY OF THE AIR FORCE URGED AS A BASIS FOR AUTHORIZING THE MAKING OF SUCH ELECTION WITHIN 90 DAYS AFTER RECEIVING NOTICE THAT RETIRED PAY HAS BEEN GRANTED RETROACTIVELY. CLEARLY, UNDER THE LANGUAGE OF SECTION 1431/B) IF PERSONS WHO WERE FORMER MEMBERS ON NOVEMBER 1, 1953, WERE CONTEMPORANEOUSLY AWARDED RETIRED PAY UNDER 10 U.S.C. 1331-1337 AS SOON AS THEY QUALIFIED THEREFOR, THEY WOULD NOT COME WITHIN THE PROVISIONS OF SECTION 1431/B), SINCE IN THAT SITUATION THERE WOULD BE NO BASIS FOR CONCLUDING THAT THE RETIRED PAY HAD BEEN GRANTED RETROACTIVELY, AND WE HAVE FOUND NOTHING IN ITS LANGUAGE OR IN ITS LEGISLATIVE HISTORY WHICH IN OUR OPINION WARRANTS THE CONCLUSION THAT THE CONGRESS INTENDED THAT SUCH MEMBERS SHOULD HAVE AN EXTRA 60 DAYS AFTER AWARD OF RETIRED PAY TO MAKE AN ELECTION MERELY BY DELAYING APPLICATION FOR RETIREMENT IN ORDER TO BE AWARDED RETIRED PAY RETROACTIVELY, PARTICULARLY WHEN SUCH PERSONS CAN DELAY SUCH APPLICATION EVEN FOR YEARS AND RECEIVE RETIRED PAY EFFECTIVE ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH AGE 60 IS REACHED. WE THINK THAT THE LANGUAGE OF THE LAW AND ITS LEGISLATIVE HISTORY DO NOT SUPPORT A CONGRESSIONAL INTENT TO SO DISCRIMINATE AGAINST PERSONS WHO MAKE TIMELY APPLICATION FOR RETIRED PAY UNDER 10 U.S.C. 1331- 1337 WHEN THEY REACH AGE 60 AND THOSE PERSONS COVERED BY 10 U.S.C. 1432 WHO DELAY MAKING SUCH APPLICATION.

ACCORDINGLY, IT IS OUR OPINION THAT PERSONS WHO WERE FORMER MEMBERS OF AN ARMED FORCE ON NOVEMBER 1, 1953, AND WHO ARE AWARDED RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 1331-1337 RETROACTIVELY OR CONTEMPORANEOUSLY UPON ATTAINMENT OF AGE 60 ARE NOT ELIGIBLE UNDER THE PROVISIONS OF 10 U.S.C. 1431/B) TO MAKE AN ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN AFTER THE EXPIRATION OF 30 DAYS FOLLOWING NOTICE OF THE AWARD OF RETIRED PAY. YOUR QUESTION, THEREFORE, MUST BE ANSWERED IN THE NEGATIVE IF THE ELECTION WAS MADE MORE THAN 30 DAYS AFTER NOTICE OF THE AWARD OF RETIRED PAY.