B-156523, NOV. 23, 1965, 45 COMP. GEN. 282

B-156523, NOV. 23, 1965, 45 COMP. GEN. 282

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - COST DEDUCTIONS - ADMINISTRATIVE ERROR CORRECTION A CORRECTION ON OCTOBER 7, 1964, BY APPROVAL OF THE SECRETARY OF THE AIR FORCE, PURSUANT TO 10 U.S.C. 1445, OF AN ADMINISTRATIVE ERROR IN MISPLACING AN ANNUITY ELECTION MADE ON FEBRUARY 27, 1961, BY AN OFFICER OF THE AIR FORCE UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN (10 U.S.C. 1431-1446), TO SHOW A TIMELY FILED ELECTION, VALIDATES THE ELECTION FROM THE DATE IT WAS MADE REQUIRING THE COMPUTATION OF THE REDUCTION IN RETIRED PAY TO COVER THE COST OF THE ANNUITY TO BE MADE FROM THE DATE OF THE OFFICER'S RETIREMENT ON NOVEMBER 1, 1963, AND NOT FROM OCTOBER 7, 1964, THE CORRECTION DATE OF THE ERROR, SECTION 1436 (A) PROVIDING IN ORDER TO ACHIEVE AN ACTUARIALLY SOUND PLAN FOR REDUCTION IN RETIRED PAY FROM THE DATE OF ELIGIBILITY FOR THE PAY, AND ANY INFERENCE IN 43 COMP. GEN. 309 THAT MONTHLY DEDUCTIONS WOULD BE ESTABLISHED FROM THE DATE AN ACTION VALIDATED AN ELECTION WAS INADVERTENT, THE REFERENCE TO "APPROPRIATE MONTHLY DEDUCTIONS" INTENDING TO MEAN ALL DEDUCTIONS PROPERLY CHARGEABLE FROM THE DATE OF RETIREMENT.

TO LIEUTENANT COLONEL J. J. VANYA, UNITED STATES AIR FORCE, NOVEMBER 23, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 20, 1965, REQUESTING A DECISION IN ADVANCE OF PAYMENT OF A VOUCHER IN THE AMOUNT OF $25.20, REPRESENTING THE COST OF COVERAGE UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446, WITHHELD FROM THE RETIRED PAY OF MAJOR ANDERSON F. BURGE, JR., AO 209 3669, USAF, RETIRED, FOR THE PERIOD NOVEMBER 1, 1963 THROUGH OCTOBER 6, 1964. YOUR REQUEST WAS FORWARDED HERE BY LETTER DATED OCTOBER 14, 1965, OF HEADQUARTERS, UNITED STATES AIR FORCE AND HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-876 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE MATTER OF THE ELIGIBILITY OF MAJOR BURGE FOR PARTICIPATION IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN WAS THE SUBJECT OF OUR DECISION OF APRIL 29, 1965, 44 COMP. GEN. 665. WE THERE HELD THAT BASED UPON THE INFORMATION THEN FURNISHED A VALID ELECTION ON HIS PART COULD NOT BE ESTABLISHED AND THUS DEDUCTIONS MADE FROM HIS PAY FOR AN ANNUITY FROM THE DATE OF HIS RETIREMENT WERE NOT AUTHORIZED AND SHOULD BE PAID TO HIM.

YOU HAVE NOW FURNISHED A COPY OF LETTER DATED OCTOBER 15, 1964, FROM THE DIRECTORATE OF PERSONNEL SERVICES, INDICATING THAT THE SECRETARY OF THE AIR FORCE, UNDER DATE OF OCTOBER 7, 1964, PURSUANT TO 10 U.S.C. 1445, DETERMINED THAT MAJOR BURGE MADE A VALID ELECTION ON FEBRUARY 27, 1961. THE NOTICE OF CORRECTION INDICATED THAT "BACK PAYMENTS WILL NOT BE COLLECTED IN VIEW OF THE PRECEDENT ESTABLISHED IN THE PHILLIPS CASE, COMPTROLLER GENERAL DECISION B-152399 (SEPTEMBER 30, 1963, 43 COMP. GEN. 309).' IF IT IS DETERMINED THAT MAJOR BURGE'S ELECTION IS NOW VALID, YOU EXPRESS DOUBT AS TO WHETHER REDUCTION FOR COST OF COVERAGE UNDER THE PLAN SHOULD BE MADE FROM NOVEMBER 1, 1963, DATE RETIREMENT WAS EFFECTIVE, OR FROM OCTOBER 7, 1964, DATE OF APPROVAL BY THE SECRETARY OF THE AIR FORCE.

IT IS PROVIDED IN 10 U.S.C. 1445 THAT:

WHENEVER HE CONSIDERS IT NECESSARY, THE SECRETARY CONCERNED MAY, UNDER REGULATIONS PRESCRIBED UNDER SECTION 1444 (A) OF THIS TITLE, CORRECT ANY ELECTION, OR ANY CHANGE OR REVOCATION OF AN ELECTION, UNDER THIS CHAPTER WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ADMINISTRATIVE ERROR. EXCEPT WHEN PROCURED BY FRAUD, A CORRECTION UNDER THIS SECTION IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES.

SECTION 603 OF THE REGULATIONS FOR THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN AS APPROVED BY THE SECRETARY OF DEFENSE, EFFECTIVE OCTOBER 4, 1961, CONTAINS A RESTATEMENT OF THE LAW AND PROVIDES THAT INFORMATION ON SUCH CORRECTIONS SHOULD BE COMPILED BY EACH DEPARTMENT FOR INCLUSION IN THE REPORT PRESCRIBED BY SECTION 601 (10 U.S.C. 1444).

AMONG THE ADMINISTRATIVE AND CLERICAL ERRORS INDICATED ON PAGE 4 OF H.REPT. NO. 356, 87TH ONG., AS BEING SUBJECT TO CORRECTION UNDER THE ABOVE-QUOTED STATUTORY AUTHORITY ARE THOSE RELATING TO SITUATIONS WHERE "PAPERS ARE MISLAID.' ACCORDINGLY, WE VIEW THE ACTION TAKEN BY THE SECRETARY OF THE AIR FORCE ON OCTOBER 7, 1964 AS A VALID CORRECTION OF THE RECORD RELATING TO THE ELECTION DATED FEBRUARY 27, 1961 TO SHOW THAT SUCH ELECTION WAS TIMELY FILED WITH THE PROPER OFFICIALS ON THAT DATE.

IT WAS THE INTENTION OF THE CONGRESS THAT THE PLAN BE ACTUARIALLY SOUND SO THAT PUBLIC FUNDS WOULD NOT HAVE TO BE APPROPRIATED TO PAY ANY OF THE BENEFITS PROVIDED AND TO THAT END 10 U.S.C. 1436 (A) PROVIDES IN PART THAT THE REDUCTION IN THE RETIRED PAY OF ANY PERSON WHO ELECTS AN ANNUITY UNDER THE PLAN SHOULD BE COMPUTED AS OF THE DATE WHEN THE PERSON BECOMES ELIGIBLE FOR THAT PAY. AN ELECTION UNDER THE PLAN CONSTITUTES A CONTRACT TO PAY A MONTHLY SUM FROM THAT DATE.

IN THE CASE OF MAJOR BURGE THE CORRECTION OF THE ADMINISTRATIVE ERROR (NOT PROPERLY TRANSMITTING AND RECORDING THE ELECTION) HAD THE EFFECT OF VALIDATING THE INTENDED ELECTION FROM FEBRUARY 27, 1961. THUS ON THE PRESENT STATE OF THE RECORD THE EVIDENCE OF A VALID ELECTION REQUIRES THE COMPUTATION OF THE REDUCTION IN HIS RETIRED PAY AS OF NOVEMBER 1, 1963, AND THE COLLECTION OF THE COST OF COVERAGE UNDER THE PLAN FROM THAT DATE. IN OTHER WORDS, THE CORRECTION OF ADMINISTRATIVE ERROR VALIDATED THE ELECTION FROM THE DATE IT WAS MADE AND NOT FROM THE DATE OF DETERMINATION BY THE SECRETARY THAT IT WAS NECESSARY TO CORRECT THE ADMINISTRATIVE ERROR.

ACCORDINGLY, PAYMENT ON THE VOUCHER FOR $25.20 IS NOT AUTHORIZED AND IT WILL BE RETAINED HERE. LIKEWISE, PAYMENT ON THE VOUCHER FOR $33.75, RETURNED TO YOU WITH OUR DECISION OF APRIL 29, 1965, IS NOT NOW AUTHORIZED AND THAT VOUCHER SHOULD BE CANCELED.

ANY INFERENCE WHICH COULD BE SAID TO ARISE FROM OUR DECISION IN 43 COMP. GEN. 309, THAT MONTHLY DEDUCTIONS WOULD BE ESTABLISHED FROM THE DATE OF ACTION VALIDATING AN ELECTION WAS INADVERTENT AND THE "APPROPRIATE MONTHLY DEDUCTIONS" THERE MENTIONED WAS INTENDED TO MEAN ALL DEDUCTIONS PROPERLY CHARGEABLE FROM THE DATE OF RETIREMENT.