B-170098, AUG 11, 1970, 50 COMP GEN 80

B-170098, AUG 11, 1970, 50 COMP GEN 80

PAY - RETIRED - WAIVER FOR CIVILIAN RETIREMENT BENEFITS - REVOCATION A RETIRED MEMBER OF THE UNIFORMED SERVICES WHOSE MILITARY SERVICE UPON RETIREMENT FROM CIVILIAN EMPLOYMENT IS NOT USED TO ESTABLISH HIS CIVIL SERVICE ANNUITY ELIGIBILITY BUT IS ONLY USED IN THE COMPUTATION OF THE ANNUITY TO INCREASE THE AMOUNT PAYABLE, MAY WITHDRAW HIS WAIVER OF RETIRED PAY AND HAVE THE PAY REINSTATED AS NO DOUBLE BENEFIT WOULD RESULT FROM THE SAME SERVICE BY TERMINATING THE USE OF THE MILITARY SERVICE TO COMPUTE THE CIVIL SERVICE ANNUITY AND REINSTATING THE RETIRED PAY, AND 5 U.S.C. 8332(E) PROVIDES THAT A CIVIL SERVICE RETIREMENT DOES NOT AFFECT THE RIGHT OF AN EMPLOYEE TO RETIRED PAY, PENSION, OR COMPENSATION IN ADDITION TO AN ANNUITY PAYABLE UPON RETIREMENT FROM THE FEDERAL CIVILIAN SERVICE. SOCIAL SECURITY - COVERAGE - RETIRED MILITARY PERSONNEL - EMPLOYMENT BY FEDERAL GOVERNMENT WHEN A RETIRED MEMBER OF THE UNIFORMED SERVICES EMPLOYED AS A CIVILIAN BECOMES ELIGIBLE FOR OLD AGE AND SURVIVOR INSURANCE BENEFITS UNDER THE SOCIAL SECURITY ACT, 42 U.S.C. 402, THE WITHDRAWAL OF HIS WAIVER OF MILITARY PAY AND THE EXCLUSION OF HIS MILITARY SERVICE FROM THE COMPUTATION OF HIS CIVIL SERVICE ANNUITY WOULD NOT RESULT IN THE PAYMENT OF A DOUBLE BENEFIT IF THE MILITARY SERVICE HAD NOT BEEN USED TO ESTABLISH CIVIL SERVICE ANNUITY ELIGIBILITY BUT WAS USED ONLY IN THE COMPUTATION OF THE ANNUITY AMOUNT PAYABLE.

TO THE SECRETARY OF DEFENSE, AUGUST 11, 1970:

REFERENCE IS MADE TO LETTER DATED JUNE 18, 1970, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) TRANSMITTING FOR DECISION DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 443 INVOLVING THE FOLLOWING QUESTIONS:

1. IF MILITARY SERVICE IS NOT USED TO ESTABLISH ELIGIBILITY FOR A CIVIL SERVICE ANNUITY, BUT IS USED IN THE COMPUTATION OF SUCH ANNUITY, MAY THE WAIVER OF RETIRED PAY BE WITHDRAWN, THE CIVIL SERVICE ANNUITY REDUCED, AND RETIRED PAY BE REINSTATED?

2. WOULD THE ANSWER BE THE SAME IF MILITARY SERVICE IS EXCLUDED FROM THE COMPUTATION OF THE CIVIL SERVICE ANNUITY WHEN THE INDIVIDUAL BECOMES ENTITLED TO RECEIVE SOCIAL SECURITY BENEFITS?

AN EMPLOYEE MAY QUALIFY FOR A CIVIL SERVICE ANNUITY WITH AS LITTLE AS 5 YEARS OF FEDERAL CIVILIAN SERVICE. 5 U.S.C. 8333(A). MILITARY SERVICE MAY BE CREDITED TO AN EMPLOYEE BUT IF HE IS AWARDED RETIRED PAY ON ACCOUNT OF SUCH MILITARY SERVICE, IT MAY NOT BE CREDITED UNLESS THE RETIRED PAY IS AWARDED ON ACCOUNT OF A SERVICE-CONNECTED DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY DURING A PERIOD OF WAR, OR UNDER CHAPTER 67 OF TITLE 10, U.S.C. 5 U.S.C. 8332(C). A CIVIL SERVICE RETIREMENT DOES NOT AFFECT THE RIGHT OF AN EMPLOYEE TO RETIRED PAY, PENSION, OR COMPENSATION IN ADDITION TO AN ANNUITY PAYABLE FOR SUCH A RETIREMENT. 5 U.S.C. 8332(E). AN INDIVIDUAL ENTITLED TO AN ANNUITY MAY DECLINE TO ACCEPT ALL OR ANY PART OF THE ANNUITY BY A WAIVER SIGNED AND FILED WITH THE CIVIL SERVICE COMMISSION AND THE WAIVER MAY BE REVOKED IN WRITING AT ANY TIME. 5 U.S.C. 8345(D).

WE HAVE HELD THAT A FORMER MEMBER OF CONGRESS IS NOT ENTITLED TO RECEIVE MILITARY RETIRED PAY IN ADDITION TO CIVIL SERVICE ANNUITY WHERE HIS MILITARY SERVICE WAS USED TO ESTABLISH HIS ELIGIBILITY FOR AN ANNUITY. COMP. GEN. 460 (1962). CF. 49 COMP. GEN. 581, MARCH 11, 1970.

THE HOLDING IN 41 COMP. GEN. 460 WAS BASED ON THE CONCLUSION THAT THE CONGRESS DID NOT INTEND THAT A RETIRED OFFICER SHOULD RECEIVE A DOUBLE BENEFIT BASED ON THE SAME SERVICE. HOWEVER, IF THE COUNTING OF MILITARY SERVICE IS NOT NECESSARY TO ESTABLISH ELIGIBILITY FOR A CIVIL SERVICE ANNUITY AND SUCH SERVICE IS USED ONLY IN THE COMPUTATION OF THE ANNUITY TO INCREASE THE AMOUNT THEREOF, NO DOUBLE BENEFIT WOULD RESULT IF COMPUTATION ON THAT BASIS SHOULD BE TERMINATED AND RETIRED PAY BE REINSTATED. IN SUCH CIRCUMSTANCES AND IN VIEW OF THE PROVISIONS OF 5 U.S.C. 8332(C), WE SEE NO REASON WHY THE PERSON CONCERNED MAY NOT WITHDRAW HIS WAIVER OF RETIRED PAY AND HAVE SUCH PAY REINSTATED. THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

THE SECOND QUESTION IS UNDERSTOOD TO HAVE REFERENCE TO A SITUATION IN WHICH MILITARY SERVICE HAS BEEN USE TO INCREASE AN ANNUITANT'S ANNUITY, BUT HAS NOT BEEN USED TO ESTABLISH ELIGIBILITY FOR THAT ANNUITY.

SECTION 8332(J) OF TITLE 5, U.S. CODE, PROVIDES FOR THE EXCLUSION OF MILITARY SERVICE PERFORMED AFTER 1956 IF THE INDIVIDUAL OR HIS WIDOW IS OR WOULD BE ELIGIBILE FOR OLD AGE AND SURVIVOR INSURANCE BENEFITS UNDER THE SOCIAL SECURITY ACT (42 U.S.C.402), BASED UPON HIS WAGES AND SELF EMPLOYMENT INCOME. IF, WHEN THE INDIVIDUAL CONCERNED BECOMES ELIGIBLE FOR SOCIAL SECURITY BENEFITS, HE WITHDRAWS HIS WAIVER OF MILITARY RETIRED PAY AND HIS MILITARY SERVICE IS EXCLUDED FROM THE COMPUTATION OF HIS CIVIL SERVICE ANNUITY, NO DOUBLE BENEFIT BY WAY OF PAYMENT OF CIVIL SERVICE ANNUITY AND MILITARY RETIRED PAY WOULD APPEAR TO RESULT FROM THE REINSTATEMENT OF SUCH RETIRED PAY.

ACCORDINGLY, THE SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE.