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B-103259, JANUARY 19, 1954, 33 COMP. GEN. 300

B-103259 Jan 19, 1954
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WHO ARE ON THE ACTIVE LISTS OF THEIR RESPECTIVE SERVICES ARE TO BE CONSIDERED ACTIVE MEMBERS OF THE UNIFORMED SERVICES FOR THE PURPOSE OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953. NOTWITHSTANDING THEIR PAY AND ALLOWANCES UNDER THE 1946 ACT ARE THE SAME WHETHER ON THE ACTIVE OR RETIRED LIST. THE TERM "RETIRED PAY" GENERALLY HAS REFERENCE ONLY TO THAT PERCENTAGE OF BASE AND LONGEVITY PAY OR BASIC PAY FIXED BY THE PARTICULAR STATUTE TO BE PAID TO A RETIRED MEMBER AND WHERE ALLOWANCES HAVE BEEN AUTHORIZED FOR MEMBERS OF THE UNIFORMED SERVICES AFTER RETIREMENT. SUCH ALLOWANCES HAVE RETAINED THEIR CHARACTER AS ALLOWANCES APART FROM THE RETIRED PAY OF SUCH MEMBERS. IS THE "PAY" AUTHORIZED WHILE ON THE RETIRED LIST.

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B-103259, JANUARY 19, 1954, 33 COMP. GEN. 300

PAY - RETIRED - ANNUITIES FOR DEPENDENTS - UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 OFFICERS APPOINTED PURSUANT TO THE ACT OF MARCH 23, 1946, WHO ARE ON THE ACTIVE LISTS OF THEIR RESPECTIVE SERVICES ARE TO BE CONSIDERED ACTIVE MEMBERS OF THE UNIFORMED SERVICES FOR THE PURPOSE OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, WHICH PROVIDES FOR SURVIVORSHIP ANNUITIES FOR THE WIDOWS AND CHILDREN OF ACTIVE AND RETIRED MEMBERS OF THE UNIFORMED SERVICES, NOTWITHSTANDING THEIR PAY AND ALLOWANCES UNDER THE 1946 ACT ARE THE SAME WHETHER ON THE ACTIVE OR RETIRED LIST. THE TERM "RETIRED PAY" GENERALLY HAS REFERENCE ONLY TO THAT PERCENTAGE OF BASE AND LONGEVITY PAY OR BASIC PAY FIXED BY THE PARTICULAR STATUTE TO BE PAID TO A RETIRED MEMBER AND WHERE ALLOWANCES HAVE BEEN AUTHORIZED FOR MEMBERS OF THE UNIFORMED SERVICES AFTER RETIREMENT, SUCH ALLOWANCES HAVE RETAINED THEIR CHARACTER AS ALLOWANCES APART FROM THE RETIRED PAY OF SUCH MEMBERS. UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, WHICH PERMITS A MEMBER TO ELECT TO RECEIVE A REDUCED AMOUNT OF RETIRED PAY IN ORDER TO PROVIDE A SURVIVORSHIP ANNUITY FOR WIDOW AND/OR CHILDREN, THE RETIRED PAY OF RETIRED OFFICERS ENTITLED, UNDER THE ACTS OF MARCH 23, 1946, AND JUNE 26, 1948, TO RECEIVE WHILE ON THE RETIRED LIST THE SAME PAY AND ALLOWANCES RECEIVED WHILE ON ACTIVE DUTY, IS THE "PAY" AUTHORIZED WHILE ON THE RETIRED LIST, THAT IS, THE BASIC PAY OF THEIR RESPECTIVE GRADES AND THE REDUCED RETIRED PAY UPON WHICH THE ANNUITY AUTHORIZED BY THE 1953 ACT IS BASED IS THE BASIC PAY OF THEIR RESPECTIVE GRADES LESS THE REDUCTION COMPUTED IN ACCORDANCE WITH SECTION 4C OF THAT ACT.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF DEFENSE, JANUARY 19, 1954:

REFERENCE IS MADE TO LETTER DATED NOVEMBER 23, 1953, FROM THE ASSISTANT SECRETARY OF DEFENSE, REQUESTING DECISION WHETHER ACTIVE LIST OFFICERS APPOINTED PURSUANT TO THE ACT OF MARCH 23, 1946, 60 STAT. 59, WHICH PROVIDES THAT SUCH OFFICERS WHO MAY BE RETIRED SHALL BE ENTITLED TO RECEIVE THE SAME PAY AND ALLOWANCES WHILE ON THE RETIRED LIST AS OFFICERS APPOINTED THEREUNDER ARE ENTITLED TO RECEIVE WHILE ON ACTIVE DUTY, ARE TO BE CONSIDERED AS ACTIVE MEMBERS OR RETIRED MEMBERS OF THE UNIFORMED SERVICES FOR THE PURPOSES OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501. ALSO, DECISION IS REQUESTED AS TO WHAT IS TO BE REGARDED AS THE RETIRED PAY AND THE REDUCED RETIRED PAY FOR THE PURPOSES OF SECTION 4 OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 502, IN THE CASE OF RETIRED OFFICERS ENTITLED UNDER THE SAID ACT OF MARCH 23, 1946, AND THE ACT OF JUNE 26, 1948, 62 STAT. 1052, TO RECEIVE, WHILE ON THE RETIRED LIST, THE SAME PAY AND ALLOWANCES THEY WERE RECEIVING WHILE ON ACTIVE DUTY.

THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 ESTABLISHED A PLAN WHEREBY ACTIVE AND RETIRED MEMBERS OF THE REGULAR AND RESERVE COMPONENTS OF THE UNIFORMED SERVICES MAY ELECT, WITHIN CERTAIN SPECIFIED PERIODS DEPENDING UPON THEIR LENGTH OF SERVICE AND STATUS AS ACTIVE OR RETIRED MEMBERS TO RECEIVE A REDUCED AMOUNT OF THEIR RETIRED PAY DURING THEIR LIFETIME, TO PROVIDE ANNUITIES FOR THEIR SURVIVING WIDOWS AND CHILDREN. THE TERMS "ACTIVE MEMBER" AND "RETIRED MEMBER" AS USED IN SUCH STATUTE ARE DEFINED BY SECTION 2 THEREOF, 67 STAT. 501, AS FOLLOWS:

(C) THE TERM "ACTIVE MEMBER" MEANS A MEMBER ON THE ACTIVE LIST OF A REGULAR OR RESERVE COMPONENT OF A UNIFORMED SERVICE OR MEMBER OF A RESERVE COMPONENT OF A UNIFORMED SERVICE, WHO HAS COMPLETED TWENTY SATISFACTORY YEARS IN HIS UNIFORMED SERVICE, AS DEFINED IN SECTION 302 OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948.

(D) THE TERM "RETIRED MEMBER" MEANS A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE, WHO IS OR HAS BEEN AWARDED RETIRED, RETIREMENT, OR RETAINER PAY OR EQUIVALENT PAY AS A RESULT OF SERVICE IN ONE OF THE UNIFORMED SERVICES.

UNDER SUCH PROVISIONS ANY MEMBER OF THE UNIFORMED SERVICES ON THE ACTIVE LIST IS AN "ACTIVE MEMBER" FOR PURPOSES OF THE STATUTE. ALTHOUGH THE OFFICERS REFERRED TO IN YOUR FIRST QUESTION ARE ENTITLED TO THE SAME PAY AND ALLOWANCES WHETHER ON THE ACTIVE OR RETIRED LIST AND THEIR DUTY SITUATION AND REQUIREMENTS MAY BE SUBSTANTIALLY THE SAME EITHER ON THE ACTIVE OR RETIRED LIST, SO LONG AS THEY ARE ACTUALLY CARRIED ON THE ACTIVE LIST THERE WOULD APPEAR TO BE NO BASIS FOR REGARDING THEM OTHERWISE THAN AS ACTIVE MEMBERS WITHIN THE DEFINITION FOUND IN THE STATUTE. CF. B- 117504, NOVEMBER 18, 1953, 33 COMP. GEN. 229.

AS TO YOUR FURTHER QUESTION, THE TERM "RETIRED PAY" GENERALLY HAS REFERENCE ONLY TO THAT PERCENTAGE OF BASE AND LONGEVITY PAY OR BASIC PAY FIXED BY THE PARTICULAR STATUTE TO BE PAID TO A RETIRED MEMBER. EVEN IN THOSE FEW SPECIAL INSTANCES WHERE ALLOWANCES HAVE BEEN AUTHORIZED FOR MEMBERS OF THE UNIFORMED SERVICES AFTER RETIREMENT SUCH ALLOWANCES HAVE RETAINED THEIR CHARACTER AS ALLOWANCES, APART FROM THE RETIRED PAY OF SUCH MEMBERS. CF. BYRD V. UNITED STATES, 103 C.1CLS. 285, AND THE CASES REFERRED TO THEREIN; ALSO 27 COMP. GEN. 296. IT APPEARS REASONABLE TO CONCLUDE, THEREFORE, THAT THE CONGRESS, IN PROVIDING THAT THE OFFICERS HERE INVOLVED SHOULD, IF RETIRED, CONTINUE TO RECEIVE THE ALLOWANCES AUTHORIZED FOR THEM WHILE ON THE ACTIVE LIST, INTENDED THAT THE ALLOWANCES WOULD RETAIN THEIR CHARACTER AS SUCH AFTER RETIREMENT.

THE TERM "RETIRED PAY" AS USED IN THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 IS DECLARED BY SECTION 2 (G) THEREOF, 67 STAT. 501, TO INCLUDE "RETIREMENT PAY, EQUIVALENT PAY, AND RETAINER PAY," NO MENTION BEING MADE OF ANY ALLOWANCES WHICH MAY BE AUTHORIZED FOR MEMBERS ON THE RETIRED LIST AND THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE STATUTE TO SHOW THAT THE TERM WAS INTENDED TO HAVE OTHER THAN ITS USUAL MEANING. ACCORDINGLY, FOR THE PURPOSES OF SUCH STATUTE THE "RETIRED PAY" OF THOSE OFFICERS HERE CONCERNED WHO ARE OR MAY BE RETIRED IS THE "PAY" AUTHORIZED FOR THEM WHILE ON THE RETIRED LIST, THAT IS, THE BASIC PAY OF THEIR RESPECTIVE GRADES. IT FOLLOWS THAT THE REDUCED RETIRED PAY UPON WHICH THE ANNUITY AUTHORIZED BY SUCH STATUTE IS BASED IS THE BASIC PAY OF THEIR RESPECTIVE GRADES LESS THE REDUCTION COMPUTED IN ACCORDANCE WITH SECTION 4 (C) OF THE LAW.

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