B-121144, OCTOBER 4, 1954, 34 COMP. GEN. 151

B-121144: Oct 4, 1954

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AT THE TIME OF ELECTION WAS MADE TO RECEIVE REDUCED RETIRED PAY UNDER THE SURVIVORSHIP ANNUITY PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953. WAS NOT IN RECEIPT OF RETIRED PAY AT THE RATE TO WHICH HE WAS LEGALLY ENTITLED AND SUBSEQUENTLY RECEIVED. THE RATE OF RETIRED PAY TO WHICH THE REDUCTION SHOULD BE APPLIED IS THE RATE TO WHICH THE OFFICER WAS LEGALLY ENTITLED AT THE TIME THE ELECTION WAS MADE. IS NOT FOR APPLICATION. IT IS RELATED THAT THE OFFICER WAS TRANSFERRED TO THE NAVAL RESERVE RETIRED LIST EFFECTIVE APRIL 1. UNDER THE PROVISIONS OF 34 U.S.C. 440I AND 440J AND WAS PAID RETIRED PAY AT THE RATE OF $76.40 PER MONTH ON THE BASIS OF A TOTAL CREDIT OF 2. HIS RETIRED PAY WOULD HAVE BEEN COMPUTED ON THE BASIS OF 2.

B-121144, OCTOBER 4, 1954, 34 COMP. GEN. 151

RETIRED PAY - ANNUITY DEDUCTIONS - PAY CHANGES - MEMBER NOT IN RECEIPT OF RETIRED PAY TO WHICH LEGALLY ENTITLED IN THE CASE OF A RETIRED NAVAL RESERVE OFFICER WHO, AT THE TIME OF ELECTION WAS MADE TO RECEIVE REDUCED RETIRED PAY UNDER THE SURVIVORSHIP ANNUITY PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, WAS NOT IN RECEIPT OF RETIRED PAY AT THE RATE TO WHICH HE WAS LEGALLY ENTITLED AND SUBSEQUENTLY RECEIVED, THE RATE OF RETIRED PAY TO WHICH THE REDUCTION SHOULD BE APPLIED IS THE RATE TO WHICH THE OFFICER WAS LEGALLY ENTITLED AT THE TIME THE ELECTION WAS MADE, AND 33 COMP. GEN. 491, WHICH HOLDS THAT A DECREASE OR INCREASE IN RETIRED PAY AFTER AN ELECTION UNDER THE ACT DOES NOT AFFECT ANY CHANGE IN THE RATE OF REDUCTION, IS NOT FOR APPLICATION.

ACTING COMPTROLLER GENERAL WEITZEL TO LIEUTENANT COMMANDER D. M. CARR, DEPARTMENT OF THE NAVY, OCTOBER 4, 1954:

THE ACTING JUDGE ADVOCATE GENERAL OF THE NAVY, BY DIRECTION OF THE SECRETARY OF THE NAVY, HAS FORWARDED YOUR LETTER OF JULY 30, 1954, REQUESTING A DECISION IN THE CASE OF LIEUTENANT COMMANDER JOHN M. FEWELL, USNR, RETIRED, ON A QUESTION ARISING UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, AND DECISION OF APRIL 19, 1954, B-118480, 33 COMP. GEN. 491.

IT IS RELATED THAT THE OFFICER WAS TRANSFERRED TO THE NAVAL RESERVE RETIRED LIST EFFECTIVE APRIL 1, 1953, UNDER THE PROVISIONS OF 34 U.S.C. 440I AND 440J AND WAS PAID RETIRED PAY AT THE RATE OF $76.40 PER MONTH ON THE BASIS OF A TOTAL CREDIT OF 2,123 POINTS. IT APPEARS THAT IF PROPER CREDIT HAS BEEN GIVEN AT THAT TIME FOR HIS INACTIVE SERVICE ON THE HONORARY RETIRED LIST OF THE NAVY PRIOR TO JULY 1, 1949 (SEE DECISION OF JANUARY 11, 1954, B-115877), HIS RETIRED PAY WOULD HAVE BEEN COMPUTED ON THE BASIS OF 2,453 POINTS, RESULTING IN PAYMENT OF RETIRED PAY AT THE RATE OF $88.33 PER MONTH, AND THAT SUCH PAY WAS INCREASED TO THAT AMOUNT IN MAY 1954, APPARENTLY RETROACTIVELY TO THE EFFECTIVE DATE OF HIS RETIREMENT. IT IS STATED FURTHER THAT ON APRIL 2, 1954, HE ELECTED OPTIONS (1) AND (4) UNDER SECTION 4 (A) OF THE CONTINGENCY OPTION ACT AND THAT THE MONTHLY RETIRED PAY HE THEN WAS RECEIVING WAS REDUCED BY $20.78 A MONTH. IT WAS HELD IN THE DECISION OF APRIL 19, 1954, THAT THE AMOUNT OF THE REDUCTION IN RETIRED PAY RESULTING FROM AN ELECTION OF ONE OR MORE OF THE OPTIONS AUTHORIZED IN SECTION 4 (A) OF THE CONTINGENCY OPTION ACT, 67 STAT. 502, IS FOR DETERMINATION ON THE BASIS OF THE RETIRED PAY OF THE PERSON CONCERNED AT THE TIME OF THE COMPUTATION PROVIDED IN SECTION 4 (C) OF THE ACT, 67 STAT. 503, AND THAT A SUBSEQUENT INCREASE OR DECREASE IN RETIRED PAY DOES NOT AFFECT ANY CHANGE IN THE RATE OF REDUCTION. DECISION IS REQUESTED AS TO WHETHER THAT DECISION IS APPLICABLE IN THE PRESENT CASE.

PARAGRAPH 401C OF THE REGULATIONS FOR THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 PROVIDES THAT "1AN ADJUSTMENT MAY BE MADE IN THE REDUCTION OF RETIRED PAY UPON THE FINDING OF AN ADMINISTRATIVE ERROR OR A MISTAKE OF FACT.'

IT WAS POINTED OUT IN THE DECISION OF APRIL 19, 1954, THAT SECTION 4 (C) OF THE CONTINGENCY OPTION ACT INDICATES THAT IT IS THE RETIRED PAY TO WHICH A PERSON IS ENTITLED ON THE DATE OF ELECTION WHICH IS TO BE USED IN MAKING THE REQUIRED COMPUTATIONS UNDER THAT ACT. YOUR PRESENT QUESTION DOES NOT RELATE TO AN INCREASE OR DECREASE IN RETIRED PAY AFTER ELECTION. INSTEAD IT APPEARS THAT THE REDUCTION IN THE OFFICER'S RETIRED PAY, WHEN ORIGINALLY COMPUTED, WAS NOT COMPUTED ON THE RETIRED PAY TO WHICH HE WAS ENTITLED AT THE TIME HE MADE AN ELECTION UNDER THE CONTINGENCY OPTION ACT. IT FOLLOWS THAT SUCH COMPUTATION WAS NOT CORRECT AND THE REDUCTION IN COMMANDER FEWELL'S CASE SHOULD BE RECOMPUTED ON THE CORRECT RATE AS THOUGH HE ACTUALLY HAD BEEN RECEIVING RETIREMENT PAY AT THAT RATE WHEN HIS ELECTION WAS MADE.

THE QUESTION SUBMITTED IS ANSWERED ACCORDINGLY. THE ADDITIONAL AMOUNT REQUIRED TO BE DEDUCTED FOR THE MONTHS OF APRIL THROUGH SEPTEMBER 1954 SHOULD BE WITHHELD FROM HIS ACCRUING RETIRED PAY.