B-122601, JUNE 2, 1955, 34 COMP. GEN. 642

B-122601: Jun 2, 1955

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CAREER COMPENSATION ACT OF 1949 THE FIVE-YEAR PERIOD PRESCRIBED IN SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 DURING WHICH CERTAIN RETIRED MEMBERS OF THE UNIFORMED SERVICES WERE AUTHORIZED TO ELECT THE PROVISIONS OF LAW UNDER WHICH THEY WOULD RECEIVE THE HIGHEST RETIRED PAY PRECLUDES ELECTIONS MADE AFTER THE FIVE- YEAR PERIOD. NOTWITHSTANDING THAT SUCH ELECTIONS WERE MADE BY MEMBERS WHO HAD NOT BEEN PREVIOUSLY AFFORDED AN OPPORTUNITY TO MAKE AN ELECTION. ELECTIONS WHICH WERE POSTMARKED ON OCTOBER 1. ARE VALID. THOSE WHICH WERE NOT POSTMARKED PRIOR TO OCTOBER 2. ARE NOT VALID EXCEPT UPON CLEAR PROOF THAT THE ELECTION WAS EXECUTED AND PLACED IN THE MAILS OR OTHERWISE OUT OF THE ELECTOR'S CONTROL BEFORE MIDNIGHT ON OCTOBER 1.

B-122601, JUNE 2, 1955, 34 COMP. GEN. 642

PAY - RETIRED - EFFECTIVE DATE FOR ELECTIONS UNDER SECTION 411, CAREER COMPENSATION ACT OF 1949 THE FIVE-YEAR PERIOD PRESCRIBED IN SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 DURING WHICH CERTAIN RETIRED MEMBERS OF THE UNIFORMED SERVICES WERE AUTHORIZED TO ELECT THE PROVISIONS OF LAW UNDER WHICH THEY WOULD RECEIVE THE HIGHEST RETIRED PAY PRECLUDES ELECTIONS MADE AFTER THE FIVE- YEAR PERIOD, NOTWITHSTANDING THAT SUCH ELECTIONS WERE MADE BY MEMBERS WHO HAD NOT BEEN PREVIOUSLY AFFORDED AN OPPORTUNITY TO MAKE AN ELECTION. UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, WHICH AUTHORIZES ELECTIONS OF RETIRED PAY TO BE MADE WITHIN THE FIVE-YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF TITLE IV--- OCTOBER 1, 1954, ELECTIONS WHICH WERE POSTMARKED ON OCTOBER 1, 1954, ARE VALID, AND THOSE WHICH WERE NOT POSTMARKED PRIOR TO OCTOBER 2, 1954, ARE NOT VALID EXCEPT UPON CLEAR PROOF THAT THE ELECTION WAS EXECUTED AND PLACED IN THE MAILS OR OTHERWISE OUT OF THE ELECTOR'S CONTROL BEFORE MIDNIGHT ON OCTOBER 1, 1954.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE NAVY, JUNE 2, 1955:

REFERENCE IS MADE TO LETTER OF JANUARY 14, 1955, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE NAVY ( AIR), REQUESTING DECISION ON CERTAIN QUESTIONS RELATING TO THE TIME WITHIN WHICH RETIRED MEMBERS OF THE UNIFORMED SERVICES MAY MAKE ELECTIONS, UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, TO ESTABLISH THE METHOD TO BE USED IN THE COMPUTATION OF THEIR RETIRED PAY.

THE FIRST THREE QUESTIONS RELATE TO FLEET RESERVISTS WHO WERE TRANSFERRED TO THE DISABILITY RETIRED LIST OF THE REGULAR NAVY PRIOR TO OCTOBER 1, 1949, PURSUANT TO THE SECOND PROVISO IN SECTION 206 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1179, AS AMENDED, 34 U.S.C. 854E. IT IS STATED THAT CERTAIN FLEET RESERVISTS WHO WERE SO TRANSFERRED TO THE DISABILITY RETIRED LIST WERE NOT AFFORDED AN OPPORTUNITY TO MAKE AN ELECTION PRIOR TO OCTOBER 1, 1954, THE EXPIRATION DATE OF THE FIVE-YEAR PERIOD PRESCRIBED IN SECTION 411 OF THE CAREER COMPENSATION ACT, BECAUSE (A) LETTERS ESTABLISHING NONENTITLEMENT UNDER THAT SECTION WERE RESCINDED A SHORT TIME PRIOR TO OCTOBER 1, 1954, OR AFTER THAT DATE, ON THE BASIS OF REDETERMINATIONS MADE BY THE PHYSICAL REVIEW COUNCIL, OR (B) THROUGH INADVERTENCE, ORIGINAL EVALUATIONS PURSUANT TO SECTION 411 WERE NOT ACCOMPLISHED IN CERTAIN CASES UNTIL A SHORT TIME PRIOR TO OCTOBER 1, 1954, OR THEREAFTER, THUS PRECLUDING ,PROCESSING, NOTIFICATION OF, AND ELECTION BY MEMBER PRIOR TO SUCH DATE.'

IT IS UNDERSTOOD THAT THE MEMBERS INVOLVED IN THE SITUATION DESCRIBED UNDER (A) IN THE PRECEDING PARAGRAPH ARE THOSE WHO INITIALLY WERE HELD NOT TO QUALIFY, UNDER TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, FOR DISABILITY RETIREMENT PAY. SUCH INDIVIDUALS WERE NOTIFIED THAT THEY DID NOT QUALIFY TO ELECT TO HAVE THEIR PAY COMPUTED UNDER OPTION (A) OF SECTION 411 AND, THEREFORE, THEY DID NOT MAKE ANY AFFIRMATIVE ELECTION UNDER THAT SECTION PRIOR TO OCTOBER 1, 1954. THE REDETERMINATIONS MADE IN THOSE CASES BASED ON REVIEW ACTION BY THE PHYSICAL REVIEW COUNCIL, AS WELL AS THE DELAYED INITIAL EVALUATIONS MADE IN THE CASES COMING UNDER (B) ABOVE, WERE ACCOMPLISHED EITHER JUST PRIOR TO, OR SUBSEQUENT TO, OCTOBER 1, 1954, THUS PRECLUDING THE RETIRED MEMBERS FROM EXERCISING ELECTIONS UNDER THE PROVISIONS OF SECTION 411 WITHIN THE FIVE-YEAR PERIOD PRESCRIBED IN THAT SECTION.

THE THREE QUESTIONS PRESENTED IN THE LIGHT OF THESE FACTS ARE AS FOLLOWS:

A. IN THOSE CASES DESCRIBED ABOVE WHERE A DETERMINATION OR REDETERMINATION BY THE SECRETARY OF THE NAVY IS EFFECTED ON OR PRIOR TO 30 SEPTEMBER 1954, CAN AN ELECTION MADE SUBSEQUENT TO THE DEADLINE DATE BE CONSIDERED VALID?

B. IN THOSE CASES DESCRIBED ABOVE WHERE A DETERMINATION OR REDETERMINATION BY THE SECRETARY OF THE NAVY IS EFFECTED SUBSEQUENT TO THE CUT-OFF DATE, CAN AN ELECTION MADE BY THE MEMBER BE CONSIDERED VALID?

C. IF ONE OR BOTH OF THESE ANSWERS ARE IN THE AFFIRMATIVE, SHOULD SUCH MEMBERS BE ALLOWED A REASONABLE TIME AFTER NOTIFICATION OF THEIR RIGHTS UNDER REFERENCE (A) (SECTION 411 OF THE CAREER COMPENSATION ACT) TO MAKE AN APPROPRIATE ELECTION OF RETIRED PAY; AND IF SO, WHAT IS CONSIDERED TO BE A REASONABLE TIME?

SECTION 411, TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, 37 U.S.C. 281, BECAME EFFECTIVE ON OCTOBER 1, 1949, AND, IN PERTINENT PART, IT PROVIDES THAT PURSUANT TO SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, MEMBERS OF THE UNIFORMED SERVICES THERETOFORE RETIRED BY REASON OF PHYSICAL DISABILITY "MAY ELECT WITHIN THE FIVE YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF THIS TITLE" TO QUALIFY, UNDER OPTION (A), FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THAT ACT OR TO RECEIVE, UNDER OPTION (B), RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THE ACT, 63 STAT. 829, 37 U.S.C. 311.

IN ACCORDANCE WITH SECTION 411, REGULATIONS GOVERNING THE ELECTION OF RETIREMENT PAY BENEFITS WERE PROMULGATED BY THE PRESIDENT IN EXECUTIVE ORDER NO. 10124, DATED APRIL 25, 1950. SUCH REGULATIONS PROVIDED, GENERALLY, FOR A DETERMINATION BY THE SECRETARY OF THE UNIFORMED SERVICE CONCERNED AND FOR A SUBSEQUENT NOTIFICATION TO EACH MEMBER AND FORMER MEMBER OF THAT SERVICE OF THE STATUS AND BENEFITS TO WHICH EACH SUCH INDIVIDUAL WAS ENTITLED UNDER THE ALTERNATIVE OPTIONS (A) AND (B) AND OF THE RIGHT TO MAKE AN ELECTION OF BENEFITS WITHIN THE FIVE-YEAR PERIOD PRESCRIBED IN SECTION 411. AN ELECTION TIMELY MADE UNDER SECTION 411 BECAME EFFECTIVE AS OF OCTOBER 1, 1949, AND THE LAW AND REGULATIONS FURTHER PROVIDED THAT, UNTIL SUCH TIME AS A MEMBER MADE AN EFFECTIVE ELECTION, HE WOULD CONTINUE TO RECEIVE RETIRED OR RETIREMENT PAY IN THE AMOUNT AUTHORIZED BY THE APPLICABLE PROVISIONS OF LAW IN EFFECT ON SEPTEMBER 30, 1949, THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THE ACT.

THE PURPOSE OF SECTION 411 IS TO GIVE TO THE PERSONS WITHIN ITS PROVISIONS THE BENEFIT OF THOSE PROVISIONS OF LAW UNDER WHICH THEY WOULD RECEIVE THE HIGHEST RETIRED PAY. IN THE ABSENCE OF AN EFFECTIVE ELECTION ACCOMPLISHED WITHIN THE FIVE-YEAR PERIOD PRESCRIBED IN SECTION 411, A PERSON WHOSE STATUS CAME WITHIN THE PURVIEW OF THAT SECTION CONTINUED TO RECEIVE THE SAME RETIRED PAY TO WHICH HE WAS ENTITLED ON SEPTEMBER 30, 1949, UNTIL SUCH SAVED PAY WAS INCREASED BY SECTION 2 (B) OF THE ACT OF MAY 19, 1952, 66 STAT. 80, 37 10U.S.C. 322.

THE RIGHT OF ELECTION UNDER SECTION 411 COULD BE ASSERTED ONLY WITHIN THE FIVE-YEAR PERIOD PRESCRIBED IN THAT SECTION IN THE ABSENCE OF A STATUTORY PROVISION EXPRESSLY OR IMPLIEDLY AUTHORIZING IT TO BE MADE AFTER THAT PERIOD IN PARTICULAR CASES OR CLASSES OF CASES. WHILE A DETERMINATION OR REDETERMINATION BY THE SECRETARY OF THE NAVY, IN THE CASES OF THE FLEET RESERVISTS HERE CONCERNED, MAY HAVE BEEN REQUIRED TO ENABLE THEM TO MAKE A PROPER ELECTION WITH FULL KNOWLEDGE OF ALL THE FACTS, NEVERTHELESS, IN ORDER TO CONSTITUTE AN EFFECTIVE ELECTION UNDER SECTION 411, THERE WAS REQUIRED TO HAVE BEEN MANIFESTED ON THE PART OF EACH INDIVIDUAL CONCERNED AN UNEQUIVOCAL AFFIRMATIVE ACT OF ELECTION BETWEEN OPTIONS (A) AND (B), AND SUCH AN ELECTION WAS REQUIRED TO BE MADE BEFORE THE EXPIRATION DATE OF THE FIVE-YEAR PERIOD, THERE APPEARING TO BE NO STATUTORY PROVISION, APPLICABLE TO THE PERSONS OR THE SITUATIONS INVOLVED, EITHER EXPRESSLY OR IMPLIEDLY AUTHORIZING ELECTIONS AFTER THE EXPIRATION OF SUCH FIVE-YEAR PERIOD. COMPARE ESTATE OF SCOTT V. UNITED STATES, 122 C.1CLS. 414. IT NECESSARILY FOLLOWS THAT IN ANY OF THE CASES HERE INVOLVED AN ELECTION WHICH MIGHT BE MADE AFTER THE FIVE-YEAR PERIOD PRESCRIBED IN SECTION 411 WOULD BE INEFFECTIVE. QUESTIONS A AND B, MUST, THEREFORE, BE ANSWERED IN THE NEGATIVE AND NO ANSWER TO QUESTION C IS REQUIRED.

TWO ADDITIONAL QUESTIONS PRESENTED ARE AS FOLLOWS:

A. IN VIEW OF THE LANGUAGE CONTAINED IN REFERENCE (A) (SECTION 411 OF THE CAREER COMPENSATION ACT) THAT AN ELECTION MAY BE MADE "* * * WITHIN THE FIVE-YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF OF THIS TITLE * * * " (ITALICS SUPPLIED), SHOULD THOSE ELECTIONS (MADE BY MEMBERS WHO RECEIVED TIMELY NOTIFICATION OF THEIR ELECTION RIGHTS) POSTMARKED ON 1 OCTOBER 1954, BE CONSIDERED VALID?

B. MAY THOSE ELECTIONS DATED ON OR PRIOR TO 30 SEPTEMBER OR 1 OCTOBER 1954, DEPENDING ON THE ANSWER TO 3A, BUT POSTMARKED SUBSEQUENT TO THAT DATE BE CONSIDERED VALID?

SECTION 411 AUTHORIZES AN ELECTION BETWEEN OPTIONS (A) AND (B) "WITHIN THE FIVE-YEAR PERIOD FOLLOWING THE EFFECTIVE DATE" OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, SECTION 3, EXECUTIVE ORDER NO. 10124, DATED APRIL 25, 1950, PROVIDES THAT EACH MEMBER AND FORMER MEMBER OF THE UNIFORMED SERVICES WITHIN THE PURVIEW OF SECTION 411 SHALL CONTINUE TO RECEIVE RETIRED PAY OR RETIREMENT PAY IN THE AMOUNT AUTHORIZED BY LAWS IN EFFECT ON SEPTEMBER 30, 1949, UNLESS "PURSUANT TO THE SAID SECTION 411, HE ELECTS A DIFFERENT METHOD OF PAYMENT PRIOR TO OCTOBER 1, 1954, AND QUALIFIES FOR SUCH METHOD.'

THE WORD "FOLLOWING" MEANS, GENERALLY,"NEXT AFTER.' A DIFFERENT MEANING IS PERMISSIBLE WHEN REQUIRED BY THE PARTICULAR FACTS SO AS TO AVOID A RESULT WHICH WOULD NULLIFY THE INTENT AND PURPOSE OF A STATUTE. SINCE SECTION 411 BECAME EFFECTIVE ON OCTOBER 1, 1949, IT MIGHT BE ARGUED THAT, IN ORDER TO AVOID ANY VARIATION BETWEEN THAT SECTION AND OTHER PROVISIONS OF THE ACT, THE TERM ,FOLLOWING" AS THERE USED SHOULD INCLUDE OCTOBER 1, 1949, THE EFFECTIVE DATE OF TITLE IV. IT DOES NOT APPEAR, HOWEVER, THAT GIVING THE TERM "FOLLOWING" ITS USUAL AND GENERALLY ACCEPTED MEANING WOULD BE INCONSISTENT WITH THE INTENT AND PURPOSE OF SECTION 411 OR OF THE CAREER COMPENSATION ACT OF 1949 AS A WHOLE. IT REASONABLY MAY BE CONCLUDED, THEREFORE, THAT SINCE THE EFFECTIVE DATE OF TITLE IV WAS OCTOBER 1, 1949, THE FIVE-YEAR PERIOD PRESCRIBED IN SECTION 411 BEGAN TO RUN ON OCTOBER 2, 1949, THE DAY FOLLOWING THE EFFECTIVE DATE OF TITLE IV. HENCE, THE FIVE-YEAR PERIOD IN QUESTION MAY BE CONSIDERED TO HAVE COMMENCED ON OCTOBER 2, 1949, AND TO HAVE EXPIRED AT MIDNIGHT ON OCTOBER 1, 1954.

ON THE BASIS OF THIS CONCLUSION THOSE ELECTIONS WHICH WERE POSTMARKED ON OCTOBER 1, 1954, ARE VALID. ON THE OTHER HAND, IN CASES OF THE TYPE HERE INVOLVED, AN ELECTION WHICH WAS NOT POSTMARKED PRIOR TO OCTOBER 2, 1954, MAY NOT BE GIVEN ANY EFFECT, EXCEPT UPON CLEAR PROOF THAT THE ELECTION WAS ACTUALLY EXECUTED AND WAS PLACED IN THE MAILS OR OTHERWISE PASSED OUT OF THE PERSON'S CONTROL BEFORE MIDNIGHT ON OCTOBER 1, 1954.