B-122602, JUNE 2, 1955, 34 COMP. GEN. 646

B-122602: Jun 2, 1955

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CHANGE IN STATUS OF MEMBERS OF UNIFORMED SERVICES - CORRECTION OF MILITARY RECORDS - ANNUITIES FOR DEPENDENTS - EFFECTIVE DATE OF RETIREMENT PAY DEDUCTIONS MEMBERS OF THE UNIFORMED SERVICES WHOSE STATUS IS CHANGED BY APPLICABLE LAWS SO AS TO PLACE THEM. WITHIN THE PURVIEW OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 ARE ENTITLED TO EXERCISE THE ELECTION PROVIDED IN THAT SECTION REGARDLESS OF WHETHER THE CHANGE IN STATUS WAS MADE PRIOR OR SUBSEQUENT TO OCTOBER 1. FOR MEMBERS WHOSE RECORDS HAVE BEEN CORRECTED PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946. IS THE EFFECTIVE DATE OF RETIREMENT IN THE CASE OF ACTIVE MEMBERS. THE FIRST DAY OF THE MONTH IN WHICH THE ELECTION IS MADE IN THE CASE OF RETIRED MEMBERS.

B-122602, JUNE 2, 1955, 34 COMP. GEN. 646

CHANGE IN STATUS OF MEMBERS OF UNIFORMED SERVICES - CORRECTION OF MILITARY RECORDS - ANNUITIES FOR DEPENDENTS - EFFECTIVE DATE OF RETIREMENT PAY DEDUCTIONS MEMBERS OF THE UNIFORMED SERVICES WHOSE STATUS IS CHANGED BY APPLICABLE LAWS SO AS TO PLACE THEM, RETROACTIVELY, WITHIN THE PURVIEW OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 ARE ENTITLED TO EXERCISE THE ELECTION PROVIDED IN THAT SECTION REGARDLESS OF WHETHER THE CHANGE IN STATUS WAS MADE PRIOR OR SUBSEQUENT TO OCTOBER 1, 1954, THE DEADLINE SPECIFIED THEREIN. THE EFFECTIVE DATE FOR RETIREMENT PAY DEDUCTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, FOR MEMBERS WHOSE RECORDS HAVE BEEN CORRECTED PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, IS THE EFFECTIVE DATE OF RETIREMENT IN THE CASE OF ACTIVE MEMBERS, AND THE FIRST DAY OF THE MONTH IN WHICH THE ELECTION IS MADE IN THE CASE OF RETIRED MEMBERS. A SURVIVORSHIP ANNUITY OPTION ELECTION MADE BY A NAVAL RESERVE OFFICER AS AN ACTIVE MEMBER, IN ACCORDANCE WITH SECTION 3 (A) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, MAY BE REVOKED PURSUANT TO THE AMENDATORY ACT OF AUGUST 28, 1954, WHEN THE MEMBER'S STATUS IS CHANGED RETROACTIVELY AS A RESULT OF THE CORRECTION OF HIS MILITARY RECORDS, PROVIDED SUCH REVOCATION IS MADE WITHIN THE STATUTORY TIME LIMITATIONS.

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

REFERENCE IS MADE TO LETTER DATED JANUARY 14, 1955, FROM THE ASSISTANT SECRETARY OF THE NAVY ( AIR) FORWARDING A LETTER DATED NOVEMBER 16, 1954, FROM THE DIRECTOR, SPECIAL PAYMENTS DIVISION, FIELD BRANCH, BUREAU OF SUPPLIES AND ACCOUNTS, CLEVELAND, OHIO, REQUESTING DECISION ON CERTAIN QUESTIONS RELATING TO THE PROPER BASIS FOR COMPUTING RETIRED PAY IN THE CASE OF LIEUTENANT COMMANDER HIRAM E. NEWBILL, U.S. NAVAL RESERVE, RETIRED.

LIEUTENANT COMMANDER NEWBILL WAS RELEASED FROM ACTIVE DUTY ON JULY 20, 1946, FOR REASONS OTHER THAN PHYSICAL DISABILITY. ON AUGUST 13, 1954, THE BOARD FOR CORRECTION OF NAVAL RECORDS, ACTING PURSUANT TO THE PROVISIONS OF SECTION 207 (A) OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, 5 U.S.C. 191A, CORRECTED HIS NAVAL RECORDS TO SHOW THAT HE WAS INCAPACITATED FOR ACTIVE DUTY ON JULY 20, 1946, DATE OF HIS RELEASE FROM ACTIVE DUTY, BY REASON OF CATARACT OF LEFT EYE; THAT HIS INCAPACITY IS PERMANENT AND IS THE RESULT OF AN INCIDENT OF THE SERVICE; THAT SUCH INCAPACITY WAS SUFFERED IN LINE OF DUTY FROM DISEASE OR INJURY WHILE HE WAS EMPLOYED ON ACTIVE DUTY PURSUANT TO ORDERS CONTEMPLATING EXTENDED NAVAL SERVICE IN EXCESS OF 30 DAYS; AND THAT HE WAS PLACED ON THE RETIRED LIST OF THE NAVAL RESERVE, EFFECTIVE JULY 21, 1946, PURSUANT TO THE PROVISIONS OF 34 U.S.C. 855C-1. THE CORRECTIONS MADE IN HIS NAVAL RECORDS ENTITLE LIEUTENANT COMMANDER NEWBILL TO RECEIVE RETIREMENT PAY RETROACTIVELY TO JULY 21, 1946.

IN ACCORDANCE WITH OUR DECISION OF OCTOBER 25, 1950, B-96250, LIEUTENANT COMMANDER NEWBILL, UPON THE CORRECTION OF HIS RECORDS, BECAME ENTITLED TO ELECT, UNDER OPTION (A) IN SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, 37 U.S.C. 281, TO QUALIFY EFFECTIVE AS OF OCTOBER 1, 1949, FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THAT ACT OR, UNDER OPTION (B) IN THAT SECTION, TO RECEIVE RETIREMENT PAY, EFFECTIVE FROM OCTOBER 1, 1949, COMPUTED BY ONE OF THE TWO METHODS STATED IN SECTION 511 OF THE ACT, 63 STAT. 829, 37 U.S.C. 311. DOUBT ARISES, HOWEVER, AS TO HIS RIGHT OF ELECTION BECAUSE HE WAS NOT NOTIFIED OF THE CORRECTION OF HIS RECORDS IN SUFFICIENT TIME TO AFFORD HIM AN OPPORTUNITY TO MAKE AN ELECTION UNDER SECTION 411 BEFORE THE EXPIRATION DATE OF THE FIVE-YEAR PERIOD PRESCRIBED IN THAT SECTION. ON THE BASIS OF SUCH FACTS, THE FOLLOWING FOUR QUESTIONS ARE PRESENTED:

A. IS THE DEADLINE DATE FOR MAKING AN ELECTION OF DISABILITY RETIRED PAY AS PRESCRIBED BY REFERENCE (B) (SECTION 411) APPLICABLE TO THIS CASE?

B. IF NOT, SHOULD THE ELECTION UNDER REFERENCE (B) BE OBTAINED PRIOR TO THE ESTABLISHMENT OF THE RETIRED PAY ACCOUNT; OR

C. SHOULD THE RETIRED PAY ACCOUNT BE ACTIVATED CURRENTLY ON THE BASIS OF LAWS IN EFFECT PRIOR TO 1 OCTOBER 1949 AND THE MEMBER ALLOWED A REASONABLE TIME AFTER NOTIFICATION OF HIS RIGHTS UNDER REFERENCE (B) TO MAKE AN APPROPRIATE ELECTION?

D. IF THE ANSWER TO PARAGRAPH 3C IS IN THE AFFIRMATIVE, WHAT IS CONSIDERED TO CONSTITUTE A REASONABLE TIME?

THE CORRECTIONS MADE IN LIEUTENANT COMMANDER NEWBILL'S NAVAL RECORDS PURSUANT TO THE AUTHORITY OF 5 U.S.C. 191A SHOULD PLACE HIM AS NEARLY AS POSSIBLE IN THE SAME POSITION HE WOULD HAVE OCCUPIED HAD HE BEEN RELEASED FROM ACTIVE DUTY ON JULY 20, 1946, BY REASON OF A PHYSICAL DISABILITY INCURRED IN LINE OF DUTY AND IMMEDIATELY CERTIFIED AS ELIGIBLE FOR RETIREMENT PAY BENEFITS, EFFECTIVE JULY 21, 1946, UNDER THE PROVISIONS OF 34 U.S.C. 855C-1. CONSEQUENTLY, IF OTHERWISE PROPER, HE IS ENTITLED TO EXERCISE THE PRIVILEGE, UNDER SECTION 411, OF ELECTING TO HAVE HIS RETIREMENT PAY COMPUTED, EFFECTIVE AS OF OCTOBER 1, 1949, IN ACCORDANCE WITH EITHER OPTION (A) OR (B).

MEMBERS OF THE UNIFORMED SERVICES WHO WERE RETIRED PRIOR TO OCTOBER 1, 1949, BY REASON OF PHYSICAL DISABILITY WERE GRANTED A PERIOD OF FIVE YEARS, FOLLOWING THE EFFECTIVE DATE OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, TO ELECT TO RECEIVE THEIR RETIRED PAY UNDER EITHER OPTION (A) OR OPTION (B) OF SECTION 411. WHERE, SUBSEQUENT TO OCTOBER 1, 1949, A PERSON'S NAVAL STATUS WAS CHANGED AS AUTHORIZED BY OTHER APPLICABLE PROVISIONS OF LAW (38 U.S.C. 6931) SO AS TO BRING HIM RETROACTIVELY WITHIN THE SCOPE OF SECTION 411, WE HELD THAT HE WAS ENTITLED TO EXERCISE THE ELECTION. SEE THE DECISION OF OCTOBER 25, 1950, B-96250, CITED ABOVE.

REVIEW ACTION UNDER THE PROVISIONS OF 38 U.S.C. 693I MAY BE BASED ON A REQUEST FOR SUCH REVIEW FILED WITHIN 15 YEARS AFTER THE DATE OF RETIREMENT FOR DISABILITY OR AFTER JUNE 22, 1944, THE EFFECTIVE DATE OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, 58 STAT. 284, WHICHEVER IS LATER. SECTION 207 (A) OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, 60 STAT. 837, AS AMENDED BY THE ACT OF OCTOBER 25, 1951, 65 STAT. 656, 5 U.S.C. 191A, UNDER WHICH THE OFFICER'S RECORDS WERE CORRECTED IN THE PRESENT CASE, PROVIDES THAT NO CORRECTIVE ACTION SHALL BE TAKEN UNDER SUCH SECTION UNLESS THE REQUEST BE FILED WITHIN THREE YEARS AFTER DISCOVERY OF THE ALLEGED ERROR OR INJUSTICE, OR WITHIN TEN YEARS AFTER THE DATE OF ENACTMENT OF THE ACT, WHICHEVER MAY BE LATER.

THE FIVE-YEAR PERIOD PRESCRIBED IN SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 EXPIRED AT MIDNIGHT OCTOBER 1, 1954. SEE OUR DECISION OF TODAY, B-122601, 34 COMP. GEN. 642, ADDRESSED TO YOU. THUS, IT IS EVIDENT THAT REVIEW ACTION TAKEN UNDER THE PROVISIONS OF 38 U.S.C. 693I AND CORRECTIONS MADE IN MILITARY RECORDS PURSUANT TO THE AUTHORITY OF 5 U.S.C. 191A, SINCE OCTOBER 1, 1954, AND SIMILAR ACTION WHICH MAY BE TAKEN IN THE FUTURE WILL NOT AFFORD ANY OPPORTUNITY TO THE INDIVIDUALS CONCERNED IN SUCH CASES, WHOSE CHANGE IN STATUS OPERATES, RETROACTIVELY, TO PLACE THEM WITHIN THE PURVIEW OF SECTION 411, TO MAKE THE ELECTION GRANTED IN THAT SECTION PRIOR TO THE EXPIRATION DATE OF THE FIVE-YEAR PERIOD. TO DENY THE RIGHT TO SUCH INDIVIDUALS TO MAKE SUCH AN ELECTION UNDER SECTION 411, HOWEVER, WOULD SEEM TO BE DIRECTLY CONTRARY TO THE INTENT AND DESIGN OF THE STATUTORY PROVISIONS AUTHORIZING RETROACTIVE CHANGES OR CORRECTIONS OF STATUS. CLEARLY IT WOULD RESULT IN UNINTENDED, SUBSTANTIAL, AND WHOLLY UNJUST DISCRIMINATION AGAINST THOSE MEMBERS WHERE THE BASIC PURPOSE OF THE REVIEW AND CORRECTION STATUTES WAS TO CURE PRIOR INJUSTICES. WE CANNOT BELIEVE THAT THE CONGRESS INTENDED THE LIMITATION IN SECTION 411 TO DEPRIVE MEMBERS OF ANY RETROACTIVE BENEFITS SPECIALLY GRANTED BY OTHER STATUTES. HENCE, IT IS CONCLUDED THAT A RETROACTIVE CHANGE IN STATUS, WHETHER ACCOMPLISHED PRIOR OR SUBSEQUENT TO OCTOBER 1, 1954, WHICH IS BASED UPON REVIEW ACTION UNDER 38 U.S.C. 693I, OR RESULTS FROM A CORRECTION OF MILITARY RECORDS PURSUANT TO 5 U.S.C. 191A, AND WHICH BRINGS AN INDIVIDUAL WITHIN THE PURVIEW OF SECTION 411, ENTITLES SUCH AN INDIVIDUAL TO MAKE THE ELECTION GRANTED IN THAT SECTION. ACCORDINGLY, QUESTION A IS ANSWERED IN THE NEGATIVE WITH THE QUALIFICATIONS THAT THE ELECTION MUST BE MADE WITHIN A REASONABLE TIME AFTER THE RIGHT TO MAKE IT FIRST ACCRUES.

QUESTION B IS ANSWERED IN THE AFFIRMATIVE, THERE BEING NO APPARENT REASON WHY THE ELECTION SHOULD NOT BE MADE PROMPTLY OR WHY ANY APPRECIABLE DELAY SHOULD RESULT IN SUCH CASES SOLELY BECAUSE THE INDIVIDUALS CONCERNED ARE REQUIRED TO MAKE THEIR ELECTIONS PRIOR TO ESTABLISHMENT OF THEIR RETIRED PAY ACCOUNTS.

IN VIEW OF THE ANSWERS TO QUESTIONS A AND B NO REPLY IS REQUIRED TO QUESTIONS C AND D.

IT IS STATED THAT DURING THE MONTH OF APRIL 1954, WHILE IN THE NAVAL RESERVE NOT ON ACTIVE DUTY, LIEUTENANT COMMANDER NEWBILL, THEN EXPECTING TO QUALIFY FOR RETIRED PAY IN THE YEARS, AT AGE 60, UNDER THE PROVISIONS OF 34 U.S.C. 440H AND 440I, ELECTED TO RECEIVE THE BENEFITS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953. IT FURTHER APPEARS THAT HE HAS APPLIED FOR REVOCATION OF SUCH ELECTION UNDER THE PROVISIONS OF PUBLIC LAW 696, APPROVED AUGUST 28, 1954, 68 STAT. 915. QUESTIONS E AND F, RELATING TO THE ELECTION UNDER THE CONTINGENCY OPTION ACT, ARE AS FOLLOWS:

E. WOULD THE EFFECTIVE DATE OF LIEUTENANT COMMANDER NEWBILL'S ELECTION UNDER REFERENCE (C) ( UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953) BE THE FIRST OF THE MONTH IN WHICH HIS ELECTION WAS MADE, OR THE FIRST OF THE MONTH IN WHICH HE WAS ADVISED OF HIS RETROACTIVE RETIREMENT?

F. WOULD LIEUTENANT COMMANDER NEWBILL BE CONSIDERED TO HAVE RETIRED PRIOR TO 1 NOVEMBER 1953 FOR THE PURPOSES OF REFERENCE (D) ( PUBLIC LAW 696, APPROVED AUGUST 28, 1954) SO AS TO ENTITLE HIM TO APPLY FOR REVOCATION OF THE ELECTION MADE UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT?

AS A RESULT OF THE CORRECTIONS MADE IN HIS NAVAL RECORDS UNDER THE PROVISIONS OF 5 U.S.C. 191A, LIEUTENANT COMMANDER NEWBILL IS REQUIRED TO BE CONSIDERED FOR ALL PURPOSES, INCLUDING THE BENEFITS PRESCRIBED IN THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, AS HAVING BEEN RETIRED EFFECTIVE JULY 21, 1946. HENCE, THE ELECTION MADE BY HIM IN APRIL 1954, AS AN ACTIVE MEMBER UNDER THE PROVISIONS OF SECTION 3 (A) OF THE CONTINGENCY OPTION ACT, 67 STAT. 502, IS NOW REQUIRED TO BE CONSIDERED AS AN ELECTION MADE BY A RETIRED MEMBER UNDER THE PROVISIONS OF SECTION 3 (B), 67 STAT. 502. THE EFFECTIVE DATE OF AN ELECTION UNDER THE CONTINGENCY OPTION ACT IS THE DATE OF ELECTION IN THE CASE OF A RETIRED MEMBER. SECTION 4 (C), 67 STAT. 503. ALSO, REGULATIONS FOR THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 (PROMULGATED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 8 OF THE ACT, 67 STAT. 504, AND EXECUTIVE ORDER NO. 10499, NOVEMBER 4, 1953, 18 F.R. 7003) PROVIDE IN PERTINENT PART, IN SECTION 402 (A), THAT THE EFFECTIVE DATE OF DEDUCTION IN RETIRED PAY WILL BE THE EFFECTIVE DATE OF RETIREMENT IN THE CASE OF AN ACTIVE MEMBER AND THE FIRST DAY OF THE MONTH IN WHICH THE ELECTION IS EFFECTIVE IN THE CASE OF A RETIRED MEMBER. ACCORDINGLY, IN REPLY TO QUESTION E, IT IS HELD THAT THE EFFECTIVE DATE OF DEDUCTION IN THE RETIRED PAY OF LIEUTENANT COMMANDER NEWBILL IS APRIL 1, 1954, THE FIRST DAY OF THE MONTH IN WHICH HIS ELECTION WAS MADE.

INASMUCH AS LIEUTENANT COMMANDER NEWBILL IS REQUIRED TO BE CONSIDERED AS HAVING BEEN RETIRED PRIOR TO NOVEMBER 1, 1953 (SEE ANSWER TO QUESTION E ABOVE) HE BECAME ENTITLED UNDER THE CONDITIONS PRESCRIBED IN PUBLIC LAW 696, APPROVED AUGUST 28, 1954, 68 STAT. 915, TO REVOKE, WITHIN 60 DAYS AFTER THE DATE OF ENACTMENT OF THAT ACT, HIS ELECTION THERETOFORE MADE IN APRIL 1954. ACCORDINGLY, QUESTION F IS ANSWERED BY STATING THAT IF THE 60 -DAY PERIOD PRESCRIBED IN THE ACT OF AUGUST 28, 1954, HAD NOT EXPIRED AT THE TIME HE APPLIED FOR THE REVOCATION OF HIS ELECTION, SUCH REQUEST FOR REVOCATION WOULD BE PROPER FOR CONSIDERATION UNDER THAT ACT.

DECISION IS ALSO REQUESTED UPON TWO ADDITIONAL SPECIFIC QUESTIONS AS FOLLOWS:

(G) WOULD DECISION UPON THE QUESTIONS MENTIONED ABOVE BE DIFFERENT IF THE ACTION TAKEN UNDER DATE OF AUGUST 13, 1954, IN LIEUTENANT COMMANDER NEWBILL'S CASE AND RESULTING IN HIS RETIREMENT BY REASON OF PHYSICAL DISABILITY, HAD BEEN TAKEN PURSUANT TO THE PROVISIONS OF SECTION 302 OF THE SERVICEMEN'S READJUSTMENT ACT OF 1944, AS AMENDED (38 U.S.C. 693I), RATHER THAN BY CORRECTION OF RECORDS;

(H) IS ANY ELECTION ALLOWED UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 WHERE ACTION TO RETIRE AN OFFICER OR FORMER OFFICER, EITHER BY CORRECTION OF RECORD OR PURSUANT TO 38 U.S. CODE, 693I, IS TAKEN AFTER OCTOBER 1, 1954.

AS INDICATED ABOVE IN ANSWERING QUESTION A, ALL INDIVIDUALS WHOSE MILITARY OR NAVAL STATUS IS CHANGED AS AUTHORIZED BY APPLICABLE PROVISIONS OF LAW SO AS TO PLACE THEM, RETROACTIVELY, WITHIN THE PURVIEW OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 ARE ENTITLED TO EXERCISE THE ELECTION PROVIDED IN THAT SECTION. REVIEW ACTION TAKEN UNDER THE PROVISIONS OF 38 U.S.C. 693I HAS BEEN HELD BY THE COURT OF CLAIMS TO REQUIRE THAT THE PLAINTIFF BE "PUT IN THE SAME POSITION HE WOULD BE IN HAD THE ERRONEOUS DETERMINATION NOT BEEN MADE.' HAMRICK V. UNITED STATES, 120 COURT OF CLAIMS 17, 25. ACCORDINGLY, QUESTION G IS ANSWERED IN THE NEGATIVE AND QUESTION H IS ANSWERED IN THE AFFIRMATIVE.