B-123218, JULY 18, 1955, 35 COMP. GEN. 26

B-123218, JULY 18, 1955, 35 COMP. GEN. 26

RETIREMENT - MILITARY, NAVAL, ETC., PERSONNEL - SURVIVORSHIP ANNUITY ELECTIONS - RETROACTIVE RETIRED PAY A NAVAL OFFICER WHO WAS PLACED ON THE NAVAL RESERVE RETIRED LIST ON NOVEMBER 1, 1954, RETROACTIVELY EFFECTIVE SEPTEMBER 1, 1952, IS CONSIDERED AN ACTIVE MEMBER AS DEFINED IN SECTION 3 OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 AND AS AN ACTIVE MEMBER HAS ONE YEAR FROM NOVEMBER 1, 1953, IN WHICH TO MAKE A VALID SURVIVORSHIP ANNUITY ELECTION AND, THEREFORE, THE OFFICER'S ELECTION WHICH WAS RECEIVED IN THE ADMINISTRATIVE OFFICE PRIOR TO NOVEMBER 2, 1954, WAS A VALID ELECTION AND DEDUCTIONS SHOULD BE MADE FROM HIS RETIRED PAY COMMENCING NOVEMBER 1, 1954, THE DATE OF HIS RETIREMENT.

TO D. M. CARR, DEPARTMENT OF THE NAVY, JULY 18, 1955:

YOUR LETTER OF FEBRUARY 17, 1955, REQUESTS AN ADVANCE DECISION AS TO THE VALIDITY OF AN ELECTION BY LIEUTENANT COMMANDER ARTHUR E. LAWRENCE, USNR, RETIRED, TO RECEIVE A REDUCED AMOUNT OF RETIRED PAY IN ORDER TO PROVIDE AN ANNUITY PAYABLE AFTER HIS DEATH TO HIS WIDOW UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, APPROVED AUGUST 8, 1953, 67 STAT. 501.

IT APPEARS THAT ON AUGUST 6, 1952, MR. LAWRENCE SUBMITTED TO THE CHIEF OF PERSONNEL AN APPLICATION TO BE TRANSFERRED TO THE UNITED STATES NAVAL RESERVE RETIRED LIST UNDER THE PROVISIONS OF TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, APPROVED JUNE 29, 1948, 34 U.S.C. 440H, ET SEQ. AND THAT QUESTIONNAIRE FORMS WERE SENT TO HIM ON OCTOBER 14, 1952. BY RETIREMENT ORDERS DATED NOVEMBER 1, 1954, HE WAS PLACED ON THE UNITED STATES NAVAL RESERVE RETIRED LIST EFFECTIVE SEPTEMBER 1, 1952, THE DATE HE BECAME ELIGIBLE FOR RETIREMENT. ALSO, IT IS STATED THAT MR. LAWRENCE'S ELECTION TO RECEIVE A REDUCED AMOUNT OF RETIRED PAY UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 WAS NOTARIZED ON JULY 13, 1954, AND THAT IT WAS RECEIVED IN THE BUREAU OF NAVAL PERSONNEL ON SEPTEMBER 21, 1954.

YOU QUESTION THE VALIDITY OF MR. LAWRENCE'S ELECTION SINCE, UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, MEMBERS RETIRED PRIOR TO NOVEMBER 1, 1953, WERE REQUIRED TO MAKE AN ELECTION ON OR BEFORE APRIL 30, 1954. YOU FURTHER REQUEST TO BE ADVISED AS TO THE DATE RETIRED PAY DEDUCTION TO COVER THE COST OF THE ANNUITY IS TO COMMENCE, IN THE EVENT THE ELECTION IS HELD TO BE VALID.

THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, AS AMENDED BY THE ACT OF APRIL 29, 1954, 68 STAT. 64, 37 U.S.C. 372A, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEC. 2. AS USED IN THIS ACT---

(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.

SEC. 3. (A) AN ACTIVE MEMBER MAY ELECT, PRIOR TO THE COMPLETION OF EIGHTEEN YEARS OF SERVICE WHICH IS CREDITABLE IN THE COMPUTATION OF ACTIVE -DUTY PAY IN THE UNIFORMED SERVICE OF WHICH HE IS A MEMBER, TO RECEIVE A REDUCED AMOUNT OF ANY RETIRED PAY WHICH MAY BE AWARDED HIM AS THE RESULT OF SERVICE IN HIS UNIFORMED SERVICE IN ORDER TO PROVIDE ONE OR MORE OF THE ANNUITIES SPECIFIED IN SECTION 4, PAYABLE AFTER HIS DEATH IN A RETIRED STATUS TO HIS WIDOW, CHILD, OR CHILDREN, IF SUCH WIDOW, CHILD, OR CHILDREN ARE LIVING AT THE DATE OF HIS RETIREMENT. * * * AN ACTIVE MEMBER WHO HAS HERETOFORE COMPLETED THE EIGHTEEN YEARS OF SERVICE MAY MAKE THIS ELECTION WITHIN ONE YEAR (ONE HUNDRED AND EIGHTY DAYS) AFTER THE EFFECTIVE DATE OF THIS ACT. * * * A PERSON WHO IS A FORMER MEMBER ON THE EFFECTIVE DATE OF THE ACT, AND WHO IS THEREAFTER AWARDED RETIRED PAY BY A UNIFORMED SERVICE MAY MAKE THE ELECTION AT THE TIME HE IS AWARDED THAT PAY * * * ( LANGUAGE ADDED IN 1954 IS ITALICIZED, AND ORIGINAL LANGUAGE THEN OMITTED IS ENCLOSED IN BRACKETS.)

(B) A RETIRED MEMBER WHO HAS HERETOFORE BEEN AWARDED RETIRED PAY BY A UNIFORMED SERVICE MAY, WITHIN ONE HUNDRED AND EIGHTY DAYS AFTER THE EFFECTIVE DATE OF THIS ACT, ELECT TO RECEIVE A REDUCED AMOUNT OF THAT RETIRED PAY IN ORDER TO PROVIDE ONE OR MORE OF THE ANNUITIES SPECIFIED IN SECTION 4 * * *.

SINCE MR. LAWRENCE WAS PLACED ON THE UNITED STATES NAVAL RESERVE RETIRED LIST ON NOVEMBER 1, 1954, EFFECTIVE SEPTEMBER 1, 1952, IT IS ASSUMED THAT HE HAD COMPLETED AN AGGREGATE OF 20 OR MORE YEARS OF SATISFACTORY SERVICE IN HIS UNIFORMED SERVICE AT THE TIME HE APPLIED FOR TRANSFER TO THE RETIRED LIST, UNDER SECTION 302 OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 10 U.S.C. 1036A. HENCE, ON NOVEMBER 1, 1953, HE WAS AN "ACTIVE MEMBER" WITHIN THE MEANING OF THAT TERM AS DEFINED IN THE 1953 ACT AND, UNDER THE PROVISIONS OF THAT ACT, AS AMENDED BY THE 1954 ACT, HE HAD ONE YEAR FROM THE EFFECTIVE DATE OF THE ACT ( NOVEMBER 1, 1953) WITHIN WHICH TO MAKE HIS ELECTION, OR UNTIL NOVEMBER 2, 1954.

SECTION 4C OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT, 67 STAT. 503, 37 U.S.C. 373C, PROVIDES THAT THE DEDUCTION TO BE MADE IN THE RETIRED PAY OF AN ACTIVE MEMBER WHO HAS MADE AN ELECTION UNDER SECTION 3 OF THE ACT SHALL BE COMPUTED AS THE DATE OF RETIREMENT. WHILE MR. LAWRENCE'S RETIREMENT PAY WAS MADE RETROACTIVELY EFFECTIVE FROM SEPTEMBER 1, 1952, HE WAS NOT ACTUALLY PLACED ON THE UNITED STATES NAVAL RESERVE RETIRED LIST OR "RETIRED," UNTIL NOVEMBER 1, 1954. ACCORDINGLY, YOU ARE ADVISED THAT SINCE MR. LAWRENCE'S ELECTION WAS RECEIVED IN THE BUREAU OF NAVAL PERSONNEL PRIOR TO NOVEMBER 2, 1954, IT WAS A VALID ELECTION, AND THAT DEDUCTIONS SHOULD BE MADE FROM HIS RETIRED PAY TO COVER THE COST OF SURVIVOR'S ANNUITY COMMENCING WITH NOVEMBER 1, 1954, THE DATE OF RETIREMENT IN HIS CASE.