B-124283, AUGUST 5, 1955, 35 COMP. GEN. 77

B-124283: Aug 5, 1955

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PERSONNEL - SURVIVORSHIP ANNUITY PAYMENTS WHERE THE MILITARY RECORD OF A RETIRED SERGEANT WHO HAD SERVICE AS A COMMISSIONED OFFICER WAS CORRECTED AFTER HIS DEATH TO SHOW RETIREMENT AS MAJOR BY REASON OF PHYSICAL DISABILITY. THAT HE WAS RETIRED ON NOVEMBER 30. IT IS STATED THAT ON APRIL 15. HIS MILITARY RECORD WAS CORRECTED TO SHOW THAT HE WAS RETIRED IN THE GRADE OF MAJOR. IT WAS HELD IN DECISION OF OCTOBER 4. THAT IT IS THE RETIRED PAY TO WHICH A MEMBER IS ENTITLED ON THE DATE OF HIS ELECTION WHICH CONTROLS THE COMPUTATIONS UNDER THE CONTINGENCY OPTION ACT AND THAT WHERE AN ERROR WAS MADE IN DETERMINING THE AMOUNT OF RETIRED PAY. A RECOMPUTATION OF THE DEDUCTIONS AND THE ANNUITY WAS PROPER.

B-124283, AUGUST 5, 1955, 35 COMP. GEN. 77

RECORDS - CORRECTIONS - MILITARY, NAVAL, ETC., PERSONNEL - SURVIVORSHIP ANNUITY PAYMENTS WHERE THE MILITARY RECORD OF A RETIRED SERGEANT WHO HAD SERVICE AS A COMMISSIONED OFFICER WAS CORRECTED AFTER HIS DEATH TO SHOW RETIREMENT AS MAJOR BY REASON OF PHYSICAL DISABILITY, THE PAYMENTS DUE FOR RETIREMENT, ELECTION OF SURVIVORSHIP OPTIONS, AND DEATH MUST BE COMPUTED ON THE BASIS OF THE CORRECTED RECORDS AND, THEREFORE, THE SURVIVORSHIP ANNUITY DUE THE WIDOW FROM THE TIME OF DEATH SHOULD BE PAID ON THE BASIS OF THE DISABILITY RETIREMENT.

TO LIEUTENANT COLONEL M. L. JOHNSON, DEPARTMENT OF THE ARMY, AUGUST 5, 1955:

BY FIRST INDORSEMENT OF JUNE 6, 1955, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF APRIL 26, 1955, REQUESTING ADVANCE DECISION AS TO THE LEGALITY OF PAYMENT ON A VOUCHER IN THE AMOUNT OF $840.60, STATED TO REPRESENT ADDITIONAL SURVIVOR'S ANNUITY BENEFITS PAYABLE UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, TO THE WIDOW OF MAJOR THOMAS HADDON, RETIRED, AS A RESULT OF THE CORRECTION OF HIS MILITARY RECORD PURSUANT TO AUTHORITY CONTAINED IN SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, 5 U.S.C. 191A.

IT APPEARS THAT THE DECEDENT SERVED AS A COMMISSIONED OFFICER IN THE GRADE OF MAJOR FROM JUNE 19, 1951, TO NOVEMBER 28, 1953, AND THAT HE WAS RETIRED ON NOVEMBER 30, 1953, AS A MASTER SERGEANT, FOR LENGTH OF SERVICE (27 YEARS, 8 MONTHS AND 11 DAYS). IT IS STATED THAT ON APRIL 15, 1954, HE ELECTED OPTIONS I AND IV, TO PROVIDE A SURVIVOR'S ANNUITY OF ONE-HALF OF HIS REDUCED RETIRED PAY, UNDER THE CONTINGENCY OPTION ACT, AND THAT HE DIED ON APRIL 28, 1954. THE RECORD SHOWS THAT ON DECEMBER 28, 1954, IN ACCORDANCE WITH ACTION TAKEN UNDER SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, HIS MILITARY RECORD WAS CORRECTED TO SHOW THAT HE WAS RETIRED IN THE GRADE OF MAJOR, BY REASON OF PHYSICAL DISABILITY, UNDER THE PROVISIONS OF SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, 823, 37 U.S.C. 272, 279, WITH A DISABILITY RATING OF 100 PERCENT.

IT WAS HELD IN DECISION OF OCTOBER 4, 1954, 34 COMP. GEN. 151, THAT IT IS THE RETIRED PAY TO WHICH A MEMBER IS ENTITLED ON THE DATE OF HIS ELECTION WHICH CONTROLS THE COMPUTATIONS UNDER THE CONTINGENCY OPTION ACT AND THAT WHERE AN ERROR WAS MADE IN DETERMINING THE AMOUNT OF RETIRED PAY, A RECOMPUTATION OF THE DEDUCTIONS AND THE ANNUITY WAS PROPER.

IN VIEW OF THE ACTION TAKEN TO CORRECT THE DECEDENT'S MILITARY RECORD IN THIS CASE, IT APPEARS THAT AN ERROR WAS MADE IN RETIRING HIM FOR LENGTH OF SERVICE AND THAT INITIALLY HE SHOULD HAVE BEEN RETIRED FOR PHYSICAL DISABILITY. IN ORDER TO GIVE FULL EFFECT TO THE CONNECTION OF HIS RECORDS, THE PAYMENTS DUE AS A RESULT OF HIS RETIREMENT, ELECTION OF OPTIONS, AND DEATH MUST BE COMPUTED AS THEY WOULD HAVE BEEN COMPUTED IF THE INITIAL RETIREMENT ACTION IN HIS CASE HAD RESULTED IN HIS RETIREMENT FOR PHYSICAL DISABILITY AS A MAJOR WITH A DISABILITY RATING OF 100 PERCENT. HENCE, COMPUTATION OF THE ANNUITY DUE HIS WIDOW FROM THE TIME OF HIS DEATH SHOULD BE MADE UNDER THE PHYSICAL DISABILITY RETIREMENT TABLES ON THE BASIS OF THE DISABILITY RETIREMENT PAY DUE AS THE RESULT OF THE CORRECTION OF HIS MILITARY RECORD. COMPARE DECISION OF MAY 11, 1955, B- 122198, 34 COMP. GEN. 582.

ACCORDINGLY, PAYMENT OF THE VOUCHER, RETURNED HEREWITH, IS AUTHORIZED IF OTHERWISE CORRECT.