B-139692, AUG. 24, 1959

B-139692, AUG. 24, 1959

TO THE SECRETARY OF THE NAVY:

BY LETTER OF MAY 13, 1959, SUBMISSION NO. SS-N-413, THE ASSISTANT SECRETARY OF THE NAVY, REQUESTED THAT WE RECONSIDER OUR DECISION OF AUGUST 25, 1958, 38 COMP. GEN. 146, HOLDING THAT THE UNIFORM RETIREMENT DATE ACT, 5 U.S.C. 47A, APPLIES IN THE CASE OF A PERSON ENTITLED TO RETIRED PAY UNDER THE PROVISIONS OF CHAPTER 67 OF TITLE 10 OF THE UNITED STATES CODE, AND ITS ANTECEDENT PROVISIONS.

AS A BASIS FOR THIS REQUEST THE ASSISTANT SECRETARY CITES THE CASE OF AN OFFICER OF THE U.S. MARINE CORPS RESERVE WHO HAD EXECUTED A TIMELY ELECTION OF OPTIONS UNDER THE PROVISIONS OF THE CONTINGENCY OPTION ACT OF 1953, NOW CODIFIED IN CHAPTER 73 OF TITLE 10 OF THE UNITED STATES CODE, TO PROVIDE AN ANNUITY FOR HIS WIDOW SHOULD HIS DEATH OCCUR AT A TIME WHEN HE WAS ENTITLED TO RETIRED PAY. THE OFFICER APPLIED FOR RETIRED PAY UNDER THE PROVISIONS OF CHAPTER 67 AND MET THE ELIGIBILITY REQUIREMENTS FIXED BY THOSE PROVISIONS ON OCTOBER 3, 1958. HE DIED, HOWEVER, ON OCTOBER 20, 1958, PRIOR TO NOVEMBER 1, 1958, THE DATE ON WHICH HIS RETIREMENT FOR CHAPTER 67 RETIRED PAY PURPOSES BECAME EFFECTIVE UNDER THE UNIFORM RETIREMENT DATE ACT. THE ASSISTANT SECRETARY SAYS THAT, AS ILLUSTRATED BY THAT SITUATION, THE APPLICATION OF THE UNIFORM RETIREMENT DATE ACT TO CHAPTER 67 RETIREMENTS RESULTS IN INEQUITIES IN THAT ACTIVE-LIST BENEFITS WHICH ACCRUES IN THE CASE OF DEATH PRIOR TO ORDINARY RETIREMENTS ARE NOT PAYABLE AND HIS WIDOW IS NOT ENTITLED TO THE ANNUITY TO WHICH SHE WOULD HAVE BEEN ENTITLED HAD HE BEEN RETIRED OCTOBER 3, 1958.

THE UNIFORM RETIREMENT DATE ACT PROVIDES IN SUBSTANCE THAT AFTER JULY 1, 1930, THE RETIREMENT OF FEDERAL PERSONNEL FOR WHATEVER CAUSE SHALL TAKE EFFECT AND BE EFFECTIVE FOR ALL PURPOSES ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENTS WOULD OTHERWISE BE EFFECTIVE. THE ACT OBVIOUSLY IS INTENDED TO APPLY TO ANY FEDERAL RETIREMENT PROVIDED BY LAW. THE DECISION OF AUGUST 25, 1958, REAFFIRMED OUR HOLDINGS IN 28 COMP. GEN. 321, 30 COMP. GEN. 287 AND 37 COMP. GEN. 653, TO THE EFFECT THAT THE RIGHT OF A MEMBER TO RETIRED PAY UNDER THE PROVISIONS OF CHAPTER 67 OF TITLE 10, AND THEIR ANTECEDENT PROVISIONS, ACCRUES ON THE DATE OF HIS QUALIFICATION FOR SUCH RETIRED PAY BUT THAT THE UNIFORM RETIREMENT DATE ACT POSTPONES SUCH RIGHT IN THE CASE OF MEMBERS QUALIFYING AFTER DECEMBER 31, 1948, TO THE FIRST DAY OF MONTH FOLLOWING THE MONTH IN WHICH THE MEMBER QUALIFIES.

TRANSFER TO THE RETIRED LIST AND GRANTING OF RETIRED PAY UNDER CHAPTER 67 OF TITLE 10 DO NOT CONSTITUTE AN ORDINARY RETIREMENT SUCH AS THAT AUTHORIZED BY OTHER PROVISIONS OF LAW WHICH CONTEMPLATE, AS A USUAL THING, THE TRANSFER FROM AN ACTIVE-DUTY STATUS TO A RETIRED STATUS. COMPARE 23 COMP. GEN. 284, 286, AS TO OFFICERS OF THE ARMY GRANTED "RETIREMENT PAY" UNDER SECTION 5 OF THE ACT OF APRIL 3, 1939, 53 STAT. 557. FORMER MEMBERS, AS WELL AS MEMBERS, ARE ELIGIBLE FOR CHAPTER 67 RETIRED PAY. COMP. GEN. 510; AND MEMBERSHIP IN A RESERVE COMPONENT IS NOT TERMINATED BY TRANSFER TO A RETIRED LIST UNDER THAT CHAPTER. HOWEVER, THE UNIFORM RETIREMENT DATE ACT, BY ITS OWN TERMS, APPLIES TO FEDERAL RETIREMENTS FOR WHATEVER CAUSE, AND UNLIKE THE SITUATION UNDER SECTION 5 OF THE ACT OF APRIL 3, 1939, THE PAY BENEFITS AUTHORIZED BY CHAPTER 67, ACCRUE ONLY UPON APPLICATION INCIDENT TO A TRANSFER TO A RETIRED LIST AND ARE BASED UPON SPECIFIED AGE AND SERVICE REQUIREMENTS. ALSO, SUCH BENEFITS ARE EXPRESSLY CLASSIFIED BY THAT CHAPTER AS RETIRED PAY FOR NON-REGULAR SERVICE. HENCE, WHILE CHAPTER 67 RETIREMENT TRANSACTIONS ARE OF A SPECIAL TYPE AND DIFFER IN SEVERAL MATERIAL ASPECTS FROM ORDINARY MILITARY RETIREMENTS, SUCH TRANSACTIONS NEVERTHELESS EFFECT THE RETIREMENT WITH RETIRED PAY OF THE INDIVIDUALS CONCERNED AND WE SEE NO PROPER LEGAL BASIS FOR CONCLUDING THAT SUCH TRANSACTIONS ARE NOT SUBJECT TO THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT.

ACCORDINGLY, WE MUST ADHERE TO THE CONCLUSIONS REACHED IN THE CITED DECISIONS.