B-140593, SEPTEMBER 25, 1959, 39 COMP. GEN. 226

B-140593: Sep 25, 1959

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CONCERNING THE EFFECT OF SURVIVORSHIP ANNUITY OPTION ELECTION CHANGES OR REVOCATIONS BY OFFICERS OF THE REGULAR NAVY OR MARINE CORPS WHO ARE VOLUNTARILY RETIRED UNDER THE 1959 ACT. WAS NOT TO PERMIT ELECTIONS AFTER RETIREMENT BUT WAS MERELY TO CHANGE THE FIVE-YEAR LIMITATION PERIOD IN 10 U.S.C. 1431 (C). NAVY OFFICERS WHO ARE RETIRED PURSUANT TO THE ACT OF AUGUST 11. A NAVY OFFICER WHO IS RETIRED FOR PHYSICAL DISABILITY. 1959: REFERENCE IS MADE TO LETTER OF AUGUST 25. REQUESTING A DECISION ON CERTAIN QUESTIONS WHICH HAVE ARISEN WITHIN THE DEPARTMENT OF THE NAVY WITH RESPECT TO SECTION 3 OF THE ACT OF AUGUST 11. A CHANGE OF AN ELECTION MADE UNDER THAT SECTION BY AN OFFICER WHO IS RETIRED UNDER THIS ACT IS EFFECTIVE IF MADE AT SUCH A TIME THAT IT WOULD HAVE BEEN EFFECTIVE HAD HE BEEN RETIRED ON THE DATE PRESCRIBED BY SECTION 6376.

B-140593, SEPTEMBER 25, 1959, 39 COMP. GEN. 226

MILITARY PERSONNEL - NAVY OFFICERS - VOLUNTARY RETIREMENT UNDER PUBLIC LAW 86 - 155 - ANNUITY ELECTIONS FOR DEPENDENTS - CHANGES AND REVOCATIONS THE PURPOSE OF SECTION 3 OF THE ACT OF AUGUST 11, 1959, PUBLIC LAW 86- 155, CONCERNING THE EFFECT OF SURVIVORSHIP ANNUITY OPTION ELECTION CHANGES OR REVOCATIONS BY OFFICERS OF THE REGULAR NAVY OR MARINE CORPS WHO ARE VOLUNTARILY RETIRED UNDER THE 1959 ACT, WAS NOT TO PERMIT ELECTIONS AFTER RETIREMENT BUT WAS MERELY TO CHANGE THE FIVE-YEAR LIMITATION PERIOD IN 10 U.S.C. 1431 (C); THEREFORE, NAVY OFFICERS WHO ARE RETIRED PURSUANT TO THE ACT OF AUGUST 11, 1959, MAY NOT AFTER RETIREMENT CHANGE THEIR SURVIVORSHIP ANNUITY OPTION ELECTIONS. A NAVY OFFICER WHO IS RETIRED FOR PHYSICAL DISABILITY, ALTHOUGH HE MIGHT OTHERWISE BE ELIGIBLE FOR VOLUNTARY RETIREMENT UNDER THE ACT OF AUGUST 11, 1959, PUBLIC LAW 86-155, MAY NOT BE REGARDED AS HAVING BEEN VOLUNTARILY RETIRED UNDER THE 1959 ACT TO COME WITHIN THE PURVIEW OF SECTION 3 OF THE 1959 ACT TO CHANGE OR REVOKE A SURVIVORSHIP ANNUITY OPTION ELECTION WITHOUT REGARD TO THE TIME LIMITATIONS IN 10 U.S.C. 1431.

TO THE SECRETARY OF THE NAVY, SEPTEMBER 25, 1959:

REFERENCE IS MADE TO LETTER OF AUGUST 25, 1959, FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES), REQUESTING A DECISION ON CERTAIN QUESTIONS WHICH HAVE ARISEN WITHIN THE DEPARTMENT OF THE NAVY WITH RESPECT TO SECTION 3 OF THE ACT OF AUGUST 11, 1959, PUBLIC LAW 86-155, 10 U.S.C. 1431. THE REQUEST HAS BEEN ASSIGNED DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE NO. SS-N 449.

THE SAID SECTION 3 READS AS FOLLOWS:

NOTWITHSTANDING SECTION 1431 OF TITLE 10, U.S.C. A CHANGE OF AN ELECTION MADE UNDER THAT SECTION BY AN OFFICER WHO IS RETIRED UNDER THIS ACT IS EFFECTIVE IF MADE AT SUCH A TIME THAT IT WOULD HAVE BEEN EFFECTIVE HAD HE BEEN RETIRED ON THE DATE PRESCRIBED BY SECTION 6376, 6377, OR 6379 OR TITLE 10, U.S. CODE, AS APPROPRIATE, AND A REVOCATION OF AN ELECTION MADE UNDER THAT SECTION BY AN OFFICER RETIRED UNDER THIS ACT IS EFFECTIVE IF MADE BEFORE HIS RETIREMENT.

TITLE 10 ,1U.S. CODE, SECTION 1431 (B) PERMITS MEMBERS OF THE ARMED FORCES, IN GENERAL, TO ELECT SURVIVORS' ANNUITIES FOR ELIGIBLE DEPENDENTS TO BE PAID FOR BY DEDUCTIONS FROM THE RETIRED PAY OF SUCH MEMBERS. SECTION 1431 (C) OF THAT TITLE PROVIDES:

(C) AN ELECTION MADE UNDER SUBSECTION (B) MAY BE CHANGED OR REVOKED BY THE ELECTOR BEFORE HIS RETIREMENT OR BEFORE HE BECOMES ENTITLED TO RETIRED OR RETAINER PAY. * * * THE CHANGE OR REVOCATION IS NOT EFFECTIVE IF HE IS RETIRED OR BECOMES ENTITLED TO RETIRED OR RETAINER PAY WITHIN FIVE YEARS AFTER THE DATE OF THE CHANGE OR REVOCATION. IF HE REVOKES THE ELECTION, HE MAY NOT CHANGE OR WITHDRAW THE REVOCATION.

THE FIRST QUESTION IS STATED AS FOLLOWS:

MAY AN OFFICER RETIRED UNDER THE ACT OF AUGUST 11, 1959, MAKE A CHANGE IN HIS ELECTION WITH RESPECT TO THE CONTINGENCY OPTION ACT SUBSEQUENT TO RETIREMENT IF WITHIN SUCH TIME THAT IT WOULD HAVE BEEN EFFECTIVE HAD HE BEEN RETIRED ON THE DATE PRESCRIBED BY SECTION 6376, 6377, OR 6379 OF TITLE 10 U.S.C. AS APPROPRIATE?

H.R. 8068, 85TH CONGRESS, A PREDECESSOR BILL TO H.R. 4413, 86TH CONGRESS, WHICH BECAME PUBLIC LAW 86-155, PROVIDED (IN SECTION 13) THAT A CHANGE OR REVOCATION OF AN ELECTION MADE UNDER 10 U.S.C. 1431 "IS EFFECTIVE IF MADE BEFORE THE OFFICER RETIRES AND WITHIN ONE YEAR FOLLOWING THE DATE OF APPROVAL OF THIS ACT.' THE PROVISIONS OF SECTION 3 OF THE 1959 ACT SHOULD BE READ IN CONJUNCTION WITH THE PROVISIONS OF 10 U.S.C. 1431 (C) AND 1436, WHICH, RESPECTIVELY, PERMIT A CHANGE IN ELECTIONS ONLY IF THE CHANGE IS MADE MORE THAN FIVE YEARS BEFORE RETIREMENT AND PRESCRIBE THE DATE AS OF WHICH COMPUTATION OF THE REDUCTION IN RETIRED PAY REQUIRED TO PAY FOR THE ANNUITY ELECTED SHALL BE MADE. THERE IS NOT APPARENT ANY LEGISLATIVE INTENT TO CHANGE THE REQUIREMENT THAT THE CHANGE IN ELECTION BE EFFECTED ON OR BEFORE THE DATE OF RETIREMENT; RATHER IT APPEARS THAT IT WAS THE INTENT MERELY TO CHANGE THE FIVE-YEAR PERIOD OF LIMITATION. THAT VIEW IS SUPPORTED BY THAT PART OF THE HEARINGS RELATING TO THE PROVISIONS OF SECTION 3, AS FOLLOWS:

CAPTAIN WILLIAMS. THIS MAY BE BEST ILLUSTRATED BY AN EXAMPLE. THAT IS AN OFFICER WHO IS BEING CONSIDERED FOR CONTINUATION IN HIS 29TH YEAR AND WHO IS NOT CONTINUED WOULD NORMALLY HAVE COMPLETED 30 YEARS AND MAY WELL HAVE FILED A MODIFICATION OF AN ELECTION IN HIS 25TH YEAR OF SERVICE.

MR. BLANDFORD. WITH RESPECT TO THE CONTINGENCY OPTION ACT?

CAPTAIN WILLIAMS. WITH RESPECT TO THE CONTINGENCY OPTION ACT. GOING OUT ON THE 29TH YEAR UNDER THE PRESENT LAW, THEN THAT MODIFICATION WOULD NOT HAVE BEEN EFFECTIVE. THIS WILL PROVIDE THAT IF HE MADE IT IN DUE TIME, UNDER THE TIME THAT HE EXPECTED TO BE RETIRED, IT WOULD BE EFFECTIVE ON RETIREMENT UNDER THIS ACT, SIR.

MR. BLANFORD. I MIGHT MENTION, MR. CHAIRMAN, THAT THIS IS ALSO WRITTEN IN SUCH A MANNER THAT IF THAT PERIOD OF ELECTION IS REDUCED FROM 5 TO 3 YEARS, IT WOULD COVER THAT. THAT IS WHY WE DON-T HAVE ANY NUMBER OF YEARS OF SERVICE HERE. ( ITALICS SUPPLIED.)

SEE PAGE 321 OF THE HEARINGS OF THE HOUSE OF REPRESENTATIVES COMMITTEE ON ARMED SERVICES ON H.R. 4413.

IF THE CONGRESS HAD INTENDED TO PERMIT A CHANGE IN ELECTION AFTER RETIREMENT, SOME PROVISION WOULD NECESSARILY HAVE BEEN MADE FOR RECOMPUTATION OF THE AMOUNT OF THE REDUCTION IN RETIRED PAY REQUIRED TO PAY FOR THE ANNUITY, SINCE 10 U.S.C. 1436, REQUIRES THAT COMPUTATION BE MADE AS OF THE DATE WHEN THE SERVICE MEMBER BECOMES ENTITLED TO RETIRED PAY, AND A CHANGE IN ELECTION WOULD REQUIRE A RECOMPUTATION OF THE MEMBER'S PAYMENT ON THE COST OF THE ANNUITY. ALSO, IT IS REASONABLE TO ASSUME THAT, IF CONGRESS INTENDED TO PERMIT CHANGES IN ELECTIONS AFTER RETIREMENT, IT WOULD HAVE CONSIDERED SOME RELAXATION OF THE RESTRICTION IN 10 U.S.C. 1435 THAT ONLY THE SPOUSE OR CHILD OF THE MEMBER ON THE DATE OF HIS RETIREMENT IS AN ELIGIBLE BENEFICIARY.

ACCORDINGLY, AN OFFICER RETIRED UNDER THE ACT OF AUGUST 11, 1959, MAY NOT MAKE A CHANGE IN HIS ELECTION WITH RESPECT TO THE UNIFORMED SERVICES CONTINGENCY OPTION ACT SUBSEQUENT TO RETIREMENT. THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

THE SECOND QUESTION IS AS FOLLOWS:

ARE THE PROVISIONS OF SECTION 3 APPLICABLE TO A CHANGE OR REVOCATION OF AN ELECTION WITH RESPECT TO THE CONTINGENCY OPTION ACT MADE BY AN OFFICER WHO RETIRED EITHER VOLUNTARILY OR BY REASON OF PHYSICAL DISABILITY AFTER HAVING BEEN CONSIDERED BUT NOT RECOMMENDED FOR CONTINUATION ON THE ACTIVE LIST:

A. IF HE MEETS THE REQUIREMENTS SET FORTH IN SUBSECTION 2 (D) AND 2 (E);

B. IF IT IS DETERMINED BY THE BOARD THAT HIS PERFORMANCE WOULD NOT WARRANT RETENTION ON THE ACTIVE LIST UNDER ANY CIRCUMSTANCES?

SECTION 2 (E) OF PUBLIC LAW 85-155, 10 U.S.C. 1431 (E), READS AS FOLLOWS:

AN OFFICER WHO HAS THE QUALIFICATIONS SPECIFIED IN SUBSECTION (D) AND WHO HAS BEEN CONSIDERED BUT NOT RECOMMENDED FOR CONTINUATION ON THE ACTIVE LIST PURSUANT TO SECTION 1 OF THIS ACT SHALL BE CONSIDERED FOR THE PURPOSE OF SUBSECTION (D) AS BEING RETIRED UNDER THIS ACT IF THE OFFICER RETIRES VOLUNTARILY PRIOR TO THE DATE SPECIFIED FOR HIS RETIREMENT UNDER THIS ACT. ( ITALICS SUPPLIED.)

IN OUR DECISION OF AUGUST 18, 1959, 39 COMP. GEN. 108, WE HELD THAT A DISABILITY RETIREMENT IS NOT A VOLUNTARY RETIREMENT WITHIN THE MEANING OF SECTION 2 (E), AND IN THE ANSWER TO QUESTION 5 WE STATED THAT,"IF AN OFFICER IS RETIRED FOR DISABILITY UNDER THE STATUTORY PROVISIONS AUTHORIZING RETIREMENT FOR DISABILITY, HE IS NOT RETIRED UNDER THE ACT OF AUGUST 11, 1959 * * *.'

SINCE SECTION 3 OF THE ACT BY ITS OWN TERMS IS APPLICABLE ONLY TO "AN OFFICER WHO IS RETIRED UNDER THIS ACT," THE PROVISIONS OF SECTION 3 ARE NOT APPLICABLE TO A CHANGE OR REVOCATION OF AN ELECTION WITH RESPECT TO THE CONTINGENCY OPTION ACT MADE BY AN OFFICER RETIRED BY REASON OF PHYSICAL DISABILITY, NOTWITHSTANDING HE MIGHT OTHERWISE HAVE BEEN RETIRED UNDER THE PROVISIONS OF THE ACT OF AUGUST 11, 1959.

THE PHRASE "FOR THE PURPOSE OF SUBSECTION (D)" APPEARS TO HAVE BEEN USED IN SECTION 2 (E) OF THE ACT FOR THE SOLE PURPOSE OF SAVING TO OFFICERS VOLUNTARILY RETIRED UNDER ANOTHER STATUTE THE LUMP-SUM PAYMENT OF $2,000 GRANTED OFFICERS RETIRED UNDER THE ACT OF AUGUST 11, 1959, AND FOR NO OTHER PURPOSE. HAD THE CONGRESS INTENDED THAT VOLUNTARY RETIREMENTS BY OFFICERS OTHERWISE HAVING ,THE QUALIFICATIONS SPECIFIED IN SUBSECTION (D) AND WHO HAVE BEEN CONSIDERED BUT NOT RECOMMENDED FOR CONTINUATION ON THE ACTIVE LIST" ARE TO BE CONSIDERED AS RETIREMENTS UNDER THE ACT OF AUGUST 11, 1959, SUCH RESULT COULD HAVE BEEN ACHIEVED BY MERELY OMITTING THE PHRASE IN QUESTION.