B-140897, DEC. 16, 1959

B-140897: Dec 16, 1959

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YOU REPORT THAT HE WAS RELEASED FROM ACTIVE DUTY IN THE U.S. WAS TRANSFERRED TO THE USNR-R IN ACCORDANCE WITH SECTION 4 (D) (3) OF THE UNIVERSAL MILITARY TRAINING AND SERVICES ACT. THE SECRETARY OF THE NAVY APPROVED THE DECISION AND RECOMMENDATION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS THAT BARNARD WAS NOT RELEASED TO INACTIVE DUTY ON OCTOBER 23. WAS DETERMINED TO BE UNFIT TO PERFORM THE DUTIES OF HIS RATE BY REASON OF PHYSICAL DISABILITY ON THAT DATE AND THAT HIS NAME WAS PLACED ON THE PHYSICAL DISABILITY RETIRED LIST ON OCTOBER 24. THAT SUCH ELECTION WAS CONSIDERED TO BE A TIMELY ELECTION UNDER 36 COMP. IT WAS HELD. THAT MEMBERS AND FORMER MEMBERS OF THE UNIFORMED SERVICES WHOSE RECORDS ARE CORRECTED SO AS TO ENTITLE THEM TO RETIRED PAY.

B-140897, DEC. 16, 1959

TO R. A. WILSON, DISBURSING OFFICER, DEPARTMENT OF THE NAVY:

BY SECOND ENDORSEMENT DATED SEPTEMBER 29, 1959, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF JULY 23, 1959, WITH ENCLOSURES, REQUESTING A DECISION (ASSIGNED SUBMISSION NO. DO-N-461 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE) ON CERTAIN MATTERS WITH RESPECT TO THE VALIDITY OF THREE ELECTIONS MADE UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, AS AMENDED, AND THE EFFECTIVE DATE OF THOSE ELECTIONS FOR THE PURPOSES OF COMPUTING THE COST OF THE ANNUITY IN THE CIRCUMSTANCES DISCLOSED.

IN THE CASE OF CURTIS W. BARNARD, AD2, USN, (RETIRED), YOU REPORT THAT HE WAS RELEASED FROM ACTIVE DUTY IN THE U.S. NAVY ON OCTOBER 23, 1956, AND WAS TRANSFERRED TO THE USNR-R IN ACCORDANCE WITH SECTION 4 (D) (3) OF THE UNIVERSAL MILITARY TRAINING AND SERVICES ACT, AS AMENDED; AND THAT ON MARCH 15, 1957, THE SECRETARY OF THE NAVY APPROVED THE DECISION AND RECOMMENDATION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS THAT BARNARD WAS NOT RELEASED TO INACTIVE DUTY ON OCTOBER 23, 1956, BUT WAS DETERMINED TO BE UNFIT TO PERFORM THE DUTIES OF HIS RATE BY REASON OF PHYSICAL DISABILITY ON THAT DATE AND THAT HIS NAME WAS PLACED ON THE PHYSICAL DISABILITY RETIRED LIST ON OCTOBER 24, 1956. HE COMPLETED 4 YEARS, 1 MONTH, 21 DAYS OF SERVICE ON THAT DATE. YOU STATE FURTHER THAT ON MARCH 18, 1957, BARNARD EXECUTED AN ELECTION OF OPTION 3 AT ONE-HALF REDUCED RETIRED PAY UNDER 10 U.S.CODE, CHAPTER 73, AND THAT SUCH ELECTION WAS CONSIDERED TO BE A TIMELY ELECTION UNDER 36 COMP. GEN. 586, THE ELECTION HAVING BEEN RECEIVED IN THE BUREAU OF NAVAL PERSONNEL ON MARCH 20, 1957. IN 36 COMP. GEN. 586, IT WAS HELD, IN SUBSTANCE, THAT MEMBERS AND FORMER MEMBERS OF THE UNIFORMED SERVICES WHOSE RECORDS ARE CORRECTED SO AS TO ENTITLE THEM TO RETIRED PAY, HAVE NO MORE THAN 30 DAYS FROM THE DATE OF NOTIFICATION OF THE CORRECTION ACTION IN WHICH TO MAKE AN ELECTION UNDER THE CONTINGENCY OPTION ACT OF 1953.

YOU REQUEST A DECISION OF THE FOLLOWING:

"A. WAS BARNARD ENTITLED TO MAKE AN ELECTION UNDER SECTION 1431 OF REFERENCE (A) (TITLE 10, CHAPTER 73, U.S. CODE/?

B. IF THE ANSWER TO PARAGRAPH 3A IS IN THE AFFIRMATIVE, WHAT IS THE EFFECTIVE DATE OF ENCLOSURE (2) FOR PURPOSES OF COMPUTING THE COST OF THE ANNUITY AND FROM WHAT DATE IS BARNARD REQUIRED TO PAY THE COST OF THE ANNUITY?

IN QUESTIONING THE RIGHT OF BARNARD TO ELECT AN ANNUITY UNDER 10 U.S. CODE, CHAPTER 73, YOU REFER TO THE PROVISIONS OF SECTION 1431 (A) OF TITLE 10 WHICH ENUMERATES CERTAIN MEMBERS NOT ENTITLED TO ELECT BENEFITS UNDER THAT SECTION AND INCLUDES "/1) MEMBERS WHOSE NAMES ARE ON A RETIRED LIST OR WHO ARE IN THE RETIRED RESERVE.' YOU DIRECT ATTENTION TO THE FACT THAT SINCE THE CORRECTION BOARD'S ACTION OPERATED RETROACTIVELY TO PLACE BARNARD ON THE RETIRED LIST AS OF OCTOBER 24, 1956, HE WAS ON A RETIRED LIST ON MARCH 18, 1957, WHEN HE EXECUTED HIS ELECTION. SECTION 3 (A) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, AS AMENDED, BY THE ACT OF APRIL 29, 1954, 68 STAT. 64, 37 U.S.C. 372 (A), PROVIDED IN PERTINENT PART, THAT:

"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 373 OF THIS TITLE, 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. WHERE THE ACTIVE MEMBER IS AWARDED RETIRED PAY BY HIS UNIFORMED SERVICE FOR PHYSICAL DISABILITY PRIOR TO THE COMPLETION OF THE EIGHTEEN YEARS OF SERVICE, THE ELECTION MAY BE MADE AT THE TIME OF RETIREMENT. * * * A PERSON WHO IS A FORMER MEMBER ON THE EFFECTIVE DATE OF THIS CHAPTER AND WHO IS THEREAFTER AWARDED RETIRED PAY BY A UNIFORMED SERVICE MAY MAKE THE ELECTION AT THE TIME HE IS AWARDED THAT PAY. * * *"

WHILE THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 WERE SUPERSEDED EFFECTIVE AUGUST 10, 1956, BY THE PROVISIONS CONTAINED IN THE ACT OF AUGUST 10, 1956, 70A STAT. 109-111, WHEN THAT ACT WAS CODIFIED IN 10 U.S. CODE, CHAPTER 73, IT WAS THE INTENT OF CONGRESS TO RESTATE THE LAW WITHOUT SUBSTANTIVE CHANGE. SEE SECTION 49 (A) OF THE ACT OF AUGUST 10, 1956. SEE ALSO OUR DECISION OF JUNE 24,1958, B-135793, 37 COMP. GEN. 843. AS ORIGINALLY ENACTED (37 U.S.C. 372 (B) (, A RETIRED MEMBER WHO THERETOFORE HAD BEEN AWARDED RETIRED PAY WAS EXPRESSLY GIVEN A LIMITED PERIOD OF TIME (180 DAYS AFTER NOVEMBER 1, 1953) TO MAKE AN ELECTION. SINCE THAT TIME HAD EXPIRED BEFORE AUGUST 10, 1956, IT REASONABLY APPEARS THAT THE PROHIBITION IN SECTION 1431 (A) (1) WAS INTENDED TO PRECLUDE RETIRED MEMBERS IN THAT CATEGORY. HOWEVER, IT IS NOT BELIEVED THAT THE PROVISIONS IN SECTION 1431 (A) (1) WERE INTENDED TO HAVE APPLICATION IN CORRECTION ACTION CASES SUCH AS BARNARD-S. TO DENY THE RIGHT TO SUCH INDIVIDUALS TO MAKE AN ELECTION UNDER SECTION 1431 AFTER APRIL 30, 1954, WOULD SEEM TO BE DIRECTLY CONTRARY TO THE INTENT AND DESIGN OF THE STATUTORY PROVISIONS AUTHORIZING RETROACTIVE CHANGES OR CORRECTIONS OF STATUS. THE CORRECTION BOARD'S ACTION HAD THE EFFECT OF GIVING BARNARD THE STATUS OF AN ACTIVE MEMBER AWARDED RETIRED PAY BY REASON OF PHYSICAL DISABILITY (PRIOR TO THE COMPLETION OF 18 YEARS OF SERVICE), ON OCTOBER 24, 1956, WITHIN THE MEANING OF 37 U.S.C. 372 (A) (NOW SECTION 1431), QUOTED ABOVE, SO AS TO GIVE HIM A RIGHT TO MAKE AN ELECTION. HENCE, QUESTION A IS ANSWERED IN THE AFFIRMATIVE. COMPARE 34 COMP. GEN. 646, 648.

YOU POINT OUT THAT IN CODIFYING THE PROVISIONS OF 37 U.S.C. 373 (C) SEVERAL REVISIONS WERE MADE IN 10 U.S.C. 1436 WITH RESPECT TO THE EFFECTIVE DATE FOR PURPOSES OF COMPUTING COSTS OF THE ANNUITY. YOU REFER TO SECTION 402 (A) OF THE REGULATIONS FOR THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, AND YOU EXPRESS DOUBT AS TO WHETHER THOSE REGULATIONS MAY BE APPLIED IN A CASE WHERE THE ELECTION WAS UNDER CHAPTER 73 OF TITLE 10.

PERTINENT PROVISIONS OF 37 U.S.C. 373 (C) PROVIDE THAT:

"THE REDUCTION TO BE MADE IN THE RETIRED PAY OF AN ACTIVE OR RETIRED MEMBER WHO HAS MADE AN ELECTION UNDER SECTION 372 OF THIS TITLE SHALL BE COMPUTED BY THE UNIFORMED SERVICE CONCERNED IN EACH INDIVIDUAL CASE, AS OF THE DATE OF RETIREMENT IN THE CASE OF AN ACTIVE MEMBER AND AS OF THE DATE OF ELECTION IN THE CASE OF A RETIRED MEMBER, * * *. IN THE CASE OF AN ACTIVE OR RETIRED MEMBER THE COMPUTATION SHALL BE MADE AT THE TIME OF RETIREMENT, OR ELECTION, AS APPROPRIATE, AND THE ACTUARIAL EQUIVALENT METHOD AND ACTUARIAL TABLES SHALL BE THOSE IN EFFECT AT THAT TIME.'

AS EXPLAINED IN HOUSE REPORT NO. 970 (AT PAGE 118), COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES TO ACCOMPANY H.R. 7049, WHICH BECAME THE ACT OF AUGUST 10, 1956 (TITLE 10 AND TITLE 32), THE WORDS "AND AS OF THE DATE OF ELECTION IN THE CASE OF A RETIRED MEMBER" (37 U.S.C. 373 (C) WERE OMITTED AS EXECUTED. SINCE A RETIRED MEMBER'S RIGHT TO MAKE AN ELECTION HAD EXPIRED, IT IS QUITE OBVIOUS THAT THE PROVISIONS AUTHORIZING THAT RIGHT WERE NO LONGER EFFECTIVE AND, HENCE, AT THE TIME OF CODIFICATION, REFERENCE TO A RETIRED MEMBER WAS UNNECESSARY.

REGULATIONS FOR THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, CITED IN YOUR LETTER, ARE PUBLISHED IN THE CODE OF FEDERAL REGULATIONS AND PROVIDE IN PERTINENT PART, IN TITLE 32, SECTION 46.401, THAT THE COMPUTATION OF REDUCTION SHALL BE BASED UPON THE TABLES IN EFFECT ON THE DATE OF RETIREMENT IN THE CASE OF AN ACTIVE MEMBER AND THE DATE OF THE ELECTION IN THE CASE OF A RETIRED MEMBER. SECTION 46.402 OF THOSE REGULATIONS PROVIDE 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 ELECTION IS EFFECTIVE IN THE CASE OF A RETIRED MEMBER. WHILE BARNARD'S RETIREMENT ORDERS WERE DATED MARCH 29, 1957, THOSE ORDERS--- WHICH WERE ISSUED AS A RESULT OF THE CORRECTION ACTION--- EXPRESSLY AUTHORIZED RETIRED PAY RETROACTIVELY TO OCTOBER 24, 1956. CONSEQUENTLY, FOR THE PURPOSE OF COMPUTING THE COST OF THE ANNUITY (REDUCTION) UNDER 10 U.S.C. 1436, THE EFFECTIVE DATE IS OCTOBER 24, 1956, THE DATE HE BECAME "ELIGIBLE" FOR SUCH PAY. UNDER THE PROVISIONS OF 10 U.S.C. 1436, THE EFFECTIVE DATE OF DEDUCTION IN RETIRED PAY IN BARNARD'S CASE IS THE SAME AS THE EFFECTIVE DATE IN COMPUTING THE COST OF THE ANNUITY, NAMELY OCTOBER 24, 1956. QUESTION B IS ANSWERED ACCORDINGLY.

WITH RESPECT TO LIEUTENANT (JG) SIDNEY S. RUDY, USNR, RETIRED, YOU STATE THAT HE WAS RELEASED FROM ACTIVE DUTY IN THE U.S. NAVAL RESERVE ON MARCH 10, 1946, AND WAS TRANSFERRED TO THE RETIRED RESERVE ON APRIL 1, 1954; AND THAT THE SECRETARY OF THE NAVY ON JULY 12, 1957, APPROVED THE DECISION AND RECOMMENDATION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS THAT LIEUTENANT RUDY WAS INCAPACITATED FOR ACTIVE SERVICE ON MARCH 10, 1946, AND THAT HE WAS PLACED ON THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY ON MARCH 11, 1946. HE WAS NOTIFIED OF SUCH CORRECTION ACTION BY LETTER OF SEPTEMBER 3, 1957. HE COMPLETED 2 YEARS, 3 MONTHS, 4 DAYS OF SERVICE ON THAT DATE. YOU ALSO STATE THAT ON SEPTEMBER 17, 1957, THE OFFICER EXECUTED AN ELECTION OF OPTIONS 2 AND 4 AT ONE-HALF REDUCED PAY AND THAT SUCH ELECTION WAS CONSIDERED TO BE A TIMELY ELECTION. YOU POINT OUT THAT THE CIRCUMSTANCES IN LIEUTENANT RUDY'S CASE DIFFER FROM THOSE IN BARNARD'S CASE IN THAT LIEUTENANT RUDY'S RETIREMENT WAS EFFECTIVE RETROACTIVELY TO A DATE PRIOR TO NOVEMBER 1, 1953, THE EFFECTIVE DATE OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT. THE QUESTIONS ASKED ARE AS FOLLOWS:

"WAS LIEUTENANT RUDY ENTITLED TO MAKE AN ELECTION UNDER SECTION 1431 OF REFERENCE (A/? IF AFFIRMATIVE, WHAT IS THE EFFECTIVE DATE OF ENCLOSURE (4) FOR PURPOSES OF COMPUTING THE COST OF THE ANNUITY AND FROM WHAT DATE IS LIEUTENANT RUDY REQUIRED TO PAY THE COST OF THE ANNUITY?

WE HELD IN 38 COMP. GEN. 208, TO WHICH YOU REFER, THAT IF THE CORRECTED RECORD SHOWS THAT A MEMBER'S NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON APRIL 1, 1952, HIS RIGHTS WOULD BE DETERMINED ON THE SAME BASIS AS THEY WOULD BE DETERMINED IF HIS NAME IN FACT HAD BEEN SO PLACED ON THAT DATE EXCEPT WITH RESPECT TO THE MAKING OF THE SURVIVOR'S ANNUITY ELECTION UNDER THE 1953 ACT. IN THAT SITUATION IN ORDER TO GIVE FULL EFFECT TO THE CORRECTION OF THE RECORDS, WE RECOGNIZED THAT A SURVIVOR'S ANNUITY ELECTION MAY BE MADE CONTEMPORANEOUSLY WITH THE CORRECTION OF THE RECORDS SO THAT THE MEMBER WOULD BE PLACED, AS NEARLY AS POSSIBLE, IN THE SAME POSITION HE WOULD HAVE BEEN IN HAD HE BEEN AWARDED RETIRED PAY AS OF THE EFFECTIVE DATE OF RETIRED PAY AS SHOWN BY THE CORRECTED RECORD.

AS A RESULT OF THE CORRECTION ACTION, LIEUTENANT RUDY WAS RETROACTIVELY PLACED ON THE RETIRED LIST AND AWARDED RETIRED PAY IN 1946. UNDER THE RECORD AS CORRECTED, THE OFFICER MUST BE REGARDED AS HAVING BEEN A RETIRED MEMBER ON THE EFFECTIVE DATE OF THE 1953 ACT, NOVEMBER 1, 1953. SINCE HE MADE A TIMELY ELECTION, HIS RIGHTS TO THE BENEFITS OF A VALID ELECTION MAY NOT BE CONSIDERED AS BEING BARRED. THE FIRST PART OF THE QUESTION IS ANSWERED BY SAYING THAT LIEUTENANT RUDY'S ELECTION IS VIEWED AS HAVING BEEN MADE UNDER 37 U.S.C. 372 (B) RATHER THAN 10 U.S.C. 1431. CONCERNING THE SECOND PART OF YOUR QUESTION, SINCE LIEUTENANT RUDY IS REGARDED AS HAVING BEEN A RETIRED MEMBER ON NOVEMBER 1, 1953, THE EFFECTIVE DATE OF THE DEDUCTION REQUIRED TO BE MADE IN HIS RETIRED PAY IS NOVEMBER 1, 1953, AND THE SAME DATE SHOULD BE USED FOR THE PURPOSE OF COMPUTING THE COST OF THE ANNUITY. COMPARE THE ANSWER TO QUESTION 11 (A), 38 COMP. GEN. 146, 154.

WITH RESPECT TO JOHN W. BURGESS, EX-CMMA, USNR, YOU STATE THAT HE WAS HONORABLY DISCHARGED FROM THE U.S. NAVAL RESERVE ON AUGUST 29, 1938. THE RECORDS SHOW THAT BY LETTER DATED MARCH 30, 1959, HE WAS NOTIFIED THAT THE SECRETARY OF THE NAVY HAD APPROVED HIS APPLICATION FOR RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 1331-1337, EFFECTIVE DECEMBER 1, 1954. APRIL 14, 1959, HE EXECUTED AN ELECTION OF OPTIONS 1 AND 4 AT ONE-EIGHTH REDUCED RETIRED PAY, AND THAT SUCH ELECTION WAS RECEIVED IN THE NAVY FINANCE CENTER ON APRIL 15, 1959. YOU ASK "WHAT IS THE EFFECTIVE DATE OF BURGESS'S ELECTION FOR PURPOSES OF COMPUTING THE COST OF THE ANNUITY AND FROM WHAT DATE IS HE REQUIRED TO PAY THE COST.' YOU EXPRESS DOUBT AS TO WHETHER THE PROVISIONS OF 10 U.S. CODE, CHAPTER 73, OR 37 U.S.C. 371-381, APPLY IN THIS CASE.

YOU REFER TO THREE OF OUR DECISIONS, NAMELY 35 COMP. GEN. 26, 38 ID. 146, AND 38 ID. 647, WHICH MIGHT HAVE SOME BEARING ON THE CASE. IN 35 COMP. GEN. 26, THE PRIMARY QUESTION INVOLVED WAS WHETHER THE OFFICER HAD MADE A TIMELY ELECTION UNDER THE CONTINGENCY OPTION ACT OF 1953. THAT CASE INVOLVED AN OFFICER WHO WAS PLACED ON THE RETIRED LIST ON NOVEMBER 1, 1954, EFFECTIVE RETROACTIVELY TO SEPTEMBER 1, 1952, UNDER TITLE III OF THE 1948 ACT. WE HELD THAT HIS ELECTION RECEIVED SEPTEMBER 21, 1954, WAS TIMELY MADE, HE BEING AN "ACTIVE" MEMBER AT THAT TIME, AND THAT FOR THE PURPOSES OF 37 U.S.C. 373 (C), DEDUCTION SHOULD BE MADE FROM HIS RETIRED PAY TO COVER THE COST OF THE ANNUITY FROM NOVEMBER 1, 1954, STATED TO BE THE DATE OF RETIREMENT IN HIS CASE. IN ANSWER TO QUESTION 11 (A) IN 38 COMP. GEN. 146, 154--- WHICH DECISION INVOLVED SEAGRAVE TYPE CASES GENERALLY, BEING RENDERED AFTER WE DECIDED TO FOLLOW THE SEAGRAVE CASE, 131 C.CLS. 790--- WE SAID THAT FOR THE PURPOSE OF DETERMINING THE EFFECTIVE DATE OF DEDUCTION OF RETIRED PAY, THE RETROACTIVE RETIREMENT DATE SPECIFIED IN THE AMENDED ORDER OR NOVEMBER 1, 1953, THE EFFECTIVE DATE OF THE CONTINGENCY OPTION ACT, WHICHEVER IS LATER MUST BE USED, AND THE DEDUCTION FOR ANNUITY NECESSARILY WOULD BE ON THE BASIS OF A LOWER AGE THAN THAT USED ORIGINALLY IN COMPUTING SUCH DEDUCTION. APPARENTLY SEAGRAVE WAS A FORMER MEMBER WHEN HE WAS AWARDED RETIRED PAY. THE HOLDING IN 35 COMP. GEN. 26, INSOFAR AS IT CONFLICTS WITH THE ANSWER TO QUESTION 11 (A), 38 COMP. GEN. 146, WILL NO LONGER BE FOLLOWED. IN 38 COMP. GEN. 647 (THIRD PARAGRAPH), WE POINTED OUT THAT IT WAS PERTINENT TO ASCERTAIN AN EFFECTIVE DATE FOR TITLE III RETIREMENT CASES IN ORDER TO DETERMINE THE EFFECTIVE DATE FOR DEDUCTIONS TO BE MADE IN THE RETIRED PAY OF A MEMBER UNDER THE 1953 ACT.

UNDER THE PROVISIONS OF BOTH 3Y U.S.C. 372 (A) AND 10 U.S.C. 1432, A PERSON WHO WAS A "FORMER MEMBER" ON NOVEMBER 1, 1953, AND WHO WAS GRANTED RETIRED PAY AFTER THAT DATE MAY MAKE AN ELECTION AT THE TIME HE IS GRANTED OR AWARDED THAT PAY. THE FACT THAT BURGESS WAS RETROACTIVELY RETIRED EFFECTIVE DECEMBER 1, 1954, INDICATES THAT HE MET ALL THE REQUIREMENTS OF TITLE III OF THE 1948 ACT ON THAT DATE. HE WAS A FORMER MEMBER AT THAT TIME. WHILE THIS CASE DOES NOT INVOLVE A CORRECTION OF RECORDS--- WHICH GENERALLY FIXES A MEMBER'S RIGHTS RETROACTIVELY AND THE LAWS IN EFFECT AT THAT TIME ARE APPLIED--- A DETERMINATION OF ELIGIBILITY FOR RETIRED PAY HAS BEEN MADE RETROACTIVE TO DECEMBER 1, 1954. IN THE CIRCUMSTANCES, SINCE THE MEMBER'S RIGHTS BECAME FIXED EFFECTIVE DECEMBER 1, 1954, IT IS OUR VIEW THAT THE LAWS (37 U.S.C. 371-381) AND THE REGULATIONS THEN IN EFFECT SHOULD GOVERN HIS RIGHT TO ELECTION OF AN ANNUITY. HENCE, IN LINE WITH OUR HOLDING IN THE ANSWER TO QUESTION 11 (A), 38 COMP. GEN. 146, 154, THE EFFECTIVE DATE FOR THE PURPOSE OF COMPUTING THE COST OF THE ANNUITY AND THE DEDUCTION IN HIS RETIRED PAY IS DECEMBER 1, 1954, THE DATE HE WAS RETROACTIVELY RETIRED.