B-148109, MARCH 30, 1962, 41 COMP. GEN. 628

B-148109: Mar 30, 1962

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EXECUTES ANOTHER ELECTION WITH THE SAME OPTIONS AS IN THE ORIGINAL ELECTION SHORTLY BEFORE VOLUNTARY RETIREMENT UNDER 10 U.S.C. 6323 AND AFTER 10 U.S.C. 1431 WAS AMENDED BY THE ACT OF OCTOBER 4. MAY NOT HAVE THE SECOND ELECTION REGARDED AS A VALID ELECTION BECAUSE IT WAS NOT MADE 3 YEARS BEFORE RETIREMENT UNDER 10 U.S.C. 6323. WHICH WAS A REASSERTION OF THE ORIGINAL ELECTION RATHER THAN A CHANGE. A REVOCATION OF A SURVIVOR ANNUITY ELECTION MADE BY A NAVY MEMBER MORE THAN 5 YEARS BEFORE HE WOULD HAVE COMPLETED THE REQUIRED 26 YEARS OF SERVICE FOR INVOLUNTARY RETIREMENT UNDER 10 U.S.C. 6379 CONSTITUTED A VALID REVOCATION UNDER 10 U.S.C. 1431 WHICH. A REQUEST FOR CANCELLATION OF THE REVOCATION AND REINSTATEMENT OF THE ORIGINAL ELECTION MADE AFTER THE MEMBER WAS COVERED BY THE ACT OF AUGUST 11.

B-148109, MARCH 30, 1962, 41 COMP. GEN. 628

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - TIME FOR ELECTION - VOLUNTARY RETIREMENT REVOCATION - REINSTATEMENT A NAVY MEMBER WHO, AFTER ACCOMPLISHING A VALID REVOCATION OF A SURVIVORSHIP ANNUITY ELECTION PURSUANT TO 10 U.S.C. 1431 FIVE YEARS PRIOR TO INVOLUNTARY RETIREMENT UNDER 10 U.S.C. 6379, EXECUTES ANOTHER ELECTION WITH THE SAME OPTIONS AS IN THE ORIGINAL ELECTION SHORTLY BEFORE VOLUNTARY RETIREMENT UNDER 10 U.S.C. 6323 AND AFTER 10 U.S.C. 1431 WAS AMENDED BY THE ACT OF OCTOBER 4, 1961, TO PERMIT CHANGES OR REVOCATIONS TO BECOME EFFECTIVE IF MADE AT LEAST 3 YEARS PRIOR TO ENTITLEMENT TO RETIRED PAY AND TO REMOVE THE RESTRICTION AGAINST FURTHER COVERAGE AFTER REVOCATION, MAY NOT HAVE THE SECOND ELECTION REGARDED AS A VALID ELECTION BECAUSE IT WAS NOT MADE 3 YEARS BEFORE RETIREMENT UNDER 10 U.S.C. 6323, NOR MAY THE SECOND ELECTION, WHICH WAS A REASSERTION OF THE ORIGINAL ELECTION RATHER THAN A CHANGE, BE REGARDED AS A CHANGE UNDER THE EXCEPTION IN THE ACT OF AUGUST 11, 1959, APPLICABLE TO OFFICERS VOLUNTARILY RETIRED AFTER BEING SCHEDULED FOR INVOLUNTARY RETIREMENT. A REVOCATION OF A SURVIVOR ANNUITY ELECTION MADE BY A NAVY MEMBER MORE THAN 5 YEARS BEFORE HE WOULD HAVE COMPLETED THE REQUIRED 26 YEARS OF SERVICE FOR INVOLUNTARY RETIREMENT UNDER 10 U.S.C. 6379 CONSTITUTED A VALID REVOCATION UNDER 10 U.S.C. 1431 WHICH, AT THE TIME, REQUIRED THAT REVOCATIONS BECOME EFFECTIVE IF 5 YEARS ELAPSED BEFORE RETIREMENT AND DENIED FURTHER SURVIVORSHIP ANNUITY COVERAGE AFTER A VALID REVOCATION, AND A REQUEST FOR CANCELLATION OF THE REVOCATION AND REINSTATEMENT OF THE ORIGINAL ELECTION MADE AFTER THE MEMBER WAS COVERED BY THE ACT OF AUGUST 11, 1959, PERMITTING VOLUNTARY RETIREMENT OF MEMBERS SCHEDULED FOR INVOLUNTARY RETIREMENT WAS WITHOUT LEGAL EFFECT.

TO LIEUTENANT COMMANDER E. L. TRAUX, DEPARTMENT OF THE NAVY, MARCH 30, 1962:

BY SECOND ENDORSEMENT DATED JANUARY 31, 1962, THE COMPTROLLER OF THE NAVY FORWARDED, UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-N-627, YOUR LETTER OF JANUARY 3, 1962, REQUESTING ADVANCE DECISION AS TO CERTAIN QUESTIONS INVOLVING THE RETIRED PAY ACCOUNT OF COMMANDER RAYMOND L. ETTINGER, 106563, USN, RETIRED.

YOU SAY THAT PRIOR TO COMPLETION OF 18 YEARS OF SERVICE FOR BASIC PAY PURPOSES, COMMANDER ETTINGER, ON MAY 27, 1958, EXECUTED AN ELECTION UNDER SECTION 3 (A) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, AS CODIFIED IN 10 U.S.C. 1431, CHOOSING OPTIONS 1 AND 4 AT ONE HALF OF REDUCED RETIRED PAY. ON SEPTEMBER 29, 1960, HE REVOKED HIS ELECTION. LETTER DATED SEPTEMBER 28, 1961, HE REQUESTED THAT HIS REVOCATION BE CANCELED AND THAT HIS MAY 27, 1958 ELECTION REMAIN IN EFFECT. ACCORDANCE WITH INSTRUCTIONS OF THE UNITED STATES NAVY FAMILY ALLOWANCE ACTIVITY, COMMANDER ETTINGER SUBMITTED AN ELECTION DATED OCTOBER 30, 1961, IN WHICH HE AGAIN CHOSE OPTIONS 1 AND 4 AT ONE HALF REDUCED RETIRED PAY. EFFECTIVE NOVEMBER 1, 1961, COMMANDER ETTINGER, PURSUANT TO HIS REQUEST, WAS TRANSFERRED TO THE RETIRED LIST WITH THE GRADE OF COMMANDER IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 6323.

UNDER THE CIRCUMSTANCES RELATED ABOVE, AS EFFECTED BY THE LAWS APPLICABLE TO THE CASE, YOU REQUEST DECISION AS TO WHETHER THE ELECTION DATED OCTOBER 30, 1961, IS EFFECTIVE AS A "CHANGE" OF AN ELECTION UNDER THE PROVISIONS OF PUBLIC LAW 87-381, APPROVED OCTOBER 4, 1961, 75 STAT. 810. YOU ALSO REQUEST DECISION AS TO THE EFFECT OF COMMANDER ETTINGER'S LETTER DATED SEPTEMBER 28, 1961, HAD HE NOT EXECUTED AN ELECTION FORM ON OCTOBER 30, 1961.

UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, AN ACTIVE MEMBER OF THE UNIFORMED SERVICES WAS PERMITTED TO ELECT, PRIOR TO THE COMPLETION OF 18 YEARS OF SERVICE, TO RECEIVE A REDUCED AMOUNT OF ANY RETIRED PAY WHICH HE MIGHT BE AWARDED IN ORDER TO PROVIDE CERTAIN ANNUITIES AFTER HIS DEATH IN A RETIRED STATUS TO HIS SURVIVING WIDOW, CHILD OR CHILDREN. THE MEMBER COULD MODIFY OR REVOKE ANY ELECTION AT ANY TIME PRIOR TO HIS RETIREMENT EXCEPT THAT ANY SUCH MODIFICATION OR REVOCATION WAS NOT EFFECTIVE IF HE RETIRED WITHIN 5 YEARS AFTER THE DATE IT WAS MADE. THE LAW FURTHER PROVIDED THAT ANY MEMBER WHO REVOKED AN ELECTION WOULD NOT THEREAFTER BE PERMITTED TO WITHDRAW OR MODIFY HIS REVOCATION, AND, AFTER IT BECAME EFFECTIVE, HE WOULD NOT BE PERMITTED TO BE COVERED IN ANY WAY BY THAT ACT. THE ELECTION PROVISIONS OF THE 1953 ACT WERE CODIFIED AS 10 U.S.C. 1431 BY THE ACT OF AUGUST 10, 1956, 70A STAT. 108.

FROM YOUR SUBMISSION AND HIS RETIREMENT ORDERS, IT APPEARS THAT COMMANDER ETTINGER RETIRED VOLUNTARILY AFTER HAVING BEEN SCHEDULED FOR INVOLUNTARY RETIREMENT UNDER THE PROVISIONS OF PUBLIC LAW 86-155, ACT OF AUGUST 11, 1959, 73 STAT. 333. SECTION 3 OF THAT ACT AS AMENDED BY SECTION 12 OF THE ACT OF JULY 12, 1960, PUBLIC LAW 86-616, 74 STAT. 396, 10 U.S.C. 5701 NOTE ( SUPP. II), PROVIDES:

SEC. 3. NOTWITHSTANDING SECTION 1431 OF TITLE 10, UNITED STATES CODE, A CHANGE OR REVOCATION OF AN ELECTION MADE UNDER THAT SECTION BY- -

(1) AN OFFICER WHO IS RETIRED UNDER THIS ACT; OR

(2) AN OFFICER WHO HAS BEEN CONSIDERED BUT NOT RECOMMENDED FOR CONTINUATION ON THE ACTIVE LIST UNDER SECTION 1 OF THIS ACT AND WHO HEREAFTER RETIRES VOLUNTARILY BEFORE THE DATE SPECIFIED FOR HIS RETIREMENT UNDER THIS ACT; IS EFFECTIVE IF MADE AT 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.

10 U.S.C. 6379, APPLICABLE TO COMMANDER ETTINGER, PROVIDES, IN PART AS FOLLOWS:

(A) EACH OFFICER ON THE ACTIVE LIST OF THE NAVY OR THE MARINE CORPS SERVING IN THE GRADE OF COMMANDER OR LIEUTENANT COLONEL * * * SHALL, SUBJECT TO THE PROVISIONS OF SECTION 5777 OF THIS TITLE, BE RETIRED ON JUNE 30, OF THE FISCAL YEAR IN WHICH---

(1) HE IS NOT ON A PROMOTION LIST;

(2) HE IS CONSIDERED AS HAVING TWICE FAILED OF SELECTION FOR PROMOTION TO THE GRADE OF CAPTAIN IN THE NAVY OR COLONEL IN THE MARINE CORPS; AND

(3) HE HAS COMPLETED AT LEAST 26 YEARS OF TOTAL COMMISSIONED SERVICE AS COMPUTED UNDER SECTION 6387 OR 6388 OF THIS TITLE. * * *

THE ACT OF OCTOBER 4, 1961, PUBLIC LAW 87-381, 75 STAT. 810, MADE SEVERAL CHANGES IN THE FAMILY PROTECTION PLAN ESTABLISHED BY THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, ONE OF WHICH PERMITS AN ANNUITY ELECTION AFTER THE MEMBER HAS COMPLETED 18 YEARS OF SERVICE IF THE ELECTION IS MADE AT LEAST 3 YEARS BEFORE THE FIRST DAY FOR WHICH RETIRED PAY IS GRANTED. IN ADDITION TO GRANTING THE RIGHT OF ELECTION TO A NEW GROUP OF MEN WHO WERE NOT ELIGIBLE TO MAKE ELECTIONS UNDER THE 1953 ACT, BY PERMITTING NEW ELECTIONS TO BE MADE AT LEAST 3 YEARS BEFORE THE FIRST DAY FOR WHICH RETIRED PAY IS GRANTED. THE TIME FOR CHANGES OR REVOCATIONS TO BECOME EFFECTIVE WAS REDUCED FROM 5 YEARS TO 3 YEARS AND THE PROVISION BARRING A CHANGE OR WITHDRAWAL OF A REVOCATION WAS DELETED FROM THE LAW.

BEING COVERED BY THE PROVISIONS OF PUBLIC LAW 86-155, AS AMENDED, COMMANDER ETTINGER'S REVOCATION DATED SEPTEMBER 29, 1960, WAS VALID BECAUSE IT WOULD HAVE BEEN EFFECTIVE UNDER THE PROVISIONS OF 10 U.S.C. 1431 THEN IN EFFECT, HAD HE BEEN RETIRED UNDER 10 U.S.C. 6379, IT APPEARING THAT 5 YEARS WOULD HAVE ELAPSED BEFORE HE COMPLETED 26 YEARS OF SERVICE--- AS PROVIDED IN THE LATTER SECTION--- ON JULY 1, 1968. HIS REVOCATION HAVING BEEN VALID AND EFFECTIVE, HE WAS DENIED FURTHER COVERAGE UNDER THE CONTINGENCY OPTION ACT AND HIS LETTER OF SEPTEMBER 28, 1961, WAS WITHOUT LEGAL EFFECT. AFTER THE APPROVAL OF PUBLIC LAW 87-381 ON OCTOBER 4, 1961, COMMANDER ETTINGER AGAIN HAD THE RIGHT TO EXERCISE AN OPTION UNDER THE PLAN PROVIDED THE REQUIREMENTS OF THE LAW WERE MET. HIS ELECTION, DATED OCTOBER 30, 1961, WAS NOT MADE AT LEAST 3 YEARS BEFORE HE BECAME ENTITLED TO RETIRED PAY AND IS THEREFORE NOT A VALID ELECTION UNDER 10 U.S.C. 1431, AS AMENDED BY THE 1961 ACT. SUCH ELECTION DID NOT INVOLVE A CHANGE UNDER THE EXCEPTION CONTAINED IN ACT OF AUGUST 11, 1959, AS AMENDED, SINCE IT MADE NO CHANGE IN A VALID SUBSISTING ELECTION AND WAS, IN FACT, A REASSERTION OF HIS ORIGINAL ELECTION.