B-148423, MAY 4, 1962, 41 COMP. GEN. 743

B-148423, MAY 4, 1962, 41 COMP. GEN. 743

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - CORRECTION OF ERRONEOUS ELECTIONS - VOLUNTARY RETIREMENT SAVINGS RIGHTS--- REVOCATION - NEW ELECTION PROPRIETY - VOLUNTARY RETIREMENT SAVINGS RIGHTS - INELIGIBILITY OF MEMBER NAVY OFFICERS WHO ELECTED NOT TO BE COVERED BY A SERVICEMAN'S FAMILY PROTECTION PLAN PROVIDED UNDER 10 U.S.C. 1431 (FORMERLY REFERRED TO AS A SURVIVOR ANNUITY PLAN UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953), AND WHO, WHEN RETIRED AT AN EARLIER THAN NORMAL DATE PURSUANT TO THE ACT OF AUGUST 11, 1959, WHICH SAVED TO SUCH OFFICERS RIGHTS INCIDENT TO ANNUITY ELECTION CHANGES OR REVOCATIONS, DESIRE TO BE COVERED BY 10 U.S.C. 1431 MAY NOT HAVE THE ORIGINAL ELECTION NOT TO PARTICIPATE CONSIDERED AN ELECTION OF A PLAN TO INVOKE THE SAVINGS PROVISIONS IN THE 1959 ACT WHICH MERELY SAVED ELECTION RIGHTS WITH RESPECT TO CORRECTIONS AND REVOCATIONS RATHER THAN CREATED NEW RIGHTS. A NAVY OFFICER WHO, AFTER REVOCATION OF AN INITIAL SURVIVOR ANNUITY ELECTION UNDER 10 U.S.C. 1431, MAKES A SECOND ELECTION 2 DAYS BEFORE HIS RETIREMENT UNDER THE ACT OF AUGUST 11, 1959, 10 U.S.C. 5701 NOTE, BUT AFTER THE ENACTMENT OF THE ACT OF OCTOBER 4, 1961, WHICH REMOVED THE RESTRICTION AGAINST NEW ELECTIONS BY MEMBERS WHO HAD REVOKED PRIOR ELECTIONS PROVIDED THAT SUCH NEW ELECTIONS ARE MADE AT LEAST 3 YEARS BEFORE ENTITLEMENT TO RETIRED PAY, HAS NOT MADE A VALID ELECTION MEETING THE 3-YEAR REQUIREMENT IN THE 1961 ACT, NOR MAY SUCH SECOND ELECTION BE REGARDED AS A CHANGE OR A MODIFICATION OF A SUBSISTING ELECTION TO COME UNDER THE SURVIVOR ANNUITY ELECTION SAVINGS PROVISIONS IN SECTION 3 OF THE ACT OF AUGUST 11, 1959, AND, THEREFORE, THE MEMBER IS NOT COVERED BY A SURVIVOR ANNUITY PLAN PROVIDED IN 10 U.S.C. 1431. A NAVY MEMBER WHO, PRIOR TO HIS EARLY RETIREMENT UNDER THE ACT OF AUGUST 11, 1959, 10 U.S.C. 5701 NOTE, BUT SUBSEQUENT TO THE ENACTMENT OF THE ACT OF OCTOBER 4, 1961, WHICH AMENDED 10 U.S.C. 1431 TO PERMIT NEW SURVIVOR ANNUITY ELECTIONS BY MEMBERS WHO HAD REVOKED PREVIOUS ELECTIONS, PROVIDED THAT THE NEW ELECTIONS ARE MADE AT LEAST 3 YEARS PRIOR TO DATE OF ENTITLEMENT TO RETIRED PAY, EXECUTED A REVOCATION OF AN ELECTION AND THEN, ONLY 2 DAYS BEFORE RETIREMENT, MADE A NEW ELECTION HAS MADE A TIMELY REVOCATION BY OPERATION OF THE SAVINGS PROVISIONS OF SECTION 3 OF THE 1959 ACT, EVEN THOUGH THE REVOCATION WAS MADE LESS THAN 3 YEARS PRIOR TO RETIREMENT, AND THE SECOND ELECTION NOT BEING MADE WITHIN THE 3-YEAR PERIOD PRESCRIBED IN THE 1961 ACT IS NOT VALID, AND, THEREFORE, THE MEMBER IS NOT COVERED BY THE RETIRED SERVICEMEN'S FAMILY PROTECTION PLAN PROVISIONS OF 10 U.S.C. 1431. ORIGINAL SURVIVOR ANNUITY ELECTIONS MADE WITHIN ONE MONTH OF AN EARLIER THAN NORMAL RETIREMENT UNDER THE ACT OF AUGUST 11, 1959, 10 U.S.C. 5701 NOTE, BY NAVY OFFICERS WHO WERE ELIGIBLE BY REASON OF COMPLETION OF 18 YEARS' SERVICE TO MAKE ELECTIONS UNDER THE ACT OF OCTOBER 4, 1961, 10 U.S.C. 1431, WHICH ALSO REQUIRED THAT THE ELECTIONS BE MADE WITHIN 3 YEARS OF THE DATE OF ENTITLEMENT TO RETIRED PAY, ARE NOT VALID ELECTIONS MEETING THE 3-YEAR REQUIREMENT UNDER THE 1961 ACT AND A CHANGE OF SUCH INVALID ELECTION BY A NAVY MEMBER WOULD HAVE NO EFFECT TO BRING THE ELECTION UNDER THE SAVINGS PROVISIONS IN SECTION 3 OF THE ACT OF AUGUST 11, 1959, 10 U.S.C. 5701 NOTE. A NAVY OFFICER WHO AFTER MAKING A SURVIVOR ANNUITY ELECTION UNDER 10 U.S.C. 1431 AT A TIME WHEN HE WAS NOT ELIGIBLE BY REASON OF SERVICE DISQUALIFICATION TO MAKE AN ELECTION EXECUTES AN IDENTICAL ELECTION ONE MONTH PRIOR TO RETIREMENT AND AFTER OCTOBER 4, 1961, THE DATE WHEN 10 U.S.C. 1431 WAS AMENDED TO GRANT FOR THE FIRST TIME FAMILY PROTECTION COVERAGE TO MEMBERS WHO HAD COMPLETED 18 YEARS OF SERVICE, IF THE ELECTION IS MADE AT LEAST 3 YEARS BEFORE ENTITLEMENT TO RETIRED PAY, AND FURTHER AMENDED TO PERMIT MEMBERS TO MAKE CORRECTIONS IN ELECTIONS, MUST HAVE THE SECOND ELECTION REGARDED AS A NEW ELECTION RATHER THAN AS A CORRECTED ELECTION UNDER 10 U.S.C. 1431 (D), WHICH PROVIDES FOR CORRECTION NOT VALIDATION OF ELECTIONS, AND, THEREFORE, SINCE THE IDENTICAL ELECTION WAS NOT MADE AT LEAST 3 YEARS BEFORE THE MEMBER WAS GRANTED RETIRED PAY, THE OFFICER IS NOT COVERED BY A FAMILY PROTECTION PLAN.

TO THE SECRETARY OF THE NAVY, MAY 4, 1962:

BY LETTER DATED MARCH 12, 1962, THE UNDER SECRETARY OF THE NAVY REQUESTED OUR DECISION ON CERTAIN QUESTIONS ARISING AS A RESULT OF THE ACT OF OCTOBER 4, 1961, PUBLIC LAW 87-381, 75 STAT. 810, AMENDING CHAPTER 73 OF TITLE 10 OF THE U.S.C. PARTICULARLY WITH REFERENCE TO THE RELATIONSHIP OF THE AMENDMENTS OF SECTION 1431 TO SECTION 3 OF THE SO-CALLED HUMP ACT OF AUGUST 11, 1959, 73 STAT. 336, AS AMENDED BY SECTION 12 OF THE ACT OF OCTOBER 12, 1960, 74 STAT. 396, 10 U.S.C. 5701 NOTE. THE REQUEST HAS BEEN ASSIGNED SUBMISSION SS-N-632 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

PRIOR TO THE OCTOBER 1961 AMENDMENTS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 (NOW " RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN"), AN ACTIVE MEMBER OF THE UNIFORMED SERVICES COULD ELECT, BEFORE HE HAD COMPLETED 18 YEARS OF SERVICE, TO RECEIVE A REDUCED AMOUNT OF RETIRED OR RETAINER 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 AN ELECTION MADE UNDER THE STATUTE 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 SUCH AN ELECTION WOULD NOT THEREAFTER BE PERMITTED TO WITHDRAW OR MODIFY HIS REVOCATION AND WHEN IT BECAME EFFECTIVE--- AFTER THE EXPIRATION OF 5 YEARS--- 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.

THE ACT OF AUGUST 11, 1959, 73 STAT. 333, POPULARLY KNOWN AS THE HUMP ACT, ENACTED TO PROVIDE IMPROVED OPPORTUNITY FOR PROMOTION FOR CERTAIN OFFICERS IN THE NAVAL SERVICE, IN CERTAIN INSTANCES COMPELLED THE RETIREMENT OF NAVAL OFFICERS FROM THE SERVICE PRIOR TO THE TIME THEY WOULD OTHERWISE HAVE HAD TO RETIRE UNDER OTHER PROVISIONS OF LAW. SECTION 3 OF THAT ACT MADE CHANGES AND REVOCATIONS OF ELECTIONS OF THE OFFICERS RETIRED BECAUSE OF THAT ACT EFFECTIVE UNDER CERTAIN CONDITIONS NOTWITHSTANDING THE PROVISIONS OF 10 U.S.C. 1431. SECTION 12 OF THE ACT OF JULY 12, 1960, PUBLIC LAW 86-616, 74 STAT. 396, AMENDED SECTION 3 OF THE HUMP ACT TO READ AS FOLLOWS:

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 A 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.

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. TO PROVIDE GREATER PARTICIPATION IN THE PROGRAM, THE ACT AMENDS 10 U.S.C. 1431 TO PERMIT ANNUITY ELECTIONS AFTER THE MEMBERS HAVE COMPLETED 18 YEARS OF SERVICE IF THE ELECTION IS MADE AT LEAST 3 YEARS BEFORE THE FIRST DAY FOR WHICH THE RETIRED OR RETAINER PAY IS GRANTED. IN ADDITION TO GRANTING THE RIGHT OF ANNUITY ELECTION TO A NEW GROUP OF MEN WHO WERE NOT ELIGIBLE TO MAKE ELECTIONS UNDER THE 1953 ACT, THIS EXTENSION OF RIGHT REMOVED THE RESTRICTION AGAINST FURTHER COVERAGE UNDER THE ACT OF THOSE MEMBERS WHO REVOKED AN ELECTION UNDER THE 1953 ACT BY PERMITTING NEW ELECTIONS TO BE EFFECTIVE IF MADE AT LEAST 3 YEARS BEFORE THE FIRST DAY FOR WHICH RETIRED PAY IS GRANTED. THUS, THE 1961 AMENDMENT GRANTED COVERAGE TO ACTIVE MEMBERS WHERE NO RIGHTS PREVIOUSLY EXISTED FOR THEM. IN ADDITION, THE 1961 ACT REDUCED THE TIME FOR CHANGES OR REVOCATIONS TO BECOME EFFECTIVE FROM 5 YEARS TO 3 YEARS BEFORE RETIREMENT.

WE AGREE WITH THE STATEMENT IN THE LETTER OF MARCH 12, 1962, THAT:

THE OBVIOUS INTENT OF CONGRESS IN ENACTING SECTION 3 OF THE HUMP ACT, AS AMENDED, WAS TO PROTECT THE RIGHTS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 OF THE OFFICER WHO WAS COMPELLED TO RETIRE AT AN EARLIER DATE THAN WOULD HAVE BEEN NORMAL IN THE ABSENCE OF THE HUMP ACT.

HOWEVER, THE PROVISIONS OF SECTION 3, AS AMENDED, SAVE TO THE OFFICERS CONCERNED ONLY THOSE RIGHTS WHICH EXISTED AND WOULD HAVE OTHERWISE BEEN CONSUMMATED EXCEPT FOR THE OPERATION OF THE HUMP ACT, SINCE THOSE PROVISIONS APPLY ONLY TO A CHANGE OR MODIFICATION OF A VALID ELECTION MADE UNDER THE FAMILY PROTECTION PLAN IN THE CASE OF AN OFFICER WHO WOULD NOT HAVE BEEN RETIRED EARLY EXCEPT FOR THE OPERATION OF THE HUMP ACT; IT DOES NOT APPLY TO A NEW ELECTION MADE BY SUCH AN OFFICER, NOR TO AN ELECTION MADE AFTER THE REVOCATION OF A PREVIOUS ELECTION, WHICH, OF COURSE, IS A NEW ELECTION.

ON AUGUST 11, 1959, THE EFFECTIVE DATE OF SECTION 3 OF THE HUMP ACT, ONLY ACTIVE MEMBERS OF THE UNIFORMED SERVICES WITH LESS THAN 18 YEARS' SERVICE COULD ELECT TO PROVIDE ANNUITIES UNDER THE FAMILY PROTECTION PLAN CONTAINED IN THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953. THEY COULD MODIFY OR REVOKE THEIR ELECTIONS ONLY IF SUCH ACTION WAS TAKEN 5 YEARS BEFORE RETIREMENT; ONCE A REVOCATION BECAME EFFECTIVE, NO FURTHER COVERAGE UNDER THE ACT WAS PERMITTED. THERE APPARENTLY WAS NO INTENT BY THE CONGRESS TO ENLARGE THE RIGHTS OF THOSE OFFICERS AFFECTED BY THE HUMP ACT, BUT ONLY AN INTENTION TO SAVE RIGHTS WHICH OTHERWISE WOULD HAVE BEEN DESTROYED BY THE OPERATION OF THAT ACT.

THE LETTER OF MARCH 12, 1962, STATES THAT THE REGULATIONS PROVIDE THAT IT IS DESIRABLE THAT ALL MEMBERS MAKE A POSITIVE STATEMENT OF DESIRE TO BE COVERED OR NOT TO BE COVERED BY THE 1953 ACT AND THAT IT HAS BEEN THE POLICY OF THE NAVY TO REQUIRE SUCH A STATEMENT. IT IS THEREFORE SUGGESTED THAT THE DECISION OF THE MEMBERS UNDER THE REGULATIONS AND POLICY AMOUNTS TO THE TYPE OF ELECTION SPECIFIED BY THE CONGRESS IN SECTION 3 OF THE HUMP ACT, AS AMENDED, SO THAT ANY SUBSEQUENT ELECTION BY SUCH A MEMBER WOULD BE "A CHANGE * * * OF AN ELECTION" IN THE SENSE THAT THE PHRASE IS USED IN SECTION 3 OF THE HUMP ACT, AS AMENDED.

AS INDICATED ABOVE, WITH RESPECT TO THOSE OFFICERS WHO WERE ELIGIBLE FOR COVERAGE UNDER THE 1953 ACT, SECTION 3 OF THE HUMP ACT, AS AMENDED, ONLY AUTHORIZES A CHANGE OR REVOCATION OF A VALID EXISTING ELECTION MADE UNDER 10 U.S.C. 1431. AN "ELECTION" NOT TO PARTICIPATE IN THE FAMILY PROTECTION PLAN PROVIDED BY 10 U.S.C. 1431 MAY NOT BE CONSIDERED AS AN "ELECTION MADE UNDER THAT SECTION.' IT IS NOTHING MORE THAN A DECISION NOT TO PARTICIPATE IN THE PLAN. THE INTERPRETATION ADVANCED WOULD ASCRIBE TO SECTION 3 OF THE HUMP ACT, AS AMENDED--- A MERE SAVINGS PROVISION--- THE CREATION OF RIGHTS WHICH DID NOT EXIST UNDER 10 U.S.C. 1431 THEN IN EFFECT.

THE FOLLOWING QUESTIONS WERE PRESENTED FOR RESOLUTION AND WILL BE DISCUSSED IN THE LIGHT OF THE ABOVE COMMENTS:

(1) A NAVY COMMANDER IS RETIRED UNDER CIRCUMSTANCES OUTLINED IN SECTION 3 OF THE HUMP ACT AS AMENDED, SUPRA, ON 1 NOVEMBER 1961. HE HAD MADE A VALID ORIGINAL ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 (PRIOR TO THE COMPLETION OF 18 YEARS SERVICE) ON 27 MAY 1958. ON 29 SEPTEMBER 1960 (AFTER THE COMPLETION OF 18 YEARS SERVICE) HE SUBMITTED A REVOCATION OF THE ORIGINAL ELECTION. ON 30 OCTOBER 1961 HE SUBMITTED ANOTHER ELECTION. IF THE OFFICER HAD NOT RETIRED UNDER THE HUMP ACT HIS RETIREMENT DATE AS PRESCRIBED BY SECTION 6376, 6377, OR 6379 OF TITLE 10, U.S.C. AS APPROPRIATE, WOULD HAVE BEEN MORE THAN THREE YEARS AFTER 30 OCTOBER 1961. IS THE ELECTION OF 30 OCTOBER 1961 VALID UNDER SECTION 3 OF THE HUMP ACT AS AMENDED?

(3) ASSUMING THE SAME FACTUAL SITUATION, EXCEPT THAT NO ELECTION HAD BEEN MADE ON 27 MAY 1958 AND NO REVOCATION SUBMITTED ON 29 SEPTEMBER 1960, AND THE OFFICER FILES AN ORIGINAL ELECTION ON 30 OCTOBER 1961, WOULD THE ELECTION OF 30 OCTOBER 1961 BE VALID UNDER SECTION 3 OF THE HUMP ACT AS AMENDED?

(4) ASSUMING THE SAME FACTUAL SITUATION, EXCEPT THAT NO ELECTION HAD BEEN MADE ON 27 MAY 1958 AND NO REVOCATION SUBMITTED ON 29 SEPTEMBER 1960, AND THE OFFICER FILES AN ORIGINAL ELECTION ON 15 OCTOBER 1961 AND A CHANGE TO THIS ELECTION ON 30 OCTOBER 1961, WOULD HE HAVE A VALID ELECTION UNDER SECTION 3 OF THE HUMP ACT AS AMENDED?

UNDER THE CIRCUMSTANCES IN QUESTION (1) THE OFFICER MADE A VALID INITIAL ELECTION AND A VALID REVOCATION OF THAT ELECTION. SUCH REVOCATION HAVING BEEN VALID, THE OFFICER WAS DENIED FURTHER COVERAGE UNDER THE CONTINGENCY OPTION ACT. AFTER APPROVAL OF PUBLIC LAW 87-381, ON OCTOBER 4, 1961, THE OFFICER AGAIN HAD THE RIGHT TO EXERCISE AN OPTION UNDER THE PLAN PROVIDED THE REQUIREMENTS OF THAT LAW WERE MET. HIS ELECTION DATED OCTOBER 30, 1961, WAS NOT MADE AT LEAST 3 YEARS BEFORE HE ACTUALLY BECAME ENTITLED TO RETIRED PAY AND IS THEREFORE NOT VALID UNDER 10 U.S.C. 1431 AS AMENDED BY THE 1961 ACT. SUCH ELECTION DID NOT INVOLVE A CHANGE UNDER THE EXCEPTION CONTAINED IN SECTION 3 OF THE HUMP ACT, SINCE IT MADE NO CHANGE IN VALID SUBSISTING ELECTION. QUESTION (1) IS ANSWERED ACCORDINGLY.

THE FACTUAL SITUATION IN QUESTION (2) DOES NOT PRESENT ANY DIFFERENT PROBLEM THAN THAT INVOLVED IN QUESTION (1) EXCEPT THAT THE REVOCATION OCCURRED AFTER THE ENACTMENT OF THE 1961 AMENDMENT, WHICH ELIMINATED THE PROVISION THAT A MEMBER WHO REVOKES AN ELECTION MAY NOT CHANGE OR WITHDRAW THE REVOCATION AND MADE IT POSSIBLE FOR ANY MEMBER WHO REVOKES AN ELECTION TO AGAIN ELECT AN ANNUITY IF MADE WITHIN THE TIME PRESCRIBED BY THE LAW. THE REVOCATION OF OCTOBER 15, 1961, THEREFORE, DID NOT MAKE THE OFFICER INELIGIBLE TO AGAIN ELECT AN ANNUITY, BUT ANY SUBSEQUENT ELECTION MUST NECESSARILY BE MADE NOT LESS THAN 3 YEARS PRIOR TO RETIREMENT, SINCE THE HUMP ACT EXCEPTION IS OPERATIVE ONLY WITH RESPECT TO A CHANGE OR REVOCATION OF AN ELECTION AND DOES NOT APPLY TO A NEW ELECTION, AS INDICATED ABOVE. THE REVOCATION OF OCTOBER 15 WAS MADE OPERATIVE BY THE HUMP ACT EVEN THOUGH THE REVOCATION WAS MADE LESS THAN 3 YEARS PRIOR TO RETIREMENT. SINCE THE REVOCATION WAS TIMELY AND THE NEW ELECTION WAS NOT MADE WITHIN THE TIME PRESCRIBED BY THE PROVISIONS OF THE 1961 AMENDMENT, THE ELECTION OF OCTOBER 30 WOULD NOT BE VALID. QUESTION (2) IS ANSWERED ACCORDINGLY.

WITH RESPECT TO QUESTIONS (3) AND (4), ORIGINAL ELECTIONS MADE AFTER COMPLETION OF MORE THAN 18 YEARS ARE PERMITTED BY THE OCTOBER 1961 ACT ONLY IF MADE AT LEAST 3 YEARS BEFORE THE FIRST DAY FOR WHICH RETIRED PAY IS GRANTED. SINCE THE PROVISIONS OF SECTION 3 OF THE HUMP ACT APPLY ONLY TO CHANGES OR REVOCATIONS OF VALID ELECTIONS, SUCH PROVISIONS PROVIDE NO BASIS FOR GIVING ANY EFFECT TO THE ORIGINAL ELECTIONS REFERRED TO IN QUESTIONS (3) AND (4). SINCE THE ELECTIONS WERE NOT MADE AT LEAST 3 YEARS BEFORE THE OFFICERS BECAME ENTITLED TO RETIRED OR RETAINER PAY, THEY WERE NOT VALID ELECTIONS UNDER THE 1961 ACT. SINCE THE ELECTION IN QUESTION (4) WAS NOT VALID, THE CHANGE OF THAT ELECTION WOULD HAVE NO EFFECT. ACCORDINGLY, IN NEITHER OF THE SITUATIONS PRESENTED WOULD THE OFFICERS BE ENTITLED TO PARTICIPATE IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. CF. 41 COMP. GEN. 628.

THE FOLLOWING QUESTION REGARDING A VOID ELECTION IS ALSO PRESENTED:

(1) A NAVY COMMANDER MAKES AN ELECTION DATED 1 OCTOBER 1958. IT IS DETERMINED ON 15 NOVEMBER 1961 THAT HE HAD COMPLETED 18 YEARS OF SERVICE FOR WHICH HE IS ENTITLED TO CREDIT IN THE COMPUTATION OF HIS BASIC PAY ON 30 SEPTEMBER 1958. PURSUANT TO 10 U.S.C. 1431 (D) HE IS NOTIFIED THAT THE ELECTION IS VOID AND THAT A CORRECTED ELECTION WITH THE DATE OF 1 OCTOBER 1958 MAY BE MADE WITHIN 90 DAYS AFTER THE NOTIFICATION. A CORRECTED ELECTION PURSUANT TO 10 U.S.C. 1431 (D) WITH AN ASCRIBED DATE OF 1 OCTOBER 1958 IS SUBMITTED; THE CORRECTED ELECTION ACTUALLY HAVING BEEN EXECUTED ON 1 DECEMBER 1961. THE OFFICER IS GRANTED RETIRED PAY ON 1 JANUARY 1962. ON THESE FACTS:

(A) IS THE CORRECTED ELECTION EFFECTIVE AS OF 1 OCTOBER 1958 UNDER THE TERMS OF 10 U.S.C. 1431 (D) THEREBY PROVIDING THE OFFICER WITH COVERAGE UNDER THE PROVISIONS OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN UPON HIS RETIREMENT ON 1 JANUARY 1962?

SECTION 1431 (D) OF TITLE 10, U.S. CODE, AS AMENDED BY THE ACT OF OCTOBER 4, 1961, PROVIDES:

(D) IF AN ELECTION MADE UNDER THIS SECTION IS FOUND TO BE VOID FOR ANY REASON EXCEPT FRAUD OR WILLFUL INTENT OF THE MEMBER MAKING THE ELECTION, HE MAY MAKE A CORRECTED ELECTION AT ANY TIME WITHIN 90 DAYS AFTER HE IS NOTIFIED IN WRITING THAT THE ELECTION IS VOID. A CORRECTED ELECTION MADE UNDER THIS SUBSECTION IS EFFECTIVE AS OF THE DATE OF THE VOIDED ELECTION IT REPLACES.

THE LEGISLATIVE HISTORY OF THE QUOTED SUBSECTION INDICATES THAT ITS PURPOSE IS TO PERMIT CORRECTION OF ADMINISTRATIVE ERRORS, SUCH AS DESIGNATION OF OPTION COMBINATIONS OR PERCENTAGES THAT WERE NOT AUTHORIZED. WHILE THE LANGUAGE MAY SEEM TO BE BROAD ENOUGH TO COVER AN ELECTION THAT IS FOUND VOID BECAUSE IT WAS NOT TIMELY MADE, OBVIOUSLY AN OTHERWISE VALID ELECTION MADE BY A PERSON WITH OVER 18 YEARS' SERVICE WHO WAS NOT ELIGIBLE TO MAKE AN ELECTION CANNOT BE "CORRECTED; " RATHER SUCH AN ELECTION COULD ONLY BE VALIDATED, IN WHICH CASE NO ACTION ON HIS PART WOULD BE REQUIRED. THE STATUTE, HOWEVER, DOES NOT PURPORT TO VALIDATE ANY SUCH "ELECTION.' AN ELECTION IDENTICAL TO A LATE BUT OTHERWISE VALID ELECTION OBVIOUSLY WOULD NOT BE A ,CORRECTION" OF THAT ELECTION AND IT SEEMS CLEAR THAT THE CONGRESS DID NOT INTEND THAT A MEMBER WHO MADE A LATE ELECTION THAT WAS DEFECTIVE BECAUSE OF ERRORS IN OPTIONS OR PERCENTAGES SHOULD BE IN A POSITION SUPERIOR TO THAT OF THE MEMBER WHOSE LATE ELECTION WAS OTHERWISE CORRECT. HENCE, IT IS OUR OPINION THAT SUBSECTION (D) REFERS TO ELECTIONS MADE BY MEMBERS WHO WERE ELIGIBLE TO MAKE A VALID ELECTION AT THE TIME THE ELECTION WAS MADE BUT FOR SOME REASON THAT ELECTION FAILED TO COMPLY WITH THE PROVISIONS OF THE CONTINGENCY OPTION ACT. SUCH VOID ELECTIONS MAY BE CORRECTED AT ANY TIME WITHIN 90 DAYS AFTER THE MEMBER IS NOTIFIED IN WRITING THAT THE ELECTION IS VOID.

THE OFFICER IN THE SITUATION POSED WAS NOT ELIGIBLE TO MAKE AN ELECTION PRIOR TO THE 1961 AMENDMENT AND THE "ELECTION" WHICH HE MADE COULD NOT BE MADE VALID BY THE CORRECTION OF THE ORIGINAL ELECTION. AT THE TIME HE PURPORTED TO ELECT, HE HAD EXCEEDED THE SERVICE LIMITATIONS THEN CONTAINED IN THE LAW. APPARENTLY, THE "ELECTION" WHICH HE MADE WOULD HAVE BEEN VALID HAD HE BEEN ELIGIBLE TO MAKE IT. THERE IS NOTHING HE COULD HAVE DONE PRIOR TO OCTOBER 4, 1961, WHICH WOULD HAVE MADE HIM ELIGIBLE FOR THE BENEFITS OF THE CONTINGENCY OPTION ACT. THE ACT OF OCTOBER 4, 1961, GRANTED HIM AND OTHER MEMBERS WITH MORE THAN 18 YEARS OF SERVICE A NEW RIGHT TO COVERAGE UNDER THE ACT, EXCEPT THAT THE ELECTION MUST BE MADE AT LEAST 3 YEARS BEFORE THE FIRST DAY FOR WHICH RETIRED OR RETAINER PAY IS GRANTED. ACCORDINGLY, THE ELECTION EXECUTED DECEMBER 1, 1961, MAY NOT BE CONSIDERED AS A "CORRECTED" ELECTION UNDER SUBSECTION (D), BUT MERELY A NEW ELECTION AUTHORIZED BY SUBSECTION (B) 10 U.S.C. 1431 (B), AND AS SUCH MUST FAIL BECAUSE IT WAS NOT MADE AT LEAST 3 YEARS BEFORE JANUARY 1, 1962, THE DATE THE OFFICER WAS GRANTED RETIRED PAY.