B-149654, NOV. 29, 1962

B-149654: Nov 29, 1962

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IT IS ESTABLISHED THAT ON OCTOBER 29. HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE MAY 1. THAT HIS "ORIGINAL ELECTION WAS ESTABLISHED EFFECTIVE" ON THAT DATE WITH MONTHLY REDUCTIONS IN RETIRED PAY COMPUTED AT $51.99 AND PROSPECTIVE ANNUITY AT $103.66 PER MONTH. IT IS STATED FURTHER THAT GENERAL ELEGAR WAS RECALLED TO ACTIVE DUTY IN THE REGULAR ARMY EFFECTIVE APRIL 30. HIS NAME WAS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST AND THAT HE WAS RETIRED FROM ACTIVE SERVICE UPON HIS OWN APPLICATION IN THE GRADE OF BRIGADIER GENERAL WITH MORE THAN 28 YEARS ACTIVE FEDERAL SERVICE. IT IS FURTHER DISCLOSED THAT THE ORIGINAL ELECTION WAS RECOMPUTED AND REESTABLISHED EFFECTIVE MAY 1.

B-149654, NOV. 29, 1962

TO COLONEL WEBSTER MILLS, FC:

YOUR LETTER OF JULY 19, 1962, SUBMITTING A VOUCHER TOTALING $590.81 IN THE CASE OF BRIGADIER GENERAL AUGUSTUS G. ELEGAR, USA, RETIRED, HAS BEEN FORWARDED TO THIS OFFICE BY THE OFFICE OF THE CHIEF OF FINANCE, HEADQUARTERS, DEPARTMENT OF THE ARMY, UNDER SUBMISSION NO. DO-A-669, ALLOCATED BY THE DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCE COMMITTEE. YOU STATE THAT THE AMOUNT OF THE VOUCHER REPRESENTS REFUND OF THE DIFFERENCE BETWEEN THE AMOUNT DEDUCTED FROM RETIRED PAY TO PROVIDE A SURVIVORSHIP ANNUITY AND THE COST OF AN AMOUNT OF TERM INSURANCE EQUAL TO THE PROTECTION PROVIDED FOR HIS DEPENDENT FOR THE PERIOD MAY 1, 1960, THROUGH APRIL 27, 1962, AND REFUND OF THE FULL AMOUNT OF THE DEDUCTION FOR THE PERIOD MAY 1 THROUGH JUNE 30, 1962.

FROM THE FACTS SET OUT IN YOUR LETTER AND ATTACHMENTS THERETO, IT IS ESTABLISHED THAT ON OCTOBER 29, 1954, GENERAL ELEGAR, THEN A COLONEL, ELECTED OPTION 1 WITH OPTION 4 AT ONE-EIGHTH REDUCED RETIRED PAY UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, CH. 393, 67 STAT. 501, NOW CODIFIED IN 10 U.S.C. 143-1446, AS AMENDED BY THE ACT OF OCTOBER 4, 1961, PUB.L. 87-381, 75 STAT. 811, WHICH AMONG OTHER CHANGES REDESIGNATED THE ACT AS THE "RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN.' HE FILED A REQUEST FOR REVOCATION OF THIS ELECTION ON MAY 17, 1956.

YOUR LETTER DISCLOSES THAT IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1202, HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE MAY 1, 1960, AND THAT HIS "ORIGINAL ELECTION WAS ESTABLISHED EFFECTIVE" ON THAT DATE WITH MONTHLY REDUCTIONS IN RETIRED PAY COMPUTED AT $51.99 AND PROSPECTIVE ANNUITY AT $103.66 PER MONTH.

IT IS STATED FURTHER THAT GENERAL ELEGAR WAS RECALLED TO ACTIVE DUTY IN THE REGULAR ARMY EFFECTIVE APRIL 30, 1962, FOR A PERIOD OF APPROXIMATELY ONE DAY FOR THE PURPOSE OF RETIREMENT BY LETTER ORDER DATED APRIL 9, 1962; THAT HAVING ACCEPTED APPOINTMENT TO THE ACTIVE LIST, HIS NAME WAS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST AND THAT HE WAS RETIRED FROM ACTIVE SERVICE UPON HIS OWN APPLICATION IN THE GRADE OF BRIGADIER GENERAL WITH MORE THAN 28 YEARS ACTIVE FEDERAL SERVICE, UNDER THE PROVISIONS OF 10 U.S.C. 3911, 3963, EFFECTIVE MAY 1, 1962. IT IS FURTHER DISCLOSED THAT THE ORIGINAL ELECTION WAS RECOMPUTED AND REESTABLISHED EFFECTIVE MAY 1, 1962, WITH MONTHLY REDUCTION IN RETIRED PAY OF $35.44 AND PROSPECTIVE ANNUITY OF $102.06 PER MONTH. INFORMATION HAS BEEN RECEIVED FROM THE OFFICE OF THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, TO THE EFFECT THAT GENERAL ELEGAR WAS FOUND TO BE PHYSICALLY FIT FOR ACTIVE DUTY PRIOR TO THE ISSUANCE OF THE ORDERS OF APRIL 9, 1962.

YOU STATE THAT IN VIEW OF THE FACT THAT THE ORDERS DATED APRIL 9, 1962, SPECIFICALLY STATE ,RECALL TO ACTIVE DUTY FOR APPROXIMATELY ONE DAY FOR THE PURPOSE OF RETIREMENT," YOU ARE IN DOUBT AS TO WHETHER APPLICABLE PROVISIONS OF LAW AND RULINGS OF THE COMPTROLLER GENERAL OF THE UNITED STATES MAY BE CONSIDERED AS SUFFICIENT AUTHORITY FOR THE REFUND.

10 U.S.C. 1439 PROVIDES AS FOLLOWS:

"IF A PERSON WHOSE NAME IS ON THE TEMPORARY DISABILITY RETIRED LIST OF AN ARMED FORCE, AND WHO HAS ELECTED AN ANNUITY UNDER THIS CHAPTER, HAS HIS NAME REMOVED FROM THAT LIST FOR ANY REASON OTHER THAN RETIREMENT OR GRANT OF RETIRED PAY, HE IS ENTITLED TO A REFUND OF THE DIFFERENCE BETWEEN THE AMOUNT BY WHICH HIS RETIRED PAY WAS REDUCED TO PROVIDE THE ANNUITY AND THE COST OF AN AMOUNT OF TERM INSURANCE EQUAL TO THE PROTECTION PROVIDED FOR HIS DEPENDENTS DURING THE PERIOD THAT HE WAS ON THAT LIST.'

10 U.S.C. 1211 (A) (1) AND (C) PROVIDES AS FOLLOWS:

"/A) WITH HIS CONSENT, ANY MEMBER OF THE ARMY OR THE AIR FORCE WHOSE NAME IS ON THE TEMPORARY DISABILITY RETIRED LIST, AND WHO IS FOUND TO BE PHYSICALLY FIT TO PERFORM THE DUTIES OF HIS OFFICE, GRADE, OR RANK UNDER SECTION 1210 (F) OF THIS TITLE, SHALL---

"/1) IF A COMMISSIONED OFFICER OF A REGULAR COMPONENT, BE RECALLED TO ACTIVE DUTY AND, AS SOON AS PRACTICABLE, MAY BE REAPPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO THE ACTIVE LIST OF HIS REGULAR COMPONENT IN THE REGULAR GRADE HELD BY HIM WHEN HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, OR IN THE NEXT HIGHER REGULAR GRADE;

"/C) * * * HOWEVER, IF SUCH A MEMBER DOES NOT CONSENT TO THE ACTION PROPOSED UNDER SUBSECTION (A) OR (B), HIS STATUS ON THE TEMPORARY DISABILITY RETIRED LIST AND HIS DISABILITY RETIRED PAY SHALL BE TERMINATED AS SOON AS PRACTICABLE.'

10 U.S.C. 1431 (C) PROVIDES THAT:

"AN ELECTION MAY BE CHANGED OR REVOKED BY THE ELECTOR BEFORE THE FIRST DAY FOR WHICH RETIRED OR RETAINER PAY IS GRANTED. HOWEVER, UNLESS MADE ON THE BASIS OF RESTORED MENTAL COMPETENCY UNDER SECTION 1433 OF THIS TITLE, THE CHANGE OR REVOCATION IS NOT EFFECTIVE IF MADE LESS THAN THREE YEARS BEFORE THE FIRST DAY FOR WHICH RETIRED OR RETAINER PAY IS GRANTED.'

THE REVOCATION OF ELECTION MADE ON MAY 17, 1956, WAS NOT YET EFFECTIVE WHEN GENERAL ELEGAR WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST ON MAY 1, 1960, BECAUSE THE NECESSARY FIVE YEAR PERIOD AFTER REVOCATION, REQUIRED UNDER THE PROVISIONS OF 10 U.S.C. 1431 (C) THEN IN EFFECT HAD NOT YET EXPIRED. ESTABLISHMENT OF DEDUCTIONS PURSUANT TO HIS ORIGINAL ELECTION ON THE BASIS OF DISABILITY RETIREMENT WAS PROPER.

WE FIND NO BASIS FOR DISTINGUISHING THIS CASE FROM THAT OF EALEY-S, CONSIDERED IN 40 COMP. GEN. 1, WHOSE NAME WAS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST AS THE RESULT OF A DETERMINATION THAT HE NO LONGER WAS SUFFERING FROM THE DISABILITY WHICH RESULTED IN HIS NAME BEING PLACED ON THAT LIST. THE FACT THAT HE WAS IMMEDIATELY ELIGIBLE FOR RETAINER PAY AS A FLEET RESERVIST WAS NOT REGARDED AS A CIRCUMSTANCE MAKING THE PROVISIONS OF 10 U.S.C. 1439 INAPPLICABLE, SINCE HIS NAME ACTUALLY WAS REMOVED FROM THAT LIST BECAUSE HE WAS FOUND PHYSICALLY QUALIFIED FOR ACTIVE DUTY, RATHER THAN FOR THE PURPOSE OF RETIREMENT OR GRANT OF RETIRED PAY. IT IS ASSUMED THAT PURSUANT TO THE ORDERS OF APRIL 9, 1962, GENERAL ELEGAR ACTUALLY REPORTED FOR ACTIVE DUTY ON APRIL 30, 1962, AS DIRECTED. COMPARE 39 COMP. GEN. 787.

IT SEEMS CLEAR THAT GENERAL ELEGAR'S NAME WAS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST FOR THE REASON THAT HE WAS FOUND TO BE PHYSICALLY FIT FOR ACTIVE DUTY, NOT BECAUSE HE WISHED TO RETIRE FOR YEARS OF SERVICE. THE FACT THAT HE WAS ELIGIBLE FOR RETIREMENT UNDER 10 U.S.C. 3911, AND HIS RETIREMENT WAS ACCOMPLISHED UNDER SUCH PROVISIONS OF LAW, DID NOT CHANGE THAT SITUATION AS FAR AS HIS RIGHTS UNDER 10 U.S.C. 1439 WERE CONCERNED, SINCE THE REMOVAL OF HIS NAME FROM THE TEMPORARY DISABILITY RETIRED LIST WAS REQUIRED WITHOUT REGARD TO ANY CHANGE IN HIS STATUS WHICH MIGHT BE ACCOMPLISHED THEREAFTER. HENCE, HE IS ENTITLED TO THE REFUND PRESCRIBED IN 10 U.S.C. 1439.

IN THE CIRCUMSTANCES, HIS SITUATION WAS THE SAME AS IF HE HAD NOT BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST BUT HAD CONTINUED ON ACTIVE DUTY, IN SO FAR AS 10 U.S.C. 1431 (C) IS CONCERNED (40 COMP. GEN. 382) AND, SINCE MORE THAN THREE YEARS ELAPSED FROM THE TIME HE REVOKED HIS ELECTION IN 1956, AND HIS RETIREMENT IN 1962, SUCH REVOCATION BECAME EFFECTIVE AND NO DEDUCTION SHOULD HAVE BEEN MADE FROM HIS RETIRED PAY ON AND AFTER MAY 1, 1962.

ACCORDINGLY, PAYMENT ON THE VOUCHER RETURNED HEREWITH IS AUTHORIZED, IF OTHERWISE CORRECT.