B-152520, OCTOBER 25, 1963, 43 COMP. GEN. 418

B-152520, OCTOBER 25, 1963, 43 COMP. GEN. 418

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - CHILDREN OTHER THAN CHILDREN OF SURVIVING SPOUSE THE AUTHORITY PROVIDED IN 10 U.S.C. 1434 (D) FOR ALLOCATION BY MEMBERS OF THE ARMED FORCES DURING THE PERIOD OF THE SURVIVING SPOUSE'S ELIGIBILITY OF A PART OF THE ANNUITY ELECTED UNDER SUBSECTION (A) (3) FOR PAYMENT TO SURVIVING CHILDREN WHO ARE NOT THE CHILDREN OF THAT SPOUSE APPLIES TO ALL MARRIED MEMBERS OF THE ARMED FORCES WHO HAVE MADE, OR WILL MAKE, AN ANNUITY ELECTION UNDER 10 U.S.C. 1434 (A) (3) AND WHO HAVE AT LEAST ONE ELIGIBLE CHILD BY A FORMER WIFE, NOTHING IN THE LEGISLATIVE HISTORY OF THE ACT OF OCTOBER 4, 1961, ADDING SUBSECTION (D) TO 14 U.S.C. 1434 TO PROVIDE FOR THE ALLOCATION OF PART OF A SURVIVORSHIP ANNUITY TO CHILDREN OTHER THAN THE CHILDREN OF THE SURVIVING SPOUSE, REQUIRING THE STRICT CONSTRUCTION THAT APPLICABILITY OF THE PROVISION IS LIMITED TO THOSE MEMBERS WHO RETIRED AFTER OCTOBER 4, 1961, THE EFFECTIVE DATE OF THE ACT.

TO THE SECRETARY OF DEFENSE, OCTOBER 25, 1963:

BY LETTER DATED SEPTEMBER 16, 1963, THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) PRESENTED FOR DECISION THE QUESTION, DISCUSSED IN COMMITTEE ACTION NO. 326 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, WHETHER THE PROVISIONS OF SECTION 1434 (D) OF TITLE 10, U.S. CODE, APPLY TO MEMBERS OF THE UNIFORMED SERVICES WHO WERE RETIRED WITH PAY ON OR BEFORE OCTOBER 4, 1961.

IN THE COMMITTEE ACTION IT IS STATED THAT IT IS GENERALLY CONSIDERED THE PROVISIONS OF THE ACT OF OCTOBER 4, 1961, PUBLIC LAW 87-381, 75 STAT. 810, WHICH ADDED SUBSECTION (D) TO 10 U.S.C. 1434, WERE EFFECTIVE AFTER OCTOBER 3, 1961, AND IN NO WAY AFFECTED MEMBERS WHO WERE RETIRED WITH PAY PRIOR TO OCTOBER 4, 1961. IN THIS CONNECTION, THE FOLLOWING LANGUAGE IS QUOTED FROM PAGE 5 OF H.REPT.NO. 356 TO ACCOMPANY H.R. 6668, THE BILL WHICH BECAME THE ACT OF OCTOBER 4, 1961:

THE OTHER FEATURES OF THE PROPOSED LEGISLATION ARE TECHNICAL IN NATURE. HOWEVER, IT SHOULD BE NOTED THAT THE BILL PRESERVES INTACT THOSE ELECTIONS MADE UP TO THE DATE OF ENACTMENT. LIKEWISE, IT DOES NOT AFFECT THOSE WHO ARE NOW RETIRED, IN ANY WAY, EXCEPT TO ALLOW THEM THE PRIVILEGE TO APPLY FOR WITHDRAWAL FOR SEVERE FINANCIAL HARDSHIP. OTHER THAN THIS PROVISION, THOSE PERSONS WHO HAVE MADE THEIR ELECTIONS AND ARE NOW RETIRED ARE NOT AFFECTED IN ANY WAY. HOWEVER, PERSONS WHO ARE NOT YET ENTITLED TO RETIRED PAY WHO HAVE FILED A CHANGE OR REVOCATION OF THEIR CHANGE, WILL HAVE SUCH CHANGE OR REVOCATION EFFECTIVE AFTER 3 YEARS HAS ELAPSED, OR AS SOON AS 3 YEARS ELAPSES FROM THE DATE THEY MADE THEIR CHANGE OR FILED THEIR REVOCATION.

IT IS STATED THAT IT IS NOT CLEAR WHETHER THIS DISCUSSION APPLIED SOLELY TO THE ELECTIONS OF MEMBERS PREVIOUSLY RETIRED OR WHETHER IT APPLIED ACROSS THE BOARD AS TO ALL PROVISIONS OF THE NEW LAW, SUCH AS THE ONE PROVIDING FOR THE ALLOCATION OF THE ANNUITY UNDER SUBSECTION (D).

10 U.S.C. 1434 (D) PROVIDES THAT:

UNDER REGULATIONS PRESCRIBED UNDER SECTION 1444 (A) OF THIS TITLE, A PERSON MAY, BEFORE OR AFTER THE FIRST DAY FOR WHICH RETIRED OR RETAINER PAY IS GRANTED, PROVIDE FOR ALLOCATING, DURING THE PERIOD OF THE SURVIVING SPOUSE'S ELIGIBILITY, A PART OF THE ANNUITY UNDER SUBSECTION (A) (3) FOR PAYMENT OT THOSE OF HIS SURVIVING CHILDREN WHO ARE NOT CHILDREN OF THAT SPOUSE.

H.R. 6668 WAS BASED ON EXPERIENCE WITH THE OPERATION OF THE CONTINGENCY OPTION ACT, 37 U.S.C. 371 NOTE (1952 ED., SUPP. II), DURING THE YEARS SINCE IT HAD BEEN ENACTED. IN SUMMARIZING THE THEN PROPOSED LEGISLATION, IT WAS STATED IN H.REPT.NO. 356 THAT THE BILL BROADENED THE CONDITIONS UNDER WHICH MEMBERS MAY JOIN THE PROGRAM, THUS OFFERING A SECOND OPPORTUNITY TO THOUSANDS OF PERSONNEL WHO HAVE ALREADY COMPLETED 18 OR MORE YEARS OF ACTIVE DUTY. ALSO, IT WAS STATED TO SOLVE,"WITHOUT IMPOSING HARDSHIP, THE DIFFICULT DEATHBED ELECTION PROBLEM" AND TO PROVIDE A SIMPLE CONTROLLED METHOD OF CORRECTING ADMINISTRATIVE ERRORS AND SEVERE HARDSHIP CASES.

WHILE IT MAY BE POSSIBLE TO STRICTLY CONSTRUE SUBSECTION (D) AS BEING APPLICABLE ONLY TO MEMBERS WHO WERE RETIRED AFTER THE EFFECTIVE DATE OF SUCH STATUTORY PROVISIONS, THE WORDS "BEFORE AND AFTER" THERE USED WITH RESPECT TO ALLOCATING AN ANNUITY UNDER SUBSECTION (A) (3), ARE BROAD ENOUGH TO COVER THE SITUATIONS OF MEMBERS WHO WERE RETIRED BEFORE OCTOBER 4, 1961. SINCE THE LATTER VIEW IS CONSISTENT WITH THE PURPOSES OF THE 1961 ACT AND NO REASON COMES TO MIND AS TO WHY MEMBERS RETIRED BEFORE THAT DATE SHOULD BE TREATED DIFFERENTLY THAN THOSE WHO WERE RETIRED THEREAFTER, IT IS OUR VIEW THAT THE STATUTE SHOULD BE STRICTLY CONSTRUED ONLY IF ITS LEGISLATIVE HISTORY IS SO CLEAR TO THAT EFFECT AS TO LEAVE NO ROOM FOR DOUBT AS TO THE LEGISLATIVE INTENT. WHILE THE ABOVE-QUOTED LANGUAGE FROM REPORT NO. 356 STATES THAT "THE BILL PRESERVES INTACT THOSE ELECTIONS MADE UP TO THE DATE OF ENACTMENT," THE FOLLOWING APPEARS ON PAGE 12 OF THAT REPORT:

A NEW SUBSECTION (D) IS ADDED WHICH PERMITS A PERSON, AT ANY TIME, TO PROVIDE FOR THE ALLOCATION OF THE ANNUITY UNDER SUBSECTION (A) (3), BETWEEN THE SURVIVING WIFE AND THE CHILDREN OF THAT MARRIAGE AND ANY OTHER CHILDREN OF THAT PERSON.

THERE IS NOTHING IN SUCH LANGUAGE WHICH INDICATES AN INTENT TO LIMIT THE RIGHT TO MAKE AN ALLOCATION TO MEMBERS WHO RETIRED AFTER H.R. 6668 WAS ENACTED INTO LAW, AND NO REASON IS PERCEIVED WHY THAT RESULT SHOULD HAVE BEEN INTENDED. THE PROPOSED SUBSECTION (D) DID NOT AFFECT FINANCIALLY ANY MEMBER THEN RETIRED, AND THE ONLY EFFECT IT HAD ON THEN EXISTING ELECTIONS UNDER SUBSECTION (A) (3) WAS TO PROVIDE A MEANS OF INSURING THAT APPROPRIATE PARTS OF THE ANNUITY INVOLVED ACTUALLY WOULD BE SPENT FOR THE BENEFIT OF THE CHILDREN OF BOTH FAMILIES WHEN THE MEMBER HAD BEEN MARRIED MORE THAN ONCE. FOR ALL PRACTICAL PURPOSES, SUCH ELECTIONS WERE PRESERVED INTACT. THE PERMITTED ALLOCATIONS SIMPLY MADE THEM MORE EFFECTIVE.

IN THE HEARINGS HELD ON MARCH 6, 1961, BEFORE SUBCOMMITTEE NO. 1 OF THE HOUSE COMMITTEE ON ARMED SERVICES, ON H.R. 4329, A PREDECESSOR BILL TO H.R. 6668, THE FOLLOWING COLLOQUY (PAGE 1756) IS INDICATIVE OF THE PURPOSE OF SECTION 5 (1) OF THAT BILL, WHICH BECAME THE PROVISION OF SECTION 3 (2/ --- NOW 10 U.S.C. 1434 (D/--- OF H.R. 6668:

MR. HYSMITH. * * * SECTION 5 CONTAINS A PROVISION TO PERMIT A MEMBER TO ALLOCATE AN ANNUITY BETWEEN A SURVIVING SPOUSE AND SURVIVING CHILDREN WHO ARE NOT CHILDREN OF THAT SPOUSE. FORTUNATELY, SO FAR AS WE HAVE KNOWLEDGE, CASES OF THIS NATURE HAVE BEEN RESOLVED AMICABLY BUT WE BELIEVE THE MEMBER SHOULD HAVE THE RIGHT ONLY TO MAKE SUCH AN ALLOCATION WHERE THIS SITUATION EXISTS.

MR. KILDAY. WELL, IF THE PAYMENT IS MADE, THIS WOULD GIVE YOU THE RIGHT TO PAY THE CHILD'S PORTION TO THE CHILD OR TO THE PERSON HAVING CUSTODY OF THE CHILD.

MR. HYSMITH. YES, IF THE ALLOCATION IS MADE.

MR. HUDDLESTON. WHO WOULD THE PAYMENT BE MADE TO UNDER THE PRESENT LAW?

MR. HYSMITH. TO THE SECOND WIFE, AND WE WANT AUTHORITY FOR HIM TO SAY THAT X NUMBER OF DOLLARS WILL BE PAID TO THE GRANDMOTHER WHO HAS THE CHILD IN HER CUSTODY.

WE HAVE SOME CASES WHERE THE FAMILY HAS WORKED IT OUT AMICABLY. ALMOST HAD SOMEONE RUNNING TO MR. BLANDFORD FOR PRIVATE RELIEF LEGISLATION ON THIS NOT TOO LONG AGO.

IT WILL BE SEEN FROM THE ABOVE DISCUSSION THAT THE PAYMENT OF THE ANNUITY ELECTED FOR A SURVIVING SPOUSE AND A CHILD WHO WAS NOT THE CHILD OF THAT SPOUSE WAS CONSIDERED A CURRENT ADMINISTRATIVE PROBLEM REQUIRING A CHANGE IN THE LAW IN ORDER TO FACILITATE ITS ADMINISTRATION. ALSO, SIGNIFICANCE MUST BE ATTACHED TO THE FACT THAT THE PHRASE "THE ELECTOR MAY, AS PART OF HIS ELECTION" IN H.R. 4329--- WHICH APPARENTLY WOULD HAVE COVERED ONLY ELECTIONS MADE AFTER ENACTMENT OF THE THEN PROPOSED LEGISLATION--- WAS NO INCLUDED IN H.R. 6668 AND THE LANGUAGE "A PERSON MAY, BEFORE OR AFTER THE FIRST DAY FOR WHICH RETIRED OR RETAINER PAY IS GRANTED" WAS SUBSTITUTED THEREFOR.

IN THE CIRCUMSTANCES, THE CONCLUSION APPEARS WARRANTED THAT THE ADDED SUBSECTION (D) WAS INTENDED TO APPLY TO ALL MARRIED MEMBERS OF THE ARMED FORCES WHO HAVE MADE, OR WILL MAKE, AN ELECTION UNDER 10 U.S.C. 1434 (A) (3) AND WHO HAVE AT LEAST ONE ELIGIBLE CHILD BY A FORMER WIFE.