B-153503, MARCH 20, 1964, 43 COMP. GEN. 617

B-153503: Mar 20, 1964

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- IS NOT VALIDATED BY THE ACT OF OCTOBER 4. - AFTER COMPLETION OF 18 YEARS OF SERVICE IF MADE AT LEAST 3 YEARS BEFORE THE FIRST DAY FOR WHICH RETIRED PAY OR RETAINER PAY IS GRANTED. THE MEMBER WHOSE FAILURE TO FILE A VALID ELECTION MAY NOT BE RETROACTIVELY CORRECTED UNDER THE 1961 ACT IS NOT AUTHORIZED TO PARTICIPATE IN THE FAMILY PROTECTION PLAN AND HE IS ENTITLED TO REFUND OF THE DEDUCTIONS MADE FROM HIS RETIRED PAY. 1964: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 2. REPRESENTING THE AMOUNT BY WHICH HIS RETIRED PAY WAS REDUCED FOR THE PERIOD FEBRUARY 1. SINCE HE WAS CREDITED AT THAT TIME WITH 17 YEARS AND 9 MONTHS OF SERVICE FOR BASIC PAY PURPOSES. WHICH THEN REQUIRED SUCH ELECTION TO BE MADE BEFORE THE MEMBER COMPLETED 18 YEARS OF SERVICE FOR WHICH HE WAS ENTITLED TO CREDIT IN THE COMPUTATION OF HIS BASIC PAY.

B-153503, MARCH 20, 1964, 43 COMP. GEN. 617

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - TIME FOR ELECTION - SERVICE INCREASE UPON REENLISTMENT AN ELECTION OF BENEFITS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 (10 U.S.C. 1431), VALID WHEN MADE, BUT MADE INEFFECTIVE WHEN ADDITIONAL SERVICE CLAIMED FOR BASIC PAY PURPOSES UPON REENLISTMENT INCREASED THE TOTAL SERVICE OF THE MEMBER OF THE UNIFORMED SERVICES IN EXCESS OF THE TIME PRESCRIBED BY THE ACT--- LESS THAN 18 YEARS--- IS NOT VALIDATED BY THE ACT OF OCTOBER 4, 1961 (THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN) PROVIDING PROSPECTIVELY A MORE LIBERAL TIME LIMITATION FOR FILING AN ELECTION--- AFTER COMPLETION OF 18 YEARS OF SERVICE IF MADE AT LEAST 3 YEARS BEFORE THE FIRST DAY FOR WHICH RETIRED PAY OR RETAINER PAY IS GRANTED--- THEREFORE, THE MEMBER WHOSE FAILURE TO FILE A VALID ELECTION MAY NOT BE RETROACTIVELY CORRECTED UNDER THE 1961 ACT IS NOT AUTHORIZED TO PARTICIPATE IN THE FAMILY PROTECTION PLAN AND HE IS ENTITLED TO REFUND OF THE DEDUCTIONS MADE FROM HIS RETIRED PAY.

TO LIEUTENANT COLONEL J. L. CLANCY, DEPARTMENT OF THE ARMY, MARCH 20, 1964:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 2, 1963, FORWARDED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-A 749, REQUESTING DECISION AS TO PROPRIETY OF PAYMENT OF THE VOUCHER ATTACHED THERETO IN FAVOR OF MASTER SERGEANT RALPH E. HALL, RA, RETIRED, REPRESENTING THE AMOUNT BY WHICH HIS RETIRED PAY WAS REDUCED FOR THE PERIOD FEBRUARY 1, 1963, THROUGH OCTOBER 31, 1963, TO COVER THE OPTIONS SELECTED BY HIM UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 (NOW THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN) PROVIDED IN CHAPTER 73 OF TITLE 10, U.S.C.

ON FEBRUARY 27, 1959, SERGEANT HALL SIGNED DA FORM 1041 MAKING AN ELECTION OF BENEFITS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT. SINCE HE WAS CREDITED AT THAT TIME WITH 17 YEARS AND 9 MONTHS OF SERVICE FOR BASIC PAY PURPOSES, THE SIGNED DOCUMENT APPEARED TO CONSTITUTE A VALID ELECTION UNDER 10 U.S.C. 1431, WHICH THEN REQUIRED SUCH ELECTION TO BE MADE BEFORE THE MEMBER COMPLETED 18 YEARS OF SERVICE FOR WHICH HE WAS ENTITLED TO CREDIT IN THE COMPUTATION OF HIS BASIC PAY. ON APRIL 1, 1961, HOWEVER, SERGEANT HALL REENLISTED IN THE ARMY AND AT THAT TIME HE CLAIMED ADDITIONAL SERVICE CREDIT FOR BASIC PAY PURPOSES. THE ALLOWANCE OF THAT ADDITIONAL SERVICE CREDIT INCREASED HIS TOTAL SERVICE CREDITABLE FOR BASIC PAY PURPOSES AS OF FEBRUARY 27, 1959, TO AN AMOUNT IN EXCESS OF 18 YEARS. HIS PURPORTED ELECTION, THEREFORE, WAS OF NO EFFECT, HAVING BEEN FILED AFTER EXPIRATION OF THE TIME PERIOD PRESCRIBED IN THE LAW.

THE ACT OF OCTOBER 4, 1961, PUBLIC LAW 87-381, 75 STAT. 810, AMENDED CHAPTER 73 OF TITLE 10, U.S. CODE, TO PROVIDE, AMONG OTHER THINGS, A MORE LIBERAL TIME LIMITATION FOR FILING AN ELECTION. AS AMENDED BY THAT ACT, 10 U.S.C. 1431 AUTHORIZES A MEMBER TO MAKE AN ELECTION AFTER COMPLETION OF 18 YEARS' SERVICE PROVIDED IT IS MADE AT LEAST 3 YEARS BEFORE THE FIRST DAY FOR WHICH RETIRED PAY OR RETAINER PAY IS GRANTED. THAT PROVISION IS NOT RETROACTIVE BUT APPLIES ONLY TO ELECTIONS MADE ON OR AFTER THE DATE OF ENACTMENT OF THE AMENDING STATUTE. THEREFORE, IT CANNOT VALIDATE THE INVALID ELECTION FILED BY SERGEANT HALL ON FEBRUARY 27, 1959. SEE 41 COMP. GEN. 743, 748. THE REGULATION CITED BY YOU, WHICH IS PUBLISHED IN 32 CFR 48.203/B), APPLYING THE AMENDED PROVISIONS OF SECTION 1431 PROSPECTIVELY, APPEARS TO REFLECT CORRECTLY THE PURPOSES OF THE 1961 ACT.

IN PARAGRAPH 10 OF YOUR SUBMISSION YOU EXPRESS DOUBT THAT THE INTENT OF CONGRESS WAS TO REQUIRE THAT AN ELECTION UNDER THE AMENDED SECTION 1431 MUST BE MADE ON OR AFTER OCTOBER 4, 1961, AND AT LEAST 3 YEARS BEFORE RETIREMENT. YOU STATE THAT THE LANGUAGE OF THE 1961 ACT "DOES NOT CLEARLY EXPRESS THIS FURTHER RESTRICTION AND SUCH CONSTRUCTION APPEARS TO BE AT VARIANCE WITH THE LEGISLATIVE INTENT.' YOU QUOTE EXCERPTS FROM S.REPT. NO. 1071 ON H.R. 6668, 87TH CONGRESS, WHICH BECAME THE ACT OF OCTOBER 4, 1961, IN SUPPORT OF YOUR VIEWS. HOWEVER, WE FIND NOTHING IN THE ACT OR THE LEGISLATIVE HISTORY QUOTED BY YOU WHICH INDICATES A LEGISLATIVE INTENT TO VALIDATE ELECTIONS PREVIOUSLY FILED BY SERVICE MEMBERS AT A TIME WHEN THEY HAD ALREADY COMPLETED MORE THAN 18 YEARS OF SERVICE. ON PAGE 1802 OF THE REPORT NO. 11 DATED MARCH 6, 1961, OF HEARINGS BEFORE SUBCOMMITTEE NO. 1 OF THE HOUSE OF REPRESENTATIVES COMMITTEE ON ARMED SERVICES ON THE PROPOSED LEGISLATION (THEN UNDER CONSIDERATION AS H.R. 4329, 87TH CONGRESS) IN DISCUSSING THE PROVISION WHICH WAS ENACTED AS SUBSECTION 1431 (D) (CORRECTION OF VOID ELECTIONS WITHIN 90 DAYS AFTER NOTIFICATION) THERE APPEAR THE FOLLOWING QUESTION AND ANSWER:

MR. BATES. THIS IS RETROACTIVE?

MR. BLANDFORD. NOTHING HERE IS RETROACTIVE OTHER THAN THE 3- AND 5 YEAR PROVISION WHICH WOULD BE RETROACTIVE ONLY IN ITS BENEFITS.

SECTION 7 OF THE ACT, 10 U.S.C. 1431 NOTE, EXPRESSLY EXTENDS THE SHORTER WAITING PERIOD FOR A CHANGE OR REVOCATION TO BECOME EFFECTIVE (3 YEARS INSTEAD OF 5 YEARS) TO MEMBERS WHO HAD FILED A CHANGE OR REVOCATION BEFORE DATE OF ENACTMENT.

IT IS A WELL-ESTABLISHED AND WELL-RECOGNIZED PRINCIPLE OF STATUTORY CONSTRUCTION THAT IN CASES OF ANY AMBIGUITY OR DOUBT A STATUTE WILL BE GIVEN A PROSPECTIVE RATHER THAN A RETROACTIVE EFFECT. BREWSTER V. GAGE, 280 U.S. 327, 337 (1930) AND D.C. TRANSIT SYSTEM V. PEARSON, 149 F.SUPP. 18, 23 (1957).

SINCE SERGEANT HALL FAILED TO FILE AN ELECTION UNDER 10 U.S.C. 1431 PRIOR TO COMPLETION OF 18 YEARS OF SERVICE, HIS PARTICIPATION IN THE PLAN IS NOT AUTHORIZED. REFUND OF THE DEDUCTIONS MADE FROM HIS RETIRED PAY FOR THE PURPOSE OF PARTICIPATION IS PROPER AND THE VOUCHER FORWARDED WITH YOUR SUBMISSION IS RETURNED HEREWITH.