B-154104, JUNE 11, 1964, 43 COMP. GEN. 785

B-154104: Jun 11, 1964

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THE OFFICER HAVING MADE AN IRREVOCABLE ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN IS OBLIGATED FOR THE COST OF PARTICIPATING IN THE PLAN. 1964: REFERENCE IS MADE TO YOUR LETTER DATED MAY 4. A MEMBER WAS RELIEVED FROM ACTIVE DUTY JULY 9. BY REASON OF PHYSICAL DISQUALIFICATION AND WAS CERTIFIED TO THE ADMINISTRATOR OF VETERANS' AFFAIRS UNDER THE PROVISIONS OF THE ACT OF APRIL 3. IT WAS DETERMINED THAT HIS DISABILITY ON JULY 9. WAS 70 PERCENT. ISSUED A STATEMENT THAT HIS COMMISSION WAS TERMINATED BY OPERATION OF LAW ON MARCH 31. ALSO IT IS REPORTED THAT THE JUDGE ADVOCATE GENERAL OF THE ARMY IS OF THE OPINION THAT THE MEMBER HAS NO MILITARY OR . QUESTION 2: IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE.

B-154104, JUNE 11, 1964, 43 COMP. GEN. 785

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - REVOCATION - INEFFECTIVE A RESERVE COMMISSIONED OFFICER OF THE ARMY OF THE UNITED STATES RELIEVED FROM ACTIVE DUTY, CERTIFIED TO THE ADMINISTRATOR OF VETERANS' AFFAIRS FOR RETIREMENT UNDER THE ACT OF APRIL 3, 1939, AND PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST, WHO THEN ELECTS TO QUALIFY FOR RETIREMENT PAY UNDER THE CAREER COMPENSATION ACT OF 1949 AND PARTICIPATE IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN (10 U.S.C. 1431-1446), UPON SUBSEQUENTLY ELECTING TO RECEIVE BENEFIT PAYMENTS FROM THE VETERANS ADMINISTRATION IN LIEU OF ARMY DISABILITY RETIREMENT PAY MAY NOT BE DISCHARGED FROM THE ARMY OF THE UNITED STATES RETIRED LIST TO AVOID PAYMENT OF ANNUITY COSTS, THE OFFICER HAVING NO MILITARY STATUS FROM WHICH TO RESIGN, THE 1939 ACT AUTHORIZING PAY IN THE NATURE OF A PENSION PREDICATED ON DISABILITY WITHOUT RELATION TO CONTINUED MILITARY SERVICE, AND THE PLACEMENT OF HIS NAME ON THE ARMY OF THE UNITED STATES RETIRED LIST CONFERRING NO MILITARY STATUS, AND THE OFFICER HAVING MADE AN IRREVOCABLE ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN IS OBLIGATED FOR THE COST OF PARTICIPATING IN THE PLAN.

TO THE SECRETARY OF THE ARMY, JUNE 11, 1964:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 4, 1964, REQUESTING A DECISION AS TO WHETHER ADMINISTRATIVE ACTION MAY LEGALLY BE TAKEN TO DISCHARGE A MEMBER FROM THE ARMY OF THE UNITED STATES RETIRED LIST, AT HIS REQUEST, IN ORDER TO AVOID PAYMENT OF ANNUITY COSTS RESULTING BECAUSE OF HIS ELECTION TO PARTICIPATE IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN (10 U.S.C. 1431-1446). THE REQUEST HAS BEEN ASSIGNED SUBMISSION NO. SS-A-746 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT, IN THE CASE INVOLVED, A MEMBER WAS RELIEVED FROM ACTIVE DUTY JULY 9, 1944, BY REASON OF PHYSICAL DISQUALIFICATION AND WAS CERTIFIED TO THE ADMINISTRATOR OF VETERANS' AFFAIRS UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939, CH. 35, 53 STAT. 555, 557, 10 U.S.C. 456 (1952 ED.), FOR RETIREMENT PAY EFFECTIVE JULY 10, 1944. UPON SUBSEQUENT REVIEW OF HIS CASE, UNDER THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 823, 37 U.S.C. 281 (1952 ED.), IT WAS DETERMINED THAT HIS DISABILITY ON JULY 9, 1944, WAS 70 PERCENT. UPON RECEIPT OF APPROPRIATE ADVICE, THE OFFICER ELECTED ON AUGUST 2, 1950, TO QUALIFY FOR RETIREMENT PAY UNDER THE 1949 ACT AND TO RECEIVE SUCH PAY BASED ON HIS PERCENTAGE OF DISABILITY AT THE TIME OF RETIREMENT. THEREAFTER IN OCTOBER 1962 HE MADE A NEW ELECTION TO RECEIVE BENEFIT PAYMENTS FROM THE VETERANS ADMINISTRATION IN LIEU OF ARMY DISABILITY RETIREMENT PAY- - PRESUMABLY UNDER AUTHORITY CONTAINED IN 38 U.S.C. 3105--- AND AT THE SAME TIME REQUESTED THAT HE BE DISCHARGED FROM THE ARMY OF THE UNITED STATES RETIRED LIST.

YOU REPORT THAT, IN RESPONSE TO THE MEMBER'S TENDER OF RESIGNATION AS A RESERVE COMMISSIONED OFFICER, THE OFFICE OF PERSONNEL OPERATIONS, DEPARTMENT OF THE ARMY, ISSUED A STATEMENT THAT HIS COMMISSION WAS TERMINATED BY OPERATION OF LAW ON MARCH 31, 1953, AND THAT HE HAS HELD NO STATUS IN ANY COMPONENT OF THE ARMY OF THE UNITED STATES SINCE APRIL 1, 1953. ALSO IT IS REPORTED THAT THE JUDGE ADVOCATE GENERAL OF THE ARMY IS OF THE OPINION THAT THE MEMBER HAS NO MILITARY OR ,RETIRED" STATUS BY VIRTUE OF HIS PLACEMENT ON THE ARMY OF THE UNITED STATES RETIRED LIST AND CONSEQUENTLY THERE APPEARS TO BE NO ADMINISTRATIVE ACTION WHICH MAY BE TAKEN TO TERMINATE HIS ENTITLEMENT TO RETIREMENT PAY AND THUS END HIS PARTICIPATION IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN.

IN VIEW OF THE FOREGOING FACTS AND AFTER QUOTING PORTIONS OF CERTAIN DECISIONS OF THIS OFFICE, YOU PRESENT FOR DECISION THE FOLLOWING QUESTIONS:

QUESTION 1: DOES A FORMER RESERVE COMMISSIONED OFFICER, BY VIRTUE OF PLACEMENT OF HIS NAME ON THE AUS RETIRED LIST, ACQUIRE A MILITARY OR RETIRED STATUS FROM WHICH HE COULD LEGALLY RESIGN, CONTEMPLATING THAT SUCH ACTION WOULD RESULT IN CANCELLATION OF HIS PARTICIPATION IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN INCIDENT TO THE RELINQUISHMENT OF ENTITLEMENT TO DISABILITY RETIRED PAY; PRESUMING ALTHOUGH THAT SUCH ACTION WOULD LEAVE UNDISTURBED HIS ENTITLEMENT TO RECEIVE VETERANS ADMINISTRATION DISABILITY COMPENSATION WHICH HE HAD PREVIOUSLY ELECTED IN LIEU OF RETIRED PAY?

QUESTION 2: IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, WOULD ACCEPTANCE OF THE MEMBER'S RESIGNATION UNDER SUCH CIRCUMSTANCES, RETROACTIVE TO THE DATE IT WAS ORIGINALLY TENDERED (18 OCTOBER 1962), BE PROPER?

QUESTION 3: IF THE ANSWER TO QUESTION 2 IS IN THE NEGATIVE, SHOULD ACTION BE TAKEN TO EFFECT COLLECTION OF RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN ANNUITY COSTS (PLUS INTEREST), DELINQUENT SINCE 1 NOVEMBER 1962?

WHILE YOUR MAIN QUESTION IS STATED IN VERY GENERAL TERMS, THE SPECIFIC QUESTIONS APPEAR TO HAVE BEEN PROMPTED BY THE CASE DESCRIBED ABOVE.

IT IS THE LAW UNDER WHICH A MEMBER IS RETIRED OR BECOMES ENTITLED TO RETIREMENT PAY WHICH GOVERNS HIS "RETIRED" STATUS AND FIXES HIS RIGHTS. IT HAS LONG BEEN HELD THAT RETIRED PAY IS PAID TO OFFICERS OF THE REGULAR ARMY AS CURRENT COMPENSATION OR PAY FOR THEIR CONTINUED SERVICE AS OFFICERS AFTER RETIREMENT AND ONLY WHILE THEY REMAIN IN THE SERVICE. UNITED STATES V. TYLER, 105 U.S. 244. THE "RETIREMENT PAY" AUTHORIZED BY THE 1939 ACT FOR OFFICERS OF THE ARMY OF THE UNITED STATES, OTHER THAN OFFICERS OF THE REGULAR ARMY, WHO SUFFERED DISABILITY WHILE EMPLOYED IN THE ACTIVE MILITARY SERVICE OF THE FEDERAL GOVERNMENT, IS NOT CONDITIONED ON THEIR REMAINING IN THE SERVICE AND HAS BEEN VIEWED AS BEING MORE IN THE NATURE OF A PENSION PREDICATED ON THE DISABILITY, WITHOUT REGARD TO WHETHER THEY REMAIN IN THE SERVICE AND WITHOUT RELATION TO ANY SUCH SUBSEQUENT SERVICE. 40 COMP. GEN. 541, 543, AND DECISIONS THERE CITED. ALTHOUGH A MEMBER MAY NOT CONTINUE TO RECEIVE RETIRED PAY AS A MEMBER OF THE REGULAR FORCES IF HIS MILITARY RETIRED STATUS IS TERMINATED, WE HAVE HELD IN 37 COMP. GEN. 207 THAT AN OFFICER GRANTED RETIREMENT PAY UNDER SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, APPROVED AUGUST 27, 1940, CH. 694, 54 STAT. 864, 10 U.S.C. 6148, WHICH IS SIMILAR TO THE PROVISIONS OF THE 1939 ACT, WHOSE ENTITLEMENT IS NOT BASED ON HIS CONTINUANCE IN THE SERVICE OF THE UNITED STATES, RETAINS THE RIGHT TO SUCH PAY EVEN THOUGH DROPPED FROM THE ROLLS AS A RESERVE OFFICER OF THE ARMED FORCES.

UNDER SECTION 301 (A) OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, APPROVED JUNE 29, 1948, CH. 708, 62 STAT. 1087, U.S.C. 1036 (1952 ED.), THE SECRETARY OF THE ARMY WAS AUTHORIZED TO ESTABLISH THE ARMY OF THE UNITED STATES RETIRED LIST ON WHICH THE NAMES OF COMMISSIONED OFFICERS "GRANTED RETIREMENT PAY"UNDER THE 1939 ACT SHALL BE PLACED. THAT LAW, HOWEVER, CONTAINED NO PROVISION OTHERWISE AFFECTING THEIR STATUS NOR DID THE PLACING OF THE NAME OF SUCH A FORMER OFFICER ON THAT LIST GIVE HIM A MILITARY STATUS. SECTION 411 (2) OF THE CAREER COMPENSATION ACT OF 1949, UNDER WHICH "ANY FORMER MEMBER OF THE UNIFORMED SERVICES HERETOFORE GRANTED OR ENTITLED TO RECEIVE RETIREMENT PAY FOR PHYSICAL DISABILITY" MAY ELECT TO QUALIFY UNDER OPTIONS (A) OR (B) AND RECEIVE THE BENEFITS OF THAT ACT, LIKEWISE MADE NO PROVISION FOR ANY CHANGE IN RETIREMENT STATUS. BY THE DEFINITIONS CONTAINED IN SECTION 2 (D) AND (G), THE BENEFITS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, APPROVED AUGUST 8, 1953, CH. 393, 67 STAT. 501 (NOW RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN) WERE MADE AVAILABLE TO THOSE PERSONS OF THE CLASS HERE UNDER CONSIDERATION WHO CHOSE TO MAKE AN ELECTION WITHIN 180 DAYS TO RECEIVE A REDUCED AMOUNT OF RETIREMENT PAY TO PROVIDE ONE OR MORE OF THE ANNUITIES THEREIN SPECIFIED. AN ELECTION SO MADE WAS IRREVOCABLE.

CONCERNING THE MATTER OF WAIVING RETIREMENT PAY, IT IS WELL ESTABLISHED THAT IN THE ABSENCE OF A STATUTE SO PROVIDING, SUCH PAY CANNOT BE WAIVED. 20 COMP. GEN. 41 AND B-81545, APRIL 15, 1949. WHILE 38 U.S.C. 3105 PERMITS A WAIVER OF RETIREMENT PAY IN ORDER TO RECEIVE COMPENSATION UNDER LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION, IT APPEARS THAT A PERSON MAY NOT AVOID HIS LIABILITY UNDER SECTION 5 OF THE 1953 ACT (NOW 10 U.S.C. 1438) TO PAY THE COSTS OF THE ANNUITY ELECTED BY HIM UNDER THAT ACT BY ELECTING TO RECEIVE COMPENSATION BENEFITS FROM THE VETERANS ADMINISTRATION IN LIEU OF HIS RETIREMENT PAY. SEE 34 COMP. GEN. 664, 665. SEE, ALSO, 28 COMP. GEN. 484.

HAVING MET THE REQUIREMENTS OF THE 1939 ACT AND BEEN GRANTED RETIREMENT PAY WITHOUT REGARD TO THEN BEING IN THE MILITARY SERVICE OR CONTINUING IN SUCH SERVICE, THE OFFICER CONCERNED DOES NOT HAVE A STATUS FROM WHICH HE MAY RESIGN. HAVING MADE AN IRREVOCABLE ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, HE IS OBLIGATED TO HAVE THE COST OF HIS ELECTED ANNUITY DEDUCTED FROM HIS RETIREMENT PAY OR MAKE EQUIVALENT PAYMENTS OF THE AMOUNTS THAT WOULD OTHERWISE HAVE BEEN DEDUCTED FROM RETIREMENT PAY (10 U.S.C. 1438) SO LONG AS HE IS IN RECEIPT OF RETIREMENT PAY OR VETERANS ADMINISTRATION COMPENSATION IN LIEU THEREOF, UNLESS IT IS DETERMINED UNDER 10 U.S.C. 1436 (B) THAT REQUIRING THE MEMBER TO CONTINUE TO PARTICIPATE IN THE PROGRAM WOULD VIOLATE EQUITY AND GOOD CONSCIENCE BECAUSE OF SEVERE FINANCIAL HARDSHIP.

IN VIEW OF THE FOREGOING, QUESTION 1 IS ANSWERED IN THE NEGATIVE, QUESTION 2 REQUIRES NO ANSWER AND QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE.