B-155184, OCTOBER 5, 1964, 44 COMP. GEN. 186

B-155184, OCTOBER 5, 1964, 44 COMP. GEN. 186

COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - ELECTION OF STATUS UNDER THE DUAL COMPENSATION ACT - EFFECTIVE DATE. COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - ELECTION OF STATUS UNDER THE DUAL COMPENSATION ACT - FILING OF ELECTION THE EFFECTIVE DATE OF A TIMELY STATUS ELECTION UNDER SUBSECTION 201 (F) OF THE DUAL COMPENSATION ACT OF AUGUST 19, 1964, BY A RETIRED OFFICER EMPLOYED ON NOVEMBER 30, 1964, IN A CIVILIAN POSITION IS DECEMBER 1, 1964, THE EFFECTIVE DATE OF THE SUBSECTION, AND NOT THE DATE THE ELECTION IS FILED WITH THE DEPARTMENT CONCERNED, OR ANY DATE SELECTED BY THE RETIRED OFFICER BETWEEN DECEMBER 1, 1964, AND MARCH 1, 1965, THE EXPIRATION DATE OF THE 90-DAY PERIOD PROVIDED FOR FILING AN ELECTION WITH THE DEPARTMENT CONCERNED, THE 1964 ACT NEITHER EXPRESSLY NOR IMPLIEDLY AUTHORIZING A RETIRED OFFICER TO SELECT A DATE ON WHICH HIS ELECTION WILL BECOME EFFECTIVE, AND THE RIGHT OF AN OFFICER TO MAKE AN ELECTION BEING DEPENDENT ON HIS CIVILIAN STATUS AT THE CLOSE OF BUSINESS ON NOVEMBER 30, 1964, AN ELECTION FILED PRIOR TO DECEMBER 1, 1964, WOULD BE PREMATURE. THE DUAL COMPENSATION ACT OF AUGUST 19, 1964, PRESCRIBING THAT THE STATUS ELECTION OF A RETIRED OFFICER EMPLOYED ON NOVEMBER 30, 1964, IN A CIVILIAN POSITION "SHALL BE FILED WITH THE DEPARTMENT CONCERNED" NOT LATER THAN THE 90TH DAY AFTER THE EFFECTIVE DATE OF SUBSECTION 201 (F/- - DECEMBER 1, 1964--- AN ELECTION TO BE TIMELY FILED MUST BE RECEIVED BY THE DEPARTMENT CONCERNED ON OR BEFORE MARCH 1, 1965.

TO THE SECRETARY OF DEFENSE, OCTOBER 5, 1964:

REFERENCE IS MADE TO LETTER DATED SEPTEMBER 14, 1964, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING DECISION ON SEVERAL QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE IMPLEMENTATION OF THE DUAL COMPENSATION ACT, APPROVED AUGUST 19, 1964, PUBLIC LAW 88-448, 78 STAT. 484. THE QUESTIONS PRESENTED ARE CONTAINED IN COMMITTEE ACTION NO. 348 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS FOLLOWS:

1. IS A TIMELY ELECTION, UNDER THE PROVISIONS OF SECTION 201 (F) OF THE DUAL COMPENSATION ACT, PUBLIC LAW 88-448, 19 AUGUST 1964, BY A RETIRED OFFICER EMPLOYED ON NOVEMBER 30, 1964 IN A CIVILIAN OFFICE, EFFECTIVE ON (A) THE EFFECTIVE DATE OF THAT SECTION, (B) THE DATE "FILED" WITH THE DEPARTMENT CONCERNED, OR (C) ANY DATE SELECTED BY THE RETIRED OFFICER BETWEEN DECEMBER 1, 1964, AND MARCH 1, 1965?

2. (A) IS AN ELECTION UNDER SECTION 201 (F) OF THE ACT, FILED WITH THE DEPARTMENT CONCERNED PRIOR TO DECEMBER 1, 1964 (THE EFFECTIVE DATE OF THAT SECTION), A VALID ELECTION?

(B) IF THE ANSWER IS IN THE AFFIRMATIVE MAY SUCH ELECTION BE CHANGED AT ANY TIME PRIOR TO DECEMBER 1, 1964?

3. IS AN ELECTION POSTMARKED MARCH 1, 1965, EVEN THOUGH NOT RECEIVED IN THE DEPARTMENT CONCERNED UNTIL AFTER THAT DATE, A VALID ELECTION UNDER SECTION 201 (F/?

SUBSECTION 201 (F) OF THE DUAL COMPENSATION ACT, 78 STAT. 485, PROVIDES AS FOLLOWS:

(F) NOTWITHSTANDING SUBSECTION (A) OF THIS SECTION, A RETIRED OFFICER OF ANY REGULAR COMPONENT OF THE UNIFORMED SERVICES WHO WAS EMPLOYED IN A CIVILIAN OFFICE ON THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS SUBSECTION---

(1) IF, ON SUCH IMMEDIATELY PRECEDING DAY, HE WAS EXEMPT FROM LIMITATIONS ON COMPENSATION, MAY ELECT (A) TO REMAIN SUBJECT TO AND CONTINUE UNDER SUCH EXEMPTION OR (B) TO BE SUBJECT TO APPLICABLE LIMITATIONS AND EXEMPTIONS OF SUBSECTIONS (A), (B), (C), AND (E) OF THIS SECTION; OR

(2) IF, ON SUCH IMMEDIATELY PRECEDING DAY, HE WAS SUBJECT TO LIMITATIONS ON COMPENSATION, MAY ELECT (A) TO REMAIN SUBJECT TO AND CONTINUE UNDER SUCH LIMITATIONS, OR (B) TO BE SUBJECT TO APPLICABLE LIMITATIONS AND EXEMPTIONS OF SUBSECTIONS (A), (B), (C), AND (E) OF THIS SECTION.

SUCH ELECTION IS IRREVOCABLE AND SHALL BE FILED WITH THE DEPARTMENT CONCERNED NOT LATER THAN THE NINETIETH DAY AFTER THE EFFECTIVE DATE OF THIS SUBSECTION. ANY SUCH RETIRED OFFICER WHO DOES NOT FILE SUCH ELECTION WITHIN THE PRESCRIBED PERIOD SHALL BE HELD AND CONSIDERED TO HAVE ELECTED TO REMAIN IN THE STATUS WHICH HE OCCUPIES, ON SUCH IMMEDIATELY PRECEDING DAY, WITH RESPECT TO LIMITATIONS ON COMPENSATION, OR EXEMPTIONS THEREFROM, AS THE CASE MAY BE. IN THE EVENT OF ANY APPOINTMENT, REINSTATEMENT, OR REEMPLOYMENT OF SUCH RETIRED OFFICER WHICH IS MADE AFTER SUCH EFFECTIVE DATE AND FOLLOWS A BREAK IN SERVICE OF MORE THAN THIRTY DAYS, SUCH RETIRED OFFICER SHALL BE SUBJECT TO APPLICABLE LIMITATIONS AND EXEMPTIONS OF SUBSECTIONS (A), (B), (C), AND (E) OF THIS SECTION.

UNDER THE PROVISIONS OF SUBSECTION 403 (A) OF THE ACT, 78 STAT. 496, SUBSECTION 201 (F) WILL BECOME EFFECTIVE ON DECEMBER 1, 1964. SUBSECTION 201 (F) PROVIDES THAT AN ELECTION SHALL BE FILED WITH THE DEPARTMENT CONCERNED NOT LATER THAN THE NINETIETH DAY AFTER THE EFFECTIVE DATE OF THIS SUBSECTION. THERE IS NO PROVISION IN THE STATUTE, APPLICABLE TO THE RETIRED OFFICERS OR TO THE SITUATIONS INVOLVED, WHICH EITHER EXPRESSLY OR IMPLIEDLY AUTHORIZES A RETIRED OFFICER TO SELECT A DATE ON WHICH HIS ELECTION WILL BECOME EFFECTIVE. IT APPEARS THAT THE PURPOSE OF SUBSECTION 201 (F) IS TO GIVE A RETIRED OFFICER OF ANY REGULAR COMPONENT OF THE UNIFORMED SERVICES WITHIN ITS PROVISIONS THE BENEFITS THEREOF BASED ON HIS STATUS AS A CIVILIAN OFFICER OF THE UNITED STATES AT THE CLOSE OF BUSINESS ON NOVEMBER 30, 1964, THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS SUBSECTION. THEREFORE, IT IS OUR VIEW THAT AN ELECTION TIMELY MADE UNDER SUBSECTION 201 (F) BECOMES EFFECTIVE AS OF DECEMBER 1, 1964, THE EFFECTIVE DATE OF THIS SUBSECTION. QUESTION 1 IS ANSWERED ACCORDINGLY.

THERE IS NOTHING IN THE ABOVE-QUOTED PROVISIONS OF LAW WHICH SUGGESTS THAT A RETIRED OFFICER MAY FILE AN ELECTION BEFORE IT IS KNOWN THAT HE WILL BE ELIGIBLE TO MAKE SUCH ELECTION AND SINCE HIS RIGHT TO MAKE AN ELECTION IS DEPENDENT UPON HIS STATUS ON NOVEMBER 30, 1964, IT WOULD SEEM THAT AN ELECTION FILED PRIOR TO DECEMBER 1, 1964, WOULD BE PREMATURE. QUESTION 2 (A) IS ANSWERED IN THE NEGATIVE AND NO ANSWER TO QUESTION 2 (B) IS REQUIRED.

CONCERNING QUESTION 3, SUBSECTION 201 (F) IN PERTINENT PART THAT AN ELECTION "SHALL BE FILED WITH THE DEPARTMENT CONCERNED" NOT LATER THAN THE NINETIETH DAY AFTER THE EFFECTIVE DATE OF THIS SUBSECTION. IN ANALOGOUS CIRCUMSTANCES THE WORD "FILED" HAS BEEN CONSTRUED TO MEAN THAT THE DOCUMENT MUST BE DELIVERED TO THE OFFICE CONCERNED BEFORE IT CAN BE SAID TO BE FILED. SEE UNITED STATES V. LOMBARDO, 241 U.S. 73 (1916); WAMPLER V. SNYDER, 66 F.2D 195 (1933); WEAVER V. UNITED STATES, 72 F.2D 20 (1934); TYSON V. UNITED STATES, 76 F.2D 533 (1935); MODERN ENGINEERING CO. V. UNITED STATES, 126 CT.CL. 136, 113 F.SUPP. 685 (1953); COMMONWEALTH V. O- BRYAN, UTLEY AND CO., 155 S.W. 1126 (1913); IN RE STATE EX REL. ATTORNEY GENERAL, 64 SO. 310 (1914); PENDREY ET AL. V. BRENNAN, 169 P. 174 (1917); STATE V. ERICKSON, 188 N.W. 736 (1922) AND BROOKS V. KINCAID'S ESTATE, 332 S.W.2D 434 (1960).

IN STERN V. ELECTROL, INC., 238 N.Y.S.2D 1005 (1963), THE COURT SAID THAT THE TERM "FILED" AS USED IN A STATUTE RELATING TO THE TIME FOR FILING CLAIMS CANNOT PROPERLY BE EQUATED WITH "MAILED" OR "SERVED BY MAIL," AND THAT A CLAIM WHICH IS MAILED ON THE LAST ALLOWABLE DAY BUT WHICH IS NOT RECEIVED UNTIL THE FOLLOWING DAY IS NOT TIMELY FILED. QUESTION 3 IS ANSWERED BY SAYING THAT FOR THE PURPOSE OF SUBSECTION 201 (F) OF THE DUAL COMPENSATION ACT AN ELECTION MAY BE CONSIDERED AS TIMELY FILED ONLY IF RECEIVED BY THE DEPARTMENT CONCERNED ON OR BEFORE MARCH 1,1965.