B-155234, OCTOBER 8, 1964, 44 COMP. GEN. 198

B-155234: Oct 8, 1964

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PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - TERMINATION - TEMPORARY DISABILITY RETIRED LIST A REGULAR OFFICER OF THE UNIFORMED SERVICES ON THE TEMPORARY DISABILITY RETIRED LIST WHO DOES NOT RECEIVE HIS REAPPOINTMENT TO THE ACTIVE LIST UNTIL SOMETIME AFTER HE HAS BEEN FOUND PHYSICALLY FIT FOR DUTY AND RETURNED TO ACTIVE DUTY AS A RETIRED OFFICER HAS HIS RIGHT TO RETIRED PAY TERMINATED WHEN HE IS FOUND FIT FOR SERVICE AND RETURNED TO ACTIVE DUTY. THE MEMBER WHO HAD BEEN RECEIVING REDUCED RETIRED PAY TO COVER A DEPENDENT ANNUITY ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN IS NOT REQUIRED UNDER 10 U.S.C. 1438 TO MAKE DEPOSITS FOR THE COST OF THE ANNUITY FOR THE PERIOD AFTER HIS DISABILITY RETIRED PAY IS TERMINATED.

B-155234, OCTOBER 8, 1964, 44 COMP. GEN. 198

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - TERMINATION - TEMPORARY DISABILITY RETIRED LIST A REGULAR OFFICER OF THE UNIFORMED SERVICES ON THE TEMPORARY DISABILITY RETIRED LIST WHO DOES NOT RECEIVE HIS REAPPOINTMENT TO THE ACTIVE LIST UNTIL SOMETIME AFTER HE HAS BEEN FOUND PHYSICALLY FIT FOR DUTY AND RETURNED TO ACTIVE DUTY AS A RETIRED OFFICER HAS HIS RIGHT TO RETIRED PAY TERMINATED WHEN HE IS FOUND FIT FOR SERVICE AND RETURNED TO ACTIVE DUTY, EVEN THOUGH HIS RETIRED STATUS DOES NOT TERMINATE UNTIL THE DATE OF REAPPOINTMENT TO THE ACTIVE LIST, AND, THEREFORE, THE MEMBER WHO HAD BEEN RECEIVING REDUCED RETIRED PAY TO COVER A DEPENDENT ANNUITY ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN IS NOT REQUIRED UNDER 10 U.S.C. 1438 TO MAKE DEPOSITS FOR THE COST OF THE ANNUITY FOR THE PERIOD AFTER HIS DISABILITY RETIRED PAY IS TERMINATED.

TO THE SECRETARY OF DEFENSE, OCTOBER 8, 1964:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 19, 1964, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING A DECISION AS TO WHETHER AN OFFICER RECALLED TO ACTIVE DUTY FROM THE TEMPORARY DISABILITY RETIRED LIST IS REQUIRED TO PAY PREMIUMS ON AN ANNUITY ELECTED UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, CHAPTER 73, TITLE 10, U.S. CODE, FROM THE DATE OF RECALL TO ACTIVE DUTY TO THE DATE OF REAPPOINTMENT TO THE ACTIVE LIST.

SECTIONS 1202 AND 1205 OF TITLE 10, U.S. CODE, PROVIDE THAT A MEMBER OF THE ARMED FORCES WHO BECOMES DISABLED WHILE ON ACTIVE DUTY MAY BE PLACED ON THE TEMPORARY DISABILITY RETIRED LIST WITH DISABILITY RETIRED PAY IF THE DISABILITY IS NOT DETERMINED TO BE OF A PERMANENT NATURE, IF IT IS ALSO DETERMINED UNDER ACCEPTED MEDICAL PRINCIPLES THAT SUCH DISABILITY MAY BE OF A PERMANENT NATURE. SECTION 1210 PERMITS PAYMENT OF TEMPORARY DISABILITY RETIRED PAY FOR A MAXIMUM PERIOD OF 5 YEARS AND REQUIRES MEMBERS ON THE TEMPORARY DISABILITY RETIRED LIST TO SUBMIT TO PERIODIC PHYSICAL EXAMINATIONS. IF UPON THE EXPIRATION OF 5 YEARS THE DISABILITY STILL EXISTS, IT SHALL BE CONSIDERED TO BE OF A PERMANENT NATURE AND THE MEMBER IS PERMANENTLY RETIRED FOR DISABILITY.

IF UPON A PERIODIC OR FINAL PHYSICAL EXAMINATION IT IS DETERMINED THAT THE MEMBER ON THE TEMPORARY DISABILITY RETIRED LIST IS PHYSICALLY FIT TO PERFORM THE DUTIES OF HIS OFFICE, SECTION 1211 PROVIDES THAT, WITH HIS CONSENT, A COMMISSIONED OFFICER OF A REGULAR COMPONENT SHALL BE RECALLED TO ACTIVE DUTY AND, AS SOON AS PRACTICABLE, MAY BE REAPPOINTED BY THE PRESIDENT, WITH THE ADVICE AND CONSENT OF THE SENATE, TO THE ACTIVE LIST. SECTION 1211 (C) PROVIDES THAT HIS STATUS ON THE TEMPORARY DISABILITY RETIRED LIST "TERMINATES ON THE DATE OF HIS * * * REAPPOINTMENT.'

SECTION 1438 OF TITLE 10, U.S. CODE, PROVIDES THAT, IF A PERSON WHO HAS BECOME ENTITLED TO RETIRED PAY AND HAS ELECTED AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN IS NOT ENTITLED TO RETIRED PAY FOR ANY PERIOD, HE MUST DEPOSIT IN THE TREASURY THE AMOUNT THAT WOULD OTHERWISE HAVE BEEN DEDUCTED FROM HIS RETIRED PAY FOR THAT PERIOD TO PROVIDE THE ANNUITY. SECTION 1439 PROVIDES THAT A PERSON ON THE TEMPORARY DISABILITY RETIRED LIST WHO HAS ELECTED AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN AND WHOSE NAME IS REMOVED FROM THAT LIST FOR ANY REASON OTHER THAN RETIREMENT OR GRANT OF RETIRED PAY 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.

IN 38 COMP. GEN. 279 WE HELD THAT AN OFFICER OF THE NAVAL RESERVE WHO DID NOT CONSENT TO REAPPOINTMENT AFTER HAVING BEEN FOUND FIT FOR DUTY WAS REQUIRED TO PAY THE COST OF THE ANNUITY ONLY FOR THE 5-YEAR PERIOD HE WAS ELIGIBLE TO RECEIVE DISABILITY RETIRED PAY EVEN THOUGH HE WAS NOT REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST UNTIL MORE THAN 5 MONTHS AFTER HIS RIGHT TO RECEIVE RETIRED PAY TERMINATED. IN THAT DECISION WE POINTED OUT THAT THE CONTINGENCY OPTION ACT (NOW THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN) PROVIDES THAT ANNUITIES FOR DEPENDENTS ARE TO BE PURCHASED OUT OF RETIRED PAY AND THAT:

* * * WE FIND NOTHING IN THE CONTINGENCY OPTION ACT OR IN ITS LEGISLATIVE HISTORY WHICH INDICATES THAT CONGRESS INTENDED THAT THE PROTECTION PROVIDED DEPENDENTS OF RETIRED MEMBERS UNDER THAT ACT SHOULD ACCRUE TO THE DEPENDENTS OF A MEMBER AFTER HIS RIGHT TO RETIRED PAY HAS TERMINATED PERMANENTLY UNDER CIRCUMSTANCES SUCH AS ARE HERE INVOLVED.

THE SITUATION IS NO DIFFERENT FOR AN OFFICER OF THE REGULAR SERVICES. THE LAW CONTEMPLATES THAT THE ANNUITY FOR HIS DEPENDENTS BE PURCHASED OUT OF RETIRED PAY DEDUCTIONS. A REGULAR OFFICER ON THE TEMPORARY DISABILITY RETIRED LIST MAY NOT RECEIVE RETIRED PAY IN THAT STATUS FOR MORE THAN 5 YEARS AND HIS RETIRED PAY STATUS IS PERMANENTLY TERMINATED WHEN HE IS FOUND FIT FOR ACTIVE SERVICE AND IS RECALLED TO ACTIVE DUTY, EVEN THOUGH HE IS RECALLED AS A RETIRED OFFICER ON THE TEMPORARY DISABILITY RETIRED LIST AND HIS RETIRED STATUS DOES NOT TERMINATE UNTIL THE DATE OF HIS REAPPOINTMENT TO THE ACTIVE LIST. ACCORDINGLY, IT IS OUR OPINION THAT THE PROVISIONS OF 10 U.S.C. 1438 DO NOT REQUIRE A REGULAR OFFICER TO MAKE DEPOSITS FOR THE COST OF AN ANNUITY FOR DEPENDENTS UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN FOR THE PERIOD AFTER HIS DISABILITY RETIRED PAY IS TERMINATED BECAUSE HE IS FOUND FIT FOR MILITARY SERVICE.