B-156612, NOV. 12, 1965, 45 COMP. GEN. 247

B-156612: Nov 12, 1965

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WAS COMPUTED ON THE BASIS OF A MARCH 26. IS ENTITLED TO A REFUND OF THE EXCESS DEDUCTIONS MADE FOR THE COST OF THE ANNUITY. 1955 IS BARRED UNDER 31 U.S.C. 71A. 1965: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 22. HE ELECTED TO RECEIVE REDUCED RETIRED PAY TO PROVIDE AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN AND THAT THE REDUCTION IN HIS RETIRED PAY WAS COMPUTED ON THE BASIS OF HIS BIRTH DATE SHOWN AS MARCH 26. YOU STATE THAT THIS CORRECTION WILL RESULT IN A REDUCTION OF THE MONTHLY COST OF THE ELECTED ANNUITY WHICH IF ALLOWED WILL RESULT IN A REFUND OF $1. OR WHETHER THE ADJUSTMENT IS RESTRICTED BY THE STATUTE OF LIMITATIONS. IT IS ALSO THERE PROVIDED THAT AN ADJUSTMENT MAY BE MADE IN THE REDUCTION OF RETIRED PAY UPON THE FINDING OF AN ADMINISTRATIVE ERROR OR A MISTAKE OF FACT.

B-156612, NOV. 12, 1965, 45 COMP. GEN. 247

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - COST DEDUCTIONS - AGE BASIS A RETIRED OFFICER OF THE COAST GUARD WHOSE REDUCED RETIRED PAY TO PROVIDE AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446, WAS COMPUTED ON THE BASIS OF A MARCH 26, 1903 BIRTH DATE, UPON CORRECTION OF HIS DATE OF BIRTH TO MARCH 26, 1906, IS ENTITLED TO A REFUND OF THE EXCESS DEDUCTIONS MADE FOR THE COST OF THE ANNUITY, SECTION 401 OF THE REGULATIONS IMPLEMENTING THE PLAN PROVIDING FOR THE ADJUSTMENT OF RETIRED PAY UPON THE FINDING OF AN ADMINISTRATIVE ERROR OR A MISTAKE OF FACT, AND THE SELF-SUSTAINING BASIS OF THE PLAN REQUIRING THE WITHHOLDING OF PROPER AMOUNTS TO COVER THE COST OF THE ANNUITY COMPUTED UNDER AN ACTUARIAL EQUIVALENT METHOD IN ORDER TO PAY A MONTHLY SUM UP TO THE TIME OF A MEMBER'S DEATH; HOWEVER, THE CLAIM FOR REFUND HAVING BEEN RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON APRIL 23, 1965, IT MAY ONLY BE COMPUTED FROM APRIL 23, 1955, THE RIGHT TO A REFUND ACCRUING DAY-TO-DAY ON THE SAME BASIS AS RETIRED PAY, THE PERIOD THAT PRECEDES APRIL 23, 1955 IS BARRED UNDER 31 U.S.C. 71A.

TO C. C. GORDEN, UNITED STATES COAST GUARD, NOVEMBER 12, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 22, 1965, REQUESTING AN ADVANCE DECISION AS TO THE ENTITLEMENT OF LIEUTENANT EDWARD W. JACKSON (3136), U.S. COAST GUARD, RETIRED, TO A REFUND OF EXCESS DEDUCTIONS FOR THE COST OF AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446, DUE TO A CHANGE IN THE RECORD OF HIS DATE OF BIRTH.

YOU SAY THAT LIEUTENANT JACKSON RETIRED JANUARY 1, 1949, THAT ON APRIL 1, 1954, HE ELECTED TO RECEIVE REDUCED RETIRED PAY TO PROVIDE AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN AND THAT THE REDUCTION IN HIS RETIRED PAY WAS COMPUTED ON THE BASIS OF HIS BIRTH DATE SHOWN AS MARCH 26, 1903. BY LETTER RECEIVED BY THE COAST GUARD ON APRIL 4, 1965, LIEUTENANT JACKSON REQUESTED THAT HIS RECORDS BE CORRECTED TO SHOW HIS BIRTH DATE AS MARCH 26, 1906, IN ACCORDANCE WITH THE DELAYED CERTIFICATE OF BIRTH--- ISSUED BY THE STATE REGISTRAR, STATE BOARD OF HEALTH, BUREAU OF VITAL STATISTICS, COMMONWEALTH OF KENTUCKY, IN 1957 ON THE BASIS OF EVIDENCE WHICH THAT OFFICIAL ACCEPTED AS ESTABLISHING THE LATTER DATE AS THE CORRECT DATE OF HIS BIRTH--- AND THAT ADJUSTMENT BE MADE IN THE COST OF THE ANNUITY BEING DEDUCTED FROM HIS RETIRED PAY. YOU STATE THAT THIS CORRECTION WILL RESULT IN A REDUCTION OF THE MONTHLY COST OF THE ELECTED ANNUITY WHICH IF ALLOWED WILL RESULT IN A REFUND OF $1,376.76 FOR THE PERIOD APRIL 1, 1954 THROUGH MARCH 31, 1965, AS SHOWN ON A SUPPLEMENTAL RETIRED PAYROLL FORWARDED WITH YOUR LETTER. YOU REQUEST A DECISION AS TO WHETHER HIS ANNUITY MAY BE RECOMPUTED RETROACTIVE TO APRIL 1, 1954, OR WHETHER THE ADJUSTMENT IS RESTRICTED BY THE STATUTE OF LIMITATIONS.

SECTION 401 OF THE REGULATIONS FOR THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, AS APPROVED BY THE SECRETARY OF DEFENSE, PURSUANT TO THE AUTHORITY OF EXECUTIVE ORDER NO. 10499, DATED NOVEMBER 4, 1953, PROVIDES THAT THE REDUCTION TO BE MADE IN THE RETIRED PAY OF A MEMBER WHO HAS MADE AN ELECTION SHALL BE COMPUTED BY THE UNIFORMED SERVICE CONCERNED IN EACH INDIVIDUAL CASE BASED UPON TABLES SHOWING PERCENTAGE REDUCTION OF RETIRED PAY. IT IS ALSO THERE PROVIDED THAT AN ADJUSTMENT MAY BE MADE IN THE REDUCTION OF RETIRED PAY UPON THE FINDING OF AN ADMINISTRATIVE ERROR OR A MISTAKE OF FACT.

THE COST OF THE ELECTED ANNUITY UNDER THE PLAN IS COMPUTED UNDER AN ACTUARIAL EQUIVALENT METHOD AND THE ELECTION OF AN ANNUITY CONSTITUTES A CONTRACT TO PAY A MONTHLY SUM UP TO THE TIME OF THE DEATH OF THE MEMBER. WE HAVE HELD THAT THE REQUIREMENT FOR THE PAYMENT OF THE PURCHASE PRICE OF THE ANNUITY IS IMPLICIT IN THE TERMS OF 10 U.S.C. 1431 (B) AND UNLESS THE PROPER AMOUNTS ARE WITHHELD IN ALL CASES THE ANNUITY PLAN WILL NOT BE SELF -SUSTAINING. 35 COMP. GEN. 12; 41 ID. 28; AND 42 ID. 407. THUS WHERE AN OVERPAYMENT OF RETIRED PAY TO A MEMBER RESULTED IN THE WITHHOLDING OF LESS MONEY THAN WAS REQUIRED FOR THE PURCHASE OF AN ANNUITY WE HELD THAT SUCH OVERPAYMENTS OF RETIRED PAY SHOULD BE COLLECTED SO AS TO MAKE UP THE RESULTING DEFICIT. CONVERSELY, WHERE THROUGH ERROR IN COMPUTATION OR MISTAKE OF FACT A MEMBER'S RETIRED PAY IS REDUCED BY AN AMOUNT IN EXCESS OF THAT WHICH IS REQUIRED UNDER THE PLAN, THE COST OF THE ANNUITY SHOULD BE RECOMPUTED ON THE CORRECTED BASIS AND THE DIFFERENCE IN RETIRED PAY PAID TO THE MEMBER.

IN THE PRESENT CASE THE MEMBER'S RIGHT TO REFUND ACCRUED ON A DAY TO-DAY BASIS AS HIS RETIRED PAY ACCRUED. ACCORDINGLY, HIS CLAIM, RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON APRIL 23, 1965, IS BARRED BY THE ACT OF OCTOBER 9, 1940, CH. 708, 54 STAT. 1061, 31 U.S.C. 71A,FOR THE PERIOD WHICH PRECEDES APRIL 23, 1955. THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT TO THE EXTENT INDICATED, IF OTHERWISE CORRECT.