B-156812, JUL. 7, 1965, 45 COMP. GEN. 18

B-156812: Jul 7, 1965

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WAS PROPERLY COMPUTED ON THE BASIS THAT THE OFFICER WAS 14 YEARS OLDER THAN HIS WIFE. PROVIDING THAT THE AGES OF AN ACTIVE MEMBER AND HIS NAMED DEPENDENTS ON THEIR "NEAREST" BIRTHDAY AS OF THE DATE OF RETIREMENT ARE THE AGES TO BE USED IN CALCULATING THE REQUIRED RETIRED PAY REDUCTION. THE COST OF THE ANNUITY TO THE OFFICER MAY NOT BE DECREASED ON THE BASIS THAT HE WAS ONLY 13 YEARS OLDER THAN HIS WIFE AT THE TIME OF RETIREMENT. 1965: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 26. YOUR REQUEST WAS FORWARDED HERE BY FIRST INDORSEMENT DATED MAY 17. GENERAL JOHNSON WAS BORN SEPTEMBER 27. HIS WIFE'S DATE OF BIRTH WAS OCTOBER 2. HE WAS CONSIDERED TO BE 60 YEARS OF AGE. HIS WIFE WAS CONSIDERED TO BE 46 YEARS OF AGE AND THE COST OF THE ANNUITY WAS COMPUTED UNDER THE APPROPRIATE TABLES ON THE BASIS OF A MEMBER OLDER THAN HIS DEPENDENT WIFE BY 14 YEARS.

B-156812, JUL. 7, 1965, 45 COMP. GEN. 18

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - COST DEDUCTIONS - AGE BASIS UPON THE RETIREMENT OF AN OFFICER OF THE UNIFORMED SERVICES ON APRIL 1, 1960, AT THE AGE OF 60, THE COST OF THE ANNUITY HE ELECTED ON OCTOBER 29, 1954, TO PROVIDE FOR HIS WIFE, BORN OCTOBER, 2, 1913, WAS PROPERLY COMPUTED ON THE BASIS THAT THE OFFICER WAS 14 YEARS OLDER THAN HIS WIFE, SECTION 404 OF THE REGULATIONS FOR THE UNIFORMED SERVICES CONTINGENCY ACT OF 1953, IN EFFECT AT THE TIME THE OFFICER RETIRED, AND SUBSTANTIALLY THE SAME AS THE PROVISION IN THE REGULATIONS ISSUED UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, PROVIDING THAT THE AGES OF AN ACTIVE MEMBER AND HIS NAMED DEPENDENTS ON THEIR "NEAREST" BIRTHDAY AS OF THE DATE OF RETIREMENT ARE THE AGES TO BE USED IN CALCULATING THE REQUIRED RETIRED PAY REDUCTION, AND NEAREST MEANING IMMEDIATELY ADJACENT TO OR IN CLOSEST PROXIMITY, 2 DAYS LESS OCCURRING BETWEEN OCTOBER 2, 1959, THE FORTY-SIXTH BIRTHDAY OF THE OFFICER'S WIFE AND THE DATE OF HIS RETIREMENT ON APRIL 1, 1960, THAN BETWEEN APRIL 1, 1960 AND OCTOBER 2, 1960, THE COST OF THE ANNUITY TO THE OFFICER MAY NOT BE DECREASED ON THE BASIS THAT HE WAS ONLY 13 YEARS OLDER THAN HIS WIFE AT THE TIME OF RETIREMENT.

TO LIEUTENANT COLONEL H. W. KASSERMAN, DEPARTMENT OF THE ARMY, JULY 7, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 26, 1965, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER IN THE AMOUNT OF $131.76, IN FAVOR OF MAJOR GENERAL DOUGLAS V. JOHNSON, 0 15 072, USA, RETIRED, REPRESENTING THE DIFFERENCE BETWEEN REDUCTION IN RETIRED PAY COMPUTED ON HIS SPOUSE'S AGE OF 46 AND THE REDUCTION IN RETIRED PAY COMPUTED ON 46 1/2 YEARS FOR THE PERIOD APRIL 1, 1960, THROUGH MARCH 31, 1965, UNDER THE PROVISIONS OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446. YOUR REQUEST WAS FORWARDED HERE BY FIRST INDORSEMENT DATED MAY 17, 1965, OF THE OFFICE, CHIEF OF FINANCE UNDER D.O. NO. A-851 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

PURSUANT TO AN ELECTION OF OPTIONS EXECUTED OCTOBER 29, 1954, GENERAL JOHNSON ELECTED TO RECEIVE REDUCED RETIRED PAY IN ORDER TO PROVIDE AN ANNUITY FOR HIS WIFE, HELEN JEANE JOHNSON, UNDER OPTION 1 AT 1/8 OF HIS REDUCED RETIRED PAY COMBINED WITH OPTION 4. GENERAL JOHNSON WAS BORN SEPTEMBER 27, 1900, AND HIS WIFE'S DATE OF BIRTH WAS OCTOBER 2, 1913. WHEN HE RETIRED EFFECTIVE APRIL 1, 1960, HE WAS CONSIDERED TO BE 60 YEARS OF AGE, HIS WIFE WAS CONSIDERED TO BE 46 YEARS OF AGE AND THE COST OF THE ANNUITY WAS COMPUTED UNDER THE APPROPRIATE TABLES ON THE BASIS OF A MEMBER OLDER THAN HIS DEPENDENT WIFE BY 14 YEARS. SINCE IT IS YOUR VIEW THAT UNDER OUR DECISION, B 155385, OF NOVEMBER 9, 1964, 44 COMP. GEN. 276, IT MIGHT BE CONSIDERED THAT MRS. JOHNSON WAS 46 1/2 YEARS OF AGE ON APRIL 1, 1960, YOU RAISE A QUESTION AS TO WHETHER THE COST OF ANNUITY SHOULD BE COMPUTED ON THE BASIS OF THE MEMBER'S AGE OF60, OLDER THAN HIS DEPENDENT SPOUSE BY 13 YEARS.

SECTION 404 OF THE REGULATIONS FOR THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, AS APPROVED BY THE SECRETARY OF DEFENSE, NOVEMBER 1, 1953, PURSUANT TO THE AUTHORITY OF EXECUTIVE ORDER NO. 10499, DATED NOVEMBER 4, 1953, IN EFFECT AT THE TIME GENERAL JOHNSON RETIRED, PROVIDED THAT THE AGES TO BE USED FOR CALCULATING REDUCTION OF RETIRED PAY WILL BE THE AGES OF THE MEMBER AND HIS NAMED DEPENDENTS ON THEIR NEAREST BIRTHDAY AS OF THE DATE OF RETIREMENT IN THE CASE OF AN ACTIVE MEMBER AND AS OF THE DATE OF ELECTION IN THE CASE OF A RETIRED MEMBER. THE REGULATIONS ISSUED UNDER THE AUTHORITY OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN CONTAIN SUBSTANTIALLY THE SAME PROVISION.

"NEAREST" MEANS IMMEDIATELY ADJACENT TO OR IN CLOSEST PROXIMITY. THERE WERE 2 DAYS LESS BETWEEN OCTOBER, 2, 1959, MRS. JOHNSON'S FORTY SIXTH BIRTHDAY, AND APRIL 1, 1960, THAN BETWEEN APRIL 1, 1960, AND OCTOBER 2, 1960. THUS, AS OF APRIL 1, 1960, HER NEAREST BIRTHDAY IN POINT OF TIME WAS OCTOBER 2, 1959. HENCE UNDER THE PLAIN TERMS OF THE REGULATIONS THE COST OF THE ANNUITY IN THIS CASE WAS CORRECTLY COMPUTED ON THE BASIS THAT THE MEMBER WAS OLDER THAN HIS DEPENDENT SPOUSE BY 14 YEARS.

ACCORDINGLY, THERE IS NO AUTHORITY FOR PAYMENT OF THE VOUCHER ENCLOSED WITH YOUR LETTER AND IT WILL BE RETAINED HERE.