B-157236, AUG. 3, 1965, 45 COMP. GEN. 57

B-157236: Aug 3, 1965

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PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - TIME FOR ELECTION - RECORDS CORRECTION THE CORRECTION OF MILITARY RECORDS SUBSEQUENT TO THE DEATH OF AN ARMY SERGEANT TO SHOW AN EARLIER ELECTION DATE OF A SURVIVORSHIP ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN (10 U.S.C. 1431-1436) FOR HIS WIDOW AND CHILD THEREBY MEETING THE REQUIREMENTS OF SECTION 1431 THAT AN ANNUITY ELECTION MUST BE MADE BY A MEMBER OF THE UNIFORMED SERVICES PRIOR TO COMPLETION OF 18 YEARS OF SERVICE FOR WHICH HE IS ENTITLED TO CREDIT IN THE COMPUTATION OF BASIC PAY IS NOT A CORRECTION TO AVOID THE OPERATION OF A FEDERAL STATUTE BUT IS A CORRECTION TO ESTABLISH A FACT WHICH DID NOT EXIST IN THE MILITARY RECORD.

B-157236, AUG. 3, 1965, 45 COMP. GEN. 57

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - TIME FOR ELECTION - RECORDS CORRECTION THE CORRECTION OF MILITARY RECORDS SUBSEQUENT TO THE DEATH OF AN ARMY SERGEANT TO SHOW AN EARLIER ELECTION DATE OF A SURVIVORSHIP ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN (10 U.S.C. 1431-1436) FOR HIS WIDOW AND CHILD THEREBY MEETING THE REQUIREMENTS OF SECTION 1431 THAT AN ANNUITY ELECTION MUST BE MADE BY A MEMBER OF THE UNIFORMED SERVICES PRIOR TO COMPLETION OF 18 YEARS OF SERVICE FOR WHICH HE IS ENTITLED TO CREDIT IN THE COMPUTATION OF BASIC PAY IS NOT A CORRECTION TO AVOID THE OPERATION OF A FEDERAL STATUTE BUT IS A CORRECTION TO ESTABLISH A FACT WHICH DID NOT EXIST IN THE MILITARY RECORD, THE EARLIER ELECTION DATE, A CORRECTION OF A FACT THAT IS WITHIN THE BROAD AUTHORITY GRANTED THE SECRETARY OF THE ARMY UNDER 10 U.S.C. 1552 AND THAT IS FINAL AND CONCLUSIVE ON GOVERNMENT OFFICIALS, AND THE ENTITLEMENT OF THE WIDOW TO A SURVIVORSHIP ANNUITY UNDER THE PLAN HAVING BEEN ESTABLISHED BY THE CORRECTED RECORD, THE ANNUITY PAYMENTS MADE TO HER NEED NOT BE RECOVERED.

TO LIEUTENANT COLONEL H. W. KASSERMAN, DEPARTMENT OF THE ARMY, AUGUST 3, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 17, 1965, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER IN THE AMOUNT OF $753.04, REPRESENTING SURVIVORSHIP ANNUITY PAYMENTS FOR THE PERIOD SEPTEMBER 1, 1964 THROUGH APRIL 30, 1965, STATED IN FAVOR OF MRS. MARY BETH BUCHANAN, AS UNREMARRIED WIDOW OF STAFF SERGEANT WILLIAM S. BUCHANAN, RA 13 088 521, RETIRED, DECEASED. YOUR REQUEST WAS FORWARDED HERE BY FIRST INDORSEMENT DATED JULY 13, 1965, OF THE OFFICE, CHIEF OF FINANCE, UNDER D.O. NO. A-859, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SERGEANT BUCHANAN WAS DETERMINED TO BE PHYSICALLY UNFIT FOR DUTY BY REASON OF 100 PERCENT DISABILITY AND WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE SEPTEMBER 22, 1960, UNDER THE PROVISIONS OF 10 U.S.C. 1202. HE WAS CREDITED WITH 16 YEARS 10 MONTHS AND 22 DAYS' ACTUAL ACTIVE SERVICE AND 18 YEARS 0 MONTHS AND 23 DAYS' SERVICE FOR BASIC PAY PURPOSES. ALTHOUGH HE WAS PAID RETIRED PAY AT THE MONTHLY RATE OF $217.50 (75 PERCENT OF THE MONTHLY BASIC PAY RATE OF GRADE (E-6) WITH OVER 18 YEARS OF SERVICE) FOR THE PERIOD SEPTEMBER 22 THROUGH NOVEMBER 1, 1960, DATE OF HIS DEATH, HIS FINAL ACTIVE DUTY PAY VOUCHER WAS COMPUTED ON THE BASIS OF LESS THAN 18 YEARS' SERVICE. ON SEPTEMBER 20, 1960, HE EXECUTED AN ELECTION OF OPTIONS--- LISTING HIS SERVICE FOR BASIC PAY PURPOSES AS 17 YEARS 16 DAYS AS OF THAT DATE -- UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 (NOW RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446). HE ELECTED OPTIONS 3 AND 4 AT ONE-HALF REDUCED RETIRED PAY AND SUBSEQUENT TO HIS DEATH AN ANNUITY WAS ESTABLISHED AT THE MONTHLY RATE OF $94.13 IN FAVOR OF HIS WIDOW AND CHILD. PAYMENTS AT THAT RATE WERE MADE FOR THE PERIOD NOVEMBER 1, 1960 THROUGH AUGUST 31, 1964. ANNUITY PAYMENTS WERE TERMINATED BY REASON OF A DETERMINATION THAT SERGEANT BUCHANAN'S ELECTION WAS INVALID BECAUSE HE HAD ACTUALLY PERFORMED 18 YEARS AND 14 DAYS OF SERVICE FOR BASIC PAY PURPOSES ON THE DATE HE ELECTED TO PARTICIPATE IN THE PLAN. THAT DETERMINATION OF INVALIDITY WAS BASED ON 10 U.S.C. 1431 WHICH AUTHORIZES AN ELECTION UNDER THE LAW ONLY BEFORE THE MEMBER COMPLETES 18 YEARS OF SERVICE FOR WHICH HE IS ENTITLED TO CREDIT IN THE COMPUTATION OF HIS BASIC PAY. DEMAND WAS MADE ON MRS. BUCHANAN FOR REFUND OF THE AMOUNT OF ANNUITY PAID HER UNDER THE INVALID ELECTION.

MRS. BUCHANAN APPLIED TO THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS FOR RELIEF AND BY MEMORANDUM FOR THE ADJUTANT GENERAL DATED APRIL 2, 1965, THE SECRETARY OF THE ARMY APPROVED THE FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF THE BOARD AND UNDER THE PROVISIONS OF 10 U.S.C. 1552 DIRECTED:

THAT ALL OF THE DEPARTMENT OF THE ARMY RECORDS OF WILLIAM S. BUCHANAN BE CORRECTED TO SHOW THAT, UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, HE ELECTED OPTION 3 WITH OPTION 4 AT ONE- HALF REDUCED RETIRED PAY ON 6 JULY 1960.

YOU SUGGEST THAT THE CORRECTION OF THE RECORD IN THIS CASE APPEARS TO HAVE BEEN MADE TO AVOID THE OPERATION OF A FEDERAL STATUTE AND THUS YOU EXPRESS DOUBT AS TO WHETHER THE CORRECTION OF SERGEANT BUCHANAN'S MILITARY RECORDS SUBSEQUENT TO HIS DEATH TO SHOW HIS ELECTION ON JULY 6, 1960, WILL PERMIT PAYMENT OF THE SURVIVORSHIP ANNUITY. WE HAVE HELD THAT A CORRECTION BOARD'S ACTION IN AN ATTEMPT TO AVOID THE OPERATION OF A STATUTE OF LIMITATIONS BY MEANS OF A RECITAL OF FACTS AS THEY ALREADY EXIST IN A MEMBER'S RECORD IS WITHOUT LEGAL SIGNIFICANCE. SEE 39 COMP. GEN. 178. HOWEVER, IN THIS CASE THE CORRECTION ESTABLISHES A FACT WHICH DID NOT EXIST IN SERGEANT BUCHANAN'S MILITARY RECORD, THAT IS, THAT HE MADE HIS ELECTION UNDER THE PLAN ON JULY 6, 1960. SUCH A CORRECTION OF A FACT WAS WITHIN THE BROAD AUTHORITY GRANTED TO THE SECRETARY OF THE ARMY UNDER 10 U.S.C. 1552 AND IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE GOVERNMENT. THE RIGHTS OF THE MEMBER AND HIS DEPENDENTS ARE GOVERNED BY THE PROPER APPLICATION OF THE STATUTES TO THE FACTS SHOWN IN THE CORRECTED RECORD. SINCE THE CORRECTED RECORD SHOWS THAT SERGEANT BUCHANAN ELECTED OPTION 3 WITH OPTION 4 AT ONE-HALF REDUCED RETIRED PAY ON JULY 6, 1960, WHICH WAS BEFORE HE HAD COMPLETED 18 YEARS OF SERVICE FOR BASIC PAY PURPOSES, THAT ELECTION APPEARS TO BE VALID AND TIMELY. THUS THE PRESENT RECORD ESTABLISHES MRS. BUCHANAN'S ENTITLEMENT TO AN ANNUITY UNDER THE PLAN. THE DEMAND FOR REFUND SHOULD BE WITHDRAWN AND THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PAID, IF OTHERWISE CORRECT.