B-157346, OCT. 21, 1965, 45 COMP. GEN. 187

B-157346: Oct 21, 1965

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CHANGE OF REVOCATION IS NOT EFFECTIVE IF MADE LESS THAN THREE YEARS BEFORE THE FIRST DAY OF WHICH RETIRED OR RETAINER PAY IS GRANTED" AND. THE OFFICER HAD HE NOT BEEN INVOLUNTARILY RETIRED WOULD HAVE BEEN SUBJECT TO RETIREMENT UNDER 10 U.S.C. 6379 ON JUNE 30. HE IS NOT PROTECTED BY THE ACT OF AUGUST 1. THE ACT AUTHORIZING A CHANGE OR REVOCATION IN SURVIVORSHIP ANNUITY FOR THOSE OFFICERS WHO HAD THEY CONTINUED ON ACTIVE DUTY WOULD HAVE BEEN RETIRED ON THE DATE PRESCRIBED BY SECTIONS 6378 OR 6377. THE REDUCTION IN THE RETIRED PAY OF THE OFFICER TO COVER THE COST OF PARTICIPATING IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN IS REQUIRED TO BE BASED ON HIS ORIGINAL ELECTION. YOU HAVE REQUESTED A DECISION AS TO THE PROPER AMOUNT TO BE DEDUCTED FROM THE RETIRED PAY OF LIEUTENANT COLONEL PHILIP H.

B-157346, OCT. 21, 1965, 45 COMP. GEN. 187

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - TIME LIMITATIONS - CHANGES, ETC. A CHANGE ON MAY 17, 1965 OF A VALID SURVIVORSHIP ANNUITY ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN BY AN OFFICER INVOLUNTARILY RETIRED JULY 1, 1965, PURSUANT TO THE NAVY AND MARINE CORPS "HUMP ACT" OF 1959, MAY NOT BE GIVEN EFFECT, 10 U.S.C. 1431 (C) PRESCRIBING THAT A ,CHANGE OF REVOCATION IS NOT EFFECTIVE IF MADE LESS THAN THREE YEARS BEFORE THE FIRST DAY OF WHICH RETIRED OR RETAINER PAY IS GRANTED" AND, ALTHOUGH, THE OFFICER HAD HE NOT BEEN INVOLUNTARILY RETIRED WOULD HAVE BEEN SUBJECT TO RETIREMENT UNDER 10 U.S.C. 6379 ON JUNE 30, 1969, A DATE MORE THAN 3 YEARS AFTER THE DATE OF THE ELECTION CHANGE, HE IS NOT PROTECTED BY THE ACT OF AUGUST 1, 1964, THE ACT AUTHORIZING A CHANGE OR REVOCATION IN SURVIVORSHIP ANNUITY FOR THOSE OFFICERS WHO HAD THEY CONTINUED ON ACTIVE DUTY WOULD HAVE BEEN RETIRED ON THE DATE PRESCRIBED BY SECTIONS 6378 OR 6377, MAKING NO REFERENCE TO SECTION 6379 RETIREMENTS; THEREFORE, THE REDUCTION IN THE RETIRED PAY OF THE OFFICER TO COVER THE COST OF PARTICIPATING IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN IS REQUIRED TO BE BASED ON HIS ORIGINAL ELECTION. ER 10, 1959.

TO MAJOR G. OPACIC, UNITED STATES MARINE CORPS, OCTOBER 21, 1965:

IN LETTER DATED JULY 7, 1965, YOU HAVE REQUESTED A DECISION AS TO THE PROPER AMOUNT TO BE DEDUCTED FROM THE RETIRED PAY OF LIEUTENANT COLONEL PHILIP H. MCARDLE, 014670, USMC, RETIRED, FOR PURPOSES OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. YOUR REQUEST WAS ASSIGNED CONTROL NO. DO-MC-862 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOUR LETTER DISCLOSES THAT PRIOR TO THE COMPLETION OF 18 YEARS OF SERVICE COLONEL MCARDLE MADE A VALID ELECTION ON SEPTEMBER 10, 1959, UNDER THE PROVISIONS OF 10 U.S.C. 1431 (B) AND 1434 (A) (3) AND (C) (1958 ED.) PROVIDE AN ANNUITY EQUAL TO ONE-FOURTH OF HIS REDUCED RETIRED PAY FOR SURVIVING WIDOW AND CHILDREN. IT IS STATED THAT ON MAY 17, 1965, HE SUBMITTED A CHANGE OF ELECTION IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1431 (C) AND 1434 (A) (2) AND (C) (1964 ED.) TO PROVIDE AN ANNUITY EQUAL TO ONE-HALF OF HIS REDUCED RETIRED PAY FOR SURVIVING CHILD OR CHILDREN ONLY.

IT IS FURTHER STATED THAT COLONEL MCARDLE WAS INVOLUNTARILY RETIRED EFFECTIVE JULY 1, 1965, UNDER THE PROVISIONS OF PUBLIC LAW 86-155, AUGUST 11, 1959, 73 STAT. 333-338 (KNOWN AS THE NAVY AND MARINE CORPS "HUMP ACT" OF 1959 (10 U.S.C. 5701 NOTE) ( AND THAT AT TIME OF RETIREMENT HE HAD COMPLETED A TOTAL OF 23 YEARS, 9 MONTHS AND 13 DAYS' SERVICE OF WHICH 22 YEARS, 10 MONTHS AND 19 DAYS WAS COMMISSIONED SERVICE.

UNDER THE PROVISIONS OF 10 U.S.C. 1431 (C) (1964 ED.) AN ELECTION MAY BE CHANGED OR REVOKED BY THE ELECTOR BEFORE THE FIRST DAY FOR WHICH RETIRED OR RETAINER PAY IS GRANTED. SECTION 1431 (C) FURTHER PROVIDES, HOWEVER, THAT UNLESS MADE ON THE BASIS OF RESTORED MENTAL CAPACITY UNDER SECTION 1433, THE "CHANGE OR REVOCATION IS NOT EFFECTIVE IF MADE LESS THAN THREE YEARS BEFORE THE FIRST DAY FOR WHICH RETIRED OR RETAINER PAY IS GRANTED.' CONSEQUENTLY, INSOFAR AS THE PROVISIONS OF 10 U.S.C. 1431 (C) ARE CONCERNED, NO EFFECT MAY BE GIVEN TO THE CHANGE OF ELECTION EXECUTED BY THE SUBJECT OFFICER ON MAY 17, 1965, INASMUCH AS SUCH CHANGE WAS MADE LESS THAN 3 YEARS BEFORE JULY 1, 1965, THE FIRST DAY FOR WHICH RETIRED PAY WAS GRANTED IN HIS CASE.

IT IS SUGGESTED IN YOUR LETTER THAT, SINCE COLONEL MCARDLE WAS INVOLUNTARILY RETIRED UNDER THE PROVISIONS OF PUBLIC LAW 86-155, HIS STATUS FOR PURPOSES OF THE CHANGE IN ELECTION MADE BY HIM ON MAY 17, 1965, UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN POSSIBLY MAY COME WITHIN THE PURVIEW OF SECTION 3 OF THE CITED LAW WHICH, AS AMENDED BY PUBLIC LAW 88-393, AUGUST 1, 1964, 78 STAT. 375, PROVIDES AS FOLLOWS:

"NOTWITHSTANDING SECTION 1431 OF TITLE 10, U.S.C. A CHANGE OR REVOCATION OF AN ELECTION, AN ORIGINAL ELECTION, OR A NEW ELECTION AFTER A REVOCATION OF AN ELECTION MADE UNDER THAT SECTION BY---

"/1) AN OFFICER WHO IS RETIRED UNDER THIS ACT; OR

"/2) AN OFFICER WHO HAS BEEN CONSIDERED BUT NOT RECOMMENDED FOR CONTINUATION ON THE ACTIVE LIST UNDER THIS ACT AND WHO RETIRES VOLUNTARILY BEFORE THE DATE SPECIFIED FOR HIS RETIREMENT UNDER THIS ACT; IS EFFECTIVE IF MADE AT SUCH A TIME THAT IT WOULD HAVE BEEN EFFECTIVE HAD HE BEEN RETIRED ON THE DATE PRESCRIBED BY SECTION 6376 OR 6377 OF TITLE 10, UNITED STATES CODE. HOWEVER, AN ORIGINAL ELECTION OR A NEW ELECTION MADE AFTER A REVOCATION IS NOT EFFECTIVE UNLESS MADE BEFORE THE CONVENING DATE OF THE BOARD THAT CONSIDERED THE OFFICER FOR CONTINUATION.'

SECTION 6376 OF TITLE 10, U.S. CODE, RELATES TO OFFICERS NOT RESTRICTED IN THE PERFORMANCE OF DUTY SERVING IN THE GRADE OF CAPTAIN ON THE ACTIVE LIST IN THE LINE OF THE NAVY AND EACH OFFICER SERVING IN THE GRADE OF COLONEL ON THE ACTIVE LIST OF THE MARINE CORPS. SECTION 6377 OF TITLE 10, U.S. CODE, HAS NO APPLICATION TO OFFICERS OF THE MARINE CORPS. THEREFORE, NEITHER OF THESE SECTIONS (6376 NOR 6377) HAS ANY APPLICATION TO COLONEL MCARDLE WHO WOULD HAVE BEEN SUBJECT TO RETIREMENT UNDER SECTION 6379, TITLE 10, U.S.C. (EXCEPT FOR HIS EARLIER RETIREMENT UNDER THE 1959 ACT), WHICH PROVIDES FOR THE RETIREMENT OF OFFICERS ON THE ACTIVE LIST OF THE NAVY OR THE MARINE CORPS SERVING IN THE GRADE OF COMMANDER OR LIEUTENANT COLONEL, RESPECTIVELY, ON JUNE 30 OF THE FISCAL YEAR IN WHICH SUCH OFFICER (1) IS NOT ON A PROMOTION LIST, (2) IS CONSIDERED AS HAVING TWICE FAILED OF SELECTION FOR PROMOTION TO THE GRADE OF CAPTAIN IN THE NAVY OR COLONEL IN THE MARINE CORPS, AND (3) HAS COMPLETED AT LEAST 26 YEARS OF TOTAL COMMISSIONED SERVICE AS COMPUTED UNDER SECTION 6387 OR 6388 OF TITLE 10, U.S.C. IT APPEARS THAT UNDER THE PROVISIONS OF 10 U.S.C. 6379, THE NORMAL DATE OF RETIREMENT IN COLONEL MCARDLE'S CASE WOULD BE JUNE 30, 1969, WHICH DATE IS MORE THAN 3 YEARS AFTER MAY 17, 1965, THE DATE HE CHANGED HIS ANNUITY ELECTION.

THE SUGGESTION THAT COLONEL MCARDLE'S STATUS BE VIEWED AS COMING WITHIN THE PURVIEW OF SECTION 3 OF PUBLIC LAW 86-155, AS AMENDED BY PUBLIC LAW 88 -393, AUGUST 1, 1964, NOTWITHSTANDING THAT SECTION 6379 IS NOT MENTIONED IN THE 1964 AMENDMENT SEEMS TO STEM FROM THE FACT THAT PRIOR TO AUGUST 1, 1964, SECTION 6379 OF TITLE 10, U.S. CODE, WAS LISTED TOGETHER WITH SECTIONS 6376 AND 6377 IN SECTION 3 OF PUBLIC LAW 86-155, AS WELL AS IN SECTION 3 OF THAT ACT AS AMENDED EFFECTIVE AUGUST 11, 1959, BY SECTION 12, PUBLIC LAW 86-616, JULY 12, 1960, 74 STAT.

NO SPECIFIC STATEMENT HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF PUBLIC LAW 88-393, WHICH AMENDED SECTION 3 OF THE 1959 LAW TO READ AS QUOTED ABOVE, AS TO THE REASON WHY SECTION 6379 OF TITLE 10, U.S. CODE, WAS DROPPED FROM THE "HUMP" ACT OF 1959. THE LEGISLATIVE HISTORY OF THE 1964 ACT DOES DISCLOSE, HOWEVER, THAT THE PRIMARY PURPOSE OF H.R. 10322, 88TH CONG., WHICH BECAME PUBLIC LAW 88-393, WAS TO EXTEND THE NAVY AND MARINE CORPS "HUMP" AUTHORITY ENACTED IN 1959 (SECTION 8 OF WHICH WOULD HAVE TERMINATED OPERATION OF THAT ACT AFTER JUNE 30, 1965) FOR A PERIOD OF 5 YEARS OR UNTIL JUNE 30, 1970, AND FOR THAT REASON IT WAS DEEMED NECESSARY TO AMEND SECTION 3 OF THE "HUMP" LAW OF 1959, AS AMENDED, SO AS TO SECURE THE BENEFITS OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN AS PRESCRIBED IN PUBLIC LAW 87-381, OCTOBER 4, 1961, 75 STAT. 810-812, FOR OFFICERS FORCED INTO EARLIER RETIREMENT UNDER THE "HUMP" LAW. ON PAGE 1, S.REPT. NO. 1190, ON H.R. 10322, 88TH CONG., IT IS STATED THAT:

THE BASIC LAW ENACTED IN 1959 PROVIDED AUTHORITY WHEREBY THE NAVY AND MARINE CORPS, UNDER PRESCRIBED PROCEDURES, COULD MANDATORILY RETIRE REGULAR OFFICERS IN THE GRADES OF COMMANDER AND CAPTAIN AND MARINE CORPS EQUIVALENTS (LIEUTENANT COLONELS AND COLONELS) PRIOR TO THE NORMAL POINT OF RETIREMENT.

IT WAS FURTHER STATED IN THAT SAME REPORT (BOTTOM OF PAGE 1 AND TOPOF PAGE 2):

DURING THE PERIOD OF EXTENSION--- FROM 1965 TO 1970--- THIS AUTHORITY (THE EXTENSION OF THE ,HUMP" ACT OF 1959 AS PROPOSED IN H.R. 10322) WILL BE USED BY THE NAVY AND MARINE CORPS FOR THE PURPOSE OF CREATING VACANCIES ONLY FOR THE GRADE OF CAPTAIN (NAVY) OR COLONEL (MARINE CORPS). THE PROBLEM OF THE HUMP NO LONGER EXISTS IN EITHER THE NAVY OR MARINE CORPS WITH RESPECT TO THE GRADES OF COMMANDER (NAVY) AND LIEUTENANT COLONEL (MARINE CORPS). IT SHOULD BE POINTED OUT THAT AS A TECHNICAL MATTER THIS AUTHORITY WOULD BE IN EXISTENCE FOR THE GRADE OF COMMANDER OR LIEUTENANT COLONEL AND COULD POSSIBLY BE UTILIZED BY THE BOARDS FOR THE ELIMINATION OF OFFICERS WHOSE PERFORMANCE DID NOT JUSTIFY THEIR BEING CONTINUED ON ACTIVE DUTY FOR ANY PURPOSE.

ON PAGE 3 OF THE SAME REPORT THERE APPEARS THE FOLLOWING STATEMENT:

AS INDICATED PREVIOUSLY, THERE ARE NO PLANS FOR THE CONTINUED USE OF THE AUTHORITY FOR THE PURPOSE OF MANDATORILY RETIRING TWICE-FAILED COMMANDERS AND LIEUTENANT COLONELS PRIOR TO THE NORMAL RETIREMENT POINT.

THESE STATEMENTS QUITE CLEARLY HAVE REFERENCE TO SITUATIONS OF MEMBERS OTHERWISE COVERED BY THE PROVISIONS OF 10 U.S.C. 6379 WHICH ARE APPLICABLE TO COMMANDERS OF THE NAVY AND LIEUTENANT COLONELS IN THE MARINE CORPS.

A STATEMENT OF SIMILAR NATURE APPEARS IN THE HEARING ON JULY 9, 1964, BEFORE THE COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, 2D SESS. 88TH CONG., ON THE SAME BILL, H.R. 10322, AS FOLLOWS (SEE PAGE 1):

BOTH THE NAVY AND MARINE CORPS DO NOT PLAN TO USE THE AUTHORITY FOR THE GRADE OF COMMANDER/LIEUTENANT COLONEL AND WILL APPLY IT ONLY TO THE GRADE OF O-6, CAPTAIN AND COLONEL, BETWEEN NOW AND 1970.

BRIGADIER GENERAL O. R. SIMPSON, USMC, ASSISTANT CHIEF OF STAFF, G 1, HEADQUARTER, UNITED STATES MARINE CORPS, MADE THE FOLLOWING COMMENT IN HIS STATEMENT AT THE JULY 9, 1964, HEARING (SEE PAGE 7 OF THE HEARING) ON THE LEGISLATION THEN BEING PROPOSED AS H.R. 10322, 88TH CONG.:

AS ANTICIPATED BY THE COMMITTEE, THE PROBLEM HAS LARGELY BEEN SOLVED AS FAR AS PROMOTION TO LIEUTENANT COLONEL IS CONCERNED. WE DO NOT NOW ANTICIPATE THAT, IN FUTURE YEARS, IT WILL BE NECESSARY TO RETIRE LIEUTENANT COLONELS SHORT OF THE 26 YEARS OF SERVICE PROVIDED BY THE OFFICER PERSONNEL ACT (ACT OF AUGUST 7, 1947, CH. 512, SECTIONS 312 (C) AND 314 (A), 61 STAT. 859 AND 863, RESPECTIVELY, NOW CODIFIED AS 10 U.S.C. 6379).

THE HONORABLE L. MENDEL RIVERS (WHOSE STATEMENT AT THE HEARING ON MAY 5, 1964, BEFORE THE FULL COMMITTEE ON ARMED SERVICES, HOUSE OF REPRESENTATIVES, IS QUOTED IN PART IN YOUR LETTER) ALSO MADE THE FOLLOWING COMMENT (SEE PAGE 9210 OF THE HEARING):

I WOULD LIKE TO MENTION THAT WHILE THE BILL BEFORE US (H.R. 10322, 88TH CONGRESS) MERELY EXTENDS EXISTING LAW WHICH APPLIES TO COLONELS AND LIEUTENANT COLONELS, AND CAPTAINS AND COMMANDERS, THERE IS NO PRESENT INTENTION TO CONTINUE THE HUMPING OF MARINE LIEUTENANT COLONELS AND NAVY COMMANDERS AT THIS TIME. HOWEVER, THE AUTHORITY WILL BE CONTAINED IN THE LAW AND IT MIGHT BE NECESSARY TO USE IT AT SOME PERIOD DURING THE NEXT FIVE YEARS. FOR THAT REASON, WE ARE ASKED TO EXTEND THE PRESENT LAW (PUBLIC LAW 86-155, ACT OF AUGUST 11, 1959, AS AMENDED) AS IT IS WRITTEN.

IT HAS BEEN NOTED IN EXAMINING THE LEGISLATIVE HISTORY OF PUBLIC LAW 88- 393, ACT OF AUGUST 1, 1964, THAT AT NO POINT FROM THE DATE OF ITS INTRODUCTION IN THE HOUSE OF REPRESENTATIVES ON MARCH 10, 1964, TO DATE OF FINAL PASSAGE IN THE SENATE ON JULY 20, 1964, DID THE BILL, H.R. 10322, 88TH CONG., EVER CONTAIN ANY REFERENCE TO SECTION 6379 OF TITLE 10, U.S.C. ALSO, NO MENTION WAS MADE WITH RESPECT TO THE OMISSION OF SECTION 6379 FROM THE PROPOSED NEW SECTION THAT WAS TO REPLACE SECTION 3 OF PUBLIC LAW 86-155 (AS THEN IN EFFECT) AND WHICH SPECIFICALLY INCLUDED SECTION 6379. THE SOLE EXPLANATION SEEMS TO LIE IN THE FACT THAT, WHILE THE "HUMP" AUTHORITY OF THE 1959 LAW WAS EXTENDED TO JUNE 30, 1970, FOR THE GRADE OF COMMANDER IN THE NAVY AND LIEUTENANT COLONEL IN THE MARINE CORPS (AS WELL AS FOR THE GRADE OF CAPTAIN IN THE NAVY AND COLONEL IN THE MARINE CORPS, THE PARTICULAR CATEGORY NECESSITATING THE 5-YEAR EXTENSION OF THE "HUMP" LAW OF 1959) THERE WERE NO PLANS TO RETIRE ANY OFFICER IN THE GRADE OF COMMANDER OR LIEUTENANT COLONEL UNDER SUCH AUTHORITY PRIOR TO THE COMPLETION OF 26 YEARS OF SERVICE AS PRESCRIBED IN 10 U.S.C. 6379. THUS, IT APPEARS THAT IN ALL LIKELIHOOD THE OMISSION OF SECTION 6379 FROM THE CONTEXT OF SECTION 3 OF PUBLIC LAW 86-155, AS AMENDED BY PUBLIC LAW 88- 393, AUGUST 1, 1964, RESULTED MORE FROM LACK OF FORESIGHT AS TO THE EFFECT OF SUCH OMISSION IN CASES--- NOT ANTICIPATED--- WHERE THE "HUMP" AUTHORITY MIGHT BE EXERCISED TO RETIRE A COMMANDER OR A LIEUTENANT COLONEL, THAN ANY SPECIFIC INTENT ON THE PART OF CONGRESS TO DENY THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN BENEFITS PRESCRIBED IN PUBLIC LAW 87-381, OCTOBER 4, 1961, TO SECTION 6379 OFFICERS WHO MIGHT BE INVOLUNTARILY RETIRED UNDER THE PROVISIONS OF THE "HUMP" LAW (AS EXTENDED) DURING THE PERIOD JULY 1, 1965 TO JUNE 30, 1970.

WHILE IT MAY BE THAT SECTION 6379 WAS OMITTED FROM PUBLIC LAW 88 393 BECAUSE OF A MISTAKEN BELIEF THAT ITS RETENTION WAS NOT NECESSARY IN ORDER TO PROTECT THE RIGHTS OF PERSONS WHO MIGHT LATER BE INVOLVED, THE FACT REMAINS THAT IN ITS PRESENT LANGUAGE SECTION 3 OF PUBLIC LAW 86-155, AS AMENDED AUGUST 1, 1964, SPECIFICALLY REFERS ONLY TO SECTIONS 6376 AND 6377 OF TITLE 10, U.S. CODE. THE SPECIFIC ENUMERATION OF THOSE TWO SECTIONS AND THE OMISSION OF SECTION 6379, WHICH THERETOFORE HAD BEEN CONTAINED THEREIN, MAY NOT BE OVERCOME BY STATUTORY INTERPRETATION. THIS IS A MATTER FOR THE CONGRESS TO CORRECT. CF. 41 COMP. GEN. 475.

SINCE COLONEL MCARDLE DOES NOT COME WITHIN THE PURVIEW OF SECTIONS 6376 AND 6377 OF TITLE 10, U.S. CODE, AND SINCE SECTION 6379 IS NO LONGER CONTAINED IN SECTION 3 OF THE "HUMP" LAW, HE IS NOT ELIGIBLE FOR THE BENEFITS PRESCRIBED THEREIN. CONSEQUENTLY, THE REDUCTION OF HIS RETIRED PAY TO COVER THE COST OF HIS PARTICIPATION IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN IS REQUIRED TO BE BASED ON HIS ORIGINAL ELECTION OF SEPTEMB ..END :