B-158734, MAY 3, 1966

B-158734, MAY 3, 1966

TO FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 15, 1966, WITH ENCLOSURES, FORWARDED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE D.O. NUMBER A-899, REQUESTING DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER IN FAVOR OF MRS. KATHRYN BROWN AS UNREMARRIED WIDOW OF VERNON R. BROWN, W 2 125 096, RETIRED, DECEASED, REPRESENTING ANNUITY PAYMENTS UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431, ET SEQ.

MR. BROWN APPLIED FOR VOLUNTARY RETIREMENT AFTER COMPLETION OF 20 YEARS OF ACTIVE SERVICE, TO BE EFFECTIVE JULY 31, 1964, BUT, BECAUSE OF HIS THEN CURRENT HOSPITALIZATION, SUCH APPLICATION WAS NOT PROCESSED. HE DIED ON AUGUST 9, 1964, WHILE IN AN ACTIVE DUTY STATUS ON CONVALESCENT LEAVE. SINCE HE HAD PREVIOUSLY FILED AN ELECTION TO PARTICIPATE IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN AND SINCE PAYMENT OF A SURVIVOR ANNUITY UNDER THAT PLAN IS DEPENDENT UPON THE MEMBER'S DEATH HAVING OCCURRED AFTER ESTABLISHMENT OF HIS ENTITLEMENT TO RETIRED PAY, HIS WIDOW APPLIED TO THE SECRETARY OF THE ARMY FOR CORRECTION OF HIS RECORD UNDER 10 U.S.C. 1552 TO SHOW THAT HE DIED IN A RETIRED STATUS RATHER THAN IN AN ACTIVE DUTY STATUS. UPON THE RECOMMENDATION OF THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS, THE SECRETARY OF THE ARMY ON MARCH 2, 1965, DIRECTED THAT MR. BROWN'S ARMY RECORDS BE CHANGED TO SHOW THAT HE WAS RELIEVED FROM ACTIVE DUTY ON AUGUST 7, 1964, BY REASON OF PHYSICAL DISABILITY RATED AT 60 PERCENT DISABLING AND THAT EFFECTIVE AUGUST 8, 1964, HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IN THE HIGHEST GRADE SATISFACTORILY HELD BY HIM ON ACTIVE DUTY (WARRANT OFFICER, W-1) WITH ENTITLEMENT TO RETIREMENT PAY UNDER 10 U.S.C. 1202 AND 1372.

THE QUESTION PRESENTED BY YOU IS WHETHER, IN VIEW OF THE DATE OF FILING OF HIS ELECTION, THE MEMBER HAD IN EFFECT AT THE TIME OF HIS DEATH A VALID ELECTION UNDER THE PLAN. 10 U.S.C. 1431 (1958 ED.) PROVIDES, WITH EXCEPTIONS NOT PERTINENT HERE, THAT THE MEMBER'S ELECTION "MUST BE MADE BEFORE HE COMPLETES 18 YEARS OF SERVICE FOR WHICH HE IS ENTITLED TO CREDIT IN THE COMPUTATION OF HIS BASIC PAY.'

THE RECORD SHOWS THAT ON JANUARY 10, 1961, MR. BROWN FILED A DA FORM 1041 INDICATING THAT HE DID NOT DESIRE TO RECEIVE REDUCED RETIRED PAY IN ORDER TO PROVIDE AN ANNUITY FOR HIS FAMILY. ON JUNE 16, 1961, HE FILED A NEW FORM 1041 ON WHICH HE ELECTED OPTION 3 WITH OPTION 4 IN ORDER TO PROVIDE AN ANNUITY FOR HIS SURVIVING WIDOW AND CHILDREN. THIS CONSTITUTED HIS ORIGINAL ELECTION OF SURVIVOR ANNUITY BENEFITS. 41 COMP. GEN. 746.

DURING WORLD WAR II THE DECEDENT HAD SERVED ON ACTIVE DUTY FROM JUNE 25, 1943, TO JANUARY 21, 1946, UNDER AN APPOINTMENT AS A WARRANT OFFICER (JG), ARMY OF THE UNITED STATES. AFTER HIS RELEASE ON JANUARY 21, 1946, HE PERFORMED NO FURTHER MILITARY SERVICE UNTIL NOVEMBER 15, 1948, WHEN HE ENLISTED IN THE REGULAR ARMY. HE CONTINUED TO SERVE IN THAT STATUS UNTIL HIS DEATH. APPARENTLY THE WARTIME APPOINTMENT AS A WARRANT OFFICER (JG) WAS A TEMPORARY ONE MADE UNDER SECTION 3 OF THE ACT OF AUGUST 21, 1941, CH. 384, 55 STAT. 652, WHICH AUTHORIZED SUCH TEMPORARY APPOINTMENTS IN THE ARMY OF THE UNITED STATES AND PROVIDED THAT THEY SHOULD NOT CONTINUE "BEYOND SIX MONTHS AFTER THE TERMINATION OF THE WAR OR PERIOD OF NATIONAL EMERGENCY.' SUCH APPOINTMENTS WERE TERMINATED APRIL 1, 1953, BY EXECUTIVE ORDER NO. 10397, SEPTEMBER 25, 1952.

SINCE MR. BROWN'S TEMPORARY APPOINTMENT WAS NOT TERMINATED BY ADMINISTRATIVE ACTION PRIOR TO HIS ENLISTMENT IN THE REGULAR ARMY ON NOVEMBER 15, 1948, AND SINCE "ALL PERIODS DURING WHICH HE WAS ENLISTED OR HELD AN APPOINTMENT AS AN OFFICER" ARE CREDITABLE AS SERVICE IN COMPUTATION OF BASIC PAY (37 U.S.C. 205), MR. BROWN WAS ENTITLED TO BE CREDITED WITH CONTINUOUS SERVICE FROM OCTOBER 9, 1940, THE DATE ON WHICH HE FIRST ENLISTED IN THE NEW YORK NATIONAL GUARD, MAKING THE TOTAL SERVICE CREDITABLE TO HIM ON THE DATE OF HIS ELECTION, JUNE 16, 1961, 20 YEARS, 8 MONTHS AND 8 DAYS.

IN B-153502 DATED MARCH 24, 1964, WE HELD THAT IN DETERMINING WHETHER OR NOT AN ELECTION UNDER 10 U.S.C. 1431 WAS FILED WITHIN THE STATUTORY TIME LIMIT, THE YEARS OF SERVICE PROPERLY CREDITABLE TO THE MEMBER WERE FOR CONSIDERATION RATHER THAN AN INCORRECT AMOUNT OF SERVICE UPON WHICH HIS PAY WAS BEING COMPUTED. UNDER THAT RULE THE ELECTION FILED BY MR. BROWN ON JUNE 16, 1961, DID NOT MEET THE REQUIREMENTS OF THE ACT BECAUSE THE SERVICE PROPERLY CREDITABLE TO HIM AT THAT TIME EXCEEDED 18 YEARS. THE ACT OF OCTOBER 4, 1961, PUB.L. 87 381, 75 STAT. 810, AMENDED SECTION 1431 BY AUTHORIZING SUBSEQUENT ELECTIONS TO BE MADE AFTER THE MEMBER HAD COMPLETED 18 YEARS OF SERVICE SO LONG AS THE ELECTION WAS FILED AT LEAST 3 YEARS BEFORE THE FIRST DAY FOR WHICH RETIRED PAY IS GRANTED. WHILE THAT ACT ALSO ACCELERATED THE EFFECTIVE DATE FOR CERTAIN CHANGES OR REVOCATIONS OF ELECTIONS PREVIOUSLY MADE, IT CONTAINED NO PROVISION WHICH WOULD HAVE THE EFFECT OF VALIDATING AN ORIGINAL ELECTION WHICH HAD BEEN FILED AFTER COMPLETION OF 18 YEARS OF SERVICE. 43 COMP. GEN. 617.

IT APPEARS THAT THE SOLE PURPOSE FOR WHICH THE SECRETARY OF THE ARMY ACTING THROUGH THE CORRECTION BOARD DIRECTED THE CORRECTION OF MR. BROWN'S ARMY RECORDS WAS TO ESTABLISH ENTITLEMENT OF THE WIDOW TO ANNUITY PAYMENTS UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN BASED ON THE DECEDENT'S ELECTION FILED JUNE 16, 1961. HOWEVER, PAYMENT OF CLAIMS FOR AMOUNTS FOUND DUE BY REASON OF CORRECTION OF RECORDS UNDER 10 U.S.C. 1552 MUST BE MADE IN ACCORDANCE WITH THE LAW BASED ON THE FACTS AS THEY APPEAR IN THE CORRECTED RECORD. 34 COMP. GEN. 7. THE DECEDENT'S RECORDS, AS CHANGED, SHOW THAT HE WAS RELIEVED FROM ACTIVE DUTY ON AUGUST 7, 1964, AND PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE AUGUST 8, 1964, NO CHANGE HAVING BEEN MADE IN THE DATE ON WHICH HE MADE HIS ELECTION. ACCORDINGLY, IN THE ABSENCE OF A FURTHER CORRECTION OF MR. BROWN'S RECORDS UNDER 10 U.S.C. 1552 TO SHOW A DATE PRIOR TO OCTOBER 8, 1958, AS THE DATE ON WHICH HE FILED HIS ELECTION OF SURVIVOR ANNUITY BENEFITS, THERE IS NO AUTHORITY FOR PAYMENT OF THE ANNUITY TO MRS. BROWN. THE VOUCHER SUBMITTED BY YOU, NOT BEING APPROVED FOR PAYMENT AT THIS TIME, IS RETAINED IN THIS OFFICE.