B-159339, AUGUST 4, 1966, 46 COMP. GEN. 110.

B-159339, AUGUST 4, 1966, 46 COMP. GEN. 110.

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - TIME FOR ELECTION - "AT LEAST THREE YEARS EFORE" PAY ELIGIBILITY. A MASTER SERGENT TRANSFERRED ON APRIL 16, 1966 TO A FLEET MARINE CORPS RESERVE UNDER 10 U.S.C. 6330 AND PAID ACTIVE DUTY PAY THROUGH THE 16TH, HIS RETAINER PAY COMMENCING ON THE 17TH, WHO ON APRIL 17, 1963 HAD ELECTED TO PARTICIPATE IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN HAS MADE A VALID ELECTION TO PROVIDE AN ANNUITY FOR HIS SURVIVORS. THE MEMBER HAVING COMPLETED MORE THAN 18 YEARS OF SERVICE FOR PAY PURPOSES IS WITHIN THE PURVIEW OF 10 U.S.C. 1431/B), PRESCRIBING THAT "AN ELECTION MUST BE MADE AT LEAST 3 YEARS BEFORE THE FIRST DAY FOR WHICH RETIRED OR RETAINER PAY IS GRANTED", AND COMPUTATION OF A PERIOD OF TIME "BEFORE" A DAY OR DATE ON WHICH AN EVENT OCCURS EXCLUDING THE DAY ON WHICH THE EVENT OCCURS, THE MEMBER'S ELECTION WAS MADE "AT LEAST THREE YEARS" BEFORE THE FIRST DAY FOR WHICH HE WAS GRANTED RETAINER PAY, AND THE REDUCTION IN HIS RETAINER PAY TO PROVIDE AN ANNUITY MAY NOT BE REFUNDED.

TO MAJOR GEORGE OPACIC, UNITED STATES MARINE CORPS, AUGUST 4, 1966:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 12, 1966 (FILE REFERENCE CDH-DW), REQUESTING ADVANCE DECISION AS TO WHETHER MASTER SERGEANT FREDERICK E. CATCHING, 896977, FLEET MARINE CORPS RESERVE, IS ENTITLED TO REFUND OF THE REDUCTION MADE IN HIS RETAINER PAY UNDER 10 U.S.C. 1436, ON THE BASIS OF HIS ELECTION TO RECEIVE A REDUCED RETAINER PAY IN ORDER TO PROVIDE AN ANNUITY FOR HIS SURVIVORS. YOUR LETTER WAS FORWARDED HERE BY DIRECTION OF THE COMMANDANT OF THE MARINE CORPS UNDER DATE OF JUNE 1, 1966, HAVING BEEN ASSIGNED CONTROL NO. DO MC-908 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT ON APRIL 17, 1963, SERGEANT CATCHING MADE AN ELECTION AS PROVIDED IN 10 U.S.C. 1431 TO PARTICIPATE IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN; THAT AT THE TIME OF HIS ELECTION HE HAD COMPLETED MORE THAN 18 YEARS OF SERVICE FOR PAY PURPOSES; AND THAT ON APRIL 16, 1966, HE WAS TRANSFERRED TO THE FLEET MARINE CORPS RESERVE PURSUANT TO 10 U.S.C. 6330. YOU FURTHER SAY THAT HE WAS PAID ACTIVE DUTY PAY THROUGH APRIL 16, 1966, AND RETAINER PAY COMMENCING APRIL 17, 1966, IN ACCORDANCE WITH PARAGRAPH 044203-3A, VOLUME 4, CHAPTER 4, NAVY COMPTROLLER MANUAL, WHICH PROVIDES THAT CREDIT OF ACTIVE DUTY PAY AND ALLOWANCES IN THE CASE OF AN ENLISTED MEMBER TRANSFERRED TO THE FLEET MARINE CORPS RESERVE ACCRUES TO AND INCLUDES THE DATE OF TRANSFER. YOU REFER TO OUR DECISIONS REPORTED IN 40 COMP. GEN. 1, AND 44 COMP. GEN. 584---WHICH DECISIONS DISCUSSED, GENERALLY, THE DATE CERTAIN MEMBERS WERE CONSIDERED TO HAVE TRANSFERRED TO THE FLEET RESERVE FOR PURPOSES OF AN ANNUITY ELECTION AND THE COMPUTATION OF RETAINER PAY---AND YOU EXPRESS THE VIEW THAT IN THE LIGHT OF THOSE DECISIONS IT APPEARS THAT IN SERGEANT CATCHING'S CASE, THE FIRST DAY FOR WHICH RETAINER PAY WAS GRANTED WAS APRIL 17, 1966, NOTWITHSTANDING HIS TRANSFER TO THE FLEET MARINE CORPS RESERVE ON APRIL 16, 1966.

YOU EXPRESS DOUBT IN THE MATTER IN ATTEMPTING TO DETERMINE WHETHER SERGEANT CATCHING'S ELECTION OF "17 OCTOBER (APRIL) 1963" WAS MADE " THREE YEARS BEFORE- 17 OCTOBER (APRIL) 1966;, YOU SAY THAT HIS RETAINER PAY IS BEING TENTATIVELY REDUCED UNDER THE PROVISIONS OF 10 U.S.C. 1436 COMMENCING APRIL 17, 1966, AND YOU REQUEST A DECISION WHETHER THE ELECTION EXECUTED BY HIM ON APRIL 17, 1963, IS VALID--- THUS REQUIRING CONTINUING REDUCTION---OR WHETHER YOU MAY REFUND TO HIM THE AMOUNT BY WHICH HIS RETAINER PAY HAS BEEN SO REDUCED.

UNDER THE PROVISIONS OF 10 U.S.C. 1431/B) A MEMBER OF AN ARMED FORCE, IN ORDER TO PROVIDE AN ANNUITY UNDER 10 U.S.C. 1434, MAY ELECT TO RECEIVE A REDUCED AMOUNT OF THE RETIRED OR RETAINER PAY TO WHICH HE MAY BECOME ENTITLED AS A RESULT OF SERVICE IN HIS ARMED FORCE. WITH RESPECT TO THE PERIOD OF TIME WITHIN WHICH AN ELECTION MAY BE MADE, SECTION 1431/B) PROVIDES IN PERTINENT PART, AS FOLLOWS:

* * * EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, UNLESS IT IS MADE BEFORE HE COMPLETES 18 YEARS OF SERVICE FOR WHICH HE IS ENTITLED TO CREDIT IN THE COMPUTATION OF HIS BASIC PAY, THE ELECTION MUST BE MADE AT LEAST THREE YEARS BEFORE THE FIRST DAY FOR WHICH RETIRED OR RETAINER PAY IS GRANTED. (ITALICS SUPPLIED.)

THE RULE STATED IN 5 COMP. DEC. 362 TO WHICH YOU MAKE SPECIFIC REFERENCE IS TO THE EFFECT THAT ,WHERE AN ACT IS REQUIRED TO BE DONE WITHIN A LIMITED PERIOD FROM OR AFTER A PARTICULAR TIME OR EVENT, THE DAY THUS DESIGNATED SHOULD BE EXCLUDED AND THE LAST DAY OF THE SPECIFIED PERIOD INCLUDED IN THE COMPUTATION;, IN COMPUTING PERIODS OF TIME IN TERMS OF YEARS, THE FIRST DAY MAY BE INCLUDED AND THE LAST DAY EXCLUDED, BUT MORE FREQUENTLY IT IS THE FIRST DAY THAT IS TO BE EXCLUDED AND THE LAST DAY INCLUDED, UNLESS IT APPEARS THAT SUCH PRINCIPLES WERE NOT INTENDED TO APPLY. SEE 86 C.J.S. 834, NOTES 38 TO 40. IN THE COMPUTATION OF A PERIOD OF TIME "BEFORE" A DAY OR DATE, IT IS STATED IN 86 C.J.S. 855, NOTE 43 THAT IF AN ACT IS TO BE DONE A CERTAIN TIME BEFORE THE DAY ON WHICH AN EVENT OCCURS, THE DAY ON WHICH THE EVENT OCCURS MUST BE EXCLUDED. CF. ATWATER AND CO; INC; V. BOWERS, 74 F. 2D 253.

UNDER THE PROVISIONS OF 10 U.S.C. 1431/B), SERGEANT CATCHING WAS REQUIRED TO MAKE AN ELECTION TO PROVIDE AN ANNUITY "AT LEAST THREE YEARS" BEFORE THE FIRST DAY FOR WHICH RETIRED OR RETAINER PAY WAS GRANTED. SINCE THE RECORD SHOWS HE MADE AN ELECTION ON APRIL 17, 1963, AND SINCE UNDER APPROPRIATE REGULATIONS HE WAS CREDITED WITH ACTIVE DUTY PAY THROUGH APRIL 16, 1966, AND APRIL 17, 1966, WAS THE FIRST DAY FOR WHICH RETAINER PAY WAS GRANTED, HIS ELECTION MAY BE CONSIDERED AS HAVING BEEN MADE "AT LEAST THREE YEARS" BEFORE THE FIRST DAY FOR WHICH RETAINER PAY WAS GRANTED WITHIN THE MEANING OF 10 U.S.C. 1431/B) SO AS TO CONSITIUTE A VALID ELECTION. YOUR QUESTION IS ANSWERED ACCORDINGLY.