B-166156, APRIL 3, 1969, 48 COMP. GEN. 652

B-166156, APRIL 3, 1969, 48 COMP. GEN. 652

PAY--RETIRED--EFFECTIVE DATE--AGE AND SERVICE REQUIREMENTS-- PUBLIC LAW 90-485 PUBLIC LAW 90-485, APPROVED AUGUST 13, 1968 (10 U.S.C. 1331 (E) ), INTENDED ONLY TO EXEMPT NON-REGULAR RETIREES OF THE UNIFORMED SERVICES FROM THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT (5 U.S.C. 8301) WITH RESPECT TO THE BENEFITS OF THE RETIREMENT SERVICEMAN'S FAMILY PROTECTION PLAN (10 U.S.C. 1431-1446), THE ENACTMENT DOES NOT AFFECT THE PRINCIPLE ESTABLISHED IN SEAGRAVE V. UNITED STATES, 131 CT. CL. 790, AND ACCEPTED IN 37 COMP. GEN. 653 TO THE EFFECT THE RIGHT OF A MEMBER RETIRED UNDER SECTION 1331 ACCRUES FROM THE FIRST DAY OF THE MONTH FOLLOWING THE DATE THE MEMBER QUALIFIES BY REASON OF MEETING THE AGE AND SERVICE REQUIREMENTS OF SECTION 1331 (A) WITHOUT REGARD TO THE DATE OF APPLICATION FOR RETIREMENT, OR ACCRUES FROM THE FIRST DAY OF ANY SUBSEQUENT MONTH STIPULATED BY THE MEMBER, AND THE PRINCIPLE APPLIES EVEN IF A MEMBER MEETS THE REQUIREMENTS OF SECTION 1331 (A) PRIOR TO AUGUST 13, 1968 BUT DELAYS APPLICATION FOR RETIRED PAY UNTIL AFTER THAT DATE.

TO THE SECRETARY OF DEFENSE, APRIL 3, 1969:

FURTHER REFERENCE IS MADE TO LETTER OF FEBRUARY 7, 1969, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING DECISION ON CERTAIN QUESTIONS THAT HAVE ARISEN IN THE ADMINISTRATION OF SECTION 2 US PUBLIC LAW 90-485, 82 STAT. 751, 754, APPROVED AUGUST 13, 1968, RELATING TO DATE OF ENTITLEMENT TO RETIRED PAY UNDER 10 U.S.C. 1331. THERE WAS ENCLOSED A COPY OF COMMITTEE ACTION NO. 428 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, SETTING FORTH AND DISCUSSING THE SEVERAL QUESTIONS PRESENTED.

CHAPTER 67 OF TITLE 10, U.S. CODE, CONTAINS THE AUTHORITY FOR THE RETIREMENT OF NON-REGULAR MEMBERS OF A UNIFORMED SERVICE. UNDER THE PROVISIONS OF SECTION 1331 (A), CONTAINED IN CHAPTER 67, A NON-REGULAR MEMBER IS ENTITLED, "UPON APPLICATION," TO RETIRED PAY IF HE MEETS THE REQUIREMENTS ENUMERATED IN THAT SECTION WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

(A) EXCEPT AS PROVIDED IN SUBSECTION (C), A PERSON IS ENTITLED, UPON APPLICATION, TO RETIRED PAY COMPUTED UNDER SECTION 1401 OF THIS TITLE, IF-

(1) HE IS AT LEAST 60 YEARS OF AGE:

(2) HE HAS PERFORMED AT LEAST 20 YEARS OF SERVICE COMPUTED UNDER SECTION 1332 OF THIS TITLE;

(3) HE PERFORMED THE LAST EIGHT YEARS OF QUALIFYING SERVICE WHILE A MEMBER OF ANY CATEGORY NAMED IN SECTION 1332 (A) (1) OF THIS TITLE, BUT NOT WHILE A MEMBER OF A REGULAR COMPONENT, THE FLEET RESERVE, OR THE FLEET MARINE CORPS RESERVE; AND

(4) HE IS NOT ENTITLED, UNDER ANY OTHER PROVISION OF LAW, TO RETIRED PAY FROM AN ARMED FORCE OR RETAINER PAY AS A MEMBER OF THE FLEET RESERVE OR THE FLEET MARINER CORPS RESERVE. CHAPTER 67 OF TITLE 10 WAS AMENDED BY SECTION 2 OF PUBLIC LAW 90-485, BY ADDING A NEW SUBSECTION (E) TO SECTION 1331 AS FOLLOWS:

(E) NOTWITHSTANDING SECTION 8301 OF TITLE 5, U.S.C. THE DATE OF ENTITLEMENT TO RETIRED PAY UNDER THIS SECTION SHALL BE THE DATE ON WHICH THE REQUIREMENTS OF SUBSECTION (A) HAVE BEEN COMPLETED.

THE QUESTIONS PRESENTED IN COMMITTEE ACTION NO. 428 ARE AS FOLLOWS:

1. WHAT IS THE EARLIEST DATE THAT ENTITLEMENT TO RETIRED PAY WOULD COMMENCE IN THOSE CASES WHERE THE REQUIREMENTS OF 10 U.S.C. 1331 (A) HAVE BEEN MET ON OR AFTER 13 AUGUST 1968---

A. THE DATE ON WHICH THE LAW ENUMERATED REQUIREMENTS OF 10 U.S.C. 1331 (A) WERE MET; OR

B. THE DATE OF SUBMISSION OF THE APPLICATION FOR RETIRED PAY?

2. IF THE ANSWER TO 1B IS AFFIRMATIVE WHAT WOULD BE THE EFFECTIVE DATE OF THE APPLICATION: THE DATE THE MEMBER MAILS THE APPLICATION OR DATE IT WAS RECEIVED BY THE SERVICING AGENCY?

3. WOULD THE ANSWER TO 1 ABOVE BE THE SAME IN THE CASE OF A MEMBER WHO MEETS THE REQUIREMENTS PRIOR TO 13 AUGUST 1968 BUT DELAYS APPLICATION FOR RETIRED PAY UNTIL AFTER THAT DATE?

4. MAY THE MEMBER IN QUESTIONS 1 AND 2 ABOVE ELECT TO HAVE HIS RETIRED PAY COMMENCE ON ANY DATE THAT IS ON OR AFTER THE DATE OF INITIAL ELIGIBILITY FOR SUCH PAY?

5. IF IT IS DETERMINED THAT THE EARLIEST DATE IS 1B ABOVE AND THAT A MEMBER COULD ELECT A LATER DATE FOR COMMENCEMENT OF RETIRED PAY, WOULD THE SERVICE PERFORMED FROM THE DATE THE MEMBER MEETS THE REQUIRED SERVICE AND AGE REQUIREMENTS TO THE DATE HIS RETIRED PAY COMMENCES, BE PROPERLY CREDITABLE IN DETERMINING AMOUNT OF RETIRED PAY?

PRIOR TO THE ACT OF AUGUST 13, 1968, THE RIGHT TO RETIRED PAY UNDER CHAPTER 67 WAS SUBJECT TO THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT OF 1930, 5 U.S.C. 47A (NOW CODIFIED IN 5 U.S.C. 8301)--- WHICH REQUIRES THAT EVERY RETIREMENT (UNLESS OTHERWISE PROVIDED BY STATUTE) TAKE EFFECT ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH RETIREMENT WOULD OTHERWISE BE EFFECTIVE. SEE THE ANSWER TO QUESTION 2 IN 38 COMP. GEN. 146, 150, AND 43 COMP. GEN. 425, 428 (PERTAINING TO THE CASES OF COLONEL SELSOR AND COLONEL MACDONALD).

IN EARLIER DECISIONS, THIS OFFICE HAD TAKEN THE VIEW THAT THE FILING OF AN APPLICATION FOR RETIRED PAY UNDER 10 U.S.C. 1331 WAS A CONDITION PRECEDENT UNDER THE STATUTE AND THAT RETIRED PAY WAS NOT PAYABLE PRIOR TO THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH APPLICATION WAS FILED, EVEN THOUGH THE OTHER REQUIREMENTS OF THE STATUTE HAD BEEN MET PRIOR TO THAT DATE. SEE DECISION DATED APRIL 10, 1956, 35 COMP. GEN. 563 AND THE DECISIONS THERE CITED. HOWEVER, AS POINTED OUT IN THE COMMITTEE ACTION, IN THE LIGHT OF THE HOLDING IN SEAGRAVE V. UNITED STATES, 131 CT. CL. 790 (1955), AND THE ACTION TAKEN BY THE COURT OF CLAIMS IN SIMILAR CASES, WE HELD THAT THE RIGHT OF A MEMBER TO RETIRED PAY UNDER 10 U.S.C. 1331 ACCRUES FROM THE FIRST DAY OF THE MONTH FOLLOWING THE DATE THE MEMBER QUALIFIES BY REASON OF AGE AND SERVICE FOR SUCH PAY OR ON THE FIRST DAY OF ANY SUBSEQUENT MONTH STIPULATED BY THE MEMBER IN HIS APPLICATION, WITHOUT REGARD TO THE DATE SUCH APPLICATION WAS FILED. SEE DECISION DATED APRIL 1, 1958, 37 COMP. GEN. 653, AND THE ANSWER TO QUESTION 3 IN DECISION OF AUGUST 25, 1958, 38 COMP. GEN. 146, 150.

IT IS STATED IN THE COMMITTEE ACTION THAT THE WORDS "THE DATE ON WHICH THE REQUIREMENTS OF SUBSECTION (A) HAVE BEEN COMPLETED" APPEARING IN THE NEW SUBSECTION (E) OF 10 U.S.C. 1331, CAUSES DOUBT IN CONTINUING TO FOLLOW THE RULE IN 37 COMP. GEN. 653 AS TO THOSE WHO MEET THE ENUMERATED REQUIREMENTS OF SECTION 1331 (A) ON AND AFTER AUGUST 13, 1968, OR THOSE WHO MET THE REQUIREMENTS PRIOR TO THAT DATE BUT WHO EITHER DID NOT FILE THE APPLICATION UNTIL ON OR AFTER THAT DATE OR FILED PRIOR TO THAT DATE BUT ELECTED THAT RETIRED PAY COMMENCE ON OR AFTER AUGUST 13, 1968. THE COMMITTEE ACTION STATES THAT IN ADDITION TO THE ENUMERATED REQUIREMENTS OF SUBSECTION (A), NO ENTITLEMENT TO RETIRED PAY VESTS WITHOUT AN APPLICATION. THE VIEW IS EXPRESSED THAT IF THE NEW SUBSECTION IS FOLLOWED, GIVING LITERAL MEANING TO EACH WORD, IT WOULD BE INTERPRETED TO MEAN THAT RETIRED PAY UNDER 10 U.S.C. 1331 COULD START ONLY ON THE EFFECTIVE DATE OF APPLICATION, RESULTING IN A REJECTION OF THE PRINCIPLE ESTABLISHED IN THE SEAGRAVE CASE AND ACCEPTED BY THE COMPTROLLER GENERAL IN 37 COMP. GEN. 653.

THE LEGISLATIVE HISTORY OF PUBLIC LAW 90-485 SHOWS THAT THE OVERALL PURPOSE OF THAT LAW IS TO LIBERALIZE VARIOUS PROVISIONS OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN (10 U.S.C. 1431-1446) SO AS TO ENCOURAGE GREATER PARTICIPATION IN THAT PLAN BY RETIRING SERVICE PERSONNEL. THE RSFPP LAW REQUIRES THAT BEFORE COVERAGE UNDER THE PROGRAM ACCRUES TO AN OTHERWISE ELIGIBLE BENEFICIARY, THE MEMBER MUST BE ENTITLED TO RETIRED PAY.

WITH RESPECT TO SECTION 2 OF PUBLIC LAW 90-485, THE LEGISLATIVE HISTORY SHOWS THAT IT WAS THE CONGRESSIONAL DESIRE TO INCLUDE WITHIN THE COVERAGE OF CHAPTER 67, TITLE 10, THOSE RESERVE RETIREES WHO ATTAIN AGE 60 AND WHO OTHERWISE MEET THE REQUIREMENTS OF THAT CHAPTER BUT WHO DIE IN THE FEW DAYS BETWEEN THEIR 60TH BIRTHDAY AND THE FIRST DAY OF THE FOLLOWING MONTH.

THE HOUSE VERSION OF SECTION 2 WOULD HAVE AMENDED SECTION 1437 OF TITLE 10, BY CLAUSE (8) OF SECTION 1 (H.R. 12323) TO PROVIDE, AMONG OTHER THINGS, FOR PAYMENT OF THE ANNUITY IF THE PERSON "(2) APPLIED FOR RETIRED PAY UNDER CHAPTER 67 OF THIS TITLE, TO BE EFFECTIVE UNDER SECTION 8301 OF TITLE 5 ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH HE FIRST MET ALL THOSE (SECTION 1331 (A) AGE AND SERVICE) REQUIREMENTS;* * * BUT DIES BEFORE THAT DAY * * *." THIS LANGUAGE IS SUBSTANTIALLY THE SAME AS THAT IN S. 2021, 88TH CONGRESS, WHICH PASSED THE SENATE ON SEPTEMBER 24, 1964. NO FURTHER ACTION APPARENTLY WAS TAKEN ON THE LATTER BILL. THE SENATE, HOWEVER, AMENDED THE HOUSE VERSION OF SECTION 2 (H.R. 12323) AND THE REASONS FOR NOT ADOPTING THE HOUSE PROVISION ARE SET FORTH ON PAGE 21 OF S. REPT. NO. 1480 DATED JULY 26, 1968 (TO ACCOMPANY H.R. 12323 WHICH BECAME PUBLIC LAW 90-485, AS FOLLOWS:

MEMBERS OF THE RESERVE COMPONENTS RETIRING UNDER CHAPTER 67 OF TITLE 10, U.S.C. (SO-CALLED TITLE III RETIREES) BECOME ELIGIBLE FOR SUCH RETIREMENT AT AGE 60 IF OTHERWISE QUALIFIED. HOWEVER, BY VIRTUE OF 5 U.S.C. 8301 (THE SO-CALLED UNIFORM RETIREMENT LAW), THEIR ENTITLEMENT TO RETIREMENT WITH PAY IS NOT EFFECTIVE UNTIL THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THEY REACH AGE 60. IF DEATH OCCURS IN THE FEW DAYS BETWEEN THE MEMBER'S 60TH BIRTHDAY AND THE EFFECTIVE DATE OF RETIREMENT WITH PAY, RSFPP COVERAGE DOES NOT ACCRUE UNDER EXISTING LAW TO OTHERWISE ELIGIBLE BENEFICIARIES. THE BILL AS NOW WRITTEN (LINE 19, P. 8, THROUGH LINE 16. P. 9) WOULD ELIMINATE THIS PROBLEM, BUT IN A CUMBERSOME FASHION FRAUGHT WITH ADMINISTRATIVE DIFFICULTY. FOR CLARITY AND TO SIMPLIFY ADMINISTRATION, A MORE DIRECT AND UNCOMPLICATED REMEDY SHOULD BE ENACTED. BOTH THE ENTITLEMENT TO RETIREMENT WITH PAY UNDER CHAPTER 67, AND THE EFFECTIVE DATE OF COVERAGE UNDER RSFPP, SHOULD OCCUR ON THE SAME DATE, AND THAT DATE SHOULD BE THE DATE ON WHICH AN OTHERWISE ELIGIBLE MEMBER ATTAINS AGE 60, ASSUMING ALL OTHER STATUTORY REQUIREMENTS HAVE BEEN SATISFIED. THE SIMPLEST WAY TO PROCEED IS TO EXEMPT CHAPTER 67 RETIREMENTS FROM THE PROVISIONS OF 5 U.S.C. 6/8/301. THUS, IN THE EVENT OF DEATH AND ASSUMING A VALID ELECTION TO PARTICIPATE UNDER RSFPP, SURVIVOR PROTECTION WOULD BE AFFORDED TO OTHERWISE ELIGIBLE CHAPTER 67 RETIREES ON ATTAINMENT OF AGE 60. THE ABOVE OBJECTION TO THE HOUSE VERSION WAS FURNISHED BY THE DEPARTMENT OF DEFENSE IN CONNECTION WITH LETTER DATED APRIL 9, 1968, TO THE CHAIRMAN, SENATE ARMED SERVICES COMMITTEE.

IT SEEMS CLEAR FROM THE LEGISLATIVE HISTORY OF PUBLIC LAW 90-485 THAT CONGRESS MERELY INTENDED TO EXEMPT CHAPTER 67 RETIREMENTS (NONREGULAR RETIREES) FROM THE PROVISIONS OF THE UNIFORM RETIREMENT DATE ACT, 5 U.S.C. 8301. WE FIND NOTHING IN THE LAW OR ITS LEGISLATIVE HISTORY ON WHICH TO IMPUTE THE CONGRESS AN INTENTION TO MAKE ANY ADDITIONAL CHANGE TO THE LONG ESTABLISHED RULE WHICH HAS BEEN APPLIED IN CASES OF THIS TYPE. ACCORDINGLY, QUESTION 1 IS ANSWERED BY STATING THAT THE DATE LISTED IN PARAGRAPH A IS THE CORRECT DATE AND QUESTIONS 3 AND 4 ARE ANSWERED IN THE AFFIRMATIVE. IN THE LIGHT OF THE ANSWER TO QUESTION 1, NO ANSWERS ARE REQUIRED FOR QUESTIONS 2 AND 5.