B-169933, JUNE 30, 1970, 49 COMP. GEN. 877

B-169933: Jun 30, 1970

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1970: FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER WHICH WAS FORWARDED HERE BY LETTER DATED MAY 27. COST DEDUCTIONS OF $180.58 PER MONTH WERE ESTABLISHED FOR PAYMENT OF AN ANNUITY IN THE AMOUNT OF $514.92 PER MONTH. COST DEDUCTIONS OF $112.22 PER MONTH HAVE BEEN MADE FROM COLONEL MIST'S RETIRED PAY SINCE THAT DATE. YOU EXPRESSED DOUBT AS TO WHETHER MORE THAN ONE APPLICATION IS PERMISSIBLE UNDER THE REDUCTION AND WITHDRAWAL PROVISION OF 10 U.S.C. 1436(B) AND IF ONLY ONE ELECTION IS AUTHORIZED. THE PRESENT PROVISIONS OF 10 U.S.C. 1436(B) WERE ENACTED INTO LAW BY CLAUSE (6) OF SECTION 1 OF THE ACT OF AUGUST 13. THE PURPOSE OF THAT ACT WAS TO ENCOURAGE GREATER PARTICIPATION IN THE PLAN BY GIVING IT MORE FLEXIBILITY AS TO ELECTIONS TO PARTICIPATE.

B-169933, JUNE 30, 1970, 49 COMP. GEN. 877

PAY -- RETIRED -- ANNUITY ELECTIONS FOR DEPENDENTS -- MORE THAN ONE APPLICATION FOR CHANGE THE FACT THAT AN ARMY MAJOR RETIRED ON MAY 1, 1969, REDUCED THE ANNUITY ELECTED FOR HIS WIFE UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446, ON MAY 5, 1969, DOES NOT PRECLUDE HIM FROM WITHDRAWING FROM THE PLAN ON JUNE 4, 1969, AS NOTHING IN THE LAW OR LEGISLATIVE HISTORY OF THE ACT RESTRICTS A RETIRED MEMBER TO ONE OF THE OPTIONS PROVIDED IN 10 U.S.C. 1436(B). A MEMBER MAY APPLY FOR ANY NUMBER OF REDUCTIONS SO LONG AS EACH INVOLVES A SMALLER ANNUITY, AND HE MAY WITHDRAW FROM THE PLAN AT ANY TIME, A REDUCTION OR WITHDRAWAL BECOMING EFFECTIVE THE FIRST DAY OF THE SEVENTH CALENDAR MONTH AFTER APPLICATION. THEREFORE, THE ANNUITY REDUCTION UNDER 10 U.S.C. 1436(B)(1) BECAME EFFECTIVE DECEMBER 1, 1969, AND THE OFFICER'S WITHDRAWAL FROM THE PLAN PURSUANT TO 10 U.S.C. 1436(B)(2) ON JANUARY 1, 1970.

TO MAJOR R. W. TUDOR, DEPARTMENT OF THE ARMY, JUNE 30, 1970:

FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER WHICH WAS FORWARDED HERE BY LETTER DATED MAY 27, 1970, OF THE OFFICE OF THE COMPTROLLER OF THE ARMY, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER FOR $224.44 IN FAVOR OF COLONEL ELLIS H. MIST, RETIRED, COVERING DEDUCTIONS FOR THE COST OF AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446, FOR THE PERIOD FROM JANUARY 1, 1970, THROUGH FEBRUARY 28, 1970. YOUR REQUEST HAS BEEN ASSIGNED DO NO. A-1080 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

ON JANUARY 3, 1962, COLONEL MIST ELECTED OPTION 1, WITH OPTION 4, AT ONE- HALF REDUCED RETIRED PAY TO PROVIDE AN ANNUITY FOR HIS WIFE UNDER THE PLAN. HE RETIRED UNDER THE PROVISIONS OF 10 U.S.C. 1201 EFFECTIVE MAY 1, 1969, AND COST DEDUCTIONS OF $180.58 PER MONTH WERE ESTABLISHED FOR PAYMENT OF AN ANNUITY IN THE AMOUNT OF $514.92 PER MONTH.

BY LETTER DATED MAY 5, 1969, COLONEL MIST MADE APPLICATION FOR REDUCTION OF THE ANNUITY TO $320 PER MONTH PURSUANT TO 10 U.S.C. 1436(B)(1). JUNE 4, 1969, HE APPLIED FOR WITHDRAWAL FROM PARTICIPATION IN THE PLAN.

THE APPLICATION FOR REDUCTION BECAME EFFECTIVE DECEMBER 1, 1969, AND COST DEDUCTIONS OF $112.22 PER MONTH HAVE BEEN MADE FROM COLONEL MIST'S RETIRED PAY SINCE THAT DATE. YOU SAY THAT HIS REQUEST DATED JUNE 4, 1969, IF VALID, WOULD BECOME EFFECTIVE JANUARY 1, 1970. YOU EXPRESSED DOUBT AS TO WHETHER MORE THAN ONE APPLICATION IS PERMISSIBLE UNDER THE REDUCTION AND WITHDRAWAL PROVISION OF 10 U.S.C. 1436(B) AND IF ONLY ONE ELECTION IS AUTHORIZED, YOU ASK WHETHER COLONEL MIST MAY NOW BE GIVEN AN OPPORTUNITY TO CHANGE HIS MAY 5, 1969, ELECTION OF A REDUCTION TO WITHDRAWAL TO BE EFFECTIVE DECEMBER 1, 1969.

THE PRESENT PROVISIONS OF 10 U.S.C. 1436(B) WERE ENACTED INTO LAW BY CLAUSE (6) OF SECTION 1 OF THE ACT OF AUGUST 13, 1968, PUBLIC LAW 90 485, 82 STAT. 753. THE PURPOSE OF THAT ACT WAS TO ENCOURAGE GREATER PARTICIPATION IN THE PLAN BY GIVING IT MORE FLEXIBILITY AS TO ELECTIONS TO PARTICIPATE, OR MODIFICATION OR REVOCATION OF PRIOR ELECTIONS, AND, IN THE CASE OF RETIRED MEMBERS, TO PERMIT REDUCTION OF THE AMOUNT OF THE ANNUITY ELECTED OR WITHDRAWAL FROM PARTICIPATION IN THE PROGRAM. THERE IS NOTHING IN THE LAW OR ITS LEGISLATIVE HISTORY WHICH RESTRICTS A RETIRED MEMBER TO ONLY ONE OF THE OPTIONS PROVIDED IN 10 U.S.C. 1436(B). HE MAY APPLY FOR ANY NUMBER OF REDUCTIONS IN THE ANNUITY SO LONG AS EACH APPLICATION INVOLVES A SMALLER ANNUITY THAN THE PREVIOUS ONE AND IS NOT FOR LESS THAN THE PRESCRIBED MINIMUM. HE MAY FILE AN APPLICATION TO WITHDRAW FROM FURTHER PARTICIPATION IN THE PLAN AT ANY TIME. HOWEVER, AN APPLICATION FOR REDUCTION OR WITHDRAWAL DOES NOT BECOME EFFECTIVE UNTIL THE FIRST DAY OF THE SEVENTH CALENDAR MONTH BEGINNING AFTER HE APPLIES FOR A REDUCTION OR WITHDRAWAL.

THE FOREGOING VIEWS ARE NOT INCONSISTENT WITH THAT EXPRESSED IN OUR DECISION OF NOVEMBER 21, 1968, 48 COMP. GEN. 353, THAT "A PROPER APPLICATION FOR A REDUCTION IN THE AMOUNT OF AN ANNUITY OR A WITHDRAWAL FROM PARTICIPATION IN THE PLAN RECEIVED BY PROPER ADMINISTRATIVE AUTHORITY, MAY NOT THEREAFTER BE CHANGED OR REVOKED." AN APPLICATION FOR A REDUCTION IN THE AMOUNT OF AN ANNUITY MUST BE GIVEN FULL EFFECT. HOWEVER, THIS DOES NOT PREVENT AN APPLICATION FOR A FURTHER REDUCTION WITHDRAWAL FROM PARTICIPATION IN THE PLAN, FROM TAKING EFFECT AT A LATER IN THE AMOUNT OF THE ANNUITY--WITHIN THE STATUTORY LIMITATION--OR FOR DATE.

IN THE CASE OF COLONEL MIST, HIS APPLICATION DATED MAY 5, 1969, WAS A VALID IRREVOCABLE ELECTION TO REDUCE THE AMOUNT OF THE ANNUITY UNDER 10 U.S.C. 1436(B)(1) AND REDUCED COST DEDUCTIONS WERE REQUIRED EFFECTIVE DECEMBER 1, 1969. HIS APPLICATION DATED JUNE 4, 1969, FOR WITHDRAWAL FROM PARTICIPATION IN THE PLAN WAS A VALID IRREVOCABLE ELECTION UNDER 10 U.S.C. 1436(B)(2) WHICH BECAME EFFECTIVE JANUARY 1, 1970. SUBSEQUENT TO THAT DATE NO DEDUCTIONS FOR THE COST ON AN ANNUITY UNDER THE PLAN WERE PROPER. ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED, MAY BE PAID AND APPROPRIATE ACTION SHOULD BE TAKEN TO REFUND TO HIM ANY ADDITIONAL ANNUITY COST DEDUCTIONS WHICH MAY HAVE BEEN MADE FROM HIS RETIRED PAY SINCE MARCH 1, 1970.