B-99777, JANUARY 11, 1951, 30 COMP. GEN. 297

B-99777, JANUARY 11, 1951, 30 COMP. GEN. 297

RETIRED PAY V. DISABILITY SEVERANCE PAY - ELECTION BY LEGAL REPRESENTATIVES OF DECEASED OR INCOMPETENT MEMBERS OF THE UNIFORMED SERVICES LEGAL REPRESENTATIVES OF THE ESTATES OF DECEASED OR INCOMPETENT MEMBERS OR FORMER MEMBERS OF THE UNIFORMED SERVICES RETIRED FOR PHYSICAL DISABILITY PRIOR TO THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949 MAY NOT ON BEHALF OF SUCH PERSONS ELECT TO RECEIVE DISABILITY SEVERANCE PAY UNDER SECTION 411 IN LIEU OF REGULAR MONTHLY RETIRED PAY UNDER OTHER PROVISIONS OF THE ACT. 30 COMP. GEN. 40, DISTINGUISHED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF DEFENSE, JANUARY 11, 1951:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 28, 1950, WITH ENCLOSURE, WHEREIN YOU REQUEST DECISION AS TO WHETHER THE LEGAL REPRESENTATIVES OF THE ESTATES OF DECEASED OR INCOMPETENT MEMBERS OR FORMER MEMBERS OF THE UNIFORMED SERVICES RETIRED FOR PHYSICAL DISABILITY PRIOR TO OCTOBER 1, 1949, MAY ELECT ON BEHALF OF SUCH MEMBERS OR FORMER MEMBERS, WITHIN THE FIVE-YEAR PERIOD COMMENCING OCTOBER 1, 1949, TO RECEIVE DISABILITY SEVERANCE PAY IN LIEU OF MONTHLY RETIRED PAY UNDER ONE OF THE TWO METHODS OF COMPUTATION PROVIDED FOR IN SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, 63 STAT. 829.

SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, RELATES GENERALLY TO MEMBERS AND FORMER MEMBERS OF THE UNIFORMED SERVICES THERETOFORE RETIRED FOR PHYSICAL DISABILITY WHO ARE RECEIVING OR ARE ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY, AND TO FORMER MEMBERS OF SUCH SERVICES THERETOFORE GRANTED OR ENTITLED TO RECEIVE RETIREMENT PAY FOR PHYSICAL DISABILITY, AND IT PROVIDES THAT SUCH PERSONS---

* * * MAY ELECT WITHIN THE FIVE-YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF THIS TITLE, (A) TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THIS ACT AND, DEPENDENT ON HIS QUALIFICATION, SHALL BE ENTITLED TO RECEIVE EITHER THE DISABILITY RETIREMENT PAY OR DISABILITY SEVERANCE PAY PRESCRIBED IN THIS TITLE * * * OR (B) TO RECEIVE RETIRED PAY OR RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THIS ACT * * *.

IN DECISION OF JULY 28, 1950, 30 COMP. GEN. 40, 48, IT WAS STATED, RESPECTING THE ABOVE-QUOTED PROVISION, THAT---

* * * WHILE THE STATUTORY PROVISION HERE IN QUESTION USES THE WORD "ELECT," IT, IN EFFECT, ACTUALLY IS MORE IN THE NATURE OF A SAVINGS PROVISION, THE PURPOSE OF WHICH IS TO GIVE TO THE INDIVIDUALS COVERED THEREBY THE BENEFITS OF THOSE PROVISIONS OF LAW UNDER WHICH THEY WOULD DRAW THE HIGHEST RETIRED PAY. COMPARE DECISION OF APRIL 13, 1950, ANSWER TO QUESTION (E), 29 COMP. GEN. 404, 407 (B-90755). HENCE, IT IS NOT SO MUCH A MATTER OF MAKING AN ELECTION AS IT IS OF COMPUTING AN INDIVIDUAL'S RETIRED PAY UNDER THE VARIOUS PROVISIONS OF LAW IN ORDER TO DETERMINE UNDER WHICH ONE HE WILL RECEIVE THE GREATEST RETIRED PAY. THUS VIEWED, THERE WOULD APPEAR TO BE NO SOUND REASON FOR REFUSING TO PERMIT THE LEGAL REPRESENTATIVE OF THE ESTATE TO MAKE THE SO-CALLED ELECTION. * * *

WHAT WAS THERE SAID REGARDING THE NATURE OF THE SO-CALLED ELECTION TO RECEIVE RETIRED PAY UNDER ONE OR THE OTHER OF THE STATUTORY PROVISIONS IN QUESTION CANNOT, FOR OBVIOUS REASONS, HOLD TRUE WITH RESPECT TO ELECTING TO RECEIVE DISABILITY SEVERANCE PAY. TO ELECT THE LATTER WOULD RESULT IN COMPLETE SEVERANCE OF THE MEMBER FROM THE SERVICE AND THUS THE MAKING OF SUCH AN ELECTION MOST CERTAINLY WOULD REQUIRE THE EXERCISE OF CONSIDERABLY MORE JUDGMENT AND DISCRETION ON THE PART OF THE PERSON MAKING THE ELECTION THAN WOULD THE MERE "COMPUTING (OF) AN INDIVIDUAL'S RETIRED PAY UNDER THE VARIOUS PROVISIONS OF LAW.' MOREOVER, THERE PROBABLY WOULD BE FEW, IF ANY, CASES WHEREIN IT WOULD NOT BE CONSIDERED IMPROVIDENT UPON THE PART OF A COMPETENT MEMBER OF THE UNIFORMED SERVICES TO MAKE AN ELECTION TO TAKE DISABILITY SEVERANCE PAY IN LIEU OF REGULAR MONTHLY RETIRED PAY AND IT WOULD REQUIRE THE MOST CLEAR AND UNEQUIVOCAL LANGUAGE IN THE STATUTE BEFORE THIS OFFICE PROPERLY COULD CONCLUDE THAT THE LEGAL REPRESENTATIVE OF AN INCOMPETENT MEMBER COULD MAKE SUCH AN ELECTION ON HIS BEHALF OR THAT THE CONGRESS INTENDED THAT THE LEGAL REPRESENTATIVE OF A DECEDENT'S ESTATE MIGHT MAKE SUCH A POSTHUMOUS ELECTION ON BEHALF OF THE ESTATE. NO SUCH LANGUAGE APPEARS IN THE STATUTE AND, ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.