B-161013, APR. 7, 1967

B-161013, APR. 7, 1967

TO DIRECTOR, FINANCE AND ACCOUNTING OPERATIONS:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 25, 1967, YOUR FILE FINCS-E, BOWERS, ALBERT V., O 249 564 (RETIRED), REQUESTING AN ADVANCE DECISION AS TO WHETHER PAYMENT MAY BE MADE ON A VOUCHER IN THE AMOUNT OF $97.26 IN FAVOR OF COLONEL ALBERT V. BOWERS, RETIRED, REPRESENTING REFUND OF REDUCTIONS IN HIS RETIRED PAY FOR THE PERIOD NOVEMBER 1 THROUGH DECEMBER 31, 1966, TO PROVIDE AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. YOUR LETTER WAS FORWARDED HERE BY LETTER OF THE OFFICE OF THE CHIEF OF FINANCE DATED MARCH 6, 1967, UNDER D.O. NUMBER A 944 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

COLONEL BOWERS WAS BORN ON JULY 13, 1905. THE RECORD SHOWS THAT HE WAS FIRST COMMISSIONED IN THE U.S. ARMY RESERVE ON MAY 28, 1928; THAT HE REMAINED A MEMBER OF THE ACTIVE RESERVE UNTIL OCTOBER 15, 1958; THAT HE HELD A COMMISSION IN THE ARMY OF THE UNITED STATES FROM FEBRUARY 18, 1942, TO JUNE 30, 1949; THAT HE WAS TRANSFERRED FROM THE READY RESERVE TO THE RETIRED RESERVE EFFECTIVE OCTOBER 16, 1958; THAT HE WAS PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST IN THE GRADE OF COLONEL UNDER THE PROVISIONS OF 10 U.S.C. 1331 EFFECTIVE AUGUST 1, 1965, THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH HE REACHED AGE 60; AND THAT HE HAS BEEN RECEIVING RETIRED PAY FOR NONREGULAR SERVICE FROM THE LATTER DATE.

ON APRIL 20, 1954, COLONEL BOWERS EXECUTED AN ELECTION OF OPTIONS (DATED THE PREVIOUS DAY) UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, APPROVED AUGUST 8, 1953, CH. 393, 67 STAT. 501 (NOW RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431 1446), ELECTING UNDER OPTIONS 1 WITH 4 TO RECEIVE REDUCED RETIRED PAY IN ORDER TO PROVIDE AN ANNUITY FOR HIS WIFE. ON THAT DATE HE HAD MORE THAN 20 YEARS OF SATISFACTORY SERVICE.

ON JULY 8, 1960, COLONEL BOWERS EXECUTED ANOTHER ELECTION FORM REQUESTING REVOCATION OF HIS PRIOR ELECTION AND INDICATING THAT HE DID NOT DESIRE TO RECEIVE REDUCED RETIRED PAY IN ORDER TO PROVIDE AN ANNUITY FOR HIS DEPENDENT WHEN ELIGIBLE TO RECEIVE SUCH PAY. BY SECOND INDORSEMENT DATED SEPTEMBER 9, 1960, THE ADJUTANT GENERAL ADVISED COLONEL BOWERS THAT "UNDER REGULATIONS GOVERNING THE CONTINGENCY OPTION ACT PROGRAM, ONLY AN ACTIVE MEMBER MAY MODIFY OR REVOKE HIS ELECTION AT ANY TIME PRIOR TO THE DATE HE IS RETIRED OR PLACED ON RESERVE RETIRED LIST.'

WITH LETTER DATED MARCH 4, 1965, THE OFFICE OF THE ADJUTANT GENERAL FURNISHED COLONEL BOWERS WITH COPIES OF HIS ELECTION EXECUTED APRIL 20, 1954, AND HIS REVOCATION SIGNED JULY 8, 1960. THAT LETTER ALSO ADVISED THAT A CHANGE OR REVOCATION OF A PREVIOUSLY EXECUTED OPTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN MUST BE MADE THREE YEARS PRIOR TO THE DATE THE OFFICER BECOMES ELIGIBLE FOR RETIRED PAY AND SINCE COLONEL BOWERS WOULD REACH AGE 60 ON JULY 13, 1965, THE TIME ELEMENT WOULD PREVENT HIM FROM ELECTING A NEW OPTION AND HE WOULD NOT BE ABLE TO PARTICIPATE IN THE PLAN. LETTER DATED JUNE 2, 1965, ADVISED COLONEL BOWERS THAT THE LETTER OF MARCH 4, 1955, WAS IN ERROR AND THAT "UNDER CIRCUMSTANCES NOW EXISTING, YOUR REVOCATION DATED 24 JUNE 1960 IS STILL WITHOUT EFFECT, AND YOUR ORIGINAL ELECTION OF OPTIONS DATED 19 APRIL 1954 WILL GOVERN AT TIME OF YOUR RETIREMENT.'

WHEN COLONEL BOWERS EXECUTED DD FORM 418 ON OCTOBER 15, 1965, TO ESTABLISH HIS RETIRED PAY ACCOUNT HE INDICATED HE HAD ELECTED TO PARTICIPATE IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN PURSUANT TO ELECTION MADE APRIL 19, 1954. HOWEVER, NO REDUCTION WAS MADE IN HIS RETIRED PAY FOR THE REASON THAT "REVOCATION DATED 24 JUN 60 MAKES YOUR ELECTION IN RSFPP INVALID.'

BY LETTER DATED NOVEMBER 4, 1965, COLONEL BOWERS REQUESTED AN OFFICIAL CLARIFICATION AS TO THE STATUS OF HIS ORIGINAL ELECTION DATED APRIL 19, 1954. THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, NOTIFIED HIM BY LETTER DATED FEBRUARY 3, 1966, THAT HIS REQUEST FOR REVOCATION DATED JULY 8, 1960, WAS WITHOUT EFFECT BECAUSE IT WAS MADE SUBSEQUENT TO THE DATE HIS NAME WAS PLACED ON THE RETIRED RESERVE LIST AND PRIOR TO THE AMENDMENT OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 BY THE ACT OF OCTOBER 4, 1961, PUB.L. 87-381, 75 STAT. 810. AS A RESULT OF THIS DETERMINATION AN INDEBTEDNESS WAS ESTABLISHED IN THE AMOUNT OF $291.78, REPRESENTING THE REDUCTIONS WHICH SHOULD HAVE BEEN MADE AT THE RATE OF $48.63 PER MONTH FROM AUGUST 1, 1965, THROUGH JANUARY 31, 1966, AND COLONEL BOWERS WAS ADVISED THAT DOUBLE MONTHLY COST OF $97.26 WOULD BE DEDUCTED FROM HIS RETIRED PAY FOR THE PERIOD FEBRUARY 1, 1966, THROUGH JUNE 30, 1966, IN ORDER TO LIQUIDATE THE DEBT.

IN A LETTER DATED JUNE 20, 1966, THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, AGAIN REVIEWED THE CASE, CONCLUDED THAT THE ELECTION AND REVOCATION WERE BOTH VALID, AND DETERMINED THAT THE ANNUITY SHOULD NOT HAVE BEEN ESTABLISHED. COLONEL BOWERS WAS NOTIFIED THAT REFUND OF THE DEDUCTIONS FOR THE PERIOD AUGUST 1, 1965, THROUGH MAY 31, 1966, WOULD BE MADE. BY LETTER DATED JUNE 27, 1966, HE REQUESTED THAT A DECISION IN THE MATTER BE MADE AT HIGHER APPROPRIATE LEVEL AND HE STATED THAT HE WOULD HOLD THE REFUND CHECK IN THE AMOUNT OF $330.68 UNTIL THE MATTER IS RESOLVED.

IN LETTER DATED NOVEMBER 7, 1966, THE OFFICE OF THE CHIEF OF FINANCE REPORTED THAT IT IS THE OPINION OF THE JUDGE ADVOCATE GENERAL THAT THE REVOCATION OF COLONEL BOWERS WAS AN EFFECTIVE REVOCATION. THAT OPINION IS BASED ON THE FACT THAT THE OFFICER WAS AUTHORIZED TO ELECT TO PARTICIPATE IN THE PLAN AT THE TIME HE EXERCISED HIS RIGHT OF ELECTION AND THAT ALTHOUGH HE WAS A MEMBER OF THE RETIRED RESERVE AT THE TIME HE SUBMITTED HIS REVOCATION HE WAS NOT ON A RETIRED LIST IN RECEIPT OF RETIRED PAY AND WAS THUS NOT IN A STATUS WHICH WOULD MAKE HIM INELIGIBLE TO CHANGE OR REVOKE HIS ELECTION.

YOU HAVE REQUESTED AN ADVANCE DECISION IN VIEW OF THE DIVERSE INTERPRETATIONS PLACED UPON THE LAW AND OUR DECISIONS, AS OUTLINED ABOVE.

SECTION 2 (C) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 DEFINED THE TERM " ,ACTIVE MEMBER" " AS MEANING "A MEMBER ON THE ACTIVE LIST OF A REGULAR OR RESERVE COMPONENT OF A UNIFORMED SERVICE OR MEMBER OF A RESERVE COMPONENT OF A UNIFORMED SERVICE, WHO HAS COMPLETED TWENTY SATISFACTORY YEARS IN HIS UNIFORMED SERVICE, AS DEFINED IN SECTION 302 OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948.' SECTION 2 (D) DEFINED THE TERM " ,RETIRED MEMBER" " AS MEANING "A MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE, WHO IS OR HAS BEEN AWARDED RETIRED, RETIREMENT, OR RETAINER PAY OR EQUIVALENT PAY AS A RESULT OF SERVICE IN ONE OF THE UNIFORMED SERVICES.'

SECTION 3 (A) OF THE ACT PROVIDED THAT "AN ACTIVE MEMBER WHO HAS HERETOFORE COMPLETED THE EIGHTEEN YEARS OF SERVICE MAY MAKE THIS ELECTION WITHIN ONE HUNDRED AND EIGHTY DAYS AFTER THE EFFECTIVE DATE OF THIS ACT.' THAT SECTION FURTHER PROVIDED THAT "THE TERMS OF THE ELECTION MAY BE MODIFIED OR REVOKED BY A MEMBER AT ANY TIME PRIOR TO HIS RETIREMENT BUT ANY MODIFICATION OR REVOCATION SO MADE SHALL NOT BE EFFECTIVE IF HE RETIRES WITHIN FIVE YEARS AFTER THE DATE IT IS MADE.'

ON APRIL 20, 1954, COLONEL BOWERS HAD MORE THAN 20 YEARS OF SATISFACTORY SERVICE AS DEFINED IN THE 1948 ACT AND HIS ELECTION MADE ON THAT DATE WAS A VALID ELECTION UNDER THE PROVISIONS OF THE 1953 ACT. SEE 34 COMP. GEN. 474. AS A MEMBER OF THE PROGRAM ESTABLISHED BY THE 1953 ACT HE THEREAFTER HAD THE RIGHT TO MODIFY OR REVOKE HIS ELECTION "AT ANY TIME PRIOR TO HIS RETIREMENT" PROVIDED SUCH MODIFICATION OR REVOCATION WAS MADE FIVE YEARS BEFORE THE DATE OF HIS RETIREMENT. WHILE AT THE TIME HIS REVOCATION OF JULY 8, 1960, WAS MADE HE HAD BEEN TRANSFERRED TO THE RETIRED RESERVE (PRESUMABLY FOR THE REASON THAT HE FAILED TO EARN A MINIMUM NUMBER OF RETIREMENT POINTS), HE WAS NOT THEN A "RETIRED MEMBER" WITHIN THE MEANING OF THE ACT AND THE REVOCATION WAS MADE MORE THAN FIVE YEARS PRIOR TO THE DATE HE FIRST BECAME ELIGIBLE FOR RETIRED PAY ON AUGUST 1, 1965.

WHILE SECTION 3 (A) OF THE 1953 ACT DID NOT DEFINE THE "MEMBER" WHO MIGHT MODIFY OR REVOKE AN ELECTION, WE FIND NOTHING IN THAT SECTION OR IN THE CODIFYING LANGUAGE CONTAINED IN 10 U.S.C. 1431 (C), WHICH SUGGESTS IN ANY WAY THAT A MEMBER WHO HAD MADE A VALID ELECTION UNDER THE ACT AND WHO THEREBY BECAME A MEMBER OF THE PROGRAM COULD NOT MODIFY OR REVOKE THAT ELECTION AT ANY LATER DATE, PROVIDED THE FIVE YEAR LIMITATION CONDITION WAS MET. SEE 45 COMP. GEN. 112, 115.

SINCE THE REVOCATION SIGNED BY COLONEL BOWERS ON JULY 8, 1960, WAS FILED WITH APPROPRIATE ARMY AUTHORITY THREE DAYS LATER AND MORE THAN FIVE YEARS ELAPSED BEFORE HE BECAME ENTITLED TO RECEIVE RETIRED PAY ON AUGUST 1, 1965, SUCH REVOCATION BECAME EFFECTIVE AND NO REDUCTION IN HIS RETIRED PAY WAS AUTHORIZED FOR THE PURPOSE OF PROVIDING AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN.

ACCORDINGLY, THE VOUCHER, WHICH IS ENCLOSED, MAY BE PAID, IF OTHERWISE CORRECT.