B-103259, SEP 17, 1954

B-103259, SEP 17, 1954

PRECIS-UNAVAILABLE

MR. SECRETARY:

REFERENCE IS MADE TO LETTER OF JUNE 21, 1954, FROM THE ACTING ASSISTANT SECRETARY OF DEFENSE, REQUESTING A DECISION AS TO WHETHER THIS OFFICE WOULD BE REQUIRED TO OBJECT TO CERTAIN PROPOSED AMENDMENTS TO REGULATIONS FOR THE IMPLEMENTATION OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, APPROVED AUGUST 8, 1953-- EFFECTIVE NOVEMBER 1, 1953-- AS AMENDED BY THE ACT OF APRIL 29, 1954, 68 STAT. 464.

SECTION 3(A) OF THE ACT AS AMENDED BY THE ACT OF APRIL 29, 1954, PROVIDES, IN PERTINENT PART, THAT;

"AN ACTIVE MEMBER MAY ELECT, PRIOR TO THE COMPLETION OF EIGHTEEN YEARS OF SERVICE WHICH IS CREDITABLE IN THE COMPUTATION OF ACTIVE-DUTY PAY IN THE UNIFORMED SERVICE OF WHICH HE IS A MEMBER, TO RECEIVE A REDUCED AMOUNT OF ANY RETIRED PAY WHICH MAY BE AWARDED HIM AS THE RESULT OF SERVICE IN HIS UNIFORMED SERVICE IN ORDER TO PROVIDE ONE OR MORE OF THE ANNUITIES SPECIFIED IN SECTION 4, PAYABLE AFTER HIS DEATH IN A RETIRED STATUS TO HIS WIDOW, CHILD OR CHILDREN, IF SUCH WIDOW, CHILD, OR CHILDREN ARE LIVING AT THE DATE OF HIS RETIREMENT. WHERE THE ACTIVE MEMBER IS AWARDED RETIRED PAY BY HIS UNIFORMED SERVICE FOR PHYSICAL DISABILITY PRIOR TO THE COMPLETION OF THE EIGHTEEN YEARS OF SERVICE, THE ELECTION MAY BE MADE AT THE TIME OF RETIREMENT. AN ACTIVE MEMBER WHO HAS HERETOFORE COMPLETED THE EIGHTEEN YEARS OF SERVICE MAY MAKE HIS ELECTION WITHIN ONE YEAR (ONE HUNDRED AND EIGHTY DAYS) AFTER THE EFFECTIVE DATE OF THIS ACT. ***"

SECTION 3(B) OF THE ACT, WHICH WAS NOT AMENDED, PROVIDES THAT:

"A RETIRED MEMBER WHO HAS HERETOFORE BEEN AWARDED RETIRED PAY BY A UNIFORMED SERVICE MAY, WITHIN ONE HUNDRED AND EIGHTY DAYS AFTER THE EFFECTIVE DATE OF THIS ACT, ELECT TO RECEIVE A REDUCED AMOUNT OF THAT RETIRED PAY IN ORDER TO PROVIDE ONE OR MORE OF THE ANNUITIES SPECIFIED IN SECTION 4, PAYABLE AFTER HIS DEATH TO HIS WIDOW, CHILD, OR CHILDREN. ELECTION SO MADE SHALL THEREAFTER BE IRREVOCABLE."

IT WAS SAID IN HOUSE OF REPRESENTATIVES REPORT NO. 1454, MARCH 31, 1954, AND IN SENATE REPORT NO. 1197, APRIL 8, 1954, BOTH RELATING TO H.R. 8539-- WHICH BECAME THE AMENDING ACT OF APRIL 29, 1954-- THAT:

"THE PURPOSE OF THE PROPOSED LEGISLATION IS TO EXTEND THE TIME DURING WHICH ACTIVE MEMBERS OF THE UNIFORMED SERVICES WHO COMPLETED 18 YEARS OF SERVICE ON THE EFFECTIVE DATE OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 (NOVEMBER 1, 1953) MAY MAKE AN ELECTION TO PROVIDE CONTINUING BENEFITS FOR THEIR SURVIVORS UNDER THE PROVISIONS OF THAT ACT. NO OTHER GROUPS OF SERVICE PERSONNEL ARE AFFECTED."

IT IS STATED IN THE ASSISTANT SECRETARY'S LETTER OF JUNE 21, 1954, THAT SECTION 203 OF REGULATIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, AS APPROVED BY THE SECRETARY OF DEFENSE ON THE BASIS OF THE STATUTE BEFORE IT WAS AMENDED, PROVIDES AS FOLLOWS:

"ELECTION OF OPTIONS

"A. AN ACTIVE MEMBER WHO ON 1 NOVEMBER 1953 HAS COMPLETED OVER 18 YEARS' SERVICE WHICH IS CREDITABLE IN THE COMPUTATION OF BASIC PAY MAY ELECT TO RECEIVE A REDUCED AMOUNT OF ANY RETIRED PAY, ETC. *** TO BE EFFECTIVE THE ELECTION BY SUCH MEMBER ON ACTIVE DUTY MUST BE SIGNED AND WITNESSES NOT LATER THAN 30 APRIL 1954 AND FOR SUCH MEMBERS NOT ON ACTIVE DUTY THE ELECTION MUST BE SIGNED AND POSTMARKED NOT LATER THAN 30 APRIL 1954.

"B. AN ACTIVE MEMBER WHO ON 1 NOVEMBER 1953 HAS NOT COMPLETED OVER 18 YEARS' SERVICE WHICH IS CREDITABLE IN THE COMPUTATION OF BASIC PAY MAY ELECT TO ELECT TO RECEIVE A REDUCED AMOUNT OF ANY RETIRED PAY, ETC. *** THE ELECTION BY SUCH MEMBER ON ACTIVE DUTY MUST BE SIGNED AND WITNESSED NOT LATER THAN THE DAY PRECEDING THE DATE OF COMPLETION OF 18 YEARS' SERVICE OR 30 APRIL 1954, WHICHEVER IS LATER. FOR SUCH MEMBERS NOT ON ACTIVE DUTY THE ELECTION MUST BE SIGNED AND POSTMARKED NOT LATER THAN THE DAY PRECEDING THE DATE OF COMPLETION OF 18 YEARS' SERVICE OR 30 APRIL 1954, WHICHEVER IS LATER. A MEMBER WHO FAILS TO MAKE AN ELECTION PRIOR TO THE COMPLETION OF 18 YEARS' SERVICE OR 30 APRIL 1954, WHICHEVER IS LATER, MAY NOT THEREAFTER BE COVERED BY ANY PROVISIONS OF THE ACT.

"C. AN ACTIVE MEMBER RETIRED FOR PHYSICAL DISABILITY WHO IS AWARDED RETIRED PAY AFTER 1 NOVEMBER 1953 AND PRIOR TO THE COMPLETION OF 18 YEARS' SERVICE MAY MAKE AN ELECTION TO RECEIVE A REDUCED AMOUNT OF ANY RETIRED PAY, ETC. *** THE ELECTION OF CONTINGENCY OPTIONS BY SUCH MEMBER SHALL BE SUBMITTED NOT LATER THAN THE TIME HE SELECTS THE METHOD OF COMPUTATION OF RETIRED PAY.

"F. A RETIRED MEMBER INCLUDING THOSE RETIRED MEMBERS SERVING ON ACTIVE DUTY ARE GOVERNED BY SUBSECTION A ABOVE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, A MEMBER, INCLUDING THOSE WITH LESS THAN 18 YEARS' SERVICE, RETIRED DURING THE PERIOD 1 NOVEMBER 1953 AND 30 APRIL 1954, SHALL HAVE UNTIL 30 APRIL 1954 TO MAKE SUCH ELECTION."

IT NOW IS PROPOSED TO AMEND SUBSECTIONS 203A AND 203B OF SUCH REGULATIONS BY DELETING THE WORDS "30 APRIL 1954" WHEREVER APPEARING AND SUBSTITUTING "1 NOVEMBER 1954"; AND TO AMEND SUBSECTION 203F BY ADDING AT THE END OF THAT SUBSECTION THE FOLLOWING SENTENCE: "A MEMBER RETIRED DURING THE PERIOD 1 MAY 1954 AND 1 NOVEMBER 1954 SHALL HAVE UNTIL 1 NOVEMBER 1954 TO MAKE SUCH ELECTION." INTERIM INSTRUCTIONS TO THE ARMED SERVICES HAVE BEEN ISSUED ON THAT BASIS.

PARAGRAPH A, SECTION 203, OF THE CURRENT REGULATIONS IS BASED ON THE EXPRESS PROVISIONS OF SECTION 3(A) OF THE CONTINGENCY OPTION ACT, AND ITS AMENDMENT TO INCORPORATE THE NEW DATE OF NOVEMBER 1, 1954, AUTHORIZED BY THE ACT OF APRIL 29, 1954, IS PROPER. PARAGRAPH B, SECTION 203, IS BASED ON A DECISION OF THIS OFFICE DATED OCTOBER 13, 1953, B-103259. IT IS BELIEVED THAT THE VIEWS EXPRESSED IN THAT DECISION ARE EQUALLY APPLICABLE UNDER THE CHANGE IN THE LAW EFFECTED BY THE ACT OF APRIL 29, 1954. HENCE, NO OBJECTION IS PERCEIVED TO THE PROPOSED AMENDMENT TO SAID PARAGRAPH B OF THE REGULATIONS.

IT IS NOTED THAT THE PROPOSED AMENDMENT TO PARAGRAPH F, SECTION 203, MAKES NO REFERENCE TO THOSE RETIRED BETWEEN NOVEMBER 1, 1953, AND APRIL 30, 1954, BUT IS RESTRICTED TO THOSE RETIRED BETWEEN MAY 1, AND NOVEMBER 1, 1954. THE BENEFITS OF THE SAID ACT OF APRIL 29, 1954, SEEM CLEARLY AUTHORIZED FOR THE LATTER GROUP, SINCE THEY NOT ONLY WERE ACTIVE MEMBERS ON NOVEMBER 1, 1953, BUT ALSO WHEN THE AMENDMENT OF APRIL 29, 1954, WAS APPROVED. HENCE, IT APPEARS THAT THE REGULATIONS, IF AMENDED AS PROPOSED, WOULD NOT EXTEND BEYOND THE LIMITS OF THE STATUTE AND THIS OFFICE PERCEIVES NO OBJECTIONS TO SUCH AMENDMENTS.

IT IS NOT TOO CLEAR THAT THE BENEFITS OF THE ACT OF APRIL 29, 1954, MIGHT NOT ALSO BE CONSIDERED AS EXTENDING TO THOSE PERSONS IN ACTIVE SERVICE ON NOVEMBER 1, 1953, WHO RETIRED BETWEEN THAT DATE AND APRIL 30, 1954, AND WHO MADE NO ELECTION UNDER THE ACT OF AUGUST 3, 1953, PRIOR TO MAY 1, 1954. THAT QUESTION IS NOT SUBMITTED FOR DECISION, HOWEVER, AND SINCE IT APPEARS THAT MEMBERS IN THAT GROUP WERE GIVEN A FULL OPPORTUNITY TO MAKE THEIR ELECTIONS PRIOR TO MAY 1, 1954, ON THE BASIS OF COMPLETE INFORMATION AS TO THEIR RIGHTS, NO ACTION WITH RESPECT TO THEIR SITUATION WOULD APPEAR TO BE REQUIRED IN THE ABSENCE OF AN ACTUAL CASE INVOLVING A PURPORTED ELECTION MADE BY A MEMBER OF THAT GROUP AFTER APRIL 30, 1954.