B-118960, JUNE 30, 1954, 33 COMP. GEN. 618

B-118960, JUNE 30, 1954, 33 COMP. GEN. 618

PAY - RETIRED - ANNUITIES FOR DEPENDENTS - UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 OFFICERS OF THE ARMY OF THE UNITED STATES AND THE UNITED STATES AIR FORCE WHO ARE NOT ATTACHED TO COMPONENTS ARE PROPERLY TO BE CONSIDERED "ACTIVE MEMBERS" OF A UNIFORMED SERVICE UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 AND THEREFORE ENTITLED TO MAKE ELECTIONS AND RECEIVE THE BENEFITS GRANTED UNDER THE DEPENDENTS' SURVIVORSHIP ANNUITY PROVISIONS OF THE ACT, IF THEY OTHERWISE MEET THE CONDITIONS OF SECTION 2 (C).

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF DEFENSE, JUNE 30, 1954:

REFERENCE IS MADE TO LETTER OF FEBRUARY 16, 1954, WITH ENCLOSURE--- MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 86--- FROM THE ASSISTANT SECRETARY OF DEFENSE, REQUESTING A DECISION AS TO WHETHER OFFICERS OF THE ARMY OF THE UNITED STATES WITHOUT COMPONENT AND OFFICERS OF THE UNITED STATES AIR FORCE WITHOUT COMPONENT ARE ENTITLED TO MAKE ELECTIONS AND RECEIVE THE BENEFITS PROVIDED BY THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, APPROVED AUGUST 8, 1953, 67 STAT. 501.

IT IS POINTED OUT IN MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 86 THAT A LITERAL INTERPRETATION OF SECTIONS 2 (C), 67 STAT. 501, AND 3 (A), 67 STAT. 502, OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT, HEREINAFTER REFERRED TO AS THE CONTINGENCY OPTION ACT, WOULD EXCLUDE FROM THE APPLICATION OF THAT ACT OFFICERS OF THE ARMY OF THE UNITED STATES WITHOUT COMPONENT AND OFFICERS OF THE UNITED STATES AIR FORCE WITHOUT COMPONENT, WHEREAS CERTAIN STATEMENTS CONTAINED IN HOUSE AND SENATE REPORTS ON THE BILL WHICH BECAME THE CONTINGENCY OPTION ACT INDICATE THAT THE CONGRESS INTENDED THAT ALL MEMBERS OF THE UNIFORMED SERVICES BE COVERED.

PERTINENT PORTIONS OF THE CONTINGENCY OPTION ACT ARE AS FOLLOWS:

SEC. 2. AS USED IN THIS ACT---

(B) THE TERM "MEMBER" MEANS A COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, NURSE, FLIGHT OFFICER, OR A PERSON IN AN ENLISTED GRADE (INCLUDING AN AVIATION CADET), OF ANY OF THE UNIFORMED SERVICES AND A PERSON ENTITLED TO RETAINER PAY IN THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE WITH CREDIT FOR SIXTEEN OR MORE YEARS OF NAVAL SERVICE.

(C) THE TERM "ACTIVE MEMBER" MEANS 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.

(D) THE TERM "RETIRED MEMBER" MEANS 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.

SEC. 3. (A) 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. * * * 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. ANY MEMBER WHO REVOKES AN ELECTION SHALL NOT THEREAFTER BE PERMITTED TO WITHDRAW OR MODIFY HIS REVOCATION AND AFTER IT BECOMES EFFECTIVE, HE SHALL NOT BE PERMITTED TO BE COVERED IN ANY WAY BY THIS ACT.

(B) 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.

SECTION 2 (C) AND THE FIRST SENTENCE OF SECTION 3 (A) OF THE ACT, WHEN CONSIDERED TOGETHER--- BUT APART FROM OTHER PROVISIONS OF THE STATUTE--- WOULD INDICATE THAT OFFICERS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT AND OFFICERS OF THE UNITED STATES AIR FORCE WITHOUT COMPONENT WERE EXCLUDED FROM THE PROVISIONS OF THE ACT. HOWEVER, THE INTENT AND MEANING OF SECTION 2 (C) AND THE FIRST SENTENCE OF SECTION 3 (A) OF THE ACT ARE NOT CLEAR WHEN THOSE SECTIONS ARE CONSIDERED TOGETHER WITH OTHER PROVISIONS IN THE ACT. SECTION 2 (B), 67 STAT. 502, FOR EXAMPLE, DEFINES THE TERM "MEMBER" AS A "COMMISSIONED OFFICER, COMMISSIONED WARRANT OFFICER, WARRANT OFFICER, NURSE, FLIGHT OFFICER, OR A PERSON IN AN ENLISTED GRADE (INCLUDING AN AVIATION CADET), OF ANY OF THE UNIFORMED SERVICES.' ATTACHMENT TO A COMPONENT IS NOT A PREREQUISITE TO QUALIFICATION AS A "MEMBER" OF A UNIFORMED SERVICE UNDER SECTION 2 (B). ALSO, SECTION 2 (D) 67 STAT. 502, DEFINES THE TERM "RETIRED MEMBER" AS A "MEMBER OR FORMER MEMBER OF A UNIFORMED SERVICE, WHO IS OR HAS BEEN AWARDED RETIRED, RETIREMENT, OR RETAINER PAY.' HERE AGAIN MEMBERSHIP--- OR FORMER MEMBERSHIP WHILE ON ACTIVE DUTY--- IN A PARTICULAR COMPONENT IS NOT ESSENTIAL BEFORE AN INDIVIDUAL MAY BE CONSIDERED A "RETIRED MEMBER" OF THE UNIFORMED SERVICE. THUS, IF SECTION 2 (C) REQUIRES THAT A MEMBER BE ASSIGNED TO A COMPONENT BEFORE HE MAY BE CONSIDERED AN "ACTIVE MEMBER," THOSE PERSONS WHO ARE NOT RETIRED AND WHO ARE NOT ASSIGNED TO A COMPONENT COULD NOT MAKE AN ELECTION UNDER THE ACT, WHEREAS UNDER SECTION 3 (B), 67 STAT. 502, A RETIRED MEMBER WHO HAD NEVER BEEN ASSIGNED TO A COMPONENT COULD MAKE SUCH AN ELECTION. TO SO EXCLUDE ACTIVE MEMBERS OF THE UNIFORMED SERVICES SERVING WITHOUT COMPONENT FROM THE BENEFICIAL PROVISIONS OF THE ACT AND AT THE SAME TIME INCLUDE RETIRED MEMBERS, AS INDICATED ABOVE, WOULD BE ANOMALOUS AND A SERIOUS DISCRIMINATION WHICH SHOULD NOT BE PRESUMED TO HAVE BEEN INTENDED BY THE CONGRESS.

UNDER SUCH CIRCUMSTANCES AND IN VIEW OF THE UNCERTAINTY AS TO THE MEANING OF THE VARIOUS PARTS OF THE STATUTE, IT IS APPROPRIATE TO LOOK TO THE LEGISLATIVE HISTORY OF THE ACT TO ASCERTAIN MORE CLEARLY THE INTENT OF THE CONGRESS. THAT LEGISLATIVE HISTORY DOES NOT DISCLOSE THE SLIGHTEST INDICATION OF AN INTENT ON THE PART OF CONGRESS TO EXCLUDE FROM THE PROVISIONS OF THAT ACT MEMBERS OF THE ARMY OF THE UNITED STATES WITHOUT COMPONENT AND MEMBERS OF THE UNITED STATES AIR FORCE WITHOUT COMPONENT. ON THE CONTRARY, AS POINTED OUT IN MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 86, IT WAS STATED ON PAGE 3 OF SENATE REPORT NO. 672 ON H.R. 5304, JULY 27, 1953, WHICH SUBSEQUENTLY WAS ENACTED AS THE CONTINGENCY OPTION ACT OF 1953, THAT:

PERSONNEL COVERED BY THE BILL

THE BILL APPLIES TO ALL OFFICERS AND PERSONS IN ENLISTED GRADES OF THE UNIFORMED SERVICES. THE UNIFORMED SERVICES ARE THE ARMY, NAVY, AIR FORCE, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE, INCLUDING ALL COMPONENTS AND MEMBERS THEREOF. SIMILARLY, ON PAGE 3 OF HOUSE REPORT NO. 496 ON H.R. 5304, JUNE 1, 1953, IT WAS STATED:

THE BILL EXTENDS THE BENEFITS OF THE PLAN TO ALL ACTIVE OR RETIRED MEMBERS OF THE UNIFORMED SERVICES UPON ATTAINING A RETIRED STATUS, WHICH TERM INCLUDES THE ARMY, THE NAVY, MARINE CORPS, AIR FORCE, UNIFORMED PERSONNEL OF THE COAST AND GEODETIC SURVEY, AND THE PUBLIC HEALTH SERVICE. IT IS EQUALLY APPLICABLE TO OFFICERS AND ENLISTED PERSONNEL UPON ATTAINING A RETIRED STATUS. PARTICIPATION IN THE PLAN IS ENTIRELY AT THE OPTION OF THE RETIRED PERSON.

IN VIEW OF SUCH STATEMENT, IT SEEMS REASONABLE TO CONCLUDE THAT IT WAS NOT THE INTENT OF THE CONGRESS TO EXCLUDE MEMBERS OF THE ARMY OF THE UNITED STATES WITHOUT COMPONENT OR MEMBERS OF THE UNITED STATES AIR FORCE WITHOUT COMPONENT FROM THE BENEFITS OF THE ACT.

IT HAS BEEN STATED THAT THE PURPOSE OF A LAW IS THE EVER CONSISTENT CONSIDERATION IN ITS INTERPRETATION (UNITED STATES V ANTIKAMNIA CO., 231 U.S. 654, 667) AND THAT A THING WHICH IS WITHIN THE INTENTION OF THE MAKERS OF A STATUTE IS AS MUCH WITHIN THE STATUTE AS IF IT WERE IN THE LETTER; AND A THING WHICH IS WITHIN THE LETTER OF THE STATUTE IS NOT WITHIN THE STATUTE UNLESS IT BE WITHIN THE INTENTION OF THE MAKERS. AM. JUR., STATUTES, SECTION 240. SECTION 2 (C) DEFINING "ACTIVE MEMBER" IS WRITTEN IN GENERAL TERMS AND IT IS THE VIEW OF THIS OFFICE THAT THE WORDS "MEMBER ON THE ACTIVE LIST OF A REGULAR OR RESERVE COMPONENT" WERE USED IN A BROAD SENSE TO DESCRIBE ALL ACTIVE LIST MEMBERS. LIKEWISE, IT APPEARS THAT THE WORDS "MEMBER OF A RESERVE COMPONENT OF A UNIFORMED SERVICE, WHO HAS COMPLETED TWENTY SATISFACTORY YEARS IN HIS UNIFORMED SERVICE" WERE USED BROADLY TO DESCRIBE THOSE MEMBERS, OTHER THAN ACTIVE LIST OR RETIRED MEMBERS, WHO COULD ACQUIRE THE REQUIRED TWENTY YEARS SATISFACTORY SERVICE RATHER THAN TO EXCLUDE, FOR NO APPARENT REASON, MEMBERS WITHOUT COMPONENT.

ACCORDINGLY, YOU ARE ADVISED THAT OFFICERS OF THE ARMY OF THE UNITED STATES AND THE UNITED STATES AIR FORCE WHO ARE NOT ATTACHED TO COMPONENTS ARE PROPERLY TO BE CONSIDERED "ACTIVE MEMBERS" OF A UNIFORMED SERVICE ENTITLED TO MAKE ELECTIONS AND RECEIVE THE BENEFITS GRANTED UNDER THE CONTINGENCY OPTION ACT, IF THEY OTHERWISE MEET THE CONDITIONS OF SECTION 2 (C) OF THE ACT.