B-122198, MAY 11, 1955, 34 COMP. GEN. 582

B-122198, MAY 11, 1955, 34 COMP. GEN. 582

PAY - RETIRED - ANNUITIES FOR DEPENDENTS - UNIFORMED SERVICES CONTINGENCY OPTION ACT - AWARD OF RETIRED PAY AS RESULT OF CORRECTION OF RECORDS FORMER ARMY OFFICERS WHO SUBMITTED ELECTIONS FOR SURVIVORS' ANNUITIES UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 MORE THAN 60 DAYS AFTER NOTIFICATION OF THE AWARD OF RETROACTIVE RETIREMENT PAY WHICH RESULTED FROM THE CORRECTION OF THEIR MILITARY RECORDS UNDER SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, DID NOT MAKE VALID ELECTIONS UNDER SECTION 3 OF THE 1953 ACT WHICH REQUIRES FORMER OFFICERS, WITH LESS THAN 18 YEARS OF SERVICE, TO MAKE ELECTIONS "AT THE TIME" OF THE AWARD OF RETIRED PAY.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO LIEUTENANT COLONEL EUGENE ALETZ, DEPARTMENT OF THE ARMY, MAY 11, 1955:

BY FIRST ENDORSEMENT DATED NOVEMBER 24, 1954, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF OCTOBER 28, 1954, REQUESTING A DECISION AS TO THE PROPRIETY OF PAYING A VOUCHER, IN THE TOTAL AMOUNT OF $244.79, STATED IN FAVOR OF LIEUTENANT COLONEL ALFRED A. WEINSTEIN, 10 309 1027, FOR $96.15, AND LIEUTENANT COLONEL CHARLES RICHARDSON, JR., 10 113 591, FOR $148.64, REPRESENTING RETIRED PAY FOR THE MONTH OF AUGUST 1954, LESS DEDUCTIONS TO COVER THE COST OF PROVIDING ANNUITIES FOR THEIR SURVIVORS, AS ELECTED BY THEM, UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, APPROVED AUGUST 8, 1953, 67 STAT. 501.

IT APPEARS FROM YOUR LETTER AND ACCOMPANYING PAPERS THAT, AS A RESULT OF A REVIEW BY THE ARMY BOARD FOR CORRECTION OF MILITARY RECORDS ESTABLISHED PURSUANT TO THE PROVISIONS OF SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED BY THE ACT OF OCTOBER 25, 1951, 65 STAT. 655, 5 U.S.C. 191A, THE SECRETARY OF THE ARMY ON APRIL 8, 1954, ISSUED A MEMORANDUM FOR THE ADJUTANT GENERAL DIRECTING THAT THE DEPARTMENT OF THE ARMY RECORDS OF COLONEL WEINSTEIN BE CORRECTED TO SHOW, IN EFFECT, THAT HE WAS PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE BY REASON OF PHYSICAL DISABILITY, INCURRED IN LINE OF DUTY, AT THE TIME OF HIS RELIEF FROM ACTIVE DUTY ON OCTOBER 28, 1946, AND THAT HE WAS CERTIFIED AS ELIGIBLE FOR RETIREMENT PAY BENEFITS IN THE GRADE OF LIEUTENANT COLONEL UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939, 53 STAT. 555. ON APRIL 22, 1954, THE ADJUTANT GENERAL ADVISED COLONEL WEINSTEIN OF THE ACTION OF THE CORRECTION BOARD. IT FURTHER APPEARS THAT BY LETTER POSTMARKED JUNE 30, 1954, COLONEL WEINSTEIN ELECTED (ON THE PRESCRIBED FORM) TO RECEIVE A REDUCED AMOUNT OF RETIREMENT PAY IN ORDER TO PROVIDE ANNUITIES FOR HIS WIFE AND CHILDREN UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953.

IN THE CASE OF COLONEL RICHARDSON, IT APPEARS THAT AS A RESULT OF A REVIEW BY THE CORRECTION BOARD, THE SECRETARY OF THE ARMY ON JUNE 21, 1954, ISSUED A MEMORANDUM FOR THE ADJUSTANT GENERAL DIRECTING THAT THE DEPARTMENT OF THE ARMY RECORDS OF THE OFFICER BE CORRECTED TO SHOW, IN EFFECT, THAT HE WAS PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE BY REASON OF PHYSICAL DISABILITY, INCURRED IN LINE OF DUTY, AT THE TIME OF HIS RELIEF FROM ACTIVE DUTY ON JULY 8, 1947, AND THAT HE WAS CERTIFIED FOR RETIREMENT PAY BENEFITS UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939, IN THE GRADE OF LIEUTENANT COLONEL. ON JULY 2, 1954, THE ADJUTANT GENERAL INFORMED COLONEL RICHARDSON OF THE ACTION OF THE CORRECTION BOARD. FURTHER APPEARS THAT BY LETTER OF SEPTEMBER 7, 1954, COLONEL RICHARDSON REQUESTED THE CHIEF, RETIRED PAY SECTION, SETTLEMENTS DIVISION, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS 49, INDIANA, TO ADVISE HIM OF THE ACTION HE SHOULD TAKE IN ORDER TO AVAIL HIMSELF OF THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, UNDER WHICH HE DESIRED TO ELECT THAT HIS WIFE RECEIVE ONE HALF OF HIS CURRENT RETIREMENT PAY, UPON HIS DEATH. A FORM FOR MAKING SUCH AN ELECTION WAS SENT TO HIM AND HE COMPLETED IT AND RETURNED IT TO THE FINANCE CENTER BY LETTER POSTMARKED OCTOBER 2, 1954.

YOU QUESTION WHETHER THESE PERSONS ARE ENTITLED TO ELECT TO RECEIVE RETIRED PAY IN REDUCED AMOUNTS IN ORDER TO PROVIDE ANNUITIES FOR THEIR SURVIVORS AND INDICATE THAT YOUR DOUBT ARISES FROM THE FACT THAT THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 DOES NOT CLEARLY PROVIDE COVERAGE FOR MEMBERS OR FORMER MEMBERS GRANTED RETROACTIVE RETIREMENT PAY AS A RESULT OF A CORRECTION OF RECORDS MADE UNDER SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT, AS AMENDED. YOU FURTHER REQUEST TO BE ADVISED AS TO THE DATES RETIRED PAY DEDUCTIONS TO COVER THE COST OF THE ANNUITIES ARE TO COMMENCE, IN THE EVENT THE ELECTIONS ARE HELD TO BE VALID.

THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, AS AMENDED BY THE ACT OF APRIL 29, 1954, 68 STAT. 64, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

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

(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 302OF 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. 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 THIS ELECTION WITHIN ONE YEAR (ONE HUNDRED AND EIGHTY DAYS) AFTER THE EFFECTIVE DATE OF THIS ACT. * * * A PERSON WHO IS A FORMER MEMBER ON THE EFFECTIVE DATE OF THE ACT ( NOVEMBER 1, 1953), AND WHO IS THEREAFTER AWARDED RETIRED PAY BY A UNIFORMED SERVICE MAY MAKE THE ELECTION AT THE TIME HE IS AWARDED THAT PAY. * * * ( LANGUAGE ADDED IN 1954 IS UNDERSCORED, AND ORIGINAL LANGUAGE THEN OMITTED IS ENCLOSED IN BRACKETS).

(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 * * *.

SEC. 4. (A) UNDER THE CONDITIONS SET FORTH IN SECTION 3, AN ACTIVE OR RETIRED MEMBER MAY ELECT ONE OR MORE OF THE FOLLOWING ANNUITIES, PAYABLE UNDER THIS ACT, IN SUCH AMOUNT, EXPRESSED AS A PERCENTAGE OF THE REDUCED AMOUNT OF HIS RETIRED PAY, AS HE MAY SPECIFY AT THE TIME OF ELECTION, IN AMOUNTS EQUAL TO ONE-HALF, ONE-QUARTER OR ONE-EIGHTH OF THE REDUCED AMOUNT OF HIS RETIRED PAY.

SEC. 8. THIS ACT SHALL BE ADMINISTERED UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT, WHICH REGULATIONS SHALL BE UNIFORM INSOFAR AS PRACTICABLE FOR ALL OF THE UNIFORMED SERVICE. * * *

NEITHER COLONEL WEINSTEIN NOR COLONEL RICHARDSON WAS AWARDED RETIRED PAY PRIOR TO NOVEMBER 1, 1953, AND NEITHER OF THEM WAS AN "ACTIVE MEMBER" WITH EIGHTEEN YEARS OR MORE OF SERVICE AT THE TIME OF AWARD OF RETIRED PAY. HENCE, UNDER THE STATUTE EACH OF THEM WAS REQUIRED, OR PERMITTED, TO MAKE HIS ELECTION "AT THE TIME" HE WAS AWARDED RETIRED PAY. SINCE COLONEL WEINSTEIN WAS NOTIFIED OF THE AWARD OF RETIRED PAY TO HIM BY LETTER OF APRIL 22, 1954, AND COLONEL RICHARDSON WAS SIMILARLY NOTIFIED BY LETTER OF JULY 2, 1954, RESPECTIVELY, THE MATTER TO BE DETERMINED IS WHETHER, UNDER THE CIRCUMSTANCES IN THEIR CASES, EITHER OF THEM REASONABLY MAY BE CONSIDERED TO HAVE MADE HIS ELECTION "AT THE TIME" OF THE AWARD TO HIM OF RETIRED PAY.

THE PHRASE "AT THE TIME," WHEN USED IN STATUTES AND CONTRACTS, SEEMS GENERALLY TO HAVE BEEN CONSTRUED BY THE COURTS TO MEAN SIMULTANEOUSLY WITH.' SEE THE VARIOUS INTERPRETATIONS OF SUCH PHRASE APPEARING IN WORDS AND PHRASES, PERMANENT EDITION. IN CONSTRUING THE STATUTE HERE INVOLVED, WE ARE INCLINED TO VIEW THE PHRASE AS HAVING BEEN USED IN THE SOMEWHAT MORE LIBERAL SENSE OF MEANING AT OR ABOUT THE TIME OF THE AWARD OF RETIRED PAY OR WITHIN A SHORT TIME AFTER SUCH AWARD. OTHERWISE, A PERSON WHO WAS A "FORMER MEMBER" ON NOVEMBER 1, 1953, AND WHO MIGHT THEREAFTER BE AWARDED RETIRED PAY, OR A PERSON RETIRED FOR PHYSICAL DISABILITY PRIOR TO THE COMPLETION OF 18 YEARS OF SERVICE, WOULD BE REQUIRED TO MAKE HIS ELECTION ON THE DAY HE IS AWARDED RETIRED PAY OR BE FOREVER BARRED FROM MAKING IT. HOWEVER, SINCE OTHER CLASSES OF PERSONS COMING UNDER THE ACT WERE EXPRESSLY GIVEN A LIMITED PERIOD OF 180 DAYS AFTER NOVEMBER 1, 1953, IN WHICH TO MAKE ELECTIONS, IT SEEMS REASONABLY PLAIN THAT IT WOULD NOT BE CONSISTENT WITH THE LEGISLATIVE INTENT TO CONSTRUE THE PHRASE "AT THE TIME," APPEARING IN THE SAME SECTION OF THE ACT, IN SUCH A WAY AS TO ALLOW MEMBERS OR FORMER MEMBERS WHOSE CASES ARE SUBJECT TO THAT PHRASE A PERIOD EQUAL TO ONE-HALF OR ONE-THIRD OF 180 DAYS, AFTER AWARD OF RETIRED PAY, IN WHICH TO MAKE THEIR ELECTIONS. THUS, WE MUST HOLD THAT A PERIOD OF 60 DAYS OR MORE, AFTER AWARD OF RETIRED PAY, WOULD BE TOO LONG A PERIOD TO ALLOW SUCH PERSONS FOR THE PURPOSE OF MAKING THEIR ELECTIONS. IN FACT, IT IS OUR OPINION THAT THERE WOULD BE GRAVE DOUBT THAT ANY TIME IN EXCESS OF 30 DAYS AFTER THE AWARD OF RETIRED PAY TO ONE OF SUCH MEMBERS OR FORMER MEMBERS REASONABLY COULD BE ALLOWED HIM, CONSISTENTLY WITH THE LANGUAGE AND THE PURPOSE OF THE STATUTE, IN WHICH TO MAKE AN ELECTION UNDER THE STATUTE.

COLONEL WEINSTEIN'S ELECTION OF OPTIONS WAS POSTMARKED JUNE 30, 1954, THAT IS, 69 DAYS AFTER APRIL 22, 1954, THE DATE OF THE LETTER NOTIFYING HIM OF THE AWARD OF RETIRED PAY TO HIM. COLONEL RICHARDSON'S ELECTION OF OPTIONS WAS POSTMARKED OCTOBER 2, 1954, OR 92 DAYS AFTER JULY 2, 1954, THE DATE OF THE NOTIFICATION TO HIM OF THE AWARD OF HIS RETIRED PAY. ACCORDINGLY, NEITHER OF THE ELECTIONS MAY BE CONSIDERED VALID AND NO DEDUCTIONS SHOULD BE MADE FROM THE RETIRED PAY OF SUCH PERSONS TO COVER THE COST OF SURVIVORS' ANNUITIES.

THE VOUCHER AND OTHER PAPERS TRANSMITTED WITH YOUR LETTER ARE RETAINED HERE.