B-123189, JUNE 8, 1955, 34 COMP. GEN. 664

B-123189, JUNE 8, 1955, 34 COMP. GEN. 664

PAY - RETIRED - ANNUITIES FOR DEPENDENTS - VOLUNTARY OR INVOLUNTARY RESIGNATIONS OR REMOVALS FROM SERVICE - DEPOSITS OF DEDUCTIONS MEMBERS OF THE UNIFORMED SERVICES WHO HAVE MADE SURVIVORSHIP ANNUITY ELECTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 AND WHO VOLUNTARILY RESIGN FROM THE SERVICE, OR ARE REMOVED FROM THE RETIRED LIST FOR CAUSE, MAY NOT DEPOSIT WITH THE TREASURY AMOUNTS WHICH WOULD HAVE BEEN DEDUCTED FROM THEIR RETIRED PAY IN ORDER TO ENTITLE THEIR BENEFICIARIES TO THE BENEFITS OF THE ACT.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF DEFENSE, JUNE 8, 1955:

THE ASSISTANT SECRETARY OF DEFENSE, BY LETTER OF MARCH 7, 1955, REQUESTED A DECISION AS TO WHETHER RETIRED MEMBERS OF THE UNIFORMED SERVICES IN RECEIPT OF RETIRED PAY WHO HAVE MADE A VALID ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 AND WHO VOLUNTARILY RESIGN FROM THE SERVICE AND RELINQUISH ALL RIGHTS TO RETIRED PAY OR WHO HAVE BEEN VOLUNTARILY (INVOLUNTARILY) REMOVED FROM THE RETIRED LIST, MAY BE PERMITTED TO DEPOSIT IN THE TREASURY OF THE UNITED STATES THE AMOUNT WHICH WOULD HAVE BEEN WITHHELD FROM THEIR RETIRED PAY, SO AS TO ENTITLE THEIR BENEFICIARIES TO THE BENEFITS OF THAT ACT.

SECTION 3 (A) (B) OF THE CONTINGENCY OPTION ACT, 67 STAT. 502, AUTHORIZES THE MAKING OF ELECTIONS BY MEMBERS "TO RECEIVE A REDUCED AMOUNT" OF "RETIRED PAY" IN ORDER TO PROVIDE ONE OF THE ANNUITIES MENTIONED IN THAT ACT FOR THEIR DEPENDENTS. THE DIFFERENT ELECTIONS ARE EXPRESSED IN SECTION 4 (A), 67 STAT. 503, AS A PERCENTAGE "OF THE REDUCED AMOUNT OF RETIRED PAY.' SECTION 4 (C), 67 STAT. 503, PROVIDES FOR THE COMPUTATION OF " THE REDUCTION TO BE MADE IN THE RETIRED PAY.' THOSE PROVISIONS AND OTHER SIMILARLY WORDED PROVISIONS IN THAT ACT AND THE STATEMENTS IN SECTION 3 (A) AS TO THE ANNUITIES "PAYABLE AFTER HIS DEATH IN A RETIRED STATUS" AND IN SECTION 10, 67 STAT. 504, THAT THE ANNUITIES SHALL ACCRUE FROM THE FIRST DAY OF THE MONTH "IN WHICH THE RETIRED MEMBER DIES," INDICATE THAT IT WAS INTENDED THAT THE ANNUITIES WERE BASICALLY TO BE PURCHASED OUT OF RETIRED PAY AND THAT THE MEMBER SHOULD CONTINUE IN A RETIRED PAY STATUS AND, WITH THE EXCEPTION COVERED BY SECTION 5, 67 STAT. 504, BE BASICALLY ENTITLED TO SUCH PAY UNTIL HIS DEATH.

IT IS NOTED THAT THE TERM "RETIRED MEMBER" IS DEFINED IN SECTION 2 (D), 67 STAT. 501, AS INCLUDING A FORMER MEMBER OF THE UNIFORMED SERVICES. WHILE IT APPEARS THAT A RETIRED MEMBER WHO VOLUNTARILY RESIGNS OR WHO IS REMOVED FROM THE RETIRED LIST FOR CAUSE, MAY BE REGARDED AS A FORMER MEMBER, IT IS BELIEVED THAT THE FORMER MEMBERS TO WHICH THE ACT REFERS ARE PERSONS WHO ARE FORMER MEMBERS AT THE TIME AN ELECTION IS MADE AND WHO, LIKE OTHER RETIRED PERSONNEL, HAVE BEEN AWARDED RETIRED PAY. THEY THUS MAY ELECT TO RECEIVE A REDUCED AMOUNT OF SUCH PAY FOR THE PURPOSE OF PURCHASING ONE OF THE ANNUITIES MENTIONED IN THE ACT. IF THAT STATUS IS TERMINATED IN ONE OF THE WAYS MENTIONED IN THE QUESTION, THE PERSON CONCERNED WOULD CEASE TO BE A "RETIRED MEMBER" WITHIN THE MEANING OF THAT TERM AS USED IN THE ACT.

THE PROVISION IN SECTION 5 OF THE ACT WHICH REQUIRES PAYMENT BY A "RETIRED MEMBER" OF THE AMOUNT WHICH WOULD HAVE BEEN WITHHELD FROM HIS RETIRED PAY, DURING ANY PERIOD IN WHICH HE IS NOT RECEIVING SUCH PAY, APPARENTLY REFERS TO RETIRED MEMBERS WHO FOR SOME REASON TEMPORARILY MAY NOT BE PAID THE RETIRED PAY TO WHICH THEY ARE OTHERWISE ENTITLED. IT IS STATED ON PAGE 11, SENATE REPORT NO. 672, 83D CONGRESS, ST SESSION, THAT THE RETIRED MEMBER COVERED BY SECTION 5 IS ONE WHO "IS NOT RECEIVING HIS RETIRED PAY BECAUSE OF HAVING BEEN ORDERED TO ACTIVE DUTY, EMPLOYED BY THE FEDERAL GOVERNMENT IN A CIVILIAN STATUS, OR WHERE HE HAS ELECTED TO TAKE VETERANS' BENEFITS IN LIEU OF HIS RETIRED .' SEE SIMILAR STATEMENTS ON PAGE 12 OF THE HEARINGS ON H.R. 5304 BEFORE THE SENATE COMMITTEE*E ON ARMED SERVICES, 83D CONGRESS, ST SESSION, AND ON PAGE 920 OF THE HEARINGS ON THAT BILL BEFORE THE HOUSE COMMITTEE ON ARMED SERVICES, 83D CONGRESS, ST SESSION. BOTH THE WORDING OF SECTION 5 AND ITS LEGISLATIVE HISTORY SUPPORT THE CONCLUSION THAT SUCH SECTION OF THE CONTINGENCY OPTION ACT DOES NOT COVER SITUATIONS SUCH AS ARE INVOLVED IN THE QUESTION SUBMITTED FOR DECISION.

SINCE THERE IS NO OTHER PROVISION IN THAT ACT WHICH PERMITS OR REQUIRES DEPOSITS WITH THE TREASURY OF THE UNITED STATES BY THE PERSONS TO WHOM THE QUESTION REFERS OF THE AMOUNTS WHICH WOULD HAVE BEEN DEDUCTED FROM THEIR RETIRED PAY IF THEY HAD CONTINUED TO BE ENTITLED TO SUCH PAY, THE QUESTION SUBMITTED IS ANSWERED IN THE NEGATIVE.