B-137697, MAR. 5, 1962

B-137697, MAR. 5, 1962

TO COLONEL WEBSTER MILLS, FC, FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

BY FIRST INDORSEMENT DATED FEBRUARY 13, 1962, THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER DATED DECEMBER 29, 1961, WITH ENCLOSURES, SUBMITTING A VOUCHER IN THE AMOUNT OF $20 IN FAVOR OF MRS. ANNA LEWIS, UNREMARRIED WIDOW OF CAPTAIN JOHN A. LEWIS, 0 137 802, RETIRED, DECEASED, REPRESENTING A PARTIAL PAYMENT OF SURVIVOR'S ANNUITY FOR THE PERIOD FROM JANUARY 1 THROUGH JANUARY 31, 1962, UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, CODIFIED IN 10 U.S.C. 1431-1446. ADVANCE DECISION AS TO THE PROPRIETY OF APPLYING A PORTION OF THE ANNUITY EACH MONTH ON THE INDEBTEDNESS FOR THE PURCHASE THEREOF AND PAYING THE ANNUITANT THE DIFFERENCE, IS REQUESTED. THE REQUEST WAS ASSIGNED DO NUMBER 630 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOUR LETTER STATES THAT CAPTAIN LEWIS WAS PLACED ON THE RETIRED LIST BY LETTER ORDERS DATED MAY 19, 1958, WITH ENTITLEMENT TO RETIRED PAY FROM JUNE 29, 1948.

HE ELECTED OPTIONS I AND IV AT ONE-HALF REDUCED RETIRED PAY ON APRIL 29, 1958, TO PROVIDE BENEFITS FOR HIS WIDOW, THE COST OF WHICH WAS BASED ON THE AGE OF THE MEMBER AND HIS WIFE ON APRIL 29, 1958, AND DEDUCTIONS WERE MADE FROM HIS RETIRED PAY ACCORDINGLY FOR THE PERIOD FROM APRIL 1, 1958, THROUGH JUNE 30, 1961. A RECOMPUTATION OF ELECTION COSTS WAS MADE AFTER DEATH OF THE MEMBER ON JULY 28, 1961. THE COST WAS CORRECTED FROM $29.23 A MONTH TO $33.02 A MONTH BASED ON THE AGE OF CAPTAIN LEWIS AND HIS WIFE ON NOVEMBER 1, 1953, THE EFFECTIVE DATE OF THE ACT, RATHER THAN THEIR AGE AT THE TIME OF ELECTION. THIS RESULTED IN AN INDEBTEDNESS OF $1,928.69 FOR THE PERIOD NOVEMBER 1, 1953, THROUGH JULY 28, 1961. THE TOTAL ANNUITY IS $43.73 A MONTH. IT HAS BEEN REQUESTED THAT YOU APPLY $23.73 A MONTH TOWARD THE INDEBTEDNESS AND PAY MRS. LEWIS $20 A MONTH, ON WHICH BASIS MORE THAN 7 YEARS WILL BE REQUIRED FOR COLLECTION OF THE INDEBTEDNESS.

MENTIONED IN THE REQUEST FOR DECISION ARE TWO DECISIONS OF THIS OFFICE, 35 COMP. GEN. 12 AND B-145943, DATED JULY 13, 1961 (41 COMP. GEN. 28). 35 COMP. GEN. 12 WE SAID THAT, IF A RETIRED MEMBER FAILS TO PAY THE AMOUNTS REQUIRED BY THE LAW (A PROVISION REQUIRING PAYMENT BY HIM OF AMOUNT SUCH AS INVOLVED HERE AFTER AN ELECTION OF AN ANNUITY) AND COLLECTION OF ARREARS WAS NOT EFFECTED AT THE TIME OF HIS DEATH, NO REASON IS PERCEIVED WHY THE SURVIVING WIFE OR CHILDREN SHOULD NOT BE PERMITTED TO PAY THE TOTAL AMOUNT DUE, WITH INTEREST, OR TO AUTHORIZE APPLICATION OF THE ANNUITY DUE TOWARD PAYMENTS OF SUCH AMOUNT,"SINCE IT IS OUR VIEW THAT THE ANNUITY COULD BE WITHHELD FOR THAT PURPOSE IN THE ABSENCE OF SUCH ACTION.' THIS VIEW WAS PREMISED ON THE APPARENT INTENT OF THE CONGRESS THAT THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN SHOULD OPERATE WITHOUT APPROPRIATION OF PUBLIC FUNDS FOR ITS SUPPORT AND THAT THE PAYMENT OF ANNUITIES FOR WHICH COMMENSURATE DEDUCTIONS FROM RETIRED PAY WERE NOT MADE WOULD ADVERSELY AFFECT THE ACTUARIAL SOUNDNESS OF THE PLAN. CF. 41 COMP. GEN. 28, 29.

IN 41 COMP. GEN. 28 WE SAID THAT, AS INDICATED IN 35 COMP. GEN. 12, IT IS OUR VIEW THAT THE REQUIREMENT FOR PAYMENT OF THE PURCHASE PRICE OF THE ANNUITY IS IMPLICIT IN THE TERMS OF 10 U.S.C. 1431 (B). COMPARE PARAGRAPH 6-5E (4), AR 37-104-1, WHICH PROVIDES, IN PERTINENT PART, THAT THE MEMBER'S BENEFICIARY WILL NOT BE ELIGIBLE FOR THE ANNUITY UNTIL ALL ARREARS HAVE BEEN PAID. NO AUTHORITY HAS BEEN FOUND FOR PAYMENT OF AN ANNUITY UNDER THE PERTINENT LAW BEFORE PAYMENT TO THE GOVERNMENT OF THE COST OF THE ANNUITY AND, ACCORDINGLY, IT MUST BE HELD THAT NO ANNUITY MAY BE PAID TO MRS. LEWIS UNTIL ALL THE MONTHLY CONTRIBUTIONS, PLUS INTEREST, ARE PAID CF. 41 COMP. GEN. ----, B 147403, FEBRUARY 1, 1962. THE VOUCHER PRESENTED, NOT BEING PROPER FOR PAYMENT, WILL BE RETAINED HERE.