B-140248, SEPTEMBER 16, 1959, 39 COMP. GEN. 198

B-140248, SEPTEMBER 16, 1959, 39 COMP. GEN. 198

MILITARY PERSONNEL - RETIRED PAY - ANNUITY ELECTIONS FOR DEPENDENTS - ENLISTED MEMBERS HAVING MORE THAN 18 YEARS OF SERVICE - PHILIPPINE SCOUTS - PAROLE PERIODS A SURVIVORSHIP ANNUITY OPTION ELECTION WHICH WAS MADE BY AN ENLISTED MEMBER OF THE ARMY, WHO HAD COMPLETED 18 YEARS OF SERVICE FOR PAY PURPOSES PRIOR TO THE TIME A REDETERMINATION WAS MADE UNDER THE MISSING PERSONS ACT, 50 U.S.C. APP. 1001, THAT HIS CREDITABLE SERVICE EXCEEDED TWENTY YEARS BASED ON A PERIOD WHEN AS A PHILIPPINE SCOUT HE HAD BEEN PAROLED BY THE ENEMY, IS AN INVALID ELECTION MADE AFTER THE MEMBER WAS NO LONGER ELIGIBLE TO MAKE AN ELECTION UNDER 10 U.S.C. 1431, WHICH REQUIRES ELECTIONS TO BE MADE PRIOR TO COMPLETION OF 18 YEARS OF SERVICE, THE SERVICE REDETERMINATION HAVING NO EFFECT ON THE MEMBER'S SERVICE SINCE DURING THE PAROLE TIME HE WAS ENTITLED TO CREDIT AS AN ENLISTED MEMBER; THEREFORE, THE AMOUNT OF RETIRED PAY, WHICH WAS DEDUCTED ON BASIS OF THE INVALID ELECTION, SHOULD BE REFUNDED.

TO LIEUTENANT COLONEL J. L. WHIPPLE, DEPARTMENT OF THE ARMY, SEPTEMBER 16, 1959:

YOUR LETTER OF JULY 1, 1959, FORWARDED HERE BY FIRST ENDORSEMENT OF JULY 16, 1959, FROM HEADQUARTERS, OFFICE OF CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, UNDER D.O. NO. 431, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REQUESTS DECISIONS AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER IN FAVOR OF JOSE MASANGKAY, SERGEANT, RA 6 865 438, RETIRED, REPRESENTING REFUND OF MONTHLY ANNUITY COST UNDER THE PROVISIONS OF 10 U.S.C. 1431 (B) FOR THE PERIOD OF JUNE 1-30, 1959.

YOUR LETTER STATES THAT SERGEANT MASANGKAY WAS CREDITED WITH LESS THAN 18 YEARS' SERVICE FOR ACTIVE DUTY BASIC PAY PURPOSES AS OF MARCH 20, 1958. IT HAD BEEN DETERMINED ON DECEMBER 19, 1957, THAT HE WAS ENTITLED TO ADDITIONAL SERVICE FOR THE PERIOD DECEMBER 1, 1941, THROUGH MAY 22, 1945, UNDER THE PROVISIONS OF THE MISSING PERSONS ACT, 56 STAT. 143, AS AMENDED BY PUBLIC LAW 85-217, AUGUST 29, 1957, 71 STAT. 491, 50 U.S.C. APP. 1001 ET SEQ. THE MEMBER ELECTED ON DA FORM 1041 DATED MARCH 20, 1958, TO HAVE AN ANNUITY PAID TO HIS DEPENDENTS UPON HIS DEATH, AT THE RATE OF ONE-HALF OF HIS REDUCED RETIRED PAY, UNDER OPTION III COMBINED WITH OPTION IV, AT WHICH TIME HIS CORRECT SERVICE WAS 20 YEARS, ONE MONTH AND 10 DAYS. OCTOBER 1, 1958, SERGEANT MASANGKAY RETIRED UNDER THE PROVISIONS OF 10 U.S.C. 3914. YOU EXPRESS DOUBT AS TO THE VALIDITY OF AN ELECTION MADE SUBSEQUENT TO THE DATE OF REDETERMINATION THAT HIS CREDITABLE SERVICE EXCEEDED 20 YEARS AND REQUEST THE MATTER BE REFERRED HERE FOR AN ADVANCE DECISION.

SECTION 1431 OF TITLE 10, U.S.C. PROVIDES FOR THE ELECTION OF AN ANNUITY BY MEMBERS OF THE ARMED FORCES FORMERLY AUTHORIZED UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, AS AMENDED, APPLICABLE TO THOSE MEMBERS WITHIN THE SCOPE OF 1431 (A). SECTION 1431 (B) PROVIDES IN PERTINENT PART, AS FOLLOWS:

(B) TO PROVIDE AN ANNUITY UNDER SECTION 1434 OF THIS TITLE, A PERSON COVERED BY SUBSECTION (A) MAY ELECT TO RECEIVE A REDUCED AMOUNT OF THE RETIRED OR RETAINER PAY TO WHICH HE MAY BECOME ENTITLED AS A RESULT OF SERVICE IN HIS ARMED FORCE. THE ELECTION MUST BE MADE BEFORE HE COMPLETES 18 YEARS OF SERVICE FOR WHICH HE IS ENTITLED TO CREDIT IN THE COMPUTATION OF HIS BASIC PAY. * * * ( ITALICS SUPPLIED.)

THE MISSING PERSONS ACT, AS AMENDED BY PUBLIC LAW 85-217, AUGUST 29, 1957, 71 STAT. 491, PROVIDES, IN PERTINENT PART OF SECTION 2 (B), AS FOLLOWS:

(B) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, SUCH ENTITLEMENT TO PAY AND ALLOWANCES SHALL NOT BE DENIED, IN THE CASE OF ANY MEMBER OF THE PHILIPPINE SCOUTS WHO WAS CAPTURED IN THE PHILIPPINE ISLANDS BY THE ENEMY DURING WORLD WAR II, SOLELY ON THE GROUND THAT SUCH MEMBER WAS PAROLED AND PERMITTED TO RETURN TO HIS HOME AND ENGAGE IN CIVILIAN PURSUITS PRIOR TO THE TERMINATION OF THE JAPANESE OCCUPATION OF SUCH ISLANDS. CLAIMS OF MEMBERS OF THE PHILIPPINE SCOUTS FOR PAY AND ALLOWANCES UNDER THIS SUBSECTION (WHETHER OR NOT SUCH CLAIMS HAVE BEEN PRESENTED AND REJECTED OR DISALLOWED) MAY, UNTIL THREE YEARS AFTER THE DATE OF ENACTMENT OF THIS SUBSECTION, BE PRESENTED FOR CONSIDERATION OR RECONSIDERATION AND PAYMENT UNDER THIS SUBSECTION: PROVIDED, THAT NO CLAIMS SHALL BE APPROVED FOR PAYMENT IF THE CLAIMANT VOLUNTARILY PARTICIPATED WITH OR FOR THE JAPANESE GOVERNMENT, JAPANESE NATIONALS, OR OTHERS AND PERFORMED ACTIONS OR DUTIES OF A MILITARY NATURE HOSTILE TO THE UNITED STATES: * * *

IN A MEMORANDUM DATED DECEMBER 9, 1958, THE ADJUTANT GENERAL OF THE ARMY REQUESTED THE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY CONCERNING THE QUESTION NOW HERE FOR DECISION. THAT MEMORANDUM STATED THAT CERTAIN MEMBERS, LIKE THESE IN SERGEANT MASANGKAY'S CATEGORY, HAD LESS THAN 18 YEARS OF SERVICE FOR PAY PURPOSES UNTIL IT WAS REDETERMINED ON DECEMBER 19, 1956, THAT THEY WERE ENTITLED TO ADDITIONAL SERVICE FROM DECEMBER 1, 1941, THROUGH MAY 22, 1945, UNDER THE MISSING PERSONS ACT, AND THAT, WHILE EACH MEMBER MADE AN ELECTION OF OPTIONS ON MARCH 20, 1958, SUBSEQUENT TO THE DATE AT THE TIME HE RECEIVED NOTIFICATION THAT THE ADDITIONAL SERVICE WAS AUTHORIZED.' THE JUDGE ADVOCATE GENERAL RECOMMENDED THAT THE MATTER BE SUBMITTED HERE WITH A VIEW TO OBTAINING APPROVAL OF GIVING SUCH MEMBERS THE SAME OPPORTUNITY TO SUBMIT AN ELECTION UPON NOTIFICATION OF REDETERMINATION OF STATUS THAT IS EXTENDED TO MEMBERS WHOSE NAMES ARE PLACED RETROACTIVELY ON THE RETIRED LIST AS THE RESULT OF ACTION BY AN ARMY BOARD FOR CORRECTION OF RECORDS. SEE 36 COMP. GEN. 586.

THE RECORD BEFORE US DOES NOT DISCLOSE THE BASIS FOR THE STATEMENT THAT MASANGKAY MADE HIS ELECTION AT THE TIME HE RECEIVED NOTIFICATION THAT THE ADDITIONAL SERVICE WAS AUTHORIZED, THERE BEING NOTHING IN THE RECORD SUBMITTED HERE TO SHOW WHEN HE RECEIVED SUCH NOTICE. HENCE, EVEN IF CREDIT FOR THE PERIOD WHILE PAROLED DEPENDED ON THE REDETERMINATION OF DECEMBER 19, 1957, THERE WOULD BE NO BASIS ON THE PRESENT RECORD FOR APPLYING A RULE SIMILAR TO THAT APPLIED IN 36 COMP. GEN. 586, RELATING TO THE CORRECTION OF A MEMBER'S RECORD.

IN DECISION OF NOVEMBER 1, 1956, TO THE SECRETARY OF DEFENSE, 36 COMP. GEN. 356, AT PAGE 360, THERE WAS CONSIDERED A QUESTION PRESENTED AS TO WHETHER IN DETERMINING THE BASIC PAY FOR COMPUTING DEPENDENCY AND INDEMNITY COMPENSATION UNDER TITLE II, ACT OF AUGUST 1, 1956, 70 STAT. 862, 38 U.S.C. 1111, PERIODS OF TIME DURING WHICH MEMBERS OF THE PHILIPPINE SCOUTS WERE DETERMINED NOT TO BE IN A MISSING STATUS UNDER THE ACT OF MARCH 7, 1942, 56 STAT. 146, 50 U.S.C. APP. 1001, WERE CREDITABLE FOR PAY PURPOSES. IT WAS THERE STATED:

* * * IT APPEARS THAT UNDER AUTHORITY OF THE MISSING PERSONS ACT THE WAR DEPARTMENT HAS DETERMINED THAT PAROLED PRISONERS OF WAR WERE NOT IN A "MISSING" STATUS AND, THEREFORE, ARE NOT ENTITLED TO PAY FOR THAT PERIOD (SEE MORENO V. UNITED STATES, 118 C.1CLS. 30), WHILE THE SECRETARY OF THE NAVY DETERMINED THAT MEMBERS OF THE INSULAR FORCE OF THE NAVY WERE IN A "MISSING" STATUS AND WERE ENTITLED TO PAY.

THE ADMINISTRATIVE DETERMINATION BY THE SECRETARY OF WAR THAT FILIPINO MEMBERS OF THE ARMY RELEASED ON PAROLE WERE NOT IN A "MISSING" OR OTHER CASUALTY STATUS AND NOT IN A PAY STATUS DURING THE PAROLE PERIOD DID NOT, AND APPARENTLY WAS NOT INTENDED TO, CONSTITUTE A FINDING THAT THEY WERE NOT ENLISTED MEN OR OFFICERS OF THE ARMY OR THAT THEIR STATUS IN THAT RESPECT WAS TERMINATED. IT IS OUR OPINION THAT THEY ARE ENTITLED TO COUNT THE PERIODS, IN COMPUTING LENGTH OF SERVICE FOR PAY PURPOSES, DURING WHICH THEY RETAINED THEIR STATUS REQUIRING THEM TO MAKE UP THE LOST TIME, EVEN THOUGH THEY WERE"PAROLED" BY THE ENEMY AND RETURNED TO THEIR HOMES. COMPARE 22 COMP. GEN. 759 AND 30 COMP. GEN. 285 HOLDING THAT A PERIOD WHILE ON LEAVE WITHOUT PAY MAY BE COUNTED IN DETERMINING THE LENGTH OF SERVICE FOR PAY PURPOSES. * * *

THE LEGISLATIVE HISTORY OF PUBLIC LAW 85-217 SHOWS THAT WHEN THE CONGRESS ENACTED THAT ACT, INCLUDING SECTION 2 (B), QUOTED ABOVE, TO AUTHORIZE PAY AND ALLOWANCES TO PHILIPPINE SCOUTS WHO WERE PAROLED BY THE ENEMY DURING WORLD WAR II, IT WAS AWARE OF OUR DECISION OF NOVEMBER 1, 1956, HOLDING THAT THE PAROLED MEMBERS WERE ENTITLED TO COUNT SUCH PERIODS IN COMPUTING LENGTH OF SERVICE FOR PAY PURPOSES. SUCH PAGE 20 OF THE HEARING BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON ARMED SERVICES, UNITED STATES SENATE, 85TH CONGRESS, ST SESSION, ON H.R. 5807.

FROM THE FOREGOING IT WILL BE SEEN THAT THE REDETERMINATION OF DECEMBER 19, 1957, DID NOT AFFECT SERGEANT MASANGKAY'S YEARS OF SERVICE FOR WHICH HE WAS ENTITLED TO CREDIT IN THE COMPUTATION OF HIS BASIC PAY, SINCE DURING THE PERIOD HE WAS ON PAROLE, HE WAS STILL AN ENLISTED MAN OF THE ARMY AND THERE IS NO INDICATION OF ANY DETERMINATION THAT HE WAS ABSENT WITHOUT AUTHORITY OR IN A STATUS REQUIRING HIM TO MAKE UP LOST TIME. THEREFORE COMPLETED 18 YEARS OF SERVICE FOR PAY PURPOSES PRIOR TO THE TIME THE REDETERMINATION WAS MADE AND HE WAS NO LONGER ELIGIBLE TO MAKE AN ELECTION UNDER THE PROVISIONS OF SECTION 1431 OF TITLE 10, U.S.C.

SINCE THE PROPOSED PAYMENT WOULD REFUND TO SERGEANT MASANGKAY THE AMOUNT BY WHICH HIS RETIRED PAY HAS BEEN REDUCED, ON THE BASIS THAT HIS ELECTION UNDER 10 U.S.C. 1431 (B) WAS INVALID, PAYMENT OF THE VOUCHER, RETURNED HEREWITH, IS AUTHORIZED IF OTHERWISE CORRECT.