B-144158, DECEMBER 23, 1960, 40 COMP. GEN. 382

B-144158, DECEMBER 23, 1960, 40 COMP. GEN. 382

MILITARY PERSONNEL - TEMPORARY DISABILITY RETIRED LIST - SURVIVOR ANNUITY ELECTIONS - CHANGES - WAITING PERIOD THE TRANSFER OF A MEMBER OF THE UNIFORMED SERVICES TO THE TEMPORARY RETIRED LIST WITHIN A PERIOD OF LESS THAN FIVE YEARS FROM THE DATE OF CHANGE OR REVOCATION WAS MADE IN A SURVIVOR ANNUITY ELECTION UNDER 10 U.S.C. 1431 (C) DOES NOT AFFECT THE FIVE-YEAR PERIOD OF TIME DURING WHICH THE MODIFICATION OR REVOCATION OF AN ELECTION MUST HAVE BEEN IN EXISTENCE BEFORE IT CAN BECOME EFFECTIVE AND, UPON RETURN OF THE MEMBER TO THE ACTIVE LIST, THE SITUATION WITH RESPECT TO THE ELECTION MODIFICATION OR REVOCATION IS THE SAME AS IT WOULD HAVE BEEN HAD THE MEMBER NEVER BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST SO THAT THE TIME ON THE RETIRED LIST AND AFTER RESTORATION TO ACTIVE DUTY MAY BE COUNTED FOR PURPOSES OF THE FIVE-YEAR PERIOD, AND THE INITIATION OF A NEW ELECTION AND WAITING PERIOD IS NOT REQUIRED.

TO THE SECRETARY OF DEFENSE, DECEMBER 23, 1960:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 30, 1960, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING DECISION ON TWO QUESTIONS SET OUT IN AN ENCLOSED COPY OF COMMITTEE ACTION NO. 274 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

THE QUESTIONS PRESENTED AS AS FOLLOWS:

1. MAY A MEMBER OF THE UNIFORMED SERVICES WHO (1) MADE A VALID SURVIVOR ANNUITY ELECTION UNDER 10 U.S.C. 1431 (B), (2) CHANGED OR REVOKE HIS ELECTION WITHIN A PERIOD OF LESS THAN FIVE YEARS BEFORE HIS TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST, (3) WAS RESTORED TO THE ACTIVE LIST UNDER 10 U.S.C. 1211, AND (4) UPON SUCH RESTORATION WAS REFUNDED HIS SURVIVOR ANNUITY DEDUCTIONS IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1439, COUNT THE TIME SPENT ON THE TEMPORARY DISABILITY RETIRED LIST AND THE ACTIVE SERVICE PERFORMED AFTER HIS RESTORATION TO THE ACTIVE LIST, FOR THE PURPOSE OF THE FIVE-YEAR PERIOD SPECIFIED IN 10 U.S.C. 1431 (C/?

2. IF REMOVAL FROM TDRL IS TO BE REQUIRED, MUST MEMBER INITIATE A NEW ELECTION AND WAIT ANOTHER FIVE YEARS FOR USCOA ELECTION TO BE EFFECTIVE?

THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501 505, WAS CODIFIED AS 10 U.S.C. 1431-1444. SECTION 1431 (B) PROVIDES THAT, IN ORDER TO PROVIDE AN ANNUITY FOR HIS DEPENDENT OR DEPENDENTS, AN ACTIVE MEMBER OF THE ARMED FORCES MAY ELECT, PRIOR TO THE COMPLETION OF 18 YEARS' SERVICE CREDITABLE IN THE COMPUTATION OF BASIC PAY, TO RECEIVE A REDUCED AMOUNT OF THE RETAINER OR RETIRED PAY TO WHICH HE MAY BECOME ENTITLED AS A RESULT OF HIS SERVICE IN HIS ARMED FORCE. SECTION 1431 (C) PROVIDES THAT:

AN ELECTION MADE UNDER SUBSECTION (B) MAY BE CHANGED OR REVOKED BY THE ELECTOR BEFORE HIS RETIREMENT OR BEFORE HE BECOMES ENTITLED TO RETIRED OR RETAINER PAY. HOWEVER, UNLESS MADE UNDER SECTION 1433 (CASES OF MENTAL INCOMPETENCY), THE CHANGE OR REVOCATION IS NOT EFFECTIVE IF HE IS RETIRED OR BECOMES ENTITLED TO RETIRED OR RETAINER PAY WITHIN FIVE YEARS AFTER THE DATE OF THE CHANGE OR REVOCATION. IF HE REVOKES THE ELECTION, HE MAY NOT CHANGE OR WITHDRAW THE REVOCATION.

SECTION 1439 OF TITLE 10 PROVIDES THAT:

IF A PERSON WHOSE NAME IS ON THE TEMPORARY DISABILITY RETIRED LIST OF AN ARMED FORCE, AND WHO HAS ELECTED AN ANNUITY UNDER THIS CHAPTER, HAS HIS NAME REMOVED FROM THAT LIST FOR ANY REASON OTHER THAN RETIREMENT OR GRANT OF RETIRED PAY, HE IS ENTITLED TO A REFUND OF THE DIFFERENCE BETWEEN THE AMOUNT BY WHICH HIS RETIRED PAY WAS REDUCED TO PROVIDE THE ANNUITY AND THE COST OF AN AMOUNT OF TERM INSURANCE EQUAL TO THE PROTECTION PROVIDED FOR HIS DEPENDENTS DURING THE PERIOD THAT HE WAS ON THAT LIST.

SECTION 1211 OF TITLE 10 PROVIDES, INTER ALIA, THAT A MEMBER OF THE ARMED FORCES WHOSE NAME IS ON A TEMPORARY DISABILITY RETIRED LIST AND WHO IS FOUND TO BE PHYSICALLY FIT TO PERFORM THE DUTIES OF HIS OFFICE, GRADE, OR RANK MAY BE RETURNED TO THE ACTIVE LIST.

IT WAS SAID IN ANSWER TO QUESTION "C" IN B-142031, JULY 1, 1960, 40 COMP. GEN. 1, THAT IN A CASE COMING WITH THE SCOPE OF 10 U.S.C. 1439 A NEW COMPUTATION NECESSARILY IS REQUIRED AFTER TERMINATION OF A PERIOD ON A TEMPORARY DISABILITY RETIRED LIST, SUCH COMPUTATION TO BE ON THE BASIS OF THE OPTIONS ORIGINALLY ELECTED BY THE MEMBER BUT ON THE FACTORS--- GROSS RETAINER OR RETIRED PAY, AGES, AND DISABILITY OR NONDISABILITY--- IN EXISTENCE AT THE TIME HE AGAIN BECOMES ELIGIBLE FOR RETAINER OR RETIRED PAY; IN OTHER WORDS, A NEW COMPUTATION UNDER THE ORIGINAL ELECTION. THUS, WHILE 10 U.S.C. 1439 MAY OPERATE TO ENTITLE A MEMBER TO A REFUND, AND DOES OPERATE TO CHANGE THE AMOUNT TO BE DEDUCTED FROM RETAINER OR RETIRED PAY AND THE AMOUNTS OF POTENTIAL ANNUITIES RESULTING FROM SUCH DEDUCTIONS, THE SECTION DOES NOT OPERATE TO CANCEL AN ELECTION UNDER THE CONTINGENCY OPTION ACT. IN THE CASE OF A MEMBER WHOSE NAME IS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST FOR A REASON OTHER THAN RETIREMENT OR GRANT OF RETIRED PAY, SECTION 1439 MERELY MAKES THE ACT INOPERATIVE FOR THE PERIOD SUCH MEMBER WAS ON THE TEMPORARY DISABILITY RETIRED LIST INSOFAR AS DEDUCTIONS FROM HIS RETIRED PAY ARE CONCERNED. COMPARE ANSWER TO QUESTION "D" IN THE DECISION OF JULY 1, 1960. THE CONTINGENCY OPTION ACT ELECTION, HAVING CONTINUED IN EXISTENCE DURING THE PERIOD THE MEMBER WAS ON THE TEMPORARY DISABILITY RETIRED LIST, OBVIOUSLY CONTINUES IN EXISTENCE DURING ACTIVE SERVICE SUBSEQUENT TO SUCH PERIOD.

WE THINK THAT IT WAS INTENDED THAT THE RIGHT TO MODIFY OR REVOKE AN ELECTION, GRANTED BY 10 U.S.C. 1431 (C), SHOULD EXIST CONCURRENTLY WITH THE EXISTENCE OF THE ELECTION, SUBJECT ONLY TO THE RESTRICTION THAT TO BECOME EFFECTIVE, THE RIGHT MUST BE EXERCISED AT LEAST FIVE YEARS PRIOR TO THE DATE OF RETIREMENT. ON THAT BASIS, IN CASES OF THE TYPE HERE INVOLVED, 10 U.S.C. 1439 DOES NOT AFFECT THE LENGTH OF TIME DURING WHICH MODIFICATION OR REVOCATION OF AN ELECTION MUST HAVE BEEN IN EXISTENCE BEFORE IT CAN BECOME EFFECTIVE. AFTER A MEMBER SUCH AS IS HERE INVOLVED HAS BEEN RETURNED TO THE ACTIVE LIST HIS SITUATION, INSOFAR AS 10 U.S.C. 1431 (C) IS CONCERNED, IS THE SAME AS IT WOULD HAVE BEEN IF HE HAD NEVER BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST BUT HAD CONTINUED ON ACTIVE DUTY.

ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE AND QUESTION 2 IN THE NEGATIVE.