B-153502, MAR. 24, 1964

LIEUTENANT COLONEL J. L. CLANCY, FC:

BY FIRST INDORSEMENT DATED FEBRUARY 13, 1964, THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER DATED NOVEMBER 4, 1963, WITH ENCLOSURES, SUBMITTING FOR ADVANCE DECISION A VOUCHER IN THE AMOUNT OF $191.80 STATED IN FAVOR OF MAJOR CLYDE R. SALMONS, JR., 0 961 244, AUS, RETIRED, REPRESENTING THE AMOUNT BY WHICH HIS RETIRED PAY WAS REDUCED FOR THE PERIOD FROM FEBRUARY 1 THROUGH AUGUST 31, 1963, UNDER THE PROVISIONS OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446. THE REQUEST WAS ASSIGNED NO. DO-A 750 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE QUESTIONS PRESENTED ARE AS FOLLOWS:

"A. SHOULD THE YEARS OF SERVICE AS SHOWN BY THE PERSONNEL OFFICER ON DA FORM 1041 AT THE TIME OF ELECTION BE RELIED UPON TO DETERMINE THAT AN OTHERWISE VALID ELECTION WAS TIMELY MADE IN THIS AND SIMILAR CASES?

"B. SHOULD THE YEARS OF SERVICE FOR BASIC PAY PURPOSES FURNISHED BY THE ADJUTANT GENERAL AT THE TIME OF RETIREMENT BE USED TO DETERMINE THAT THE ELECTION WAS OR WAS NOT TIMELY MADE IN THIS AND SIMILAR CASES?

"C. ASSUMING THE SAME FACTUAL SITUATION, EXCEPT THAT THE MEMBER'S SERVICE FOR BASIC PAY PURPOSE WAS ADMINISTRATIVELY CORRECTED SUBSEQUENT TO THE ELECTION (OTHER THAN A CORRECTION OF RECORDS OR CHANGE UNDER PUBLIC LAW 86 -197, ENACTED 25 AUGUST 1959) RESULTING IN CREDIT FOR MORE THAN 18 YEARS SERVICE AT THE TIME OF ELECTION, SHOULD THE ELECTION BE CONSIDERED INVALID?

THE RECORD SHOWS THAT MAJOR SALMONS ELECTED ON DA FORM 1041 DATED MAY 2, 1960, TO HAVE AN ANNUITY PAID TO HIS DEPENDENTS UPON HIS DEATH UNDER OPTION (3) COMBINED WITH OPTION (4) AT THE RATE OF ONE-HALF OF HIS REDUCED RETIRED PAY. THE DA FORM SHOWS SERVICE FOR COMPUTATION OF BASIC PAY COMPLETED BY THE OFFICER AS 17 YEARS, 0 MONTHS AND 1 DAY. ON FEBRUARY 1, 1963, MAJOR SALMONS RETIRED UNDER THE PROVISIONS OF 10 U.S.C. 3911. YOU EXPRESS DOUBT AS TO THE VALIDITY OF THE ELECTION SINCE IT APPEARS TO HAVE BEEN MADE AFTER THE OFFICER HAD COMPLETED 18 YEARS OF SERVICE FOR BASIC PAY PURPOSES AND LESS THAN 3 YEARS BEFORE HIS RETIREMENT, THERE BEING NO EVIDENCE OF A CHANGE IN HIS CREDITABLE SERVICE UNDER AUTHORITY CONTAINED IN SECTION 4 OF THE ACT OF AUGUST 25, 1959, PUB.L. 86-197, 73 STAT. 425.

ON APRIL 4, 1963, THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, FURNISHED A COMPUTATION OF THE OFFICER'S SERVICE FOR RETIRMENT AND BASIC PAY PURPOSES SHOWING A TOTAL SERVICE OF 20 YEARS, 1 MONTH AND 16 DAYS FOR VOLUNTARY RETIREMENT PURPOSES. THE PERIODS OF SERVICE FOR CREDIT IN THE COMPUTATION OF THE OFFICER'S BASIC PAY ARE SHOWN AS FOLLOWS: ENLISTED, NATIONAL GUARD, FROM OCTOBER 12, 1940, TO NOVEMBER 30, 1942; WARRANT OFFICER, ARMY OF THE UNITED STATES, FROM DECEMBER 1, 1942, TO JANUARY 18, 1948; ENLISTED, REGULAR ARMY, FROM JANUARY 19, 1948, TO NOVEMBER 3, 1948; COMMISSIONED, OFFICERS' RESERVE CORPS, FROM NOVEMBER 4, 1948, TO JANUARY 31, 1963, A TOTAL SERVICE OF 22 YEARS, 3 MONTHS AND 19 DAYS FOR BASIC PAY PURPOSES.

IN 39 COMP. GEN. 198, REFERRED TO IN YOUR LETTER, WE HELD THAT AN ANNUITY OPTION ELECTION WHICH WAS MADE BY AN ENLISTED MAN ON MARCH 20, 1958--- AT WHICH TIME HE WAS CREDITED WITH LESS THAN 18 YEARS OF SERVICE FOR BASIC PAY PURPOSES DESPITE A PRIOR REDETERMINATION OF HIS CREDITABLE SERVICE AS BEING MORE THAN 18 YEARS, BY THE DEPARTMENT OF THE ARMY UNDER THE MISSING PERSONS ACT, AS AMENDED, 50 U.S.C. APP. 1001, ET SEQ.--- WAS AN INVALID ELECTION. WE POINTED OUT THAT, INDEPENDENTLY OF THE ADMINISTRATIVE REDETERMINATION OF DECEMBER 19, 1957, THE RECORD SHOWED THAT HE ACTUALLY HAD MORE THAN 18 YEARS OF SERVICE ON MARCH 20, 1958.

ON THE BASIS OF THE COMPUTATION OF SERVICE FURNISHED, MAJOR SALMONS DID NOT MAKE A VALID ELECTION UNDER THE PROVISIONS OF 10 U.S.C. 1431 (B), SINCE HE HAD COMPLETED OVER 18 YEARS OF SERVICE FOR BASIC PAY PURPOSES ON MAY 2, 1960. IT IS A MATTER OF NO CONSEQUENCE THAT AFTER APPROVAL OF THE ACT OF OCTOBER 4, 1961, PUB.L. 87-381, 75 STAT. 810, THE OFFICER AGAIN HAD THE RIGHT TO EXERCISE AN OPTION UNDER THE PLAN PROVIDED HIS ELECTION WAS MADE MORE THAN 3 YEARS BEFORE HE BECAME ENTITLED TO RETIRED PAY, SINCE HE FILED NO NEW ELECTION AND IT WOULD HAVE BEEN WITHOUT EFFECT IN ANY EVENT DUE TO HIS RETIREMENT ON FEBRUARY 1, 1963.

YOUR QUESTIONS ARE ANSWERED BY SAYING THAT IT IS THE ACTUAL YEARS OF SERVICE PROPERLY CREDITABLE UNDER THE PERTINENT LAWS AND OUR DECISIONS THAT DETERMINES WHETHER AN ELECTION IS TIMELY MADE BY A MEMBER WITHIN THE MEANING OF THE PROVISIONS OF 10 U.S.C. 1431 (B). SINCE THE PROPOSED PAYMENT WOULD REFUND THE AMOUNT BY WHICH MAJOR SALMONS' RETIRED PAY HAS BEEN REDUCED FOR PARTICIPATION IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN AND SINCE HIS ELECTION WAS NOT TIMELY MADE, PAYMENT OF THE VOUCHER, RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.