B-155809, FEB. 16, 1965, 44 COMP. GEN. 488

PAY - RETIRED - DISABILITY - ELECTION OF RETIRED PAY - FINALITY THE ELECTION EXECUTED BY AN OFFICER OF THE UNIFORMED SERVICES PURSUANT TO 10 U.S.C. 1401, UPON TRANSFER TO THE PERMANENT DISABILITY LIST UNDER 10 U.S.C. 1201 AND 1372, TO RECEIVE RETIRED PAY ON THE BASIS OF HIS PERCENTAGE OF DISABILITY RATHER THAN YEARS OF SERVICE IS A VALID ELECTION THAT MAY NOT BE CHANGED TO RECOMPUTE THE OFFICER'S RETIRED PAY ON THE BASIS OF A NEW ELECTION OF THE YEARS OF SERVICE FORMULA, FOR ALTHOUGH 10 U.S.C. 1401, AND THE PROVISIONS OF THE CAREER COMPENSATION ACT WHICH IT CODIFIES, DO NOT MAKE AN ELECTION IRREVOCABLE, THE STATUTORY AUTHORITY FOR MAKING AN ELECTION OF RETIRED PAY DOES NOT VEST IN A MEMBER THE RIGHT TO VACILLATE BETWEEN THE ALTERNATIVE METHODS OF COMPUTATION OFFERED, CHOOSING FIRST ONE METHOD THEN THE OTHER; THEREFORE, THE OFFICER HAVING BEEN PROPERLY ADVISED OF HIS RETIRED PAY RIGHTS UNDER EACH ALTERNATIVE AVAILABLE TO HIM AT THE TIME THE ELECTION WAS MADE, HIS CHOICE TO RECEIVE RETIRED PAY ON THE BASIS OF HIS PERMANENT DISABILITY IS A VALID ELECTION THAT IS NOT SUBJECT TO CHANGE.

TO LIEUTENANT COLONEL P. M. CALLINAN, DEPARTMENT OF THE ARMY, FEBRUARY 16, 1965:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 17, 1964, WITH ENCLOSURES, FORWARDED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE NUMBER DO-A-819, PRESENTING FOR DECISION THE FOLLOWING QUESTIONS RELATIVE TO COMPUTATION OF DISABILITY RETIRED PAY IN THE CASE OF CAPTAIN THOMAS C. HOLIWAY, RETIRED:

A. MAY A MEMBER'S REQUEST FOR CHANGE OF ELECTION TO RECEIVE RETIRED PAY COMPUTED ON THE ALTERNATE METHOD PRESCRIBED UNDER SECTION 1401 BE CONSIDERED A VALID ELECTION FOR RECOMPUTATION OF RETIRED PAY?

B. IF THE ANSWER TO QUESTION A IS IN THE AFFIRMATIVE, WOULD THE THE EFFECTIVE DATE OF RECOMPUTATION OF RETIRED PAY BE RETROACTIVE TO THE EFFECTIVE DATE OF ENTITLEMENT TO RETIRED PAY COMPUTED UNDER SECTION 1401, OR THE DATE THE MEMBER REQUESTS RECOMPUTATION BECOME EFFECTIVE? (IN THIS CASE IT APPEARS THE APPLICABLE EFFECTIVE DATE OF RECOMPUTATION WOULD BE 1 FEBRUARY 1962, WHICH IS THE EFFECTIVE DATE OF PLACEMENT ON THE TEMPORARY (PERMANENT) DISABILITY RETIRED LIST. HOWEVER, THE MEMBER REQUESTED RECOMPUTATION EFFECTIVE 1 OCTOBER 1964.)

YOU STATE THAT CAPTAIN HOLIWAY'S NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE MAY 3, 1957, IN THE GRADE OF CAPTAIN WITH 60 PERCENT TEMPORARY DISABILITY UNDER THE PROVISIONS OF 10 U.S.C. 1202 AND 1372. ON JANUARY 31, 1962, HIS NAME WAS REMOVED FROM THAT LIST AND EFFECTIVE FEBRUARY 1, 1962, HE WAS RETIRED AS A CAPTAIN WITH 40 PERCENT PERMANENT DISABILITY UNDER THE PROVISIONS OF 10 U.S.C. 1201 AND 1372, WITH 16.92 YEARS OF ACTUAL ACTIVE SERVICE AND 16 YEARS, 8 MONTHS AND 7 DAYS OF SERVICE CREDITABLE FOR BASIC PAY PURPOSES.

UPON RETIREMENT EFFECTIVE FEBRUARY 1, 1962, CAPTAIN HOLIWAY BECAME ENTITLED UNDER 10 U.S.C. 1401 TO HAVE HIS RETIRED PAY COMPUTED ON THE BASIC PAY OF A CAPTAIN WITH OVER 16 BUT LESS THAN 18 YEARS OF SERVICE, USING AS A MULTIPLIER EITHER 40 PERCENT, REPRESENTING THE PERCENTAGE OF HIS DISABILITY, OR 42 1/2 PERCENT (2 1/2 PERCENT TIMES HIS YEARS OF ACTIVE SERVICE), AS HE MIGHT ELECT. ON FEBRUARY 7, 1962, HE EXECUTED THE ELECTION FORM FURNISHED TO HIM BY SHOWING THAT HE ELECTED TO RECEIVE RETIRED PAY COMPUTED AT 40 PERCENT OF THE PAY OF HIS GRADE ON THE BASIS OF HIS PERMANENT DISABILITY RATHER THAN AT 42 1/2 PERCENT ON THE BASIS OF HIS YEARS OF ACTIVE SERVICE. BY LETTER OF FEBRUARY 26, 1962, YOUR OFFICE QUESTIONED CAPTAIN HOLIWAY'S ELECTION SINCE THAT ELECTION ENTITLED HIM TO RECEIVE ONLY $205.05 PER MONTH WHEREAS AN ELECTION OF THE YEARS OF SERVICE FORMULA WOULD HAVE ENTITLED HIM TO RECEIVE $217.86 PER MONTH FROM THE DATE OF RETIREMENT, FEBRUARY 1, 1962. CAPTAIN HOLIWAY ADVISED BY LETTER OF MARCH 7, 1962, THAT HIS ELECTION TO RECEIVE HIS RETIRED PAY IN THE LESSER AMOUNT COMPUTED ON THE BASIS OF HIS PERCENTAGE OF DISABILITY WAS CORRECT. HE HAS BEEN PAID IN ACCORDANCE WITH HIS ELECTION.

THE QUESTION IN THIS CASE ARISES BECAUSE THE MEMBER BY LETTER OF SEPTEMBER 2, 1964, REQUESTED THAT EFFECTIVE OCTOBER 1, 1964, HIS RETIRED PAY BE RECOMPUTED ON THE BASIS OF A NEW ELECTION OF THE YEARS OF SERVICE FORMULA.

IN 10 U.S.C. 1401 THE FORMULAS FOR COMPUTING DISABILITY RETIRED PAY ARE PRESCRIBED IN TABULAR FORM. FORMULA 1 AND FORMLA 2, DEALING WITH PERMANENT DISABILITY RETIRED PAY AND TEMPORARY DISABILITY RETIRED PAY, RESPECTIVELY, PROVIDE ALTERNATIVE METHODS OF COMPUTATION BASED ON THE MEMBER'S YEARS OF ACTIVE SERVICE OR HIS PERCENTAGE OF DISABILITY "AS MEMBER ELECTS.' THESE FORMULAS REPRESENT A CODIFICATION OF CERTAIN PROVISIONS IN SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 802, 818, 37 U.S.C. 272 (D) (1952 ED.), WHEREIN THE RETIRED MEMBER WAS AUTHORIZED TO BE PAID "AT HIS ELECTION" ONE OF THE SAME ALTERNATIVES.

IN PREVIOUS CASES CONCERNING MEMBERS WHO WERE AUTHORIZED BY STATUTE TO MAKE AN ELECTION BETWEEN ALTERNATIVE RETIRED PAY BENEFITS, IT HAS BEEN HELD THAT SUCH ELECTION MAY BE CHANGED IF IT WAS MADE ON THE BASIS OF ERRONEOUS INFORMATION FURNISHED BY THE ADMINISTRATIVE OFFICE AND IF THE MEMBER WAS MISLED INTO MAKING AN ELECTION WHICH HE WOULD NOT HAVE MADE HAD HE BEEN FURNISHED THE CORRECT INFORMATION. SEE B 103324, AUGUST 30, 1951; 32 COMP. GEN. 159, 162; 33 COMP. GEN. 71, 73; ID. 237, 239; 37 COMP. GEN. 31, 33; 43 COMP. GEN. 6, 12 AND 44 COMP. GEN. 190. COMPARE 40 COMP. GEN. 223.

IN 29 COMP. GEN. 404, CITED BY YOU, QUESTION (E) INVOLVED THE CASE OF A MEMBER RETIRED FOR PHYSICAL DISABILITY PRIOR TO OCTOBER 1, 1949, WHO HAD ELECTED OPTION B OF SECTION 411 OF THE CAREER COMPENSATION ACT, 37 U.S.C. 281 (1952 ED.), THAT IS, TO HAVE HIS RETIRED PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511, 37 U.S.C. 311. WE HELD THAT THE MEMBER CONCERNED WAS ENTITLED TO RECEIVE RETIRED PAY IN THE AMOUNT, WHICHEVER IS GREATER FROM TIME TO TIME, COMPUTED BY EITHER METHOD (A) OR METHOD (B) OF SECTION 511, THE SAME AS A NONDISABLED RETIRED MEMBER UNDER SUCH SECTION. IT WILL BE NOTED, HOWEVER, THAT SECTION 511 AUTHORIZES ALL MEMBERS WHO COME WITHIN ITS PROVISIONS TO RECEIVE RETIRED PAY "IN THE AMOUNT WHICHEVER IS THE GREATER" COMPUTED IN ACCORDANCE WITH ONE OF THE TWO METHODS THEREIN PRESCRIBED, WITH NO DISTINCTION BETWEEN NONDISABLED MEMBERS WHO COME UNDER ITS PROVISIONS AUTOMATICALLY AND DISABLED MEMBERS WHO COME UNDER ITS PROVISIONS BY MEANS OF SECTION 411 ELECTION. SEE 37 COMP. GEN. 31, 34.

IN 31 COMP. GEN. 39, ALSO CITED BY YOU, WE HELD THAT SECTION 202 (B) OF THE CAREER COMPENSATION ACT, 37 U.S.C. 233 (B), PROHIBITED COMPUTATION OF RETIRED PAY ON A RATE OF BASIC PAY WHICH INCLUDED CREDIT FOR INACTIVE TIME IN THE FLEET RESERVE OR WHILE ON THE RETIRED LIST IN THE CASES OF DISABLED MEMBERS WHO WERE ENTITLED TO ELECT UNDER SECTION 411 AS WELL AS NONDISABLED MEMBERS WHOSE RETIRED PAY WAS GOVERNED BY SECTION 511. (IT WILL BE NOTED THAT, AS A RESULT OF A SERIES OF DECISIONS BY THE COURT OF CLAIMS PREDICATED ON THE COURT'S "RE RETIREMENT" CONCEPT, OUR RULING WAS SUBSEQUENTLY CHANGED WITH RESPECT TO DISABLED MEMBERS WHO ELECTED UNDER SECTION 411 TO HAVE THEIR RETIRED PAY COMPUTED UNDER SECTION 402 (D). SEE 39 COMP. GEN. 152 AND 40 COMP. GEN. 639.)

THE REMAINING THREE DECISIONS CITED IN PARAGRAPH 5 OF YOUR LETTER, 37 COMP. GEN. 446, 41 COMP. GEN. 262 AND B-153191, JUNE 18, 1964, 43 COMP. GEN. 805, CONCERN APPLICATION OF THE FOLLOWING PROVISION IN 10 U.S.C. 1401:

HOWEVER, IF A PERSON WOULD OTHERWISE BE ENTITLED TO RETIRED PAY COMPUTED UNDER MORE THAN ONE PAY FORMULA OF THIS TABLE OR OF ANY OTHER PROVISION OF LAW, HE IS ENTITLED TO BE PAID UNDER THE APPLICABLE FORMULA THAT IS MOST FAVORABLE TO HIM.

NO QUESTION WAS RAISED IN ANY OF THOSE CASES AS TO THE RIGHT OF A MEMBER TO CHANGE AN ELECTION ONCE VALIDLY EXECUTED. ALTHOUGH THE MEMBER INVOLVED IN 41 COMP. GEN. 262 RECEIVED THE BENEFIT OF A DIFFERENT ELECTION FROM THAT HE ORIGINALLY MADE, THE NEW ENTITLEMENT AROSE NOT BY REASON OF A CHANGE IN HIS ELECTION BUT BY REASON OF THE CORRECTION OF HIS RECORDS BY THE UNDER SECRETARY OF THE ARMY UNDER AUTHORITY OF 10 U.S.C. 1552.

YOU REFER TO THE PRINCIPLE OF VESTED RIGHTS AND POINT OUT THAT 10 U.S.C. 1401 HAS NOT ABRIDGED THE RIGHT OF A MEMBER TO MAKE AN ELECTION TO RECEIVE RETIRED PAY BASED ON EITHER YEARS OF SERVICE OR PERCENTAGE OF DISABILITY. WHILE THE LANGUAGE IN NEITHER THE 1949 ACT "AT HIS ELECTION" NOR IN THE CODIFICATION "AS MEMBER ELECTS" CONTAINS ANY RESTRICTIVE PHRASE MAKING THE ELECTION IRREVOCABLE, IT DOES NOT PROVIDE AUTHORITY FOR MAKING MORE THAN ONE ELECTION. WE DO NOT REGARD THIS STATUTORY AUTHORITY FOR MAKING AN ELECTION AS VESTING IN THE MEMBER CONCERNED A RIGHT TO VACILLATE BETWEEN THE ALTERNATIVE METHODS OF COMPUTATION OFFERED, CHOOSING FIRST ONE METHOD AND THEN THE OTHER.

SINCE CAPTAIN HOLIWAY WAS PROPERLY ADVISED AS TO HIS RETIRED PAY RIGHTS UNDER EACH ALTERNATIVE AVAILABLE TO HIM AT THE TIME HE MADE HIS ELECTION IN FEBRUARY 1962, CONFIRMED IN MARCH 1962, THAT ELECTION WAS VALID AND IS NOT SUBJECT TO CHANGE BY THE MEMBER. YOUR QUESTION A IS ANSWERED IN THE NEGATIVE AND NO ANSWER IS REQUIRED TO QUESTION B. THE VOUCHER, NOT BEING APPROVED FOR PAYMENT, IS RETAINED IN THIS OFFICE.