B-157460, SEP. 8, 1965, 45 COMP. GEN. 112

B-157460, SEP. 8, 1965, 45 COMP. GEN. 112

PAY - RETIRED ANNUITY ELECTIONS FOR DEPENDENTS - ELIGIBILITY TO ELECT - FORMER MEMBERS A MEMBER OF THE UNIFORMED SERVICES WHO UPON COMPLETION OF 20 OR MORE YEARS OF QUALIFYING SERVICE AND ENTITLED TO RETIRED PAY UNDER 10 U.S.C. 1331 AT AGE 60 ELECTS TO BE DISCHARGED FROM HIS RESERVE STATUS RATHER THAN TRANSFER TO THE RETIRED RESERVE IS NOT ELIGIBLE AS A FORMER MEMBER TO EXECUTE AN ANNUITY ELECTION FOR HIS DEPENDENTS UP TO THE DATE PRECEDING HIS 57TH BIRTHDAY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN ENACTED AUGUST 8, 1953, AND AMENDED OCTOBER 4, 1961, THE LEGISLATIVE HISTORY OF THE 1961 ACT, EXTENDING THE BENEFITS OF THE 1953 ACT TO PERSONS RECEIVING NONREGULAR RETIRED PAY PURSUANT TO 10 U.S.C., CHAPTER 67, UPON REACHING AGE 60 AND MEETING THE SERVICE REQUIREMENTS, EVIDENCING NO INDICATION THAT MEMBERS COMPLETING 20 YEARS OR MORE OF SATISFACTORY SERVICE, BUT WHO HAVING BEEN DISCHARGED FROM THE RESERVES HOLD NO MILITARY STATUS, WOULD CONTINUE TO BE MEMBERS FOR THE SOLE PURPOSE OF RETAINING THE RIGHT TO FILE AN ANNUITY ELECTION. PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - ELIGIBILITY TO ELECT - FORMER MEMBERS A MEMBER OF THE UNIFORMED SERVICES DISCHARGED SUBSEQUENT TO NOVEMBER 1, 1953 WITH LESS THAN 18 YEARS OF SERVICE BUT ANTICIPATING COMPLETING 20 YEARS OF SERVICE LATER FOR ENTITLEMENT TO RETIRED PAY UNDER 10 U.S.C. 1331 ON THE BASIS OF MEETING THE AGE AND SERVICE REQUIREMENTS IS NOT ELIGIBLE TO MAKE AN ELECTION OF A SURVIVORSHIP ANNUITY FOR HIS DEPENDENTS UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, THE ACT OF AUGUST 8, 1953, AS AMENDED BY THE ACT OF OCTOBER 4, 1961, THE DISCHARGED MEMBER HOLDING NO MILITARY STATUS MAY NOT BE REGARDED AS HAVING CONTINUED AS A "MEMBER" FOR THE SOLE PURPOSE OF RETAINING THE RIGHT TO FILE AN ANNUITY ELECTION, AND APPLICATION OF SECTION 3 (A) OF THE 1953 ACT (10 U.S.C. 1432), WHICH PROVIDES THAT A FORMER MEMBER UPON AWARD OF RETIRED PAY MAY MAKE AN ELECTION UNDER THE ANNUITY PLAN, HAS NOT BEEN EXTENDED TO PERSONS DISCHARGED FROM THE SERVICE AFTER NOVEMBER 1, 1953. PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - TIME LIMITATIONS - CHANGES, ETC. A MODIFICATION OR REVOCATION OF A SURVIVORSHIP ANNUITY ELECTION MADE UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN (10 U.S.C. 1431 ET SEQ.) MORE THAN 3 YEARS BEFORE THE FIRST DAY A NONREGULAR MEMBER OF THE UNIFORMED SERVICES IS GRANTED RETIRED PAY COMMENCING WITH THE MONTH FOLLOWING THE ATTAINMENT OF THE AGE OF 62 AND MEETING THE ELIGIBILITY REQUIREMENTS OF 10 U.S.C. 1331 IS EFFECTIVE, THE REQUIREMENT IN 14 U.S.C. 1431 (C) FOR FILING A CHANGE OR REVOCATION OF AN ANNUITY AT ANY TIME UP TO 3 YEARS BEFORE THE FIRST DAY FOR WHICH RETIRED PAY OR RETAINER PAY IS GRANTED NOT APPLYING TO PERSONS WHO ENTITLED TO RETIRED PAY PURSUANT TO 10 U.S.C. 1331 MAY EITHER APPLY FOR RETIRED PAY FROM THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH AGE AND SERVICE REQUIREMENTS ARE MET OR SELECT THE FIRST DAY OF ANY SUBSEQUENT MONTH AS THE EFFECTIVE DATE FOR PAYMENT OF RETIRED PAY, PROVIDED THE INDIVIDUAL IS A MEMBER OF THE UNIFORMED SERVICES AT THE TIME OF FILING AN ELECTION, CHANGE OR REVOCATION. PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - TIME LIMITATIONS - CHANGES, ETC. A MEMBER OF THE UNIFORMED SERVICES ALTHOUGH HAVING MET THE ELIGIBILITY REQUIREMENTS UNDER 10 U.S.C. 1331 FOR ENTITLEMENT TO RETIRED PAY UPON ATTAINMENT OF HIS 60TH BIRTHDAY, ELECTS TO RECEIVE RETIRED PAY AFTER THE AGE OF 62 AND IS GRANTED RETIRED PAY COMMENCING ON THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH HE REACHES 62, WHO MODIFIES OR REVOKES A SURVIVORSHIP ANNUITY ELECTION MADE UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN (10 U.S.C. 1431 ET SEQ.) MORE THAN 3 YEARS BEFORE THE FIRST DAY OF THE MONTH FOR WHICH RETIRED PAY IS GRANTED HAS SUBMITTED A VALID CHANGE OR REVOCATION, THE MEMBER ENTITLED TO RETIRED PAY PURSUANT TO SECTION 1331 IS NOT WITHIN THE SCOPE OF SECTION 1431 (C) REQUIRING A CHANGE TO BE FILED AT ANY TIME UP TO 3 YEARS BEFORE THE FIRST DAY FOR WHICH RETIRED OR RETAINER PAY IS GRANTED, AND THE MEMBER NOT HAVING APPLIED FOR RETIRED PAY UNTIL SOMETIME AFTER QUALIFYING, MAY FILE A CHANGE OR REVOCATION AFTER HIS 57TH BIRTHDAY AT ANY TIME UP TO 3 YEARS BEFORE THE EFFECTIVE DATE OF PAYMENT OF RETIRED PAY.

TO THE SECRETARY OF THE ARMY, SEPTEMBER 8, 1965:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 11, 1965, PRESENTING FOR DECISION UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NUMBER SS-A-826 THE FOLLOWING QUESTIONS RELATIVE TO PARTICIPATION IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN BY MEMBERS AND FORMER MEMBERS WHO ARE ENTITLED TO RETIRED PAY UNDER 10 U.S.C. 1331:

1. IS A MEMBER, WHO UPON COMPLETION OF 20 OR MORE YEARS OF QUALIFYING SERVICE ELECTS TO BE DISCHARGED FROM HIS RESERVE STATUS RATHER THAN TRANSFER TO THE RETIRED RESERVE, ELIGIBLE AS A FORMER MEMBER TO EXECUTE AN ELECTION UP TO THE DATE PRECEDING HIS 57TH BIRTHDAY?

2. IS A MEMBER WHO HAS COMPLETED LESS THAN 18 YEARS SERVICE FOR RETIREMENT, BUT WHO ANTICIPATES LATER COMPLETING 20 YEARS, ELIGIBLE TO MAKE AN ELECTION AT ANY TIME PRIOR TO COMPLETING 18 YEARS OR 3 YEARS BEFORE HE IS GRANTED RETIREMENT PAY EVEN THOUGH HE HAS NO MILITARY STATUS WHEN THE ELECTION IS MADE?

3. A NON-REGULAR MEMBER FIRST MEETS ALL ELIGIBILITY REQUIREMENTS FOR ENTITLEMENT TO RETIRED PAY UNDER SECTION 1331, TITLE 10, UNITED STATES CODE, UPON THE ATTAINMENT OF HIS 62ND BIRTHDAY. HE IS GRANTED RETIRED PAY COMMENCING WITH THE MONTH FOLLOWING THE MONTH IN WHICH HE ATTAINS SUCH AGE. IS AN ELECTION MODIFICATION OR REVOCATION EFFECTIVE IF SUBMITTED MORE THAN THREE YEARS BEFORE THE FIRST DAY FOR WHICH RETIRED PAY IS GRANTED?

4. ELIGIBILITY REQUIREMENTS FOR ENTITLEMENT TO RETIRED PAY ARE FIRST MET UPON THE ATTAINMENT OF A MEMBER'S 60TH BIRTHDAY. HE ELECTS TO RECEIVE RETIRED PAY ONLY AFTER THE AGE OF 62 IS ATTAINED, AND IS GRANTED SUCH PAY COMMENCING WITH THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH HE REACHES AGE 62. IS AN ELECTION, MODIFICATION OR REVOCATION VALID IF SUBMITTED MORE THAN THREE YEARS BEFORE THE FIRST DAY OF THE MONTH FOR WHICH RETIRED PAY IS GRANTED?

THE ANNUITY BASED ON RETIRED PAY WHICH MAY BE PROVIDED BY A MEMBER FOR HIS WIDOW AND CHILDREN WAS FIRST AUTHORIZED BY THE ACT OF AUGUST 8, 1953, CH. 393, 67 STAT. 501, LATER CODIFIED AS CHAPTER 73 OF TITLE 10, U.S. CODE, SECTIONS 1431 ET SEQ. SECTION 3 (A) OF THE 1953 ACT AUTHORIZED AN "ACTIVE MEMBER" TO ELECT TO PARTICIPATE IN THE PLAN AND THE TERM "ACTIVE MEMBER" WAS DEFINED IN SECTION 2 (C) TO INCLUDE A "MEMBER OF A RESERVE COMPONENT OF A UNIFORMED SERVICE, WHO HAS COMPLETED TWENTY SATISFACTORY YEARS IN HIS UNIFORMED SERVICE, AS DEFINED IN SECTION 302 OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948.' IN OUR DECISION OF MARCH 25, 1955, 34 COMP. GEN. 474, WE HELD THAT RESERVISTS IN AN INACTIVE STATUS, OTHER THAN THOSE WHO HAD COMPLETED 20 YEARS OF SATISFACTORY SERVICE PRIOR TO NOVEMBER 1, 1953, WERE NOT ELIGIBLE TO PARTICIPATE IN THE PLAN.

SEVERAL CHANGES IN THE PLAN WERE EFFECTED BY THE ACT OF OCTOBER 4, 1961, PUBLIC LAW 87-381, 75 STAT. 810. SECTION 2 AMENDED 10 U.S.C. 1431 TO READ, IN PART, AS FOLLOWS:

(A) THIS SECTION APPLIES TO ALL MEMBERS OF THE ARMED FORCES EXCEPT- -

(1) MEMBERS WHOSE NAMES ARE ON A RETIRED LIST OTHER THAN A LIST MAINTAINED UNDER SECTION 1376 (A) OF THIS TITLE;

(2) CADETS AT THE UNITED STATES MILITARY ACADEMY, THE UNITED STATES AIR FORCE ACADEMY, OR THE COAST GUARD ACADEMY; AND

(3) MIDSHIPMEN.

PRIOR TO THAT AMENDMENT SECTION 1431 EXCLUDED ALL MEMBERS ON A RETIRED LIST OR IN THE RETIRED RESERVE AND ALL RESERVES ON AN INACTIVE STATUS LIST. ON PAGES 9 AND 10 OF S.REPT. NO. 1071 DATED SEPTEMBER 15, 1961, THE REPORT OF THE SENATE COMMITTEE ON ARMED SERVICES ON H.R. 6668 WHICH WAS ENACTED AS PUBLIC LAW 87-381, THE AMENDMENT OF SECTION 1431 (A) IS EXPLAINED AS FOLLOWS:

COMPTROLLER GENERAL DECISIONS HAVE PRECLUDED MEMBERS OF THE RESERVE COMPONENTS WHO ARE NOT IN THE ACTIVE RESERVE FROM MAKING AN ELECTION EVEN THOUGH THEY WERE STILL ACCUMULATING SERVICE FOR PAY PURPOSES.

THIS SUBSECTION AMENDS EXISTING LAW IN ORDER TO INCLUDE AMONG ELIGIBLE PARTICIPANTS IN THE PROGRAM CERTAIN RETIRED AND INACTIVE NATIONAL GUARD WHO ARE EXCLUDED UNDER PRESENT LAW.

THE SENATE COMMITTEE ON ARMED SERVICES MADE TECHNICAL CHANGES IN THE BILL WHICH ARE EXPLAINED ON PAGE 2 OF REPT. NO. 1071 AS FOLLOWS:

AT VARIOUS PLACES IN THE BILL THE WORDS "HE IS RETIRED OR GRANTED RETIRED OR RETAINER PAY" ARE STRICKEN AND IN LIEU THEREOF THERE IS INSERTED "THE FIRST DAY FOR WHICH RETIRED OR RETAINER PAY GRANTED.' THE PURPOSE OF THE CHANGE IS TO MAKE CLEAR THAT MEMBERS OF THE RESERVE COMPONENTS NOT ON ACTIVE DUTY WILL HAVE THE PRIVILEGE OF MAKING AN ELECTION AT ANY TIME AT LEAST 3 YEARS PRIOR TO THE FIRST DAY FOR WHICH RETIRED OR RETAINER PAY IS GRANTED. MEMBERS OF THE RESERVE COMPONENTS MAY BE PLACED IN A RETIRED STATUS WITHOUT PAY FOR A NUMBER OF YEARS PRIOR TO REACHING AGE 60, AT WHICH AGE THEY ARE ENTITLED TO RESERVE RETIRED PAY. THE LANGUAGE WHICH WAS STRICKEN COULD HAVE BEEN CONSTRUED AS RESTRICTING THE ELECTION PRIVILEGE TO THE 3-YEAR POINT PRIOR TO THE TIME THEY WERE PLACED IN A RETIRED STATUS WITHOUT PAY RATHER THAN THE 3-YEAR POINT PRIOR TO THE TIME THEY WOULD HAVE BEEN RETIRED WITH PAY.

THROUGHOUT THE LEGISLATIVE HISTORY OF THE 1961 ACT THERE ARE REFERENCES SHOWING THAT THE MEMBERS OF BOTH HOUSES OF CONGRESS TOOK INTO CONSIDERATION PERSONS WHO BECOME ENTITLED TO RECEIVE NONREGULAR RETIRED PAY UNDER CHAPTER 67 OF TITLE 10, U.S. CODE, UPON REACHING THE AGE OF 60 YEARS IF THEY HAVE MET THE SERVICE REQUIREMENTS. HOWEVER, THERE IS NO INDICATION THAT MEMBERS WHO ARE DISCHARGED FROM THE RESERVE UPON COMPLETING 20 YEARS OR MORE OF SATISFACTORY SERVICE AND THEREAFTER HOLD NO MILITARY STATUS WERE INTENDED TO BE REGARDED AS CONTINUING TO BE "MEMBERS" FOR THE SOLE PURPOSE OF RETAINING THE RIGHT TO FILE AN ELECTION UNDER THIS ANNUITY PLAN. SECTION 3 (A) OF THE 1953 ACT INCLUDED THE STATEMENT "A PERSON WHO IS A FORMER MEMBER ON THE EFFECTIVE DATE OF THE ACT AND WHO IS THEREAFTER AWARDED RETIRED PAY BY A UNIFORMED SERVICE MAY MAKE THE ELECTION AT THE TIME HE IS AWARDED THAT PAY.' THAT PROVISION NOW APPEARS IN 10 U.S.C. 1432 AND IT HAS NOT BEEN LIBERALIZED TO APPLY TO PERSONS WHO WERE DISCHARGED FROM THE SERVICE AFTER NOVEMBER 1, 1953.

QUESTIONS 1 AND 2 ARE ANSWERED IN THE NEGATIVE.

THE ORIGINAL LAW REQUIRED THAT THE MEMBER FILE HIS APPLICATION BEFORE COMPLETING 18 YEARS OF SERVICE AND PROVIDED THAT ANY CHANGE OR REVOCATION OF HIS ELECTION WOULD NOT BE EFFECTIVE IF HE WAS RETIRED WITHIN 5 YEARS AFTER SUCH CHANGE OR REVOCATION. THE 1961 ACT PROVIDED A LESS RESTRICTIVE TIME FOR FILING AN AN INDUCEMENT TO GET MORE MEMBERS TO ELECT TO PARTICIPATE IN THE PLAN. UNDER THE CURRENT PROVISIONS A MEMBER MAY FILE AN ELECTION AT ANY TIME BEFORE HE COMPLETES 18 YEARS OF SERVICE CREDITABLE FOR BASIC PAY PURPOSES OR AT ANY TIME UP TO 3 YEARS BEFORE THE FIRST DAY FOR WHICH RETIRED PAY OR RETAINER PAY IS GRANTED. A CHANGE OR REVOCATION OF AN ELECTION MAY BE FILED AT ANY TIME UP TO 3 YEARS BEFORE THE FIRST DAY FOR WHICH RETIRED PAY OR RETAINER PAY IS GRANTED. SINCE THE AUTHORIZATION FOR CHANGING OR REVOKING AN ELECTION IS CONTAINED IN SUBSECTION (C) OF SECTION 1431 AND SUBSECTION (C) DOES NOT DESIGNATE THE PERSONS WHO ARE COVERED THEREBY, THE PERSONS WHO MAY FILE A CHANGE OR REVOCATION OF ELECTION MUST BE REGARDED AS THOSE ,MEMBERS" WHO COME WITHIN THE SCOPE OF SECTION 1431 GENERALLY, AS SPECIFIED IN SUBSECTION (A), QUOTED ABOVE.

PERSONS ENTITLED TO RETIRED PAY UNDER 10 U.S.C. 1331 ARE NOT REQUIRED TO FILE APPLICATION FOR SUCH RETIRED PAY FROM THE EARLIEST POSSIBLE DATE. THEY MAY APPLY FOR AND BE ENTITLED TO RECEIVE SUCH PAY FROM THE FIRST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH THEY MEET THE AGE AND SERVICE REQUIREMENTS OR, IF THEY WISH, THEY MAY SELECT THE FIRST DAY OF ANY SUBSEQUENT MONTH AS THE EFFECTIVE DATE FOR PAYMENT OF SUCH RETIRED PAY. 38 COMP. GEN. 146. THE SELECTION BY A MEMBER OF AN EFFECTIVE DATE FOR RECEIPT OF RETIRED PAY IS A PERSONAL MATTER AND HIS REASON FOR CHOOSING A PARTICULAR DATE HAS NO BEARING ON HIS RIGHT TO MAKE THE CHOICE.

GENERALLY, A MEMBER--- AS DISTINGUISHED FROM A FORMER MEMBER--- WHO ANTICIPATES ELIGIBILITY FOR RETIRED PAY UNDER 10 U.S.C. 1331 AT AGE 60 MAY FILE AN ELECTION, AND HE MAY FILE A CHANGE OR REVOCATION OF THAT ELECTION, AT ANY TIME UP TO HIS 57TH BIRTHDAY. IF HE DOES NOT QUALIFY UNTIL AFTER AGE 60 OR IF HE DOES NOT APPLY FOR SUCH RETIRED PAY UNTIL SOMETIME AFTER QUALIFICATION, THE ELECTION, CHANGE, OR REVOCATION MAY BE FILED AFTER HIS 57TH BIRTHDAY AT ANY TIME UP TO 3 YEARS BEFORE THE EFFECTIVE DATE OF PAYMENT OF RETIRED PAY UNDER 10 U.S.C. 1331.

QUESTIONS 3 AND 4 ARE ANSWERED IN THE AFFIRMATIVE PROVIDED THE INDIVIDUAL IS A MEMBER OF AN ARMED FORCE AT THE TIME THE ELECTION, CHANGE, OR REVOCATION IS FILED.