B-159668, AUGUST 26, 1966, 46 COMP. GEN. 172

B-159668, AUGUST 26, 1966, 46 COMP. GEN. 172

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - FORMER MEMBERS - ELECTION PRIOR TO GRANT OF RETIRED PAY. A FORMER OFFICER OF THE UNIFORMED SERVICES WHO RESIGNED HIS NATIONAL GUARD COMMISSION ON OCTOBER 31, 1952, HOLDING NO MILITARY STATUS THEREAFTER, AND WHO MORE THAN 6 MONTHS BEFORE REACHING THE AGE OF 60 AND QUALIFYING FOR RETIRED PAY UNDER 10 U.S.C. 1331-1337, BEGINNING NOVEMBER 1, 1954, ELECTED AN ANNUITY FOR HIS WIFE UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, NOW THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446, MADE A VALID ELECTION, THE PROVISION IN SECTION 3/A) OF THE 1953 ACT AND 10 U.S.C. 1432 PERMITTING A PERSON WHO WAS A FORMER MEMBER ON NOVEMBER 1, 1953, TO MAKE AN ELECTION AT THE TIME RETIRED PAY IS GRANTED, NOT INDICATING THAT AN ELECTION MADE PRIOR TO THE GRANTING OF RETIRED PAY IS PREMATURE, AND SECTION 1432 MERELY EXTENDING THE PERIOD FOR FILING AN ELECTION TO "THE TIME HE IS GRANTED THAT PAY", THE OFFICER QUALIFYING FOR RETIRED PAY UPON REACHING 60, HAVING COMPLETED 20 YEARS OF SERVICE PRIOR TO NOVEMBER 1, 1953, MADE A VALID ELECTION AND UPON HIS DEATH ON FEBRUARY 17, 1963, HIS WIDOW IS ELIGIBLE FOR AN ANNUITY. PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - FORMER MEMBERS - ELECTION PRIOR TO GRANT OF RETIRED PAY. A FORMER OFFICER OF THE UNIFORMED SERVICES ELIGIBLE FOR RETIRED PAY UNDER 10 U.S.C. 1331-1337 AT THE AGE OF 60, HAVING COMPLETED 20 YEARS OF QUALIFYING SERVICE PRIOR TO NOVEMBER 1, 1953, WHO MAKES AN ANNUITY ELECTION WITHIN A 90-DAY PERIOD PRIOR TO HIS 60TH BIRTHDAY OR RETIREMENT, IF A LATER DATE FOR RECEIPT OF RETIRED PAY HAD BEEN ELECTED BY THE OFFICER, HAS MADE A VALID ELECTION UNDER 10 U.S.C. 1431-1446, SECTION 1432 PERMITTING A FORMER MEMBER TO MAKE AN ANNUITY ELECTION, MERELY EXTENDING THE PERIOD FOR FILING THE ELECTION TO THE TIME RETIRED PAY IS GRANTED, THEREFORE, A PROPER ELECTION IS NOT VOID BY REASON OF BEING PREMATURE. ELECTION FILED AT ANY PERIOD OF TIME PRIOR TO THE DATE OF RETIREMENT IS WITHIN THE PURVIEW OF THE PHRASE "AT THE TIME RETIRED PAY IS GRANTED" IN 10 U.S.C. 1432, THE EARLY FILING NOT INVALIDATING AN OTHERWISE PROPER ELECTION. ANNUITY ELECTIONS MADE PRIOR TO THE GRANT OF RETIRED PAY NEED NO RATIFICATION, BUT A DISAFFIRMANCE OF AN ELECTION IS SUBJECT TO 10 U.S.C. 1431/C).

TO COLONEL H. W. KASSERMAN, DEPARTMENT OF THE ARMY, AUGUST 26, 1966:

REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1966, REQUESTING A DECISION WHETHER YOU ARE AUTHORIZED TO PAY TO MRS. LENA A. SMALLEY THE SUM OF $989.76, REPRESENTING THE DIFFERENCE BETWEEN THE TOTAL AMOUNT BY WHICH THE RETIRED PAY OF COLONEL ANSON J. SMALLEY WAS REDUCED FOR THE PERIOD NOVEMBER 1, 1954, THROUGH FEBRUARY 17, 1963, AND THE TOTAL ANNUITY PAID TO MRS. SMALLEY AS HIS WIDOW FOR THE PERIOD FEBRUARY 1, 1963, THROUGH MARCH 31, 1966.

COLONEL SMALLEY, O275035, AUS, WAS BORN ON OCTOBER 28, 1894, RESIGNED HIS NATIONAL GUARD OF THE UNITED STATES COMMISSION ON OCTOBER 31, 1952, AND HAS HELD NO MILITARY STATUS AFTER THAT DATE. HE ELECTED OPTION I AT ONE- HALF REDUCED RETIRED PAY COMBINED WITH OPTION IV UNDER AUTHORITY OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, CH. 393, 67 STAT. 501 (NOW THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431- 1446). HE WAS PLACED ON THE AUS RETIRED LIST ON OCTOBER 31, 1954, WITH ENTITLEMENT TO RETIRED PAY BEGINNING NOVEMBER 1, 1954, UNDER TITLE III OF THE ACT OF JUNE 29, 1948, CH. 708, 62 STAT. 1087 (10 U.S.C. 1331-1337).

YOU SAY THAT THE DATE OF APPLICATION FOR RETIRED PAY IS UNKNOWN,BUT THAT APPLICABLE REGULATIONS PROVIDED THAT A QUALIFIED PERSON COULD OBTAIN AN OFFICIAL APPLICATION (DD FORM 108) FOR RETIRED PAY BENEFITS NOT EARLIER THAN 90 DAYS BEFORE THE APPLICANT'S 60TH BIRTHDAY; THAT APPLICATIONS SUBMITTED BY LETTER OR ANY OTHER FORM WERE NOT HONORED; AND, THEREFORE, THAT THE OFFICER PROBABLY WAS NOT NOTIFIED EARLIER THAN JUNE 1954 THAT RETIRED PAY HAD BEEN GRANTED. YOU SAY, HOWEVER, THAT DA FORM 1041, ELECTION OF OPTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, WAS DATED MARCH 25, 1954, SIGNED APRIL 1, 1954, AND WAS RECEIVED AT THE ADJUTANT GENERAL'S OFFICE ON APRIL 8, 1954, OR MORE THAN 6 MONTHS BEFORE HE BECAME ELIGIBLE FOR RETIREMENT PAY. RETIREMENT ORDERS WERE DATED OCTOBER 31, 1954. THE FORMER OFFICER DIED ON FEBRUARY 17, 1963. THE ANNUITY COST WAS $43.24 A MONTH AND THE RATE OF THE ANNUITY WAS $87.25 A MONTH BEGINNING FEBRUARY 1, 1963.

SECTION 3/A) OF THE 1953 LAW PROVIDED THAT A PERSON WHO WAS A FORMER MEMBER OF THE UNIFORMED SERVICES ON NOVEMBER 1, 1953, AND WAS THEREAFTER AWARDED RETIRED PAY COULD MAKE AN ELECTION OF AN ANNUITY FOR HIS BENEFICIARY "AT THE TIME HE IS AWARDED THAT PAY;, APPLICABLE ARMY REGULATIONS PROVIDED THAT PERSONS UNDER AGE 60 WHO HAD COMPLETED 20 YEARS' SERVICE CREDITABLE FOR RETIREMENT WOULD BE FURNISHED DA FORM 1041 (ANNUITY ELECTION FORM) WITH PERTINENT INFORMATION REGARDING BENEFITS UNDER THE 1953 LAW BY THE ADJUTANT GENERAL WHEN DD FORM 108 (APPLICATION FOR RETIREMENT PAY) WAS FURNISHED SUCH PERSONS.

YOU POINT OUT THAT APPLICABLE ARMY REGULATIONS DATED DECEMBER 11, 1953, PROVIDED THAT SUCH A PERSON COULD MAKE AN ELECTION AT THE TIME HE WAS AWARDED RETIRED PAY AND THAT TO BE EFFECTIVE AN ELECTION MUST BE SIGNED, WITNESSED, AND POSTMARKED NOT LATER THAN THE DATE ON WHICH AWARDED RETIRED PAY; THAT SUCH REGULATIONS DATED JULY 19, 1954, PROVIDED THAT A PERSON WHO RETIRED AFTER APRIL 1954 AND BEFORE NOVEMBER 2, 1954, COULD MAKE AN ANNUITY ELECTION, WHICH MUST HAVE BEEN SIGNED, WITNESSED AND POSTMARKED NOT LATER THAN NOVEMBER 1, 1954, OR THE DATE AWARDED RETIRED PAY. LATER REGULATIONS REFLECT OUR DECISIONS IN 34 COMP. GEN. 582 (1955) AND 36 COMP. GEN. 586 (1957) THAT AN ELECTION MADE WITHIN 30 DAYS AFTER RECEIPT OF NOTICE OF AWARD OF RETIRED PAY WAS MADE "AT THE TIME" OF THE AWARD OF RETIRED PAY WITHIN THE MEANING OF THE 1953 LAW.

IN 39 COMP. GEN. 74 (1959) THERE WAS CONSIDERED THE VALIDITY OF AN ELECTION MADE BY AN OFFICER WHO HAD BEEN RELEASED FROM ACTIVE DUTY IN THE NAVAL RESERVE IN 1946 AND TRANSFERRED TO THE RETIRED RESERVE WITHOUT PAY ON JANUARY 1, 1954, AND WHO EXECUTED AN ANNUITY ELECTION FORM ON APRIL 5, 1954, WHEN HE WAS NOT ON ACTIVE DUTY, WHICH ELECTION FORM WAS RECEIVED BY THE NAVY ON APRIL 29, 1954. HE DIED ON DECEMBER 21, 1955. ON AUGUST 2, 1957, HIS NAME WAS RETROACTIVELY PLACED ON THE RETIRED LIST BY THE BOARD FOR CORRECTION OF NAVAL RECORDS AS OF MARCH 27, 1946. WE THERE SAID THAT THE RIGHT TO ELECT AN ANNUITY WHICH AROSE AS A RESULT OF A CORRECTION OF A RECORD CAME INTO EXISTENCE WHEN THAT CORRECTION WAS MADE AND "COULD NOT BE EXERCISED IN ADVANCE OF THAT TIME;, SINCE HE DIED BEFORE SUCH RECORD CORRECTION, IT WAS IMPOSSIBLE FOR HIM TO EXERCISE THE RIGHT TO MAKE AN ELECTION UNDER THE CORRECTED RECORD. WE HELD THAT THE ELECTION FORM HE EXECUTED ON APRIL 5, 1954, WHEN HE WAS NOT ELIGIBLE TO MAKE SUCH ELECTION, HAS NO FORCE OR EFFECT.

IN GENERAL, THE ONLY PERSON NOT A MEMBER OF THE UNIFORMED SERVICES WHO IS ELIGIBLE TO MAKE AN ANNUITY ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN IS A PERSON WHO HELD NO MEMBERSHIP IN AN ARMED FORCE ON NOVEMBER 1, 1953, AND WHO IS GRANTED RETIRED OR RETAINER PAY AFTER THAT DATE; SUCH A FORMER MEMBER IS AUTHORIZED BY 10 U.S.C. 1432 TO MAKE SUCH AN ELECTION AT THE TIME HE IS GRANTED THAT PAY. HENCE, IN DECISION OF SEPTEMBER 8, 1965, 45 COMP. GEN. 112, WE HELD THAT A PERSON WHO IS DISCHARGED FROM HIS RESERVE STATUS AFTER COMPLETION OF A NUMBER OF YEARS OF SERVICE RATHER THAN BEING TRANSFERRED TO THE RETIRED RESERVE IS NOT ELIGIBLE TO MAKE AN ANNUITY ELECTION WHEN HE HAS NO MILITARY STATUS AT THE TIME OF ELECTION. WE POINTED OUT THAT IN ENACTMENT OF THE 1961 AMENDMENTS TO THE LAW THE CONGRESS TOOK COGNIZANCE OF THE ELIGIBILITY OF FORMER MEMBERS WITH 20 YEARS QUALIFYING SERVICE TO RECEIVE RETIRED PAY UPON REACHING AGE 60, BUT THAT THERE IS NO INDICATION IN THE LEGISLATIVE HISTORY THAT THE CONGRESS INTENDED THAT PERSONS DISCHARGED FROM THE RESERVE WERE TO BE REGARDED AS CONTINUING TO BE MEMBERS FOR THE SOLE PURPOSE OF RETAINING THE RIGHT TO FILE AN ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN.

YOU SAY THAT NOWHERE IN THE LAW, REGULATIONS, OR DECISIONS OF THIS OFFICE PRIOR TO OUR 1959 DECISION IN 39 COMP. GEN. 74 WAS THERE ANY SUGGESTION THAT AN ELECTION MADE BY A PERSON WHO WAS A FORMER MEMBER ON NOVEMBER 1, 1953, MIGHT BE VOID BY REASON OF BEING PREMATURE, ALTHOUGH THE LAW, REGULATIONS, AND DECISIONS ESTABLISHED A TERMINAL DATE FOR MAKING ELECTIONS. YOU SAY THAT TO BE EFFECTIVE THE ELECTION OF A PERSON WHO WAS A FORMER MEMBER ON NOVEMBER 1, 1953, COULD BE POSTMARKED OR DELIVERED TO APPROPRIATE SERVICE OFFICIALS AT ANY TIME PRIOR TO RETIREMENT, BUT NOT LATER THAN MIDNIGHT ON THE 30TH DAY FOLLOWING THE FIRST DAY FOR WHICH RETIRED PAY WAS AWARDED.

YOU STATE IN YOUR LETTER THAT THE ELECTION TENDERED BY COLONEL SMALLEY ON APRIL 1, 1954, WAS NOT REJECTED, BUT WAS ACCEPTED AS A TIMELY AND OTHERWISE VALID ELECTION HAVING BEEN MADE "NOT LATER THAN THE DATE ON WHICH RETIRED PAY WAS AWARDED;, YOU SUGGEST THAT HIS ELECTION (EVEN IF NOW CONSIDERED PREMATURE WHEN MADE) WAS IN EFFECT RATIFIED BY THE OFFICER AT RETIREMENT BY THE UNQUESTIONED ACCEPTANCE OF REDUCED RETIRED PAY, AND THAT THEREFORE THERE APPEARED TO BE NO REASON FOR THE OFFICER TO PERFECT A NEW AND APPARENTLY NEEDLESS ELECTION "AT THE TIME HE IS AWARDED RETIRED PAY", SINCE HE HAD ALREADY COMPLIED WITH THE LAW BY ELECTING "NOT LATER THAN" THE TIME OF RETIREMENT.

THE GENERAL POLICY OF THE LAW AS STATED IN SECTION 3/A) OF THE 1953 ACT AND 10 U.S.C. 1431, IS TO PERMIT THE FILING OF AN ELECTION TO RECEIVE THE BENEFITS OF THE FAMILY PROTECTION PLAN BY AN OTHERWISE ELIGIBLE PERSON "PRIOR TO" OR "BEFORE" HE COMPLETES 18 YEARS OF QUALIFYING SERVICE. SECTION 1431 STATES THAT THE ELECTION "MUST" BE MADE BEFORE THAT TIME. PROPER ELECTION FILED 1, 2 OR 5 YEARS BEFORE COMPLETING SUCH SERVICE IS AS VALID AS AN ELECTION MADE 1 DAY BEFORE 18 YEARS OF SERVICE IS COMPLETED. THE PROVISION IN SECTION 3/A) OF THE 1953 ACT AND IN 10 U.S.C. 1432 PERMITTING A PERSON WHO WAS A FORMER MEMBER OF THE ARMED FORCES ON NOVEMBER 1, 1953, TO MAKE AN ELECTION AT THE TIME HE IS GRANTED RETIRED PAY DOES NOT NECESSARILY INDICATE THAT AN ELECTION BEFORE RETIRED PAY IS GRANTED WOULD BE INVALID. PRESUMABLY, ALL PERSONS COVERED BY SECTION 1432 AND WHO MIGHT QUALIFY FOR RETIRED PAY UNDER TITLE III OF THE 1948 ACT UPON REACHING THE AGE OF 60, HAD COMPLETED THE NECESSARY 20 YEARS OF QUALIFYING SERVICE PRIOR TO NOVEMBER 1, 1953. IT IS OUR VIEW THAT AS TO THIS GROUP, SECTION 1432 MERELY EXTENDED THE PERIOD FOR FILING AN ELECTION TO ,THE TIME HE IS GRANTED THAT PAY;, WE FIND NO BASIS FOR QUESTIONING THE VALIDITY OF AN OTHERWISE PROPER ELECTION FILED WITHIN THAT TIME. ACCORDINGLY, REFUND OF THE RETIRED PAY DEDUCTIONS IN THIS CASE IS NOT AUTHORIZED.

NOTHING STATED IN 39 COMP. GEN. 74 WAS INTENDED AS SUPPORTING A DIFFERENT CONCLUSION. THAT CASE WAS DECIDED ON THE PARTICULAR FACTS THERE CONSIDERED AND IT SHOULD BE NOTED THAT THE MEMBER THERE INVOLVED WAS NOT ELIGIBLE TO MAKE AN ELECTION ON APRIL 5, 1954, THE DATE HE EXECUTED THE ELECTION FORM, SINCE IT APPEARS THAT HE WAS NEITHER AN ACTIVE MEMBER NOR A FORMER MEMBER ELIGIBLE TO ELECT UNDER THE LAW AT THAT TIME. COLONEL SMALLEY WAS A FORMER MEMBER WHO QUALIFIED FOR RETIRED PAY AS SOON AS HE REACHED THE AGE OF 60.

YOU ASK 3 ADDITIONAL QUESTIONS WHETHER:

(1) AN ELECTION WOULD BE VALID ASSUMING THE SAME FACTUAL SITUATION, EXCEPT THAT THE ELECTION WAS MADE WITHIN THE 90-DAY PERIOD PRIOR TO THE OFFICER'S 60TH BIRTHDAY (OR RETIREMENT IF A LATER DATE FOR RECEIPT OF RETIRED PAY HAD BEEN ELECTED BY THE OFFICER);

(2) ANY PERIOD OF TIME PRIOR TO THE DATE OF RETIREMENT MAY BE CONSIDERED AS "AT THE TIME RETIRED PAY IS GRANTED", WITHIN THE MEANING OF TITLE 10, U.S. CODE, SECTION 1432;

(3) PERSONS WHO MADE ELECTIONS UNDER CIRCUMSTANCES SIMILAR TO THOSE PRESENTED MAY BE GIVEN OPPORTUNITIES TO RATIFY OR DISAFFIRM THEIR ELECTIONS.

ON THE BASIS OF THE FOREGOING DISCUSSION, QUESTION (1) IS ANSWERED IN THE AFFIRMATIVE. QUESTION (2) IS ANSWERED BY SAYING THAT THE QUOTED PHRASE DOES NOT MAKE INVALID AN OTHERWISE PROPER ELECTION FILED AT AN EARLIER TIME. QUESTION (3) IS ANSWERED BY SAYING THAT SUCH ELECTIONS NEED NO RATIFICATION AND THEIR DISAFFIRMANCE IS SUBJECT TO THE PROVISIONS OF 10 U.S.C. 1431/C).