B-161201, MAY 4, 1967, 46 COMP. GEN. 783

B-161201, MAY 4, 1967, 46 COMP. GEN. 783

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - TIME FOR ELECTION - BEFORE COMPLETING EIGHTEEN YEARS OF SERVICE THE ELECTION EXECUTED ON JULY 31, 1959, BY AN OFFICER WHO ENTERED THE MILITARY SERVICE ON AUGUST 1, 1941, TO RECEIVE A REDUCED AMOUNT OF RETIRED PAY TO PROVIDE AN ANNUITY FOR HIS DEPENDENTS WAS A VALID ELECTION, NOTWITHSTANDING THE OFFICER COMPLETED THE REQUIRED 18 YEARS OF SERVICE AT MIDNIGHT JULY 31, 1959, AS UNDER 5 U.S.C. 5505, THE THIRTY-FIRST DAY OF ANY MONTH IS CONSIDERED A DAY OF SERVICE IN DETERMINING RATE OF PAY, EVEN THOUGH THE DAY IS IGNORED IN COMPUTING PAY, AND THE OFFICER RETIRED ON DECEMBER 1, 1966, PURSUANT TO 10 U.S.C. 8911, HAVING ELECTED TO PROVIDE AN ANNUITY FOR HIS DEPENDENTS UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN IS LIABLE FOR THE COST OF THE ANNUITY FOR THE MONTH OF DECEMBER 1966, AND THE REDUCTION IN HIS RETIRED PAY FOR THAT MONTH WAS PROPER.

TO LIEUTENANT COLONEL J. R. KELLIHER, DEPARTMENT OF THE AIR FORCE, MAY 4, 1967:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATE MARCH 9, 1967, REQUESTING AN ADVANCE DECISION AS TO WHETHER PAYMENT MAY BE MADE ON A VOUCHER IN THE AMOUNT OF $43.88 IN FAVOR OF MAJOR JOSEF W. NOLL, FV 66 4044, USAF, RETIRED, REPRESENTING REFUND OF THE AMOUNT WITHHELD FROM HIS RETIRED PAY FOR THE PERIOD DECEMBER 1 THROUGH 31, 1966, TO COVER THE COST OF AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. YOUR REQUEST WAS FORWARDED HERE BY LETTER OF HEADQUARTERS UNITED STATES AIR FORCE DATED APRIL 3, 1967, UNDER AIR FORCE REQUEST NO. DO-AF-947, APPROVED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

MAJOR NOLL ENLISTED IN THE REGULAR ARMY AUGUST 1, 1941, AND SERVED CONTINUOUSLY IN THE MILITARY SERVICE (ON ACTIVE DUTY OR AS A RESERVE NOT ON ACTIVE DUTY) UNTIL HIS RETIREMENT EFFECTIVE DECEMBER 1, 1966, PURSUANT TO 10 U.S.C. 8911. ON JULY 31, 1959, HE EXECUTED AN ELECTION OF OPTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 10 U.S.C. 1431, NOW THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, ELECTING UNDER OPTIONS 3 AND 4 TO RECEIVE A REDUCED AMOUNT OF RETIRED PAY TO PROVIDE AN ANNUITY FOR HIS WIFE AND CHILDREN. NO OTHER ELECTION WAS MADE BY HIM AND, OF COURSE, THE ACT OF OCTOBER 4, 1961, PUBLIC LAW 87-381, 75 STAT. 810, 10 U.S.C. CH. 73, WHICH HAS NO RETROACTIVE EFFECT, HAS NO BEARING ON HIS CASE. 43 COMP. GEN. 617.

AT THE TIME MAJOR NOLL MADE HIS ELECTION THE LAW (10 U.S.C. 1431 (B)(1958 ED.) ( PROVIDED THAT THE ELECTION MUST BE MADE BEFORE THE PERSON CONCERNED "COMPLETES 18 YEARS OF SERVICE FOR WHICH HE IS ENTITLED TO CREDIT IN THE COMPUTATION OF HIS BASIC PAY.' YOU SAY THAT HE COMPLETED 18 YEARS OF SERVICE FOR BASIC PAY PURPOSES ON JULY 30, 1959. YOU HAVE REQUESTED AN ADVANCE DECISION IN VIEW OF THE DOUBT AS TO WHETHER MAJOR NOLL'S ELECTION MADE ON THE THIRTY-FIRST DAY OF THE LAST MONTH IN HIS EIGHTEENTH YEAR OF SERVICE WAS A VALID ELECTION.

SECTION 6 OF THE ACT OF JUNE 30, 1906, CH. 3914, 34 STAT. 763 (AS REPEALED AND RESTATED IN 5 U.S.C. 5505 BY THE ACT OF SEPTEMBER 6, 1966, PUBLIC LAW 89-554, 80 STAT. 476, PROVIDES IN PERTINENT PART THAT:

THE PAY PERIOD FOR AN INDIVIDUAL IN THE SERVICE OF THE UNITED STATES WHOSE PAY IS MONTHLY OR ANNUAL COVERS ONE CALENDAR MONTH, AND THE FOLLOWING RULES FOR DIVISION OF TIME AND COMPUTATION OF PAY FOR SERVICES PERFORMED GOVERN:

(1) A MONTH'S PAY IS ONE-TWELFTH OF A YEAR'S PAY.

(2) A DAY'S PAY IS ONE-THIRTIETH OF A MONTH'S PAY.

(3) THE 31ST DAY OF A CALENDAR MONTH IS IGNORED IN COMPUTING PAY, EXCEPT THAT ONE DAY'S PAY IS FORFEITED FOR ONE DAY'S UNAUTHORIZED ABSENCE ON THE 31ST DAY OF A CALENDAR MONTH.

WHILE THE THIRTY-FIRST DAY OF A CALENDAR MONTH IS IGNORED IN COMPUTING PAY, THE THIRTY-FIRST DAY OF ANY MONTH IS A DAY OF SERVICE AND MUST BE CONSIDERED WHEN INVOLVED IN DETERMINING THE RATE OF A PERSON'S PAY WHERE ADVANCEMENT TO THE NEXT HIGHER PAY RATE IS BASED ON LONGEVITY. THE NEXT YEAR OF SERVICE FOR THE PURPOSE OF ESTABLISHING HIS RATE OF BASIS PAY DOES NOT COMMENCE UNTIL THE BEGINNING OF THE ANNIVERSARY OF HIS ENTRANCE INTO THE SERVICE.

MAJOR NOLL'S MILITARY SERVICE BEGAN WITH HIS ORIGINAL ENLISTMENT ON APRIL 1, 1941. HE DID NOT COMPLETE 18 YEARS OF SERVICE CREDITABLE FOR PAY UNTIL MIDNIGHT ON JULY 31, 1959, AND HIS NINETEENTH YEAR OF SERVICE COMMENCED AT THE BEGINNING OF AUGUST 1, 1959. SEE LAMBERT V. UNITED STATES, 121 CL. 333 (1952). THUS HIS ELECTION EXECUTED ON JULY 31, 1959, THE LAST CALENDAR DAY OF HIS EIGHTEENTH YEAR OF SERVICE, AND BEFORE THE COMMENCEMENT OF HIS NINETEENTH YEAR OF SERVICE WAS A VALID ELECTION UNDER THE LAW IN EFFECT ON THAT DATE. ACCORDINGLY, REDUCTION IN HIS RETIRED PAY FOR THE MONTH OF DECEMBER 1966 TO PROVIDE AN ANNUITY FOR HIS DEPENDENTS UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN WAS PROPER.

THERE BEING NO AUTHORITY FOR REFUND OF THE AMOUNT OF THE REDUCTION, THE VOUCHER TRANSMITTED WITH YOUR LETTER WILL BE RETAINED HERE.