B-160215, NOVEMBER 14, 1966, 46 COMP. GEN. 404

B-160215, NOVEMBER 14, 1966, 46 COMP. GEN. 404

RETIREMENT - CIVILIAN - SERVICE CREDITS - MILITARY SERVICE - WAIVER OF RETIRED PAY A RETIRED MEMBER OF THE UNIFORMED SERVICES RECEIVING MILITARY RETIRED PAY TO THE EXTENT AUTHORIZED BY THE DUAL COMPENSATION ACT, 5 U.S.C. 3102, WHILE EMPLOYED AS A CIVILIAN WHO UPON ELIGIBILITY FOR CIVILIAN RETIREMENT MAY WAIVE THE MILITARY RETIRED PAY AND HAVE HIS MILITARY SERVCE ADDED TO HIS CIVILIAN SERVICE FOR CIVIL SERVICE RETIREMENT ANNUITY PURPOSES AND THE MILITARY SERVICE AT HIS DEATH CREDITED IN COMPUTING THE ANNUITY PAYABLE TO HIS WIDOW, MAY NOT UNDER EXISTING LAW IN ADVANCE OF CIVILIAN RETIREMENT EXECUTE A WAIVER OF MILITARY RETIRED PAY TO BE EFFECTIVE THE DAY BEFORE HIS DEATH OR THE DATE OF CIVILIAN RETIREMENT, WHICHEVER COMES FIRST, AS THOUGH HE HAD NOT RECEIVED MILITARY RETIRED PAY, IN ORDER THAT HIS WIDOW RECEIVE THE MAXIMUM CIVILIAN SURVIVORSHIP ANNUITY.

TO THE SECRETARY OF DEFENSE, NOVEMBER 14, 1966:

REFERENCE IS MADE TO LETTER OF OCTOBER 7, 1966, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION WHETHER IT IS PROPER FOR A MILITARY DEPARTMENT TO CERTIFY TO THE CIVIL SERVICE COMMISSION THAT A RETIRED MILITARY MEMBER, EMPLOYED AS A CIVILIAN GOVERNMENT EMPLOYEE, IS NOT IN RECEIPT OF MILITARY RETIRED PAY ON THE DATE OF HIS DEATH OR THE DATE OF HIS CIVILIAN RETIREMENT IF SUCH MEMBER, WHILE IN RECEIPT OF RETIRED PAY, EXECUTES AN ADVANCE WAIVER OF HIS MILITARY RETIRED PAY TO BE EFFECTIVE THE DAY BEFORE THE DATE OF HIS DEATH OR THE DAY BEFORE THE DATE OF HIS CIVILIAN RETIREMENT, WHICHEVER OCCURS FIRST. DISCUSSION RELATING TO THE MATTER IS CONTAINED IN COMMITTEE ACTION NO. 384 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SECTION 8336 OF TITLE 5, U.S. CODE, PROVIDES THAT A CIVILIAN EMPLOYEE OF THE GOVERNMENT WITH THE REQUISITE AGE AND CREDITABLE SERVICE IS IMMEDIATELY ENTITLED TO AN ANNUITY UNDER THE CIVIL SERVICE RETIREMENT PROGRAM UPON SEPARATION FROM THE SERVICE. SECTION 8341 PROVIDES FOR A SURVIVOR'S ANNUITY TO THE WIDOW OF A CIVILIAN EMPLOYEE WITH THE REQUISITE SERVICE WHO DIES WHILE EMPLOYED, AND TO THE WIDOW OF A RETIRED EMPLOYEE WHO HAS NOT DECLINED SUCH ANNUITY. THE ANNUITY OF SUCH A RETIRED EMPLOYEE IS REDUCED AS PROVIDED IN SECTION 8339 (I) IN ORDER TO PROVIDE AN ANNUITY TO HIS WIDOW. SECTION 8341 PROVIDES THAT THE ANNUITY OF THE WIDOW COMMENCES ON THE DAY AFTER THE EMPLOYEE DIES. SECTION 8345 (B) PROVIDES THAT THE ANNUITY OF AN EMPLOYEE COMMENCES ON THE DAY AFTER HE IS SEPARATED FROM THE SERVICE. SECTION 8347 (A) PROVIDES THAT THE CIVIL SERVICE COMMISSION SHALL ADMINISTER THE CIVIL SERVICE RETIREMENT PROGRAM AND PRESCRIBE SUCH REGULATIONS AS ARE NECESSARY AND PROPER TO CARRY OUT THE PROVISIONS OF LAW AUTHORIZING THAT PROGRAM.

SECTION 8332 (C) OF TITLE 5, U.S. CODE, PROVIDES, INSOFAR AS IS HERE MATERIAL, THAT AN EMPLOYEE SHALL BE ALLOWED CREDIT FOR PERIODS OF MILITARY SERVICE, BUT THAT "HIS MILITARY SERVICE MAY NOT BE CREDITED" IF HE IS AWARDED RETIRED PAY ON ACCOUNT OF MILITARY SERVICE. SECTION 8332 (J) ALSO PROVIDES FOR THE EXCLUSION OF MILITARY SERVICE PERFORMED AFTER 1956 IF THE MEMBER OF HIS WIDOW IS OR WOULD BE ELIGIBLE FOR OLD AGE AND SURVIVOR INSURANCE BENEFITS UNDER THE SOCIAL SECURITY ACT (42 U.S.C. 402) BASED UPON HIS WAGES AND SELF-EMPLOYMENT INCOME.

SECTION 831.301 (B) OF THE FEDERAL PERSONNEL MANUAL SUPPLEMENT 831 1, APPENDIX G, PROVIDES HAT:

AN APPLICANT FOR ANNUITY WHO IS IN RECEIPT OF RETIRED PAY WHICH BARS CREDIT FOR HIS MILITARY SERVICE MAY ELECT TO SURRENDER THE RETIRED PAY AND TO HAVE HIS MILITARY SERVICE ADDED TO HIS PERIOD OF CIVILIAN SERVICE FOR THE PURPOSE OF OBTAINING A GREATER BENEFIT IN THE FORM OF ANNUITY. WHEN IT APPEARS ON THE ADJUDICATION OF A CLAIM FOR ANNUITY THAT THE EMPLOYEE WILL BENEFIT FROM RELINQUISHMENT OF RETIRED PAY AND INCLUSION OF HIS MILITARY SERVICE, THE BUREAU OF RETIREMENT AND INSURANCE SHALL SO ADVISE HIM AND PERMIT HIM TO EXERCISE THE RIGHT OF ELECTION.

THE COMMITTEE ACTION POINTS OUT THAT A RETIRED MILITARY MEMBER MAY RECEIVE THE MILITARY RETIRED PAY HE IS ENTITLED TO UNDER THE DUAL COMPENSATION ACT (5 U.S.C. 3102) WHILE EMPLOYED AS A CIVILIAN EMPLOYEE AND THAT WHEN HE BECOMES ELIGIBLE FOR CIVILIAN RETIREMENT HE MAY "WAIVE" HIS MILITARY RETIRED PAY AND HAVE HIS MILITARY SERVICE ADDED TO HIS CIVILIAN SERVICE FOR CIVIL SERVICE RETIREMENT ANNUITY PURPOSES. WHEN THE CIVIL SERVICE ANNUITANT WHO HAS WAIVED HIS MILITARY RETIRED PAY DIES, HIS MILITARY SERVICE ALSO IS CREDITED IN COMPUTING THE ANNUITY PAYABLE TO HIS WIDOW, SINCE THE COMPUTATION OF THE WIDOW'S ANNUITY IS BASED UPON THE ANNUITY OF THE RETIRED EMPLOYEE.

THE COMMITTEE ACTION FURTHER POINTS OUT THAT, IF THE RETIRED MILITARY MEMBER EMPLOYED AS A CIVIL SERVANT DIES BEFORE HIS CIVILIAN RETIREMENT AND BEFORE WAIVING HIS RETIRED PAY, THE COMPUTATION OF THE CIVIL SERVICE ANNUITY PAYABLE TO HIS SURVIVOR WILL NOT INCLUDE HIS YEARS OF MILITARY SERVICE, AND THAT THERE IS NO PROVISION OF LAW WHICH AUTHORIZES WAIVER IN ADVANCE CONTINGENT UPON THE HAPPENING OF SOME FUTURE EVENT.

THE EFFECT OF WHAT IS HERE PROPOSED WOULD BE TO PERMIT A RETIRED MEMBER OF THE MILITARY SERVICE RECEIVING RETIRED PAY, AND WHO IS ALSO A CIVILIAN EMPLOYEE, TO CONTINUE TO RECEIVE HIS MILITARY RETIRED PAY (TO THE EXTENT AUTHORIZED BY THE DUAL COMPENSATION ACT) DURING HIS LIFETIME AND AT HIS DEATH BEFORE BECOMING ENTITLED TO AN ANNUITY AS A CIVILIAN TO PERMIT HIS WIDOW TO RECEIVE AN ANNUITY UNDER THE CIVIL SERVICE RETIREMENT PROGRAM BASED UPON HIS SERVICE BOTH IN THE MILITARY SERVICE AND AS A CIVILIAN EMPLOYEE (AS IF HE HAD NOT RECEIVED SUCH MILITARY RETIRED PAY). IN OTHER WORDS, THE MILTARY RETIREE WOULD RECEIVE THE FULL AUTHORIZED BENEFIT OF HIS MILITARY RETIRED PAY DURING HIS LIFETIME AND HIS WIDOW WOULD RECEIVE THE MAXIMUM CIVILIAN EMPLOYEE SURVIVOR'S ANNUITY (AS IF HE HAD NOT RECEIVED MILITARY RETIRED PAY).

THERE WOULD, OF COURSE, BE NO PURPOSE IN PERMITTING AN ADVANCE WAIVER OF MILITARY RETIRED PAY IN INSTANCES WHERE THE EMPLOYEE OR HIS WIDOW MIGHT NOT THEREAFTER BECOME ENTITLED TO A CIVIL SERVICE ANNUITY. THIS WOULD HAPPEN IF HE DIED AFTER FILING SUCH WAIVER BUT BEFORE COMPLETING THE 5 YEARS OF QUALIFYING SERVICE PRESCRIBED IN SECTION 8333. THE SAME RESULT WOULD FOLLOW IN A CASE INVOLVING A DEFERRED RETIREMENT UNDER SECTION 8338, IF THE PERSON CONCERNED DIED BEFORE REACHING THE AGE OF 62. IN SUCH CIRCUMSTANCES AND SINCE THE STATUTE DOES NOT APPEAR TO CONTEMPLATE A COMPUTATION OF THE AMOUNT OF THE APPLICABLE ANNUITY UNTIL THE EMPLOYEE DIES OR BECOMES ENTITLED TO AN ANNUITY IN HIS OWN RIGHT, THE ABSENCE OF STATUTORY LANGUAGE PERMITTING AN ADVANCE WAIVER OF MILITARY RETIRED PAY WOULD SEEM TO PRECLUDE SUCH ACTION.

WHETHER THE WIDOW OF A CIVILIAN EMPLOYEE MAY BE ENTITLED TO RECEIVE AN ANNUITY, AS SUCH WIDOW, WHICH IS COMPUTED BY INCLUDING ACTIVE MILITARY SERVICE AS CREDITABLE SERVICE IS, OF COURSE, FOR DETERMINATION BY THE CIVIL SERVICE COMMISSION. IT IS OUR OPINION, HOWEVER, THAT EXISTING LAW DOES NOT CONTEMPLATE THAT ANY CIVILIAN EMPLOYEE PRIOR TO RETIREMENT MAY TAKE ANY ACTION BY WAIVER, ELECTION, OR OTHERWISE WITH RESPECT TO ACTIVE MILITARY SERVICE TO BE EFFECTIVE PRESENTLY OR IN THE FUTURE FOR THE PURPOSE OF COMPUTING HIS CIVIL SERVICE ANNUITY. HAD THE CONGRESS INTENDED THE RESULT SUGGESTED IN THE COMMITTEE ACTION WE BELIEVE IT WOULD HAVE MADE SOME PROVISION TO ACCOMPLISH THAT RESULT.

EXISTING LAW PROVIDES AN OPPORTUNITY FOR A CIVILIAN EMPLOYEE TO ELECT TO RECEIVE CREDIT FOR ACTIVE MILITARY SERVICE IN THE COMPUTATION OF HIS ANNUITY UNDER THE CIVIL SERVICE RETIREMENT PROGRAM AT THE TIME OF CIVILIAN RETIREMENT BY THEN SURRENDERING HIS MILITARY RETIRED PAY, AT WHICH TIME HE MAY ELECT TO PROVIDE AN ANNUITY FOR HIS WIDOW WITH CREDIT FOR ACTIVE MILITARY SERVICE IN HER SURVIVOR'S ANNUITY. SINCE WE KNOW OF NO PROVISION OF LAW UNDER WHICH SUCH ELECTION CAN BE EXECUTED IN ADVANCE ON THE BASIS SUGGESTED IN THE SUBMISSION, WE THINK THAT THE RESOLUTION OF THE PROBLEMS HERE INVOLVED, INCLUDING THE "APPARENT INEQUITY" MENTIONED IN THE COMMITTEE ACTION DISCUSSION, SHOULD BE LEFT TO THE CONGRESS. CONSEQUENTLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.