B-165543, JUN. 10, 1969

B-165543, JUN. 10, 1969

TO VICE ADMIRAL KENNETH K. COWART, USCG (RETIRED):

REFERENCE IS MADE TO YOUR LETTER OF MAY 22, 1969, CONCERNING YOUR ELECTION TO WITHDRAW FROM PARTICIPATION IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN.

YOU STATE THAT ON AUGUST 26, 1968, YOU SUBMITTED TO THE COMMANDANT, UNITED STATES COAST GUARD, A REQUEST TO WITHDRAW FROM THE PLAN. SUBSEQUENTLY YOU WERE NOTIFIED BY THE COMMANDANT THAT YOUR REQUEST HAD BEEN RECEIVED AND THAT WITHDRAWAL WOULD BECOME EFFECTIVE MARCH 1, 1969, WHICH WAS THE FIRST DAY OF THE SEVENTH MONTH BEGINNING AFTER THE DATE ON WHICH YOUR APPLICATION WAS MADE. FOLLOWING SUCH NOTIFICATION BY THE COMMANDANT YOU REQUESTED, ON DECEMBER 31, 1968, THAT YOUR APPLICATION TO WITHDRAW BE CANCELLED. YOU STATE THAT YOUR REQUEST TO CANCEL YOUR APPLICATION FOR WITHDRAWAL FROM THE PLAN HAS BEEN DENIED.

SECTION 1 (6) OF THE ACT OF AUGUST 13, 1968, PUBLIC LAW 90-485, 82 STAT. 753, 10 U.S.C. 1436 (B), PROVIDES THAT UNDER REGULATIONS PRESCRIBED UNDER 10 U.S.C. 1444 (A), THE SECRETARY OF THE DEPARTMENT CONCERNED, UPON APPLICATION BY THE RETIRED MEMBER, MAY ALLOW SUCH MEMBER TO WITHDRAW FROM PARTICIPATION IN THE ANNUITY PROGRAM UNDER THE FAMILY PROTECTION PLAN. THE LAW SPECIFICALLY PROVIDES THAT A RETIRED MEMBER MAY NOT WITHDRAW "EARLIER THAN THE FIRST DAY OF THE SEVENTH MONTH BEGINNING AFTER HE APPLIES FOR REDUCTION OR WITHDRAWAL," AND THAT NO DEDUCTIONS FROM THE MEMBER'S RETIRED PAY TO PURCHASE THE SAID ANNUITY MADE PRIOR TO THE EFFECTIVE DATE OF WITHDRAWAL MAY BE REFUNDED TO, OR CREDITED ON BEHALF OF, THE MEMBER BY VIRTUE OF AN APPLICATION MADE BY HIM TO WITHDRAW FROM THE FAMILY PROTECTION PLAN.

IN DECISION OF NOVEMBER 21, 1968, B-165543, 48 COMP. GEN. ----, TO THE SECRETARY OF DEFENSE, WE HELD THAT, ONCE MADE, AN APPLICATION FOR WITHDRAWAL FROM THE FAMILY PROTECTION PLAN IS IRREVOCABLE. THAT CONCLUSION WAS BASED UPON OUR VIEWS AS TO THE INTENT OF THE CONGRESS AS DETERMINED FROM THE LEGISLATIVE HISTORY OF THE STATUTE. NOTHING CONTAINED IN YOUR LETTER OR IN THE STATEMENT OF COUNSEL MADE IN CONNECTION WITH YOUR APPLICATION FOR CORRECTION OF YOUR COAST GUARD RECORDS PROVIDES ANY INFORMATION OR CONSIDERATION WHICH ESTABLISHES THAT OUR DECISION IS CONTRARY TO THE PROVISIONS OF THE STATUTE OR THE INTENT OF THE CONGRESS IN ENACTING THE LAW. ON THE CONTRARY, IT REASONABLY APPEARS THAT CONSIDERATIONS INVOLVING MAINTAINING THE ACTUARIAL SOUNDNESS OF THE PROGRAM, WHICH IS REQUIRED BY LAW, REQUIRE STRICT LIMITATIONS ON WITHDRAWAL FROM THE PLAN.

OUR POSITION WITH RESPECT TO THE IRREVOCABILITY OF AN ELECTION TO WITHDRAW FROM THE PLAN WAS SUPPORTED BY PROPOSED REGULATIONS MAKING SUCH AN ELECTION IRREVOCABLE, AND PARAGRAPH 406 OF THE REGULATIONS AS ADOPTED NOW PROVIDES THAT SUCH ELECTION IS IRREVOCABLE.

THE STATEMENTS AND ARGUMENTS CONTAINED IN YOUR LETTER AND IN YOUR COUNSEL'S STATEMENT HAVE BEEN GIVEN CAREFUL CONSIDERATION. WE MUST ADVISE YOU, HOWEVER, THAT IN OUR OPINION NOTHING CONTAINED THEREIN PROVIDES A BASIS FOR ARRIVING AT A CONCLUSION DIFFERENT FROM THE HOLDING IN OUR DECISION OF NOVEMBER 21, 1968, THAT AN ELECTION TO WITHDRAW FROM THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN UNDER THE PROVISIONS OF PUBLIC LAW 90-485 IS IRREVOCABLE.