PAY-Continued
Court-martial sentences-Continued. Forfeiture limitations
Maximum amount of monthly basic pay of enlisted members of uniformed services which may be forfeited by general or special courts-martial, when member is not sentenced to dishonor- able or bad conduct discharge, is two- thirds of member's basic pay, plus sea or foreign duty pay, unless member has in effect a class Q allotment, in which event that pay will be reduced by amount of member's contribution to class Q allotment and amount forfeited may not exceed two-thirds of reduced amount. Modified by 39 Comp. Gen. 637 Provision in 10 U.S.C. 4837(b) reserving
to enlisted members one-third of monthly pay which is immune from stoppage for administratively deter- mined debts does not limit amount of court-martial forfeiture that may be adjudged or collected, but only pre- vents deductions from pay for debts administratively determined to be due U.S., in addition to court-martial for- feitures and amounts otherwise author- ized by law to be withheld, which would reduce member's pay actually received for any month to less than one-third. Modified by 39 Comp. Gen. 637.
The ruling of U.S. Court of Military Appeals in U.S. v. Jobe, 27 C.M.R. 350, 10 U.S.C.M.A. 276, on Mar. 13, 1959, that imposition of total forfeitures by general court-martial without punitive discharge is not expressly for- bidden by Uniform Code of Military Justice has effect of declaring sentence of total forfeiture of pay and allowances without punitive discharge a legal sentence so that right of service mem- ber to have reserved one-third of pay and allowances for period covered by sentence of general court-martial to total forfeitures but not including puni- tive discharge is too doubtful to war- rant payment, and, therefore, disburs- ing officers may not effect payment in such cases. 39 Comp. Gen. 46, modified.....
Lump sum on advance voluntary retirement Other retirement
Although Navy officer who is hospital- ized or is being physically evaluated for possible disability retirement at time it is determined he is eligible for retire- ment under act of Aug. 11, 1959, P.L. 86-155, but who is subsequently retired for disability is not entitled to $2,000 payment for voluntary retirements un- der 1959 act, the determining factor
Lump sum on advance voluntary retire- ment-Continued.
Other retirement-Continued.
being type of retirement effected, if officer is removed from temporary disability retired list and retired under 1959 act, he is entitled to lump-sum payment....
Disability retirement of Navy officer under 10 U.S.C. 1201 may not be regarded as voluntary retirement under sec. 2(e) of act of Aug. 11, 1959, P.L. 86-155; hence, officer who has been considered but not selected for con- tinuation on active list and who is eligible for $2,000 payment provided in act of Aug. 11, 1959, but who is sub- sequently retired for disability is not entitled to $2,000 payment as officer voluntarily retired................
Navy officer who has submitted applica- tion for voluntary retirement under act of Aug. 11, 1959, P.L. 86-155, but who is retired for disability may not be regarded as retired under 1959 act to be entitled to $2,000 lump-sum payment for voluntary retirements... Selection board recommendation-Navy officer whose application for voluntary retirement was approved prior to enact- ment of P.L. 86-155, Aug. 11, 1959, or after enactment thereof but prior to action by selection board, is not entitled to $2,000 lump-sum payment, since requirement in sec. 2(d) of 1959 act that member be recommended for noncon- tinuation on active duty by selection board is condition precedent to entitle- ment to lump-sum payment.---- Temporary disability retirement-place- ment of officer on temporary disability retired list under 10 U.S.C. 1202 is not final and permanent removal from active list but merely initial step in series which may lead to return to duty, retirement or separation for physical disability so that officer who is otherwise eligible for $2,000 payment provided in act of Aug. 11, 1959, for officers voluntarily retired, but who is placed on temporary disa- bility retired list is not entitled to $2,000 payment... Time-Navy officer who, prior to action of selection board on the continuation of the member on active duty, applies for voluntary retirement under act of Aug. 11, 1959, and is voluntarily retired is entitled to $2,000 lump-sum payment, provided officer's name was considered by board and not selected for continua- tion prior to approval of retirement ap- plication, the time of submission of ap- plication not being material to entitle- ment to payment...........
Readjustment payment to reservists on
involuntary release
Five years of service
Training duty
Although active duty for training performed on or after Aug. 10, 1956, by member of reserve component of Armed Forces may be considered as active duty to determine eligi- bility for, or the amount of, lump- sum readjustment pay under act of July 9, 1956, such duty performed prior to Aug. 10, 1956, may not be considered as active duty for those purposes because change in definition of active duty to include training duty contained in act of Aug. 10, 1956, does not apply retroactively... Inclusion in definition of "active duty" in 10 U.S.C. 101(22), which was enacted into positive law by act of Aug. 10, 1956, of "full time training duty" requires application of such definition to service per- formed by members of reserve com- ponents of Armed Forces after such date rather than more restrictive definition in sec. 101(b), Armed Forces Reserve Act of 1952; there- fore, member of reserve component may have periods of active duty for training performed on or after Aug. 10, 1956, credited as part of continu- ous active duty necessary for eligi- bility for lump-sum readjustment payment prescribed in sec. 265, Armed Forces Reserve Act of 1952, as added by act of July 9, 1956, and, since active service means service on active duty (10 U.S.C. 101(24)), he may have such service included for use as a multiplier in computa- tion of amount of readjustment pay. 36 Comp. Gen. 129, modified................
Advancement on retired list Enlisted members advanced to officer grade
Members of uniformed services who have had service prior to Nov. 12, 1918, and who at time of retirement for physical disability are serving in enlisted grades but are determined to be eligible for retired pay com- puted on basis of commissioned officer grade or rank, under secs. 402(d) and 409, Career Compensa- tion Act of 1949, are regarded as being retired as officers and entitled to have retired pay computed on basis of 75% of pay of officer grade as required by fourth par., sec. 15, Pay Readjustment Act of 1942, in accordance with the holding in Jakway v. U.S., C. Cls. No. 51-58,
Avancement on retired list-Continued. Enlisted members advanced to officer grade-Continued.
decided July 13, 1959, which will be followed in settlement of similar cases. 36 Comp. Gen. 8, overruled.. 855 Member of uniformed services who had service prior to Nov. 12, 1918, and who was serving on active duty in enlisted grade at time of disability retirement when member was de- termined to be eligible for retired pay as officer in grade of major, although at the time he held Reserve commission as lieutenant colonel, is regarded as being retired as officer and entitled by virtue of sec. 402(i), Career Compensation Act of 1949, to have retired pay computed on basis of 75% of pay of grade of lieu- tenant colonel as provided under 4th par., sec 15, Pay Readjustment Act of 1942..
Annuity elections for dependents Correction of erroneous elections Time for election-defects-retired member of uniformed services who sent telegram to finance center on Apr. 30, 1954-the deadline for submission of annuity option elec- tions by retired members under Uniformed Services Contingency Option Act of 1953, now 10 U.S.C. 1431-1444-advising that he had lost election papers and that he wanted to take advantage of option for youngest child may be regarded as having made valid election even though rate of reduced retired pay applicable to election was not stated in telegram, and subsequent con- firmation and execution of election may be regarded as confirmatory in nature and merely correcting formal defect in otherwise valid and bind- ing election...-- Validity
Survivor's annuity election form which was signed, witnessed and submitted within one-year time limitation for application by active members, stipulated in sec. 3(a), Uniformed Services Contingency Option Act of 1953, 10 U.S.C. 1432, but which, when returned for cor- rection and/or completion of designated options, was inadvert- ently mislaid and not located until over year and a half later constitutes valid, effective, elec- tion and corrections which were consistent with original election do not constitute modification of
PAY-Continued.
Retired-Continued.
Annuity elections for dependents-Con. Correction of erroneous elections-Con. Validity-Continued.
original election or new and different election.-----. Retired member of uniformed serv- ices who failed to sign annuity option election form which was mailed to finance center prior to Apr. 30, 1954-the deadline for submission of elections by retired members not on active duty on Nov. 1, 1953, effective date of Uniformed Services Contingency Option Act of 1953, now 10 U.S.C. 1431-1444-is regarded as having made actual timely election, and subsequent actions in executing and signing election of option forms after deadline date, which were consistent with prior action, were confirmatory in nature and may be considered as merely cor- recting formal defect in otherwise valid and binding election........ Retired member of uniformed
services who sent telegram to finance center on Apr. 30, 1954- the deadline for submission of annuity option elections by retired members under Uniformed Serv- ices Contingency Option Act of 1953, now 10 U.S.C. 1431-1444- advising that he had lost election papers and that he wanted to take advantage of option for youngest child may be regarded as having made valid election even though rate of reduced retired pay appli- cable to election was not stated in telegram, and subsequent con- firmation and execution of election may be regarded as confirmatory in nature and merely correcting formal defect in otherwise. valid and binding election.-----. Member of uniformed services who executed timely election to provide an annuity or annuities for wife and children, but who failed to indicate wife's date of birth, may be permitted to furnish informa- tion and to clarify election to show particular options for wife and children; however, he may not be permitted to modify original election to eliminate his wife as potential beneficiary... Survivor annuity option elections made by members of uniformed services, which are not absolutely in contravention of statute but which contain patent ambiguity as to type of annuity or annuities
Page PAY-Continued. Retired-Continued.
Annuity elections for dependents-Con. Correction of erroneous elections-Con. Validity-Continued.
desired for surviving wife and children, designated as potential beneficiaries may be regarded as valid elections and member sub- sequently may clarify election to express without ambiguity his original intention......
Although regulations issued pursuant to Uniformed Services Contingency Option Act of 1953, 10 U:S.C. 1431-1444 provide that any signed copy of election form constitutes primary evidence of election of options, they do not bar use of secondary evidence when primary evidence cannot be located by administrative office due to inad- vertent loss or destruction; however, any determination of validity of option on basis of secondary evi- dence depends upon particular facts of individual case, the nature of secondary evidence, and degree of certainty of evidence to establish facts......
In absence of signed copy of survivor- ship annuity option election form which cannot be located, secondary evidence including punch card data which indicates amount of option and time of execution, together with information from member which implies that he had previously exe- cuted a valid election, although the member now desires to withdraw from program, afford certainty of fact that timely and valid election was made so that right of enlisted mem- ber's wife to receive survivorship benefits on basis that member had not made timely and valid election could not be denied solely for reason that primary evidence cannot be located.... Incompetents-time for election—a sur- vivorship annuity election on behalf of mentally incompetent member of uniformed services, which was made by Sec. of Army five months after member was placed on temporary dis- ability retired list and subsequent to member's death due to delay in acting on wife's request for annuity in order to obtain verification of ages of the beneficiaries who were born in a foreign country, may be regarded as timely election in absence of any specific provision concerning time within which an election by department head on behalf of an incompetent member
PAY-Continued.
Retired-Continued.
Annuity elections for dependents-Con. must be made and in view of necessity to consider time for correspondence involved in particular case... Readjustment of retired pay
Deduction changes
Court of Claims judgment for in- creased retired pay, which did not take into consideration the change in the costs of member's annuity option elections, does not operate to estop adjustment of the con- tingency option costs for both the period covered by the judgment and any period thereafter based on increased retired pay rate fixed by Court GAO settlement which increased retired pay of member of uni- formed services but did not estab- lish the separate matter of the resulting change in retired pay de- ductions for costs of annuity for member's dependents, because in- formation concerning member's survivorship annuity election was not furnished, does not preclude administrative adjustment of member's account retroactively to beginning of period in which mem- ber's retired pay was increased___ In the case of member whose claim for increased retired pay was al- lowed pursuant to judgment of Court of Claims, the matter of proper costs of member's Uni- formed Services Contingency Op- tion Act election, which was not involved in suit before Court of Claims, is affected by the judg- ment only to extent that such judgment fixed rates of member's retired pay; and, therefore, the annuity costs should be adjusted administratively from effective date of member's annuity option election based upon increased retired pay rate fixed by Court... Under settlements by GAO which increase retroactively the retired pay of members of uniformed services and also include adjust- ment of deductions for costs of annuities for members' depend- ents, which adjustments are sub- sequently determined to be incor- rect, the GAO will, in case of an overpayment, undertake to obtain a refund from member and in the case of underpayment will issue supplemental settlement, and ad- ministrative action to correct annuity deductions in such cases
Page PAY-Continued. Retired-Continued.
Annuity elections for dependents-Con. Readjustment of retired pay-Con. Deduction changes-Continued. may only be made from the day following period of GAO settle- ment.
Time for election, etc.
After retirement-purpose of sec. 3, act of Aug. 11, 1959, P.L. 86-155, con- cerning effect of survivorship an- nuity option election changes or revocations by officers of Regular Navy or Marine Corps who are voluntarily retired under 1959 act, was not to permit elections after retirement but was merely to change five-year limitation period in 10 U.S.C. 1431 (c); therefore, Navy officers who are retired pursuant to act of Aug. 11, 1959, may not after retirement change change survivorship annuity option elections.... Other than voluntary retirement— Navy officer who is retired for physi- cal disability, although he might otherwise be eligible for voluntary retirement under act of Aug. 11, 1959, P.L. 86-155, may not be regarded as having been voluntarily retired under 1959 act to come within pur- view of sec. 3 of 1959 act to change or revoke survivorship annuity option election without regard to the time limitations in 10 U.S.C. 1431-------- Record correction-right of member of uniformed services to elect survivor-. ship annuity under Uniformed Serv- ices Contingency Option Act of 1953, which arises as result of correction of military record, comes into existence when correction is made and such right may not be exercised in ad- vance; therefore, annuity election made by retired Naval Reserve offi- cer when not eligible to make elec- tion does not have force and effect when, after officer's death, military records are corrected to retroactively place him on disability retired list at time of release from active duty.. Service recomputations-survivorship annuity option election which was made by enlisted member of Army, who had completed 18 years' service for pay purposes prior to time rede- termination was made under Miss- ing Persons Act, 5 U.S.C. App. 1001, that creditable service exceeded 20 years based on period when as Phil- ippine Scout he had been paroled by enemy, is invalid election made after member was no longer eligible to make election under 10 U.S.C.
PAY-Continued.
Retired Continued.
Annuity elections for dependents-Con. Time for election, etc.-Continued.
Page PAY-Continued. Retired Continued. Disability
1431, which requries elections to be made prior to completion of 18 years' serv- ice, the service redetermination hav- ing no effect on member's service since during parole time he was en- titled to credit as enlisted member; therefore, amount of retired pay, which was deducted on basis of in- valid election, should be refunded.. 198 Validity
Survivor's annuity election form
which was signed, witnessed and submitted within one-year time limitation for application by active members, stipulated in sec. 3(a), Uniformed Services Contingency Option Act of 1953, 10 U.S.C. 1432, but which, when returned for correc- tion and/or completion of designated options, was inadvertently mislaid and not located until over year and a half later constitutes valid, effec- tive, election and corrections which were consistent with original election do not constitute modification of original election or new and different election.
In absence of any authority in Uni- formed Services Contingency Option Act of 1953, now 10 U.S.C. 1431-1444, for execution of survivorship annuity option election by anyone other than member, in case of mental compe- tency, election made by wife of phys- ically incapacitated member by vir- tue of power of attorney may not be regarded as valid election...--------- 112 In order for survivorship annuity op- tion election executed by other than member who is shown to be men- tally competent but physically in- capable of executing or signing to constitute valid election, the mem- ber must be fully aware of decision he is making under Uniformed Serv- ices Contingency Option Act of 1953, and knows what the effect will be and approves action so as to consti- tute signing of his name as his own signature in legal effect; conse- quently, evidence which indicates that, although member was physi- cally incapable of signing election at time wife attempted to execute elec- tion under power of attorney, he had no recollection of making decision regarding election does not establish with certainty that election is valid one and member is entitled to refund of annuity deductions made under election.
An undesirable discharge issued to
retired enlisted member of the Regu- lar Marine Corps under authority in sec. 6, Naval Reserve Act of 1938, which was subsequently determined to be inapplicable to enlisted men on retired list of Regular Marine Corps is invalid discharge issued without authority of law and unlike valid undesirable discharge does not ter- minate member's status; therefore, retired pay is payable to member after issuance of such discharge..... 129 An enlisted member of uniformed serv- ices who was placed on temporary disability retired list, pursuant to 10 U.S.C. 1202, following ineffective dis- charge is not precluded from receiv- ing retired pay from effective date of placement on such list______. Enlisted members eligible for retired pay based on officer rank
Members of uniformed services who have had service prior to Nov. 12, 1918, and who at time of retirement for physical disability are serving in enlisted grades but are determined to be eligible for retired pay com- puted on basis of commissioned offi- cer grade or rank, under secs. 402(d) and 409, Career Compensation Act of 1949, are regarded as being retired as officers and entitled to have re- tired pay computed on basis of 75% of pay of officer grade as required by fourth par., sec. 15, Pay Readjust- ment Act of 1942, in accordance with the holding in Jakway v. U.S., C. Cls. No. 51-58, decided July 13, 1959, which will be followed in set- tlement of similar cases. 36 Comp. Gen. 8, overruled____ Member of uniformed services who had service prior to Nov. 12, 1918, and who was serving on active duty in enlisted grade at time of disability retirement when member was deter- mined to be eligible for retired pay as officer in grade of major, although at the time he held Reserve commission as lieutenant colonel, is regarded as being retired as officer and entitled by virture of sec. 402(1), Career Compensation Act of 1949, to have retired pay computed on basis of 75% of pay of grade of lieutenant colonel as provided under 4th par., sec. 15, Pay Readjustment Act of 1942----- Members who held higher rank than at retirement but without service-an Army officer who at time of disability retirement was serving on active duty in lower rank, Army of U.S., although
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