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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