the initial step in a series which may lead to a return to duty, retirement or separation for physical disability so that an officer who is otherwise eligible for the $2,000 payment provided in the act of August 11, 1959, for officers voluntarily retired, but who is placed on the temporary disability retired list is not entitled to the $2,000 payment.

Although a Navy officer who is hospitalized or is being physically evaluated for possible disability retirement at the time it is determined he is eligible for retirement under the act of August 11, 1959, Public Law 86-155, but who is subsequently retired for disability is not entitled to the $2,000 payment for voluntary retirements under the 1959 act, the determining factor being the type of retirement effected, if the officer is removed from the temporary disability retired list and retired under the 1959 act, he is entitled to the lump-sum payment.

A Navy officer who has submitted an application for voluntary retirement under the act of August 11, 1959, Public Law 86-155, but who is retired for disability may not be regarded as retired under the 1959 act to be entitled to the $2,000 lumpsum payment for voluntary retirements.

A Navy officer who, prior to action of the selection board on the continuation of the member on active duty, applies for voluntary retirement under the act of August 11, 1959, and is voluntarily retired is entitled to the $2,000 lump-sum payment provided that the officer's name was considered by the board and not selected for continuation prior to the approval of his retirement application, the time of submission of the application not being material to entitlement to payment.

A Navy officer whose application for voluntary retirement was approved prior to the enactment of Public Law 86-155, August 11, 1959, or after enactment thereof but prior to action by a selection board, is not entitled to the $2,000 lump-sum payment, since the requirement in section 2(d) of the 1959 act that the member be recommended for noncontinuation on active duty by the selection board is a condition precedent to entitlement to the lump-sum payment.

To the Secretary of the Navy, August 18, 1959:

Reference is made to letter of August 11, 1959, from the Under Secretary of the Navy, requesting decision on certain questions as to the right to a lump-sum payment of $2,000 under section 2(d) of the act of August 11, 1959, Public Law 86-155, 86th Congress, 73 Stat. 336. The request for decision has been assigned submission No. SSN-445 by the Military Pay and Allowance Committee, Department of Defense.

The purpose of the act of August 11, 1959, is to retain in the service, and provide opportunity for promotion of, experienced and efficient officers in senior grades in the Regular Navy and Regular Marine Corps by mandatory retirement of certain other officers. It is intended that such mandatory retirements prior to the time when such officers would be involuntarily retired under other existing laws would correct, in part at least, the stagnation in promotion opportunities resulting from the presence on the promotion lists of large numbers of officers appointed during World War II (the "hump"). Officers retired under the provisions of the act-except those whose performance of duty would not warrant retention on the active list under any circumstances are granted a lump-sum payment of $2,000. Officers, who otherwise would be entitled to such payment upon mandatory retirement under the act, are entitled to receive it if they voluntarily retire before the dates on which they would be involuntarily retired under the act.

The mandatory retirements, with exceptions not here pertinent, shall be effected on June 30 of the fiscal year in which the report of the continuation board is approved (section 1(i) of the act), 73 Stat. 335, or, if the report is approved less than six months before the end of the fiscal year, on the first day of the seventh month following the month in which the report is approved (section 1(k)). The act, insofar as selections for continuation are concerned, has no force or effect after June 30, 1965 (section 8), 73 Stat. 337.

Section 2(d) of the act, 10 U.S.C. 5701 note, provides that:

An officer who on the date of enactment of this Act is serving in the grade of captain or commander in the Regular Navy or colonel or lieutenant colonel in the Regular Marine Corps or is on a promotion list for promotion to one of those grades, who is not thereafter recommended for promotion to a higher grade, and whose name has not been reported in the approved report of a board in compliance with subsection 1(h) of this Act, and who is retired under this Act shall be paid, in addition to his retired pay, a lumpsum payment of $2,000, effective on the date of his retirement.

Section 2(e) of the act, 10 U.S.C. 5701 note, is as follows:

An officer who has the qualifications specified in subsection (d) and who has been considered but not recommended for continuation on the active list pursuant to section 1 of this Act shall be considered for the purpose of subsection (d) as being retired under this Act if the officer retires voluntarily prior to the date specified for his retirement under this Act.

The questions presented are separately quoted and answered below.

Question 1

May an officer who has been considered but not selected for continuation on the active list, and who is otherwise eligible for the $2000 payment, but who is thereafter determined to have a permanent physical disability, be retired for disability under the provisions of 10 U.S.C. 1201 and also be paid the $2000 as an officer who "retired voluntarily prior to the date specified for his retirement" as provided in section 2(e) of the Act?

The law relating to disability retirements (10 United States Code, Chapter 61) provides that the Secretary concerned may retire a member found to be physically unfit to perform his military duties. Thus the decision as to whether a member is to be retired for disability rests with the Government and not with the member. Accordingly, a disability retirement is not regarded as a voluntary retirement. In fact, such a retirement may well be, and undoubtedly often is, directly contrary to the officer's wishes. Moreover, to grant a lump-sum payment of $2,000 to an officer retired for disability who had been considered but not recommended for continuation on the active list while denying such payment to an officer retired for disability with the same grade and length of service who had been considered and recommended for such continuation because of superior performance or qualifications, would be to discriminate against the more competent and able members.

Question 1 is answered in the negative.

Question 2

May such an officer, who is found to have a disability which may be permanent, be placed on the temporary disability retired list under 10 U.S.C. 1202 and also be paid the $2000?

Placement of a member's name on the temporary disability retired list is "merely the initial step in a series which will lead either to a return to duty, retirement, or separation for physical disability." 37 Comp. Gen. 166, 169. Not until the series is completed is an officer retired within the sense of a final and permanent removal from the active list, if he is retired at all.

Question 2 is answered in the negative.

Question 3

Would the fact that such an officer is hospitalized or is being physically evaluated with a view to possible disability retirement at the time it is determined that he must retire under the provisions of H. R. 4413 require a different answer?

The determining factor is whether the officer eventually is retired for physical disability or is retired under the act of August 11, 1959. Accordingly, question 3 is answered in the negative.

Question 4

If your answer to question 2 is in the negative, would the officer involved subsequently become entitled to the $2000 payment at such time as he is (a) determined to be permanently disabled and retired for disability, or (b) removed from the temporary disability retired list and retired under the provisions of H. R. 4413?

Question 4(a) is answered in the negative. See answer to question 1. Question 4(b) is answered in the affirmative, since an officer who is qualified for the lump-sum payment provided by section 2(d) of the act of August 11, 1959, and who is retired under the provisions of that act obviously, is entitled to such payment. The fact that he may have been on the temporary disability retired list prior to retirement under the act of August 11, 1959, provides no basis for holding that he is not entitled to the benefits of the lump-sum payment pro vision of that act.

Question 5

Would your answer to the above questions be the same if the officer had submitted an application for voluntary retirement prior to the determination of disability?

As indicated in the discussion of the preceding questions, the determining factor is the type of retirement eventually effected. The time of submission of an application for voluntary retirement is not material. If an officer is retired for disability under the statutory provisions authorizing retirement for disability, he is not retired under the act of August 11, 1959, and, hence, he is not entitled to the lump-sum payment authorized by that act.

Question 5 is answered in the affirmative.

551978 61 - 10

Question 6

May an officer who is considered but not selected for continuation, and who is otherwise entitled to payment of $2000, receive that payment if he has, either prior to enactment of H. R. 4413, or subsequent thereto but prior to action by the selection board, applied for voluntary retirement and is voluntarily retired prior to the date specified for his retirement under this Act?

As stated in the answer to question 5, the time of submitting an application for voluntary retirement is not material. On the assumption that the officer's name was considered by the continuation board prior to the approval of his application, question 6 is answered in the affirmative.

Question 7

Would the fact that his application for voluntary retirement was approved prior to enactment of the Act, or subsequent thereto but prior to action by the selection board, be material in the answer to question 6?

If the officer's application for voluntary retirement was approved prior to the enactment of the act of August 11, 1959, we can see no necessity for consideration under that act of the question of whether he should be involuntarily retired thereunder. If he never was subject to such involuntary retirement, he is not entitled to a lump-sum payment of $2,000. Also, if the application for voluntary retirement was approved subsequent to the enactment of the act but before a retention board considered whether the officer should be forced into involuntary retirement, we see no reason for consideration by such a board.

Question 7 is answered by saying that on the information now before us the officer would not be entitled to a lump-sum payment under either of the alternative situations therein set forth, since section 2(d) requires a recommendation for noncontinuation by the board as a condition precedent to entitlement to the lump-sum payment.

[B-135468]

Military Personnel-Survivorship Annuity Option Elections-Executed by Other Than Member-Validity

In the absence of any authority in the Uniformed Services Contingency Option Act of 1953, now 10 U.S.C. 1431-1444, for the execution of a survivorship annuity option election by anyone other than the member, in the case of mental competency, election made by the wife of a physically incapacitated member by virtue of a power of attorney may not be regarded as a valid election. In order for a survivorship annuity option election executed by other than the member, who is shown to be mentally competent but physically incapable of executing or signing, to constitute a valid election, the member must be fully aware of the decision he is making under the Uniformed Services Contingency Option Act of 1953, and know what the effect will be and approve the action so as to constitute the signing of his name as his own signature in legal effect; consequently, evidence which indicates that, although a member was physically incapable of signing an election at the time his wife attempted to execute an election under a power of attorney, he had no recollection of making a decision

regarding the election does not establish with any certainty that the election is a valid one and the member is entitled to a refund of the annuity deductions made under the election.

To Lieutenant Colonel J. L. Whipple, Department of the Army, August 19, 1959:

Your letter of May 20, 1959-transmitted here with first endorsement dated June 9, 1959, by the Office Chief of Finance (under D.O. Number 427, allocated by the Department of Defense Military Pay and Allowance Committee)-requests an advance decision as to propriety of the payment proposed on a voucher covering the claim of Lieutenant Colonel Donald T. Patterson, retired, representing refund of monthly annuity cost under 10 U.S.C. 1431-1444 (Uniformed Services Contingency Option Act of 1953, 67 Stat. 501-505, as amended), for the period October 1, 1958, to February 28, 1959, inclusive.

Lieutenant Colonel Patterson's right to receive disability retired pay arises from the decision of the Court of Claims rendered in his favor on March 5, 1958 (Donald T. Patterson v. United States, C. Cls. No. 23-56). DA Form 1041, Election of Options under the Uniformed Services Contingency Option Act of 1953, was executed and signed by his wife, Mrs. Constance W. Patterson (who acted under a power of attorney), and mailed on October 31, 1958, to the Retired Pay Division, Finance Center, United States Army, Indianapolis 49, Indiana, electing Option 1, at the one-half percentage rate to provide an annuity for herself. This election, if valid, became effective as of October 1, 1958. 33 Comp. Gen. 162, 165.

Lieutenant Colonel Patterson has waived the entire amount of his monthly retired pay in favor of a greater amount of veterans' disability compensation and in view of the provisions of 10 U.S.C. 1438, he has been requested to remit to the Retired Pay Division for deposit in the United States Treasury "the amount that would otherwise have been deducted from his pay for that period to provide the annuity." The cost of the annuity elected by Mrs. Patterson is $76.34 per month, and, finding this to be an excessive financial burden, it is sought to cancel or revoke this election. However, the election, if valid, is irrevocable. 33 Comp. Gen. 460.

You indicate that you are not aware of any specific provision of law, decision, or regulation designating the person or persons, if any, other than the retired member, who are authorized to execute an election in case the member is physically incapacitated. Hence, it appears that you are in doubt as to the validity of the election exercised by Mrs. Patterson under the authority vested in her by the power of attorney granted in her favor by Lieutenant Colonel Patterson.

The validity of an election of options under the Uniformed Services Contingency Option Act of 1953 executed and signed under