PAY-Continued
Retired Continued
Survivor Benefit Plan-Continued
Members who retired before SBP effective date and elected to par-
ticipate in the Plan under subsec. 3(b) of Pub. L. 92-425 may not uni-
laterally revoke such elections during the 18-month period provided for
such election or at any time thereafter. Revocation or correction of an
SBP election based on "administrative error" is a secretarial prerogative
under 10 U.S.C. 1454. 53 Comp. Gen. 393, modified_
Election based on misinformation
Revocation or correction of an SBP election based upon "administra-
tive error" is a secretarial prerogative under 10 U.S.C. 1454 and may be
exercised to revoke or modify SBP coverage based upon a finding that the
member received erroneous or insufficient information and that such
information caused him to make an election he would not otherwise have
made___
Navy officer whose permanent grade was rear admiral (0-8) and who
was serving as admiral (0-10) under 10 U.S.C. 5231, was transferred
directly to temporary disability retired list (TDRL) pursuant to 10
U.S.C. 1202 and then died before Senate could confirm him on the perma-
nent retired list as admiral (0-10) pursuant to 10 U.S.C. 5233. Regard-
less of grade to which he was entitled on retired list under 10 U.S.C. 1372,
or other law, under Formula No. 2, 10 U.S.C. 1401, such member's
retired pay while on the TDRL is to be computed on basic pay of
admiral (0-10) and Survivor Benefit Plan annuity based thereon___
Erroneous payments waived
Criteria for waiver of erroneous payments under the SBP pursuant
to 10 U.S.C. 1453 should be similar to the criteria for waiver under
5 U.S.C. 5584; 10 U.S.C. 2774 and 32 U.S.C. 716, and therefore although
waiver may not be granted unless collection would be contrary to the
purpose of the plan and against equity and good conscience proof of
financial hardship will not be required if waiver is otherwise in order.
54 Comp. Gen. 249 and 35 id. 401, overruled_
Widow or widower of member who elected coverage under Survivor
Benefit Plan is entitled to refund of deductions made from retired pay
if the annuity is reduced based upon receipt of Dependency and In-
demnity Compensation. Such refund, however, should be computed on
the basis of reductions in retired pay caused by coverage of spouse and
no refund may be made based upon the reductions in retired pay caused
by member's election of coverage for dependent children.
PAY-Continued
Retired Continued
Survivor Benefit Plan-Continued
Survivor Benefit Plan v. Civil Service Retirement Survivorship Plan Page
Where retired member waived his retired pay to receive VA compen-
sation but informed CSC that purpose of such waiver was to have his
Civil Service annuity computed on basis of his total Federal service,
we must conclude that member waived his retired pay for purposes of
increasing his Civil Service annuity (pursuant to subchapter III of
chapter 83 of Title 5, U.S. Code) even though Navy was not so advised
until after member's death. Accordingly, his widow is not eligible for
Survivor Benefit Plan annuity; however, she is entitled to all such costs
remitted by member..
A military retiree, who elects to participate in Survivor Benefit Plan
(SBP), 10 U.S.C. 1447-1455, and who later elects to combine his
military service credits with his civil service credits for the purpose of
receiving a civil service annuity, may elect to participate in the civil
service survivor benefits program at a level lower than that which he has
in the SBP_
Termination or reduction
Children's benefits
When member provided Survivor Benefit Plan coverage for widow or
widower and dependent children and widow or widower becomes in-
eligible for annuity, the dependent children are entitled to the full
annuity as provided by the member even though the annuity of the
widow or widower had been reduced by the amount of Dependency and
Indemnity Compensation received...
Waiver for civilian retirement benefits
Revocation
Survivor Benefit Plan participation resumed
During period that an SBP participant has in effect a waiver of mili-
tary retired pay for purposes of receiving a civil service annuity based on
combining military service with civil service, under provisions of 10
U.S.C. 1450(d) and 1452(e) such SBP participation is suspended, but
if waiver is no longer effective for any reason, previously elected SBP
participation would be resumed and military retired pay reduced
thereafter..
Waiver for veterans benefits
Reduction in retired pay effect
Employment of retiree
A retired Regular commissioned officer who accepts Federal civilian
employment, and who immediately executes a waiver of retired pay
pursuant to 38 U.S.C. 3105 in order to receive veterans' disability com-
pensation, which award is administratively delayed but when granted
by VA is made effective retroactively to date of waiver, has in effect
reduced the legally authorized retired pay by the amount of the veterans'
compensation; therefore, retired pay payments received by the member
during the retroactive period must be adjusted under the dual compen-
sation formula of 5 U.S.C. 5532 from the effective date of the waiver.__
PAY-Continued
Service credits
Absence due to misconduct, etc.
Enlisted members' absences
Confinement under court-martial sentence
Enlisted member's period of authorized excess leave pending appellate
review of his court-martial including a bad conduct discharge is credit-
able service for computing period served on term of enlistment and, even
though court-martial sentence was approved and discharge effected
thereafter, period of such leave is not to be included in unexpired part
of member's enlistment upon which computation of recoupment of
reenlistment bonuses is based__
Survivor Benefit Plan. (See PAY, Retired, Survivor Benefit Plan)
Waiver of overpayments. (See DEBT COLLECTIONS, Waiver, Military
personnel)
Absence or unenforceability of contract
Quantum meruit
Approval of service, etc., if requested
Expenses of renting boat and equipment from Govt. employee for
purpose of performing acoustical measurements are not reimbursable as
travel expenses. Equipment should have been obtained by procurement
means with due regard to section 1-1.302-3 of Fed. Procurement Regs.
and public policy prohibiting Govt. from contracting with its employees
except for most cogent of reasons as where Govt.'s needs cannot other-
wise reasonably be met. Payment may, however, be made on quantum
meruit basis insofar as receipt of goods and services has been ratified by
authorized official__
Volunteer services
Unsolicited proposals
Decision by U.S. Govt., acting in its sovereign capacity, to rehabilitate
Suez Canal is not a taking of a valuable contractual right requiring
compensation, as claimant had only anticipated contract for services, loss
of which is not responsibility of U.S. Govt. Moreover, submission of
unsolicited proposal makes claimant a pure volunteer, affording no basis
upon which payment may be authorized..
Rental car agreement stating cost had been charged to personal credit
card does evidence that employee incurred rental cost as a personal
obligation and will be regarded as satisfying receipt requirements of
FTR para. 1-11.3c(5) for purpose of reimbursing employee for cost of
rental car. Credit card number need not be shown on invoice. From nature
of transaction it must appear that Govt. could not be held liable for the
expense in event of nonpayment of the obligation by employee...
PAYROLLS
A woman, notwithstanding her marriage, has the right to use her
maiden name on Govt. checks and payrolls provided that she uses the
PAYROLLS-Continued
Signatures-Continued
same name consistently on all Govt. records. This is, however, subject
to any general regulation that might be issued by the CSC. In addition,
a female employee may be carried on the payroll as Ms., regardless of her
marital status, if she so desires. 19 Comp. Gen. 203, modified
PERSONAL SERVICES
Detective employment prohibition
Company whose corporate charter specifically authorizes investigative
as well as protective functions, and which is licensed as detective agency
under Massachusetts statute prescribing separate licenses for detective
and protective agencies, is a detective agency for purposes of 5 U.S.C.
3108 and may not be employed by Federal agency, even though employ-
ment is solely to perform guard services. Modified by 56 Comp. Gen.
(B-180257, Jan. 6, 1977)___.
Private contract v. Government personnel
Collective bargaining agreement
Grievance charged violation of provision in collective bargaining
agreement that consultants would not be hired to perform work that
could be performed by agency employees. Agency stipulated that it
had violated agreement but refused union's demand that consultant
repay salary to U.S. Treasury. Prior to arbitration hearing, the con-
sultant resigned. Arbitrator's award of punitive damages to be paid by
agency to union may not be implemented since there is no authority to
award punitive damages against U.S. or one of its agencies.
POWERS OF ATTORNEY
Incident to evacuation of U.S. personnel and local national em-
ployees from Vietnam, employees turning in Vietnamese piasters were
given receipts on the bases of which Treasury checks were subsequently
issued. Checks for payees still in Vietnam were placed in special deposit
account pursuant to 31 U.S.C. 123-128 for benefit of payees and may
not be paid out to relatives in U.S. who claim power of attorney to
receive proceeds..
Military personnel utilization
Section 3 of War Powers Resolution requires the President to consult
with Congress before and during introduction of U.S. Armed Forces
into hostilities or situations clearly indicating imminent hostilities.
Legislative history of section 3 is clear that requirement is not satisfied
by token statement of actions intended to be taken. While evidence in
hearings subsequent to Mayaguez rescue suggests President merely in-
formed Congress of decisions already made, requirements of section 3
are not sufficiently definitive to establish violation in present circum-
stances.
Protection of American lives and property abroad
President possesses some unilateral constitutional power to protect
lives and property of Americans abroad, even in absence of specific
congressional authorization. Courts have sustained or alluded to such
authority and its exercise has considerable historical support. Language
of War Powers Resolution as whole indicates it was not meant to directly
restrict President's power, its basic purpose being to involve Congress in
decision-making process of future wars. Thus War Powers Resolution in
effect neither initially precludes nor sanctions military initiatives by the
President for these purposes..
Rescue of foreign nationals
Seven funding limitation statutes prohibit use of appropriated funds
for combat activity in Indochina. While legislative history of seven acts
is not entirely clear respecting President's rescue power, there are some
specific statements that such power is not restricted, and the overall
intent of seven acts was to curtail bombing and offensive military action
in Southeast Asia. Therefore, President's recent evacuation of Americans
from Saigon did not conflict with such statutes___
War Powers Resolution effect
Section 4 of War Powers Resolution requires President to report to
Congress the basis for, facts surrounding, and estimated duration of
introduction of U.S. Armed Forces in three types of situations. How-
ever, since Resolution does not expressly require President to specify
which situation prompted the report and such specification is immaterial
anyway since final decision of initiation of section 5 actions is up to
Congress, it appears that the President met section 4 requirements_____ 1081
PROCUREMENT
Defense programs
Full funding
"Full funding" of military procurement programs is not statutory
requirement, and deviation from full funding does not necessarily or
automatically indicate violation of 31 U.S.C. 665 or 41 U.S.C. 11. 812
Ground rules
Although technical "transfusion" of one offeror's unique or innovative
idea to other offerors is prohibited, offeror's request for direct reimburse-
ment by Govt. of its interest expense is not such a unique or innovative
idea, but is suggestion for departure from procurement "ground rules"
which, if accepted by agency, must be communicated to all competing
offerors_
PROPERTY
Private
Acquisition
Relocation expenses to "displaced persons'
Effective date of entitlement
Tenant who vacated premises subsequent to written purchase offer
by Architect of the Capitol qualifies as "displaced person" and is entitled
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