B-154548, JAN. 18, 1967

B-154548, JAN. 18, 1967

TO MRS. MARIE E. YOTZ:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 21, 1966, ADDRESSED TO THE PRESIDENT OF THE UNITED STATES, CONCERNING YOUR CLAIM FOR A LUMP- SUM PAYMENT BELIEVED TO BE DUE IN THE CASE OF YOUR LATE HUSBAND, LIEUTENANT COLONEL ANTON A. YOTZ, WHICH WAS THE SUBJECT OF TWO PREVIOUS DECISIONS BY THIS OFFICE. YOUR LETTER WAS FORWARDED HERE FOR APPROPRIATE ACTION.

YOUR LETTER REFERS TO THE ACTION PREVIOUSLY TAKEN BY OUR OFFICE CONCERNING YOUR CLAIM FOR AN AIR CORPS RESERVE OFFICER LUMP-SUM PAYMENT BELIEVED TO BE DUE YOUR HUSBAND AND YOU STATE THAT YOU ARE CERTAIN THAT HE DID NOT KNOW THAT HE HAD TO PRESS HIS CLAIM AFTER GETTING ADMINISTRATIVE APPROVAL OF SUCH CLAIM. YOU INDICATE THAT THE AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS ALSO DENIED YOUR APPLICATION FOR RELIEF IN THIS MATTER. YOU FURTHER STATE THAT COLONEL YOTZ HAD 28 YEARS OF ACTIVE AND RESERVE SERVICE AT "RETIREMENT IN 1960, BUT THAT "HIS--- USCOA--- WAS DENIED BECAUSE HE DIED BEFORE HIS 60TH BIRTHDAY.' YOU ASK WHETHER IT IS POSSIBLE TO ADJUST THE RECORDS TO ALLOW YOU SOME ASSISTANCE UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT. ALSO YOU ASK THAT THE LUMP-SUM BONUS BE ALLOWED.

AS POINTED OUT IN OUR LETTERS OF JULY 28 AND SEPTEMBER 22, 1964, B 154548, TO YOU, EVEN THOUGH YOUR LATE HUSBAND'S CLAIM FOR THE LUMP-SUM BONUS PAYMENT WAS FILED WITH THE DEPARTMENT OF THE ARMY IN 1944, AND SUCH CLAIM WAS ADMINISTRATIVELY APPROVED, THAT ACTION DID NOT TOLL THE OPERATION OF THE ACT OF OCTOBER 9, 1940, CH. 788, 54 STAT. 1061, 31 U.S.C. 71A, 237, WHICH BARS CONSIDERATION OF EVERY CLAIM COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNLESS IT IS FILED IN THIS OFFICE WITHIN 10 YEARS OF THE DATE SUCH CLAIM FIRST ACCRUED. WHILE IT IS UNFORTUNATE THAT COLONEL YOTZ WAS NOT AWARE THAT UNDER THE LAW HIS CLAIM HAD TO BE RECEIVED IN THIS OFFICE WITHIN THE 10-YEAR PERIOD, THIS FACT, AS YOU WERE PREVIOUSLY ADVISED, DOES NOT AFFECT THE OPERATION OF THE ACT. WE MAY MAKE NO EXCEPTION TO THE STATUTE NOR MAY WE GRANT AN EXTENSION OF TIME WITHIN WHICH CLAIMS MAY BE FILED. AGAIN WE MUST ADVISE YOU THAT SINCE CONSIDERATION OF YOUR CLAIM FOR THE LUMP-SUM PAYMENT IS PRECLUDED BY LAW, THERE IS NO FURTHER ACTION WE LEGALLY MAY TAKE IN THE MATTER.

ENTITLEMENT TO ANNUITY BENEFITS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, AS AMENDED, CH. 393, 67 STAT. 501 (NOW KNOWN AS THE RETIRED SERVICEMEN'S FAMILY PROTECTION PLAN, CHAPTER 73 OF TITLE 10, U.S. CODE) IS BASED ON A PERSON'S RIGHT TO, AND ACTUAL RECEIPT ,"RETIRED PAY" AND THE ANNUITY IS PROVIDED BY A MEMBER FOR HIS WIDOW AND CHILDREN BY ELECTING TO TAKE A REDUCED AMOUNT OF RETIRED PAY DURING HIS LIFETIME.

WHILE WE HAVE NO SPECIFIC INFORMATION AS TO THE APPLICABLE LAW UNDER WHICH YOUR LATE HUSBAND COULD HAVE QUALIFIED FOR RETIRED PAY, SINCE YOU WERE DENIED THE BENEFITS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT BECAUSE YOUR HUSBAND DIED BEFORE REACHING HIS 60TH BIRTHDAY, IT APPEARS THAT THE APPLICABLE LAW UNDER WHICH HE WOULD HAVE BEEN ENTITLED TO RECEIVE RETIRED PAY HAD HE REACHED HIS 60TH BIRTHDAY IS CHAPTER 67 OF TITLE 10, U.S.C. THIS LAW AUTHORIZES THE PAYMENT OF RETIRED PAY TO RESERVE MEMBERS OR FORMER MEMBERS OF THE UNIFORMED SERVICES WHO QUALIFY UNDER 10 U.S.C. 1331 BY HAVING MET THE STATUTORY AGE (60 YEARS) AND SERVICE REQUIREMENTS AND HAVE FILED APPLICATION THEREFOR.

SINCE IT APPEARS THAT YOUR LATE HUSBAND DID NOT QUALIFY FOR RETIRED PAY UNDER THE ABOVE-CITED LAW--- NOT HAVING REACHED 60 YEARS OF AGE--- AND SINCE THE ANNUITY AUTHORIZED UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT IS CONTINGENT ON ENTITLEMENT OF THE MEMBER CONCERNED TO RECEIVE RETIRED PAY OUT OF WHICH HE COULD PURCHASE AN ANNUITY FOR HIS DEPENDENT THERE APPEARS TO BE NO BASIS FOR PAYMENTS OF ANNUITY BENEFITS IN YOUR CASE, EVEN IF YOUR HUSBAND MADE A PROPER ELECTION OF SUCH BENEFITS PRIOR TO HIS DEATH.