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B-129625, JUL. 18, 1957

B-129625 Jul 18, 1957
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ATTORNEY AT LAW: REFERENCE IS MADE TO LETTER DATED MAY 2. IT IS STATED IN THE LETTER THAT YOU ARE MAKING APPLICATION TO THE VETERANS ADMINISTRATION FOR TOTAL AND PERMANENT DISABILITY. YOU EXPRESS THE OPINION THAT THE VETERANS ADMINISTRATION WILL ACT FAVORABLY ON YOUR APPLICATION AND. THE SECRETARY OF THE ARMY MIGHT CHANGEH IS ACTION WHICH DENIED YOUR ORIGINAL REQUEST FOR REVOCATION OF YOUR ELECTION UNDER THE CONTINGENCY OPTION ACT OF 1953. YOU SAY THAT "AT THAT TIME IT WAS IMPOSSIBLE FOR ME TO CERTIFY AS TO ANY HARDSHIP FOR THE SIMPLE REASON THAT THE TOTAL DISABILITY WAS NOT THEN ESTABLISHED.'. IT WAS POINTED OUT TO YOU IN OUR LETTER OF DECEMBER 4. YOUR ELECTION COULD HAVE BEEN REVOKED WITHIN THE 60-DAY PERIOD AFTER AUGUST 28.

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B-129625, JUL. 18, 1957

TO MR. THOMAS C. BUCHANAN, ATTORNEY AT LAW:

REFERENCE IS MADE TO LETTER DATED MAY 2, 1957, SIGNED BY YOUR SECRETARY, AUDREY D. SMITH, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES RESULTING FROM YOUR FAILURE TO PAY THE REQUIRED MONTHLY DEPOSIT OF $35.84 PURSUANT TO THE ELECTION WHICH YOU MADE UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, TO PROVIDE AN ANNUITY PAYABLE AFTER YOUR DEATH TO YOUR WIFE.

IT IS STATED IN THE LETTER THAT YOU ARE MAKING APPLICATION TO THE VETERANS ADMINISTRATION FOR TOTAL AND PERMANENT DISABILITY. YOU EXPRESS THE OPINION THAT THE VETERANS ADMINISTRATION WILL ACT FAVORABLY ON YOUR APPLICATION AND, ON THAT BASIS, THE SECRETARY OF THE ARMY MIGHT CHANGEH IS ACTION WHICH DENIED YOUR ORIGINAL REQUEST FOR REVOCATION OF YOUR ELECTION UNDER THE CONTINGENCY OPTION ACT OF 1953. YOU SAY THAT "AT THAT TIME IT WAS IMPOSSIBLE FOR ME TO CERTIFY AS TO ANY HARDSHIP FOR THE SIMPLE REASON THAT THE TOTAL DISABILITY WAS NOT THEN ESTABLISHED.'

IT WAS POINTED OUT TO YOU IN OUR LETTER OF DECEMBER 4, 1956, B 129625, THAT UNDER THE PROVISIONS OF SECTION 3 (B) OF THE CONTINGENCY OPTION ACT OF 1953, AS MODIFIED BY THE ACT OF AUGUST 28, 1954, 37 U.S.C. 372A, YOUR ELECTION COULD HAVE BEEN REVOKED WITHIN THE 60-DAY PERIOD AFTER AUGUST 28, 1954, ONLY IF YOU ESTABLISHED TO THE SATISFACTION OF THE SECRETARY OF THE ARMY THAT YOU MADE SUCH ELECTION BECAUSE YOU WERE MISINFORMED AS TO YOUR RIGHTS OR BECAUSE YOU MADE A SUBSTANTIAL MATHEMATICAL ERROR IN COMPUTING THE COST OF THE BENEFITS WHICH YOU WOULD DERIVE, AND THAT SUCH MISINFORMATION OR ERROR RESULTED IN UNDUE HARDSHIP. HENCE, IT APPEARS THAT THE STATUTE CONTEMPLATES FINANCIAL HARDSHIP AS A BASIS FOR REVOCATION OF AN ELECTION WITHIN THE AUTHORIZED PERIOD ONLY WHEN SUCH HARDSHIP RESULTS FROM MISINFORMATION AS TO YOUR RIGHTS OR FROM SUBSTANTIAL MATHEMATICAL ERROR IN COMPUTING THE COST OF THE BENEFITS TO BE DERIVED, RATHER THAN HARDSHIP AS A RESULT OF PHYSICAL DISABILITY, AS YOU APPARENTLY SEEM TO BELIEVE. EVEN IF THE VETERANS ADMINISTRATION ACTS FAVORABLY ON YOUR APPLICATION FOR A RATING OF TOTAL AND PERMANENT PHYSICAL DISABILITY, SUCH ACTION APPARENTLY WOULD NOT AFFECT YOUR RIGHTS AND LIABILITIES WHICH AROSE PURSUANT TO YOUR ELECTION UNDER THE CONTINGENCY OPTION ACT OF 1953. GENERALLY, THE LAWS ADMINISTERED BY THE VETERANS ADMINISTRATION ARE SEPARATE AND DISTINCT AND HAVE NO APPLICATION TO LAWS ADMINISTERED BY ANOTHER DEPARTMENT OR AGENCY. IN YOUR CASE, THE SECRETARY OF THE ARMY ADMINISTERS THE PROVISIONS OF THE CONTINGENCY OPTION ACT OF 1953.

YOUR DEBT AS REPORTED HERE BY THE DEPARTMENT OF THE ARMY AMOUNTS TO$734.08, INCLUDING INTEREST, FOR THE PERIOD MARCH 1, 1954, TO OCTOBER 30, 1955. AS WE POINTED OUT IN OUR LETTER TO YOU OF DECEMBER 4, 1956, THE ELECTION MADE BY YOU CONSTITUTES A CONTRACT TO PAY A MONTHLY SUM UP TO THE TIME OF YOUR DEATH, OR UNTIL THERE IS NO BENEFICIARY ELIGIBLE TO RECEIVE AN ANNUITY UPON YOUR DEATH, AS PROVIDED IN OPTION 4 OF THE ELECTION IN YOUR CASE. SEE 35 COMP. GEN. 12. UNLESS WE HEAR FROM YOU WITHIN 30 DAYS FROM THE DATE OF THIS LETTER, SUBMITTING A DEFINITE PLAN TO LIQUIDATE YOUR INDEBTEDNESS, WE WILL BE REQUIRED TO REFER THE MATTER TO THE DEPARTMENT OF JUSTICE FOR SUCH FURTHER LEGAL ACTION AS THAT DEPARTMENT MAY DEEM APPROPRIATE.

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