B-120438, AUGUST 13, 1954, 34 COMP. GEN. 63

B-120438, AUGUST 13, 1954, 34 COMP. GEN. 63

PAY - RETIRED - ANNUITIES FOR DEPENDENTS - FAILURE TO INDICATE RATE OF REDUCED PAY A RETIRED MEMBER OF THE UNIFORMED SERVICES WHO EXERCISED AN ELECTION OF OPTIONS UNDER SECTION 4 OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 TO PROVIDE AN ANNUITY FOR WIFE UPON HIS DEATH, BUT WHO FAILED TO INDICATE WHETHER SUCH ANNUITY SHOULD BE PAID AT THE RATE OF ONE-EIGHTH, ONE-FOURTH OR ONE-HALF OF HIS REDUCED RETIRED PAY, AS REQUIRED BY THE ACT, AND WHO DIED BEFORE A RATE WAS DESIGNATED, MAY BE ASSUMED TO HAVE INTENDED TO ELECT THE MINIMUM RATE OF ONE-EIGHTH, IN THE ABSENCE OF EVIDENCE SUFFICIENT TO ESTABLISH THAT A PARTICULAR RATE WAS INTENDED.

ACTING COMPTROLLER GENERAL WEITZEL TO LIEUTENANT COLONEL EUGENE PALETZ, DEPARTMENT OF THE ARMY, AUGUST 13, 1954:

BY FIRST ENDORSEMENT OF JUNE 15, 1954, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF MAY 17, 1954, FOR ADVANCE DECISION AS TO THE ENTITLEMENT OF MRS. ELLEN M. VANE AND MRS. MARIE C. DAVIS TO PAYMENT OF ANNUITIES UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, UNDER THE CIRCUMSTANCES STATED.

IT IS STATED THAT ON JANUARY 19, 1954, MRS. VANE'S LATE HUSBAND, CAPTAIN LYNN P. VANE, RETIRED, EXERCISED AN ELECTION OF OPTIONS UNDER SECTION 4 (A) (1), AND (4), OF SAID CONTINGENCY OPTION ACT, 67 STAT. 503, TO PROVIDE AN ANNUITY FOR HIS WIFE UPON HIS DEATH, BUT THAT HE FAILED TO INDICATE WHETHER HE WISHED SUCH ANNUITY TO BE PAID AT THE RATE OF ONE-EIGHTH, ONE- FOURTH OR ONE-HALF OF HIS REDUCED RETIRED PAY. A LETTER FROM YOUR OFFICE, DATED FEBRUARY 3, 1954, REQUESTING THAT HE STATE HIS WISHES IN THAT RESPECT, RECEIVED NO REPLY, HE HAVING DIED ON JANUARY 25, 1954.

MAJOR ELMER N. DAVIS, RETIRED, LATE HUSBAND OF MRS. DAVIS, ELECTED THE OPTION UNDER SECTION 4 (H) (1) OF THE SAID ACT ON DECEMBER 8, 1953, AND HE ALSO FAILED TO INDICATE THE RATE APPLICABLE TO SUCH OPTION. IT IS REPORTED THAT HE DIED ON DECEMBER 23, 1953, BEFORE REPLYING TO LETTER OF DECEMBER 21, 1953, FROM YOUR OFFICE, REQUESTING INFORMATION AS TO THE RATE APPLICABLE TO THE OPTION SELECTED BY HIM. HOWEVER, CHIEF WARRANT OFFICER ROBERT A. ALLEN, USN, HAS SUBMITTED AN AFFIDAVIT IN WHICH HE STATES THAT AT THE TIME OF EXECUTING DA FORM 1041--- USED IN EXERCISING SUCH OPTION--- BEFORE MRS. DAVIS, WARRANT OFFICER ALLEN AND A NOTARY PUBLIC, MAJOR DAVIS EXPRESSED HIS INTENT TO APPLY FOR BENEFITS UNDER THE ACT AT "ONE-HALF PERCENT," APPARENTLY MEANING ONE HALF OF HIS REDUCED RETIRED PAY.

SECTION 3 (B), OF SAID CONTINGENCY OPTION ACT, 67 STAT. 502, PROVIDES THAT AN ELECTION MADE BY A RETIRED MEMBER WITHIN THE PERIOD MENTIONED THEREIN "SHALL THEREAFTER BE IRREVOCABLE.' THE ELECTION SUBMITTED BY EACH OF THE OFFICERS HERE INVOLVES SHOWS AN UNEQUIVOCAL INTENT TO PURCHASE AN ANNUITY FOR HIS WIFE. WHILE AN ELECTION IS NOT COMPLETE UNLESS IT INDICATES THE PERCENTAGE OF THE REDUCED RETIRED PAY TO BE PAID TO THE DEPENDENT, THE INTENT OF THE MEMBER IN SUCH A CASE MAY BE DETERMINED FROM EVIDENCE OTHER THAN THAT APPEARING ON THE ELECTION FORM. WHERE AN OTHERWISE VALID ELECTION IS RECEIVED WHICH FAILS TO SHOW THE PERCENTAGE OF THE REDUCED RETIRED PAY TO BE PAID, AND EVIDENCE SUFFICIENT TO ESTABLISH AN INTENTION TO ELECT A PARTICULAR PERCENTAGE OF THE REDUCED RETIRED PAY TO BE PAID TO THE DEPENDENT CANNOT BE OBTAINED, IT SHOULD BE ASSUMED THAT THE MINIMUM RATE OF ONE EIGHTH WAS CHOSEN. IF IT APPEARS FROM ALL THE EVIDENCE THAT A PARTICULAR RATE WAS INTENDED, IT SHOULD BE CONSIDERED THAT THE ELECTION WAS MADE ON THAT BASIS. WHERE THE MEMBER IS ALIVE AND ABLE TO STATE HIS INTENTION IN THE MATTER, HIS STATEMENT AS TO THE PARTICULAR RATE MAY BE ACCEPTED. IN THE CASE OF DECEASED MEMBERS EVIDENCE IN AFFIDAVIT FORM FROM THE ATTESTING OFFICER AND OTHERS HAVING KNOWLEDGE OF THE MEMBER'S INTENTION SHOULD BE OBTAINED.

THE PRESENT RECORD CONTAINS NO INFORMATION AS TO WHAT CAPTAIN VANE MAY HAVE INTENDED WITH RESPECT TO THE RATE OF REDUCED RETIRED PAY HE WISHED HIS WIFE TO RECEIVE. MRS. VANE SHOULD BE SO ADVISED AND GIVEN THE OPPORTUNITY TO SUBMIT ANY ADDITIONAL INFORMATION SHE MAY HAVE CONCERNING HIS ACTUAL INTENTIONS IN THAT RESPECT. STATEMENTS SHOULD BE SUBMITTED IN AFFIDAVIT FORM AND IF SUCH INFORMATION DOES NOT ESTABLISH THAT A PARTICULAR RATE WAS INTENDED, IT SHOULD BE ASSUMED THAT ONE EIGHTH RATE WAS INTENDED AND PAYMENT MADE TO THE WIDOW ACCORDINGLY.

AS TO THE CLAIM OF MRS. DAVIS, IT IS INDICATED THAT AT THE TIME HER HUSBAND EXECUTED THE ELECTION FORM HE ADVISED THE THREE PERSONS PRESENT OF HIS INTENT TO APPLY FOR AN ANNUITY FOR HIS WIFE AT THE RATE OF ONE HALF OF HIS REDUCED RETIRED PAY. NO EXPLANATION HAS BEEN FURNISHED AS TO WHY HIS INTENT WAS NOT EXPRESSED BY THE USE OF A CHECK MARK IN THE APPROPRIATE SPACE. WARRANT OFFICER ALLEN'S STATEMENT IS NOT SUFFICIENT TO AUTHORIZE PAYMENT TO MRS. DAVIS AT ONE-HALF OF HER HUSBAND'S REDUCED RETIRED PAY. SHE SHOULD BE ADVISED THAT SHE SHOULD SECURE AND SUBMIT AN ADDITIONAL STATEMENT FROM WARRANT OFFICER ALLEN SHOWING THE CIRCUMSTANCES UNDER WHICH HE PREPARED THE DA FORM 1041 FOR MAJOR DAVIS' SIGNATURE, WHY IT FAILED TO EXPRESS HIS WISHES, PLACE OF SIGNING, ETC. ALSO, A STATEMENT AS TO THE CONDITION OF MAJOR DAVIS' HEALTH AT THE TIME OF EXECUTING HIS ELECTION MAY HELP TO DETERMINE HIS INTENTION. SUPPORTING AFFIDAVITS FROM MRS. DAVIS AND THE THIRD PERSON MENTIONED AS TO THE FACTS KNOWN TO THEM SHOULD BE FURNISHED.

IF UPON RECEIPT OF THE ADDITIONAL INFORMATION INDICATED ABOVE, YOU ARE IN DOUBT AS TO WHETHER PAYMENT IS AUTHORIZED AT A RATE OTHER THAN THE ONE- EIGHTH RATE, THE MATTER MAY BE RESUBMITTED HERE FOR FURTHER CONSIDERATION.