B-156523, APR. 29, 1965, 44 COMP. GEN. 665

B-156523, APR. 29, 1965, 44 COMP. GEN. 665

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - EVIDENCE A COPY OF AN ELECTION FORM SUBMITTED AS EVIDENCE OF PARTICIPATION IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN BEARING THE SIGNATURE OF AN AIR FORCE OFFICER DULY WITNESSED BUT NOT COMPLETED BY THE PERSONNEL OFFICER TO SHOW DATE AND PLACE OF RECEIPT AS REQUIRED BY AFR 34-63, DATED NOVEMBER 13, 1957, IS INEFFECTIVE TO CREATE A VALID ELECTION UNDER THE PLAN, LACKING EVIDENCE THAT THE ORIGINAL OR ANY COPY OF THE FORM WAS "DELIVERED TO THE APPROPRIATE SERVICE OFFICIALS" IN ACCORDANCE WITH THE REGULATION REQUIREMENT, AND ALTHOUGH THE USE OF SECONDARY EVIDENCE IS NOT BARRED WHEN PRIMARY EVIDENCE IS NOT AVAILABLE DUE TO ITS INADVERTENT LOSS OR DESTRUCTION, A DETERMINATION OF THE VALIDITY OF AN ELECTION ON THE BASIS OF SECONDARY EVIDENCE DEPENDS UPON THE DEGREE OF CERTAINTY OF THE EVIDENCE TO ESTABLISH THE NECESSARY FACTS, AND AS A DETERMINATION CANNOT BE MADE FROM THE INFORMATION FURNISHED THAT THE OFFICER MADE A VALID ELECTION UNDER THE PLAN, DEDUCTIONS FROM HIS RETIRED PAY FOR AN ANNUITY MAY NOT BE AUTHORIZED.

TO LIEUTENANT COLONEL J. J. VANYA, DEPARTMENT OF THE AIR FORCE, APRIL 29, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 8, 1965, MRA, REQUESTING AN ADVANCE DECISION ON THE PROPRIETY OF PAYMENT OF A VOUCHER FOR $33.75 IN FAVOR OF MAJOR ANDERSON F. BURGE, JR., AO 209 3669, USAF, RETIRED, REPRESENTING THE AMOUNT WITHHELD FROM HIS RETIRED PAY AS THE COST OF COVERAGE UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN FOR THE PERIOD NOVEMBER 1, 1963, THROUGH JANUARY 31, 1965. YOUR REQUEST WAS FORWARDED HERE BY HEADQUARTERS, DEPARTMENT OF THE AIR FORCE, AS AIR FORCE REQUEST NO. 837, ASSIGNED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE FOLLOWING FACTS ARE FURNISHED IN YOUR LETTER AND ENCLOSURES. MAJOR BURGE RETIRED FROM THE UNITED STATES AIR FORCE ON OCTOBER 31, 1963, AT WHICH TIME HE INDICATED THAT HE HAD ELECTED TO PARTICIPATE IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN DURING MARCH 1961. NO RECORD OF THE ELECTION COULD BE FOUND IN OFFICIAL ARMY FILES AND THE OFFICER FURNISHED A COPY OF AF FORM 806, ELECTION OF OPTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT, A PHOTO COPY OF WHICH ACCOMPANIED YOUR LETTER. THE FORM, DATED FEBRUARY 27, 1961, BEARS THE OFFICER'S SIGNATURE AND THAT OF A WITNESS--- AN ENLISTED MAN--- BUT THE PORTION TO BE COMPLETED BY THE PERSONNEL OFFICER SHOWING DATE AND PLACE OF RECEIPT IS UNEXECUTED. MAJOR BURGE STATED IN HIS LETTER DATED NOVEMBER 22, 1963, THAT HE EXECUTED AND SUBMITTED THE FORM AT HOMESTEAD AIR FORCE BASE, FLORIDA, ON FEBRUARY 27, 1961.

SECTION 206 OF THE REGULATIONS FOR THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 (10 U.S.C. 1431, ET SEQ.), AS APPROVED BY THE SECRETARY OF DEFENSE PURSUANT TO THE AUTHORITY OF EXECUTIVE ORDER NO. 10499, DATED NOVEMBER 4, 1953, PROVIDES AS FOLLOWS:

THE FORM FOR MAKING ELECTIONS WILL BE SUBMITTED AS INDICATED BY THE DEPARTMENT CONCERNED. ALL COPIES FORWARDED WILL BE SIGNED, AND ANY SIGNED COPY MAY BE USED TO SUBSTANTIATE THE FACT OF ELECTION.

PARAGRAPHS 5A (1) (A) AND (2) OF AFR 34-63, DATED NOVEMBER 13, 1957, PROVIDE IN PERTINENT PART THAT:

AF FORM 806 "ELECTION OF OPTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY ACT," IS USED TO MAKE AN INITIAL ELECTION, TO DECLINE TO MAKE AN ELECTION, TO MODIFY OR REVOKE AN ELECTION PREVIOUSLY MADE, OR TO CHANGE DESIGNATION OF A BENEFICIARY. ALL FORMS MUST BE SIGNED BY THE MEMBER AND ATTESTED TO BY A COMMISSIONED OFFICER OR BE NOTARIZED.

(A) IF HE (AN ACTIVE MEMBER) IS ON ACTIVE DUTY, HE WILL SUBMIT THE ORIGINAL, DUPLICATE, AND TRIPLICATE COPIES TO THE OFFICE HAVING RESPONSIBILITY FOR COUNSELING AND/OR AIDING HIM TO PREPARE THIS FORM.

(2) THE RESPONSIBLE OFFICER WILL WITNESS THE MEMBER'S SIGNATURE IMMEDIATELY UPON RECEIPT OF THE COMPLETED FORMS * * *.

THE REGULATIONS FURTHER PROVIDE IN PARAGRAPH 10 THAT:

TO BE EFFECTIVE, THE ELECTION BY A MEMBER ON ACTIVE DUTY MUST BE SIGNED, WITNESSED, AND DELIVERED TO APPROPRIATE SERVICE OFFICIALS OR POSTMARKED NOT LATER THAN MIDNIGHT ON THE DATE THE MEMBER COMPLETES 18 YEARS OF CREDITABLE SERVICE FOR BASIC PAY PURPOSES.

WHILE IT MAY BE THAT MAJOR BURGE INTENDED TO MAKE AN ELECTION OF AN ANNUITY, HIS SIGNATURE ON THE AF FORM 806 USED BY HIM WAS NOT ATTESTED TO BY A COMMISSIONED OFFICER AND THERE IS NOT ACTUAL EVIDENCE THAT THE ORIGINAL OR ANY COPY OF THAT FORM WAS "DELIVERED TO APPROPRIATE SERVICE OFFICIALS" AS REQUIRED BY THE REGULATIONS. ALTHOUGH THE USE OF SECONDARY EVIDENCE IS NOT BARRED WHEN THE PRIMARY EVIDENCE CANNOT BE LOCATED BY THE ADMINISTRATIVE OFFICE DUE TO INADVERTENT LOSS OR DESTRUCTION, ANY DETERMINATION OF THE VALIDITY OF AN ELECTION ON THE BASIS OF SECONDARY EVIDENCE DEPENDS UPON THE DEGREE OF CERTAINTY OF SUCH EVIDENCE TO ESTABLISH THE NECESSARY FACTS. ON THE BASIS OF THE INFORMATION FURNISHED, IT CANNOT BE DETERMINED THAT MAJOR BURGE MADE A VALID ELECTION UNDER THE PLAN AND DEDUCTIONS FOR AN ANNUITY ARE NOT AUTHORIZED TO BE MADE FROM HIS RETIRED PAY.

ACCORDINGLY, PAYMENT OF THE VOUCHER, RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE PROPER.