B-118336, APRIL 15, 1954, 33 COMP. GEN. 455

B-118336, APRIL 15, 1954, 33 COMP. GEN. 455

PAY - RETIRED - UNIFORMED SERVICES CONTINGENCY OPTION ACT, 1953 - VALIDITY OF ELECTION TO RECEIVE REDUCED RETIRED PAY - REVOCATION OF ELECTION AN ELECTION BY A RETIRED MEMBER OF THE UNIFORMED SERVICES TO RECEIVE REDUCED RETIRED PAY UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, IN ORDER TO PROVIDE A SURVIVORSHIP ANNUITY FOR DESIGNATED DEPENDENTS, IS NOT INVALID BECAUSE IT WAS NOT EXECUTED ON THE FORM PRESCRIBED FOR REGISTERING SUCH ELECTIONS. SECTION 3 (B) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, WHICH AUTHORIZES DEDUCTION FROM THE RETIRED PAY OF RETIRED MEMBERS AT THE MEMBER'S ELECTION IN ORDER TO PROVIDE AN ANNUITY PAYABLE AFTER THE MEMBER'S DEATH TO CERTAIN DEPENDENTS, CONTAINS AN EXPRESS PROHIBITION AGAINST THE REVOCATION OF ELECTIONS BY RETIRED MEMBERS, AND THEREFORE AN ELECTION MADE IN A LETTER BY A RETIRED MEMBER UNDER SECTION 3 (B) OF THE ACT MAY NOT BE REVOKED OR CANCELED BY A SUBSEQUENT LETTER.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO COMMANDER E. J. BEASLEY, DEPARTMENT OF THE NAVY, APRIL 15, 1954:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 28, 1953, X:MM:23 L16 4/1, TRANSMITTED HERE BY LETTER OF JANUARY 14, 1954, FROM THE OFFICE OF THE JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE NAVY, REQUESTING A DECISION AS TO WHETHER UNDER THE FACTS AND CIRCUMSTANCES SET FORTH IN YOUR LETTER AND ENCLOSURES AN ANNUITY IS PAYABLE UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, APPROVED AUGUST 8, 1953, 67 STAT. 501, TO MRS. LUCILE EDWARDS HOYT, WIDOW OF CAPTAIN ROBERT EUSTIS HOYT, U.S. NAVY, RETIRED.

IT APPEARS FROM THE RECORD THAT CAPTAIN HOYT, WHO BECAUSE OF PHYSICAL DISABILITY HAD BEEN RETIRED FROM THE NAVY PRIOR TO ENACTMENT OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, DIED ON DECEMBER 19, 1953. PRIOR TO HIS DEATH HE ADDRESSED A LETTER DATED OCTOBER 23, 1953, TO THE FIELD BRANCH, BUREAU OF SUPPLIES AND ACCOUNTS, AS FOLLOWS:

BECAUSE OF MY AGE AND PRESENT STATE OF HEALTH, I WISH AT THIS TIME TO GO ON RECORD AS ELECTING UNDER THE ABOVE NAMED ACT ( UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953) THE MAXIMUM BENEFIT FOR MY DEPENDENT WIFE.

I WAS RETIRED JANUARY 1, 1943, FOR PHYSICAL DISABILITY (30 PERCENT) BUT WAS RETAINED ON LIMITED ACTIVE DUTY TO JANUARY 1, 1947.

MY DEPENDENT WIFE, LUCILE EDWARDS HOYT, WAS 60 YEARS OLD ON JULY 20, 1953. WE WERE MARRIED ON APRIL 10, 1912. WE HAVE NO CHILDREN.

WITH RESPECT TO MY PRESENT RETIREMENT PAY, I HAVE NOT YET EXERCISED AN ELECTION UNDER THE CAREER COMPENSATION ACT OF 1949; HOWEVER, I WILL MAKE, AND IF NECESSARY REQUEST THAT THIS BE SO CONSIDERED, AN ELECTION UNDER SUCH ACT EFFECTIVE AFTER THE CLOSE OF THIS CALENDAR YEAR. ACCORDINGLY, IT IS MY REQUEST THAT MY ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 BE CONSIDERED FOR PURPOSES OF DETERMINING THE AMOUNT OF MY REDUCED RETIRED PAY AND FOR PURPOSES OF THE ANNUITY PAYABLE TO MY DEPENDENT WIFE ON THE BASIS OF THE RETIREMENT PAY DUE ME AFTER ELECTION UNDER THE CAREER COMPENSATION ACT OF 1949.

I SHALL, OF COURSE, COMPLETE WHATEVER FORMS ARE REQUIRED IN CONNECTION WITH THE ELECTION UNDER THE 1953 ACT; HOWEVER, FOR THE REASONS STATED, DUE TO MY AGE AND PRESENT STATE OF HEALTH I DEEM IT DESIRABLE TO MAKE A RECORD OF MY ELECTION AT THIS TIME.

BY LETTER OF NOVEMBER 2, 1953, CAPTAIN HOYT REAFFIRMED THE ACTION TAKEN IN HIS LETTER OF OCTOBER 23 TO PROVIDE THE MAXIMUM BENEFITS FOR HIS DEPENDENT WIFE WHICH COULD BE GRANTED UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953. THEREAFTER BY LETTER DATED NOVEMBER 13, 1953, CAPTAIN HOYT REQUESTED THAT THE REQUESTS CONTAINED IN HIS PREVIOUS LETTERS OF OCTOBER 23 AND NOVEMBER 2 BE DISREGARDED, STATING THAT HE HAD BEEN ERRONEOUSLY ADVISED AS TO THE AMOUNT BY WHICH HIS RETIRED PAY WOULD BE REQUIRED TO BE REDUCED TO AFFORD HIS WIFE SUCH MAXIMUM BENEFITS.

THE SPECIFIC QUESTIONS UPON WHICH YOU REQUEST A DECISION ARE SET FORTH IN YOUR LETTER AS OLLOWS:

A. DO ENCLOSURES (1) AND (2) (COPIES OF CAPTAIN HOYT'S FIRST TWO LETTERS) CONSTITUTE A VALID ELECTION UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, OR SHOULD THIS ELECTION HAVE BEEN MADE ON ENCLOSURE (4) (PRINTED ELECTION FORM) COMPLETE WITH NOTARIZATION AS PRESCRIBED BY THE NAVY DEPARTMENT.

B. IF THE ANSWER TO (A) IS IN THE AFFIRMATIVE CAN THIS ELECTION BE CONSIDERED CANCELLED BY THE REQUEST CONTAINED IN ENCLOSURE (3)( CAPTAIN HOYT'S LETTER OF NOVEMBER 13, 1953/?

C. AN ANSWER TO QUESTION (B) IS REQUIRED EVEN THOUGH QUESTION (A) MAY BE ANSWERED IN THE NEGATIVE INASMUCH AS THIS OFFICE HAS RECEIVED REQUESTS FOR CANCELLATION OF ELECTIONS WHICH WERE PROPERLY EXECUTED ON ENCLOSURE (4). IN ADDITION, IF YOUR ANSWER IS FAVORABLE, A RULING AS TO THE EFFECTIVE DATES OF THE CANCELLED ELECTIONS IS REQUESTED.

SECTION 3 (B) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 502, IS AS FOLLOWS:

A RETIRED MEMBER WHO HAS HERETOFORE BEEN AWARDED RETIRED PAY BY A UNIFORMED SERVICE MAY, WITHIN ONE HUNDRED AND EIGHTY DAYS AFTER THE EFFECTIVE DATE OF THIS ACT ( NOVEMBER 1, 1953), ELECT TO RECEIVE A REDUCED AMOUNT OF THAT RETIRED PAY IN ORDER TO PROVIDE ONE OR MORE OF THE ANNUITIES SPECIFIED IN SECTION 4, PAYABLE AFTER HIS DEATH TO HIS WIDOW, CHILD, OR CHILDREN. AN ELECTION SO MADE SHALL THEREAFTER BE IRREVOCABLE.

SECTION 411 OF THE CAREER COMPENSATION ACT, 63 STAT. 823, APPLICABLE TO MEMBERS OF THE UNIFORMED SERVICES RETIRED BY REASON OF PHYSICAL DISABILITY PRIOR TO OCTOBER 1, 1949, PROVIDES THAT SUCH MEMBERS MAY ELECT WITHIN THE 5-YEAR PERIOD FOLLOWING OCTOBER 1, 1949, (1) TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THE SAID ACT OR (2) TO RECEIVE RETIREMENT PAY COMPUTED BY THAT ONE OF THE TWO METHODS PRESCRIBED IN SECTION 511 OF THE ACT WHICH WILL PRODUCE THE HIGHER RETIRED PAY. THE TWO METHODS SET FORTH IN SECTION 511, 63 STAT. 829, ARE "/A) THE MONTHLY RETIRED PAY * * * AUTHORIZED FOR SUCH MEMBERS * * * BY PROVISIONS OF LAW IN EFFECT ON THE DAY IMMEDIATELY PRECEDING" OCTOBER 1, 1949, AND "/B) MONTHLY RETIRED PAY * * * EQUAL TO 2 1/2 PERCENTUM OF THE MONTHLY BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING * * * SATISFACTORILY HELD, BY SUCH MEMBER * * * AND WHICH SUCH MEMBER * * * WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY IN SUCH RANK, GRADE, OR RATING, MULTIPLIED BY THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITABLE TO HIM.' SECTION 4 OF THE EXECUTIVE ORDER NO. 10124, DATED APRIL 25, 1950, PROVIDES THAT " ANY ELECTION MADE PURSUANT TO SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 AND THESE REGULATIONS SHALL BE EFFECTIVE AS OF OCTOBER 1, 1949.' SECTION 3 OF SUCH EXECUTIVE ORDER PROVIDES FOR THE CONTINUATION, AFTER OCTOBER 1, 1949, OF THE RETIRED PAY OF PERSONS TO WHOM THE SAID SECTION 411 IS APPLICABLE IN THE AMOUNTS AUTHORIZED BY THE APPLICABLE PROVISIONS OF LAW IN EFFECT ON SEPTEMBER 30, 1949, IN THE ABSENCE OF THE ELECTION OF A DIFFERENT METHOD PRIOR TO OCTOBER 1, 1954. A PROVISION DESIGNED TO HAVE SIMILAR EFFECT BUT BEING MORE GENERAL IN NATURE IS CONTAINED IN SECTION 519 OF THE CAREER COMPENSATION ACT, 63 STAT. 834.

WHILE CAPTAIN HOYT'S LETTER OF OCTOBER 23, 1953, IS AMBIGUOUS, SUCH LETTER, WHEN CONSIDERED IN ITS ENTIRETY, REASONABLY MAY BE CONSTRUED AS AN ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT TO TAKE EFFECT ON THE EFFECTIVE DATE OF THE ACT, NOVEMBER 1, 1953. THE FIRST AND LAST PARAGRAPHS OF SUCH LETTER CLEARLY INDICATE THAT BECAUSE OF HIS AGE AND THE STATE OF HIS HEALTH CAPTAIN HOYT DESIRED TO REGISTER HIS ELECTION AT THAT TIME IN ORDER THAT THE MAXIMUM FINANCIAL PROTECTION WOULD BE AFFORDED HIS WIFE IN THE EVENT OF HIS DEATH. SUCH INTENTION WAS AFFIRMED IN HIS LETTER OF NOVEMBER 2, 1953, WRITTEN THE DAY FOLLOWING THE EFFECTIVE DATE OF THE ACT. MOREOVER, WHILE THE FIRST AND SECOND SENTENCES OF THE FOURTH PARAGRAPH OF THE SAID LETTER OF OCTOBER 23, 1953, APPEAR TO BE SOMEWHAT INCONSISTENT WITH EACH OTHER, IT IS BELIEVED, FROM A CLOSE STUDY OF THE LETTER IN ITS ENTIRETY, THAT IT WAS CAPTAIN HOYT'S INTENTION TO ELECT OPTION (B) OF SECTION 411 OF THE CAREER COMPENSATION ACT OF NOVEMBER 1, 1949, SINCE HE HAD OVER 30 YEARS OF ACTIVE SERVICE AND HIS RETIRED PAY COMPUTED UNDER METHOD (B) IN SECTION 511 WOULD BE SUBSTANTIALLY HIGHER THAN THE RETIRED PAY HE ACTUALLY RECEIVED PRIOR TO HIS DEATH, AND SINCE SUCH ELECTION UNDER THE CAREER COMPENSATION ACT WAS REQUIRED TO BE MADE PRIOR TO OR CONCURRENT WITH HIS ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT IF HIS WIFE WAS TO HAVE "MAXIMUM BENEFIT" IN THE EVENT OF HIS DEATH.

THE ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 IS NOT VIEWED AS INVALID BECAUSE OF THE FACT THAT IT WAS NOT EXECUTED ON THE FORM PRESCRIBED FOR REGISTERING ELECTIONS UNDER SUCH ACT. NO LANGUAGE HAS BEEN FOUND IN THE SAID 1953 ACT REQUIRING THAT THE ELECTIONS AUTHORIZED THEREUNDER BE SUBMITTED IN ANY PARTICULAR MANNER OR ON ANY PARTICULAR FORM AND THE APPLICABLE REGULATIONS WHICH RECENTLY HAVE BEEN PRESCRIBED IN ACCORDANCE WITH SUCH ACT SPECIFY THAT FOR AN ELECTION TO BE EFFECTIVE--- IN THE CASE OF A RETIRED MEMBER NOT ON ACTIVE DUTY--- IT NEED ONLY BE SIGNED AND POSTMARKED NOT LATER THAN APRIL 30, 1954. UNDER THE SAID REGULATIONS " ANY ELECTION MADE AND NOT CANCELLED PRIOR TO 1 NOVEMBER 1953, WILL BE CONSIDERED AS HAVING BEEN MADE ON 1 NOVEMBER 1953.'

BECAUSE OF THE EXPRESS PROVISION IN THE ABOVE-QUOTED SECTION 3 (B) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 502- - APPLICABLE TO MEMBERS HERETOFORE AWARDED RETIRED PAY BY A UNIFORMED SERVICE--- THAT " AN ELECTION SO MADE SHALL THEREAFTER BE IRREVOCABLE," CAPTAIN HOYT'S LETTER OF NOVEMBER 13, 1953, MAY NOT BE GIVEN EFFECT AS A REVOCATION OR CANCELLATION OF THE ELECTION MADE BY LETTER OF OCTOBER 23 AND REAFFIRMED IN LETTER OF NOVEMBER 2, 1953. SEE DECISION OF TODAY, B- 118907, 33 COMP. GEN. 460, TO LIEUTENANT COLONEL C. B. MORRIS, ARMY DISBURSING OFFICER.

THE SPECIFIC QUESTIONS PRESENTED IN YOUR LETTER ARE ANSWERED ACCORDINGLY AND ANNUITY PAYMENTS TO MRS. HOYT MAY BE MADE ON THE BASIS INDICATED, IF OTHERWISE CORRECT.