B-118468, APRIL 2, 1954, 33 COMP. GEN. 428

B-118468: Apr 2, 1954

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MAY BE MADE EFFECTIVE AS OF THE DATE THE MEMBER'S ELECTION WOULD HAVE BEEN EFFECTIVE HAD THE MEMBER BEEN COMPETENT AND MADE AN ELECTION AT THE TIME OF THE DEPENDENT'S REQUEST. 1954: REFERENCE IS MADE TO LETTER OF JANUARY 25. WHICH SECTION IS. OR RETIRED MEMBER IS DETERMINED TO BE MENTALLY INCOMPETENT BY MEDICAL OFFICERS OF THE SERVICE CONCERNED OR OF THE VETERANS' ADMINISTRATION. OR IS ADJUDGED MENTALLY INCOMPETENT BY A COURT OF COMPETENT JURISDICTION. BECAUSE OF SUCH MENTAL INCOMPETENCY IS INCAPABLE OF MAKING ANY ELECTION PROVIDED IN THIS SECTION WITHIN THE TIME LIMITATIONS SPECIFIED THEREIN. THE FOLLOWING CASE IS PRESENTED AS ILLUSTRATIVE OF THE PROBLEM INVOLVED: BY LETTER POSTMARKED OCTOBER 28.

B-118468, APRIL 2, 1954, 33 COMP. GEN. 428

UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 - ELECTION ON BEHALF OF INCOMPETENT MEMBER BY HEAD OF DEPARTMENT CONCERNED - EFFECTIVE DATE AN ELECTION MADE BY THE HEAD OF THE DEPARTMENT CONCERNED ON BEHALF OF AN INCOMPETENT MEMBER OF THE UNIFORMED SERVICES, AT THE REQUEST OF THE MEMBER'S SPOUSE OR CHILD, AS AUTHORIZED BY SECTION 3 (C) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, MAY BE MADE EFFECTIVE AS OF THE DATE THE MEMBER'S ELECTION WOULD HAVE BEEN EFFECTIVE HAD THE MEMBER BEEN COMPETENT AND MADE AN ELECTION AT THE TIME OF THE DEPENDENT'S REQUEST.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF DEFENSE, APRIL 2, 1954:

REFERENCE IS MADE TO LETTER OF JANUARY 25, 1954, WITH ENCLOSURE, FROM THE ASSISTANT SECRETARY OF DEFENSE, REQUESTING A DECISION AS TO THE EFFECTIVE DATE OF AN ELECTION MADE BY THE HEAD OF A DEPARTMENT ON BEHALF OF AN INCOMPETENT MEMBER OF THE UNIFORMED SERVICES, AT THE REQUEST OF THE MEMBER'S SPOUSE OR CHILD, AS AUTHORIZED BY SECTION 3 (C) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, APPROVED AUGUST 8, 1953, 67 STAT. 502, WHICH SECTION IS, IN PERTINENT PART, AS FOLLOWS:

WHENEVER AN ACTIVE MEMBER, FORMER MEMBER, OR RETIRED MEMBER IS DETERMINED TO BE MENTALLY INCOMPETENT BY MEDICAL OFFICERS OF THE SERVICE CONCERNED OR OF THE VETERANS' ADMINISTRATION, OR IS ADJUDGED MENTALLY INCOMPETENT BY A COURT OF COMPETENT JURISDICTION, AND BECAUSE OF SUCH MENTAL INCOMPETENCY IS INCAPABLE OF MAKING ANY ELECTION PROVIDED IN THIS SECTION WITHIN THE TIME LIMITATIONS SPECIFIED THEREIN, THE HEAD OF THE DEPARTMENT CONCERNED MAY MAKE THE APPROPRIATE ELECTION PROVIDED FOR IN THIS SECTION ON BEHALF OF SUCH MEMBER IF SO REQUESTED BY THE SPOUSE OR IF THERE BE NO SPOUSE BY THE CHILD OR CHILDREN OF SUCH MEMBER. * * *

IN THE ENCLOSURE ( MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 82) SUBMITTED WITH THE REQUEST FOR DECISION, THE FOLLOWING CASE IS PRESENTED AS ILLUSTRATIVE OF THE PROBLEM INVOLVED:

BY LETTER POSTMARKED OCTOBER 28, 1953, THE SPOUSE OF AN INCOMPETENT RETIRED MEMBER REQUESTED THE SECRETARY OF THE NAVY TO MAKE THE ELECTION INDICATED ON THE FORM, TRANSMITTED WITH SUCH REQUEST, ON BEHALF OF THE INCOMPETENT MEMBER. THE SAID LETTER WAS RECEIVED IN THE BUREAU OF NAVAL PERSONNEL ON NOVEMBER 3, 1953, AND THE ELECTION WAS PREPARED FOR THE SIGNATURE OF THE SECRETARY OF THE NAVY ON NOVEMBER 5, 1953. HOWEVER, ON NOVEMBER 6 THE INCOMPETENT MEMBER DIED AND THE SECRETARY DID NOT SIGN THE ELECTION UNTIL NOVEMBER 9. THE ENDORSEMENT CONTAINING THE ELECTION EXECUTED BY THE SECRETARY STATED THAT SUCH ELECTION WAS TO BE EFFECTIVE NOVEMBER 1, 1953.

NEITHER SECTION 3 (C) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 NOR THE REGULATIONS FOR THE ADMINISTRATION OF THAT ACT CONTAINS ANY SPECIFIC PROVISION CONCERNING THE DATE ON WHICH AN ELECTION BY A DEPARTMENT HEAD ON BEHALF OF AN INCOMPETENT MEMBER SHALL BECOME EFFECTIVE. THE SAID REGULATIONS, IN PARAGRAPH 203, DO PROVIDE THAT AN ELECTION MADE BY A RETIRED MEMBER MUST BE SIGNED AND POSTMARKED NOT LATER THAN APRIL 30, 1954, IN ORDER TO BE EFFECTIVE. THE REGULATIONS FURTHER PROVIDE THAT ANY ELECTION MADE AND NOT CANCELED PRIOR TO NOVEMBER 1, 1953, WILL BE CONSIDERED AS HAVING BEEN MADE ON NOVEMBER 1, 1953. UNDER SUCH REGULATIONS IT SEEMS CLEAR THAT IF THE RETIRED MEMBER IN QUESTION HAD BEEN COMPETENT AND HIS SIGNED ELECTION HAS BEEN POSTMARKED ON OCTOBER 28, 1953, IT WOULD HAVE BECOME EFFECTIVE ON NOVEMBER 1, 1953.

THE PLAIN PURPOSE OF SECTION 3 (C) OF THE ACT IS TO AFFORD OPPORTUNITY TO DEPENDENTS OF INCOMPETENT MEMBERS TO SHARE IN THE BENEFITS OF THE ACT ON AN EQUAL BASIS WITH THE DEPENDENTS OF COMPETENT MEMBERS BY ENABLING THE HEADS OF THE DEPARTMENTS CONCERNED TO MAKE TIMELY ELECTIONS ON BEHALF OF INCOMPETENT MEMBERS WHO ARE INCAPABLE OF MAKING ELECTIONS THEMSELVES WITHIN THE PERIOD SPECIFIED IN THE ACT. IN VIEW THEREOF, IT REASONABLY MAY BE CONCLUDED THAT THE HEAD OF THE DEPARTMENT CONCERNED WHO MAKES SUCH AN ELECTION ON BEHALF OF AN INCOMPETENT MEMBER, AT THE REQUEST OF THE MEMBER'S DEPENDENT, MAY MAKE IT EFFECTIVE AS OF THE DATE THE MEMBERS' ELECTION WOULD HAVE BEEN EFFECTIVE HAD THE MEMBER BEEN COMPETENT AND MADE AN ELECTION AT THE TIME OF THE DEPENDENT'S REQUEST FOR ELECTION. ACCORDINGLY, IN THE EXAMPLE GIVEN ABOVE, THE ELECTION PROPERLY MAY BE CONSIDERED AS HAVING BECOME EFFECTIVE ON NOVEMBER 1, 1953.