B-118907, APRIL 15, 1954, 33 COMP. GEN. 460

B-118907, APRIL 15, 1954, 33 COMP. GEN. 460

PAY - RETIRED - SURVIVOR BENEFIT PAYMENTS - REVOCATION OF ELECTION TO RECEIVE REDUCED RETIRED PAY - UNIFORMED SERVICES CONTINGENCY OPTION ACT, 1953 SECTION 3B OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, WHICH AUTHORIZES DEDUCTIONS 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 DESIGNATED DEPENDENTS, PROVIDES THAT AN ELECTION ONCE MADE BY A RETIRED MEMBER SHALL BE IRREVOCABLE, AND THEREFORE A RETIRED MEMBER WHO MADE ELECTION UNDER THE ACT BEFORE ASCERTAINING IN TERMS OF DOLLARS AND CENTS THE COST OF SUCH ELECTION, OR WHO SIGNED TYPED ELECTION FORM CONTAINING AN ERROR, MAY NOT REVOKE THE ELECTION AND BE REFUNDED DEDUCTIONS ALREADY MADE FROM RETIRED PAY.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO LIEUTENANT COLONEL C. B. NORRIS, DEPARTMENT OF THE ARMY, APRIL 15, 1954:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 19, 1954, FINWW, TRANSMITTED HERE BY FIRST ENDORSEMENT DATED FEBRUARY 12, 1954, FROM THE OFFICE CHIEF OF FINANCE, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER, ENCLOSED THEREWITH, COVERING THE CLAIMS OF FIRST SERGEANT ARTHUR J. BRIGGS, R 564372; MASTER SERGEANT EDWARD A. KRAMER, R 555528; FIRST SERGEANT WILLIAM BANKS, R 1008815; FIRST SERGEANT HARVEY S. DAVIS, R 431101; MASTER SERGEANT PATRICK J. KIRWAN, R 235472; AND SERGEANT HARVEY SHOEMAKE, R 872419, FOR REFUND OF DEDUCTIONS MADE FROM THEIR RETIRED PAY FOR THE MONTHS OF DECEMBER 1953 AND JANUARY 1954 IN ACCORDANCE WITH ELECTIONS EXERCISED BY SUCH RETIRED MEMBERS OF THE ARMY UNDER THE AUTHORITY OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, APPROVED AUGUST 8, 1953, PUBLIC LAW 239, 67 STAT. 501. THE SAID ACT AUTHORIZES SUCH DEDUCTIONS, AT THE RETIRED MEMBER'S ELECTION, IN ORDER TO PROVIDE AN ANNUITY PAYABLE AFTER HIS DEATH TO HIS WIDOW ALONE, HIS WIDOW AND CHILDREN, OR HIS CHILDREN ALONE.

IN FIVE OF THE SIX CASES PRESENTED THE RETIRED MEMBER STATES HE WAS NOT INFORMED OF THE ACTUAL AMOUNT OF THE MONTHLY DEDUCTION FROM HIS RETIRED PAY UNTIL AFTER HIS ELECTION HAD BEEN MADE AND THAT SINCE SUCH AMOUNT IS HIGHER THAN HE HAD ANTICIPATED, REVOCATION OF HIS ELECTION AND REFUND OF DEDUCTIONS ALREADY MADE FROM RETIRED PAY ARE DESIRED. THE SIXTH MEMBER, FIRST SERGEANT BRIGGS, CONTENDS THAT THROUGH ERROR THE STENOGRAPHER TYPING HIS ELECTION FORM (WHICH FORM HE SIGNED ON OCTOBER 22, 1953) CHECKED ELECTIONS NUMBERED 1 AND 4, WHEREAS IT WAS INTENDED THAT ELECTION 1 ONLY BE CHECKED, AND THAT SUCH ERROR WAS NOT DISCOVERED UNTIL DECEMBER 5, 1953, AFTER RECEIPT OF CERTIFICATE OF ESTABLISHMENT OF ELECTION OF OPTIONS. DEDUCTION FROM HIS RETIRED PAY WAS MADE TO COVER THE COST OF ELECTION 1 WITH 4 AND HIS CLAIM IS FOR THE DIFFERENCE BETWEEN THE COST OF THE TWO ELECTIONS AND THE COST OF ELECTION 1 ONLY.

SECTION 3 (B) OF THE ABOVE-CITED ACT, 63 STAT. 502, WHICH APPLIES TO RETIRED MEMBERS OF THE UNIFORMED SERVICES (AS DISTINGUISHED FROM ACTIVE MEMBERS AND FORMER MEMBERS WHO ARE COVERED BY OTHER PROVISIONS OF THE ACT) 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, 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. ELECTION SO MADE SHALL THEREAFTER BE IRREVOCABLE. ( ITALICS SUPPLIED.)

SECTION 4 (C) OF SUCH ACT, 63 STAT. 503, PROVIDES THAT:

THE REDUCTION TO BE MADE IN THE RETIRED PAY OF AN ACTIVE OR RETIRED MEMBER WHO HAS MADE AN ELECTION UNDER SECTION 3 SHALL BE COMPUTED BY THE UNIFORMED SERVICE CONCERNED IN EACH INDIVIDUAL CASE * * * AS OF THE DATE OF ELECTION IN THE CASE OF A RETIRED MEMBER, BY AN ACTUARIAL EQUIVALENT METHOD USING AS A BASIS APPROPRIATE ACTUARIAL TABLES SELECTED BY THE BOARD OF ACTUARIES DESIGNATED IN SECTION 8 * * *. IN THE CASE OF AN ACTIVE RETIRED MEMBER THE COMPUTATION SHALL BE MADE AT THE TIME OF RETIREMENT, OR ELECTION, AS APPROPRIATE, AND THE ACTUARIAL EQUIVALENT METHOD AND THE ACTUARIAL TABLES SHALL BE THOSE IN EFFECT AT THAT TIME.

THUS SECTION 4 (C) SPECIFICALLY SETS FORTH THE BASIS UPON WHICH THE REDUCTION IN THE RETIRED PAY OF ANY MEMBER MAKING AN ELECTION UNDER THE SAID ACT WILL BE COMPUTED. FURTHER, IT PROVIDES THAT IN THE CASE OF A RETIRED MEMBER, COMPUTATION SHALL BE MADE AS OF THE DATE OF ELECTION. SECTION 3 OF THE ACT PROVIDES THAT AN ELECTION ONCE MADE BY A RETIRED MEMBER SHALL BE IRREVOCABLE. ANY RETIRED MEMBER EXERCISING A RIGHT OF ELECTION UNDER THE STATUTE MUST BE PRESUMED TO HAVE KNOWLEDGE OF THE PROVISIONS OF THE STATUTE AND IF HE SHOULD EXERCISE HIS RIGHT BEFORE ASCERTAINING, IN TERMS OF DOLLARS AND CENTS, THE COST OF HIS ELECTION, THERE IS GRAVE DOUBT WHETHER, THEREAFTER, HE PROPERLY COULD BE PERMITTED TO REVOKE HIS ELECTION UNDER ANY CIRCUMSTANCES, BARRING FRAUD, SINCE SUCH ELECTION, BY THE SPECIFIC TERMS OF SECTION 3 OF THE ACT, 63 STAT. 502, IS MADE IRREVOCABLE. HOWEVER, EVEN IF AN ELECTION UNDER THE ACT PROPERLY COULD BE HELD VOIDABLE OR INEFFECTIVE UNDER CERTAIN CIRCUMSTANCES, IT SEEMS APPARENT THAT THE ELECTIONS MADE IN THE CASES YOU PRESENT WERE MADE UNDER CIRCUMSTANCES WHICH CLEARLY REQUIRE THAT THE SAID ELECTIONS BE CONSIDERED AS FULLY VALID AND IRREVOCABLE. THE DEPARTMENT OF THE ARMY HAS ADVISED THAT THERE WAS ENCLOSED WITH THE ELECTION FORM ( DA FORM 1041," ELECTION OF OPTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, PUBLIC LAW 239, 83D CONGRESS") MAILED TO EACH RETIRED MEMBER OF THAT SERVICE A PAMPHLET ( DEPARTMENT OF THE ARMY PAMPHLET NO. 21-63, ENTITLED " SURVIVORS' BENEFITS") TOGETHER WITH CERTAIN OPTION TABLES AND EXPLANATORY INFORMATION. THE SAID PAMPHLET AND TABLES, WHEN CONSIDERED TOGETHER, PROVIDED EACH RETIRED MEMBER AN EASILY UNDERSTOOD MEANS OF DETERMINING, IF NOT THE EXACT AMOUNT, AT LEAST THE APPROXIMATE COST OF EACH ELECTION AUTHORIZED UNDER THE ACT. THAT IS TO SAY, THE EXPLANATORY INFORMATION FURNISHED EACH RETIRED MEMBER WITH HIS ELECTION FORM AFFORDED A RELATIVELY SIMPLE BASIS FOR DETERMINING THE EXACT COST OF OPTION 1; 1 WITH 4; 2; 2 WITH 4. WITH RESPECT TO THE COST OF OPTION 3 OR OPTION 3 WITH 4, THE PAMPHLET PROVIDED IN QUESTION AND ANSWER 15 AS OLLOWS:

HOW SHALL REDUCTION IN PAY BE COMPUTED FOR MEMBERS ELECTING OPTION 3, WITH OR WITHOUT OPTION 4, AS PROVIDED IN QUESTION 7?

ON THE BASIS OF TABLES PREPARED BY THE BOARD OF ACTUARIES APPOINTED BY THE PRESIDENT. BECAUSE OF THEIR GREAT VOLUME THESE TABLES ARE NOT INCLUDED. IF, HOWEVER, YOU WISH TO MAKE AN ELECTION YOU MAY ASCERTAIN THE APPROPRIATE AMOUNT BY ADDING TOGETHER THE COSTS OF OPTIONS 1 AND 2. YOU WISH TO ELECT OPTION 3 WITH 4, THEN TO ARRIVE AT AN APPROXIMATE COST, ADD TOGETHER THE COST OF 1 WITH 4 AND 2 WITH 4. IF YOU WANT AN EXACT COMPUTATION, HOWEVER, YOU MAY WRITE TO THE RETIRED PAY BRANCH, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS 49, IND. BE SURE TO INCLUDE YOUR BIRTHDATE, YOUR WIFE'S BIRTHDATE AND THE BIRTHDATE OF YOUR YOUNGEST CHILD. IT MUST BE REMEMBERED HOWEVER THAT UNTIL THE INCLOSED ELECTION NOTICE IS COMPLETED AND POSTMARKED YOU ARE NOT COVERED BY THE BENEFITS OF THIS ACT.

MOREOVER, THE ELECTION FORM ( DA FORM 1041) CONTAINS, IN A PROMINENT PLACE IMMEDIATELY PRECEDING THE SPACE FOR THE MEMBER'S SIGNATURE, THE FOLLOWING SENTENCE: " IN THE CASE OF RETIRED MEMBERS, ELECTION OF ANY OF THE OPTIONS MADE IS IRREVOCABLE.'

HENCE, IT WOULD APPEAR THAT EACH OF THE RETIRED MEMBERS HERE INVOLVED WAS FURNISHED SUFFICIENT INFORMATION FOR DETERMINING THE COST OF THE OPTION HE SELECTED AND WAS EXPRESSLY ADVISED THAT HIS ELECTION WOULD BE IRREVOCABLE. THE FAILURE OF A MEMBER TO UTILIZE THE INFORMATION FURNISHED PRIOR TO MAKING AN ELECTION AFFORDS NO PROPER BASIS FOR ACCEPTING AND GIVING EFFECT TO THE REVOCATION OF HIS ELECTION.

IT MAY BE POINTED OUT THAT ON THE EFFECTIVE DATE OF AN ELECTION MADE UNDER THE CONTINGENCY OPTION ACT, THE RESPECTIVE RIGHTS AND OBLIGATIONS OF BOTH THE MEMBER MAKING THE ELECTION AND THE UNITED STATES ARE CHANGED. SHOULD THE MEMBER DIE IMMEDIATELY FOLLOWING SUCH ELECTION THE GOVERNMENT WOULD BE REQUIRED TO PAY THE ANNUITY SPECIFIED IN THAT ELECTION. HENCE, SINCE THE RESPECTIVE DATES OF THEIR ELECTIONS THE MEMBERS HERE INVOLVED HAVE RECEIVED THE PROTECTION AND SECURITY FOR WHICH THE DEDUCTIONS FROM THEIR RETIRED PAY HAVE BEEN MADE. COMPARE DECISION OF TODAY, B-118336, 33 COMP. GEN. 455, TO COMMANDER E. J. BEASLEY, NAVY ACCOUNTABLE OFFICER, WHEREIN THE REFUSAL TO HONOR AN ATTEMPTED REVOCATION OF SUCH AN ELECTION IS HIGHLY ADVANTAGEOUS TO THE WIDOW OF A DECEASED RETIRED OFFICER OF THE NAVY.

WITH RESPECT TO THE CASE OF FIRST SERGEANT BRIGGS, WHO ALLEGES THAT THE STENOGRAPHER CHECKED ELECTION 4 BY MISTAKE WHEREAS HE INTENDED TO ELECT OPTION 1 ONLY, RATHER THAN 1 WITH 4, IT MAY BE STATED THAT HE IS PRESUMED TO HAVE READ THE TYPED ELECTION FORM PRIOR TO SIGNING IT AND THAT IF A MISTAKE WAS MADE IT DID NOT RESULT FROM ANY ACTION OR INACTION ON THE PART OF THE GOVERNMENT. SINCE THE MISTAKE, IF ANY, WAS UNILATERAL AND WAS NOT CORRECTED PRIOR TO THE DATE THE ELECTION BECAME EFFECTIVE, THE SAID ELECTION BECAME IRREVOCABLE AND NOT SUBJECT TO MODIFICATION IN VIEW OF THE PLAIN TERMS OF SECTION 3 (B) OF THE CONTINGENCY OPTION ACT, AS QUOTED ABOVE.

THIS OFFICE IS NOT UNMINDFUL OF POSSIBLE HARDSHIP IN INDIVIDUAL CASES OF THE CLASSES HEREIN CONSIDERED, IT BEING RECOGNIZED THAT SOME RETIRED MEMBERS MAY HAVE MADE UNWISE ELECTIONS WHICH WILL CAUSE THEIR RETIRED PAY TO BE REDUCED FAR BELOW THE LEVEL WHICH THEY HAD EXPECTED. NEVERTHELESS, SUCH RETIRED MEMBERS, BY FAILING TO UTILIZE THE INFORMATION FURNISHED THEM AND BY EXERCISING ELECTIONS BEFORE ASCERTAINING THE COSTS THEREOF, ARE PRIMARILY RESPONSIBLE FOR THE SITUATIONS WITH WHICH THEY ARE CONFRONTED. UNDER THE CIRCUMSTANCES, AND BECAUSE OF THE EXPRESS PROHIBITION AGAINST THE REVOCATION OF ELECTIONS BY RETIRED MEMBERS, CONTAINED IN SECTION 3 (B) OF THE ACT, IT IS FOR THE CONGRESS, AND NOT THE GENERAL ACCOUNTING OFFICE, TO RELIEVE SUCH MEMBERS OF THE CONSEQUENCES OF THEIR ELECTIONS. ACCORDINGLY, THE VOUCHER SUBMITTED WITH YOUR LETTER IS NOT APPROVED FOR PAYMENT AND WILL BE RETAINED IN THIS OFFICE.