B-120253, OCT 27, 1954

B-120253, OCT 27, 1954

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL EUGENE PALETZ, FC; DEPARTMENT OF THE ARMY:

BY FIRST INDORSEMENT OF MAY 25, 1954, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED TO THIS OFFICE YOUR LETTER OF APRIL 23, 1954, SUBMITTING FOR ADVANCE DECISION A VOUCHER STATED IN FAVOR OF COLONEL CHARLES K. MCALISTER, U.S. ARMY, RETIRED, FOR A PARTIAL REFUND OF DEDUCTIONS MADE FROM HIS RETIRED PAY FOR THE PERIOD NOVEMBER 1, 1953, THROUGH MARCH 31, 1954, IN THE CIRCUMSTANCES STATED BELOW.

IT APPEARS THAT COLONEL MCALISTER ELECTED OPTIONS UNDER PARAGRAPHS (A)(1) AND (A)(4), SECTION 4 OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 502, 503, TO PROVIDE AN ANNUITY FOR HIS WIFE UPON HIS DEATH, PAYABLE AT THE RATE OF ONE-EIGHTH OF HIS REDUCED RETIRED PAY. THE ENVELOPE IN WHICH SUCH ELECTION WAS MAILED TO RETIRED PAY BRANCH, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, BEARS A 1 A.M., NOVEMBER 17, 1953, WASHINGTON, D.C., POSTMARK. HE STATES THAT THE LETTER WAS MAILED AT THE FORT MCNAIR SUBSTATION OF THE WASHINGTON, D.C., POST OFFICE AT ABOUT 4 P.M., NOVEMBER 16, 1953. IN A LETTER DATED MARCH 17, 1954, THE POSTMASTER, WASHINGTON, D.C., STATED THAT A LETTER SO MAILED AND NORMALLY HANDLED WOULD HAVE BEEN RECEIVED IN THE MAIN OFFICE AT ABOUT 5 P.M., NOVEMBER 16, 1953, AND WOULD HAVE BEEN POSTMARKED NOT LATER THAN 7 P.M. ON THAT DATE AND THAT IF IT WAS NOT POSTMARKED UNTIL 1 A.M., NOVEMBER 17, 1953, IT WOULD HAVE BEEN MISHANDLED AT THAT OFFICE, WHICH WAS POSSIBLE.

IT IS STATED COLONEL MCALISTER'S 56TH BIRTHDAY WAS MAY 16, 1953; THAT THE MONTHLY REDUCTION OF $34.15 IN HIS RETIRED PAY WAS COMPUTED ON THE BASIS OF AN AGE OF 57 YEARS; AND THAT THE USE OF THE AGE OF 56 YEARS WOULD HAVE REDUCED THE MONTHLY COST OF THE ANNUITY BY $2.29 PER MONTH.

SECTION 8 OF THE CONTINGENCY OPTION ACT PROVIDES FOR THE ISSUANCE OF REGULATIONS UNDER WHICH THE ACT SHALL BE ADMINISTERED. PARAGRAPH 5H(1)(B), SPECIAL REGULATIONS 35-1365-1, DECEMBER 11, 1953, EFFECTIVE NOVEMBER 1, 1953, PRESCRIBES THAT ELECTIONS OF RETIRED MEMBERS POSTMARKED AFTER NOVEMBER 1, 1953, SHALL BE EFFECTIVE ON "DATE ELECTION IS POSTMARKED." PARAGRAPH 17, DEPARTMENT OF THE ARMY PAMPHLET 21-63, OCTOBER 2, 1953, IS TO THE SAME EFFECT. PARAGRAPH 5, SPECIAL REGULATIONS 35-1365- 5, DECEMBER 11, 1953, EFFECTIVE NOVEMBER 1, 1953, PROVIDES FOR THE COMPUTATION OF REDUCTIONS IN RETIRED PAY ON THE BASIS OF THE AGES OF THE MEMBER AND HIS BENEFICIARIES ON THE BIRTHDAY "NEAREST TO THE DATE OF THE MEMBER'S RETIREMENT OR THE DATE OF ELECTION WHICHEVER IS APPLICABLE." PARAGRAPH 16 OF PAMPHLET 21-63 CONTAINS SIMILAR INFORMATION.

IT APPEARS THAT NOVEMBER 16, 1953, WAS AS NEAR TO COLONEL MCALISTER'S 56TH BIRTHDAY AS IT WAS TO HIS 57TH BIRTHDAY. NO REGULATIONS APPEAR TO HAVE BEEN ISSUED UNDER AUTHORITY OF THE CONTINGENCY OPTION ACT WHICH DETERMINE WHICH BIRTHDAY SHOULD BE USED IN THE COMPUTATION OF THE REDUCTION IN HIS RETIRED PAY IN SUCH CIRCUMSTANCES. HOWEVER, EVEN IF IT BE ASSUMED THAT NOVEMBER 16, 1953, WOULD RELATE BACK TO HIS PRIOR BIRTHDAY FOR THAT PURPOSE - COMPARE REGULATIONS CONCERNING INSURANCE PROCEDURES CONTAINED IN PARAGRAPH 196A, CHAPTER 18, PART 4, VETERANS ADMINISTRATION MANUAL, DECEMBER 1, 1949 - NO RIGHT TO A REFUND OF ANY PORTION OF THE AMOUNTS WITHHELD FROM HIS RETIRED PAY WOULD ACCRUE TO HIM. REGULATIONS COULD HAVE BEEN ISSUED UNDER SAID SECTION 8 FIXING THE DATE OF MAILING AS THE EFFECTIVE DATE OF AN ELECTION, BUT SINCE THE APPLICABLE REGULATIONS PROVIDE THAT THE EFFECTIVE DATE OF AN ELECTION IS THE DATE THE ELECTION IS POSTMARKED, COLONEL MCALISTER'S RIGHTS MUST BE DETERMINED ON THE BASIS OF THE LATTER DATE. NOVEMBER 17, 1953, THE DATE HIS ELECTION WAS POSTMARKED, WAS NEARER TO HIS 57TH THAN TO HIS 56TH BIRTHDAY AND SINCE THE REDUCTION IN HIS RETIRED PAY WAS THEREFORE CORRECTLY COMPUTED UNDER THE LAW AND REGULATIONS ON THE BASIS OF AN AGE OF 57, HE IS NOT ENTITLED TO ANY REFUND OF THE AMOUNTS WITHHELD ON THAT BASIS, EVEN THOUGH, AS SUGGESTED, HIS FAILURE TO TAKE STEPS TO INSURE THAT HIS ELECTION WOULD BEAR A NOVEMBER 16, 1953, POSTMARK, MAY HAVE BEEN INFLUENCED BY MISINFORMATION AS TO HIS RIGHTS FURNISHED BY DEPARTMENT OF THE ARMY OFFICIALS. THAT CIRCUMSTANCE CAN HAVE NO BEARING ON HIS CLAIM SINCE HIS RIGHTS ARE GOVERNED BY APPLICABLE PROVISIONS OF LAW AND REGULATIONS WHICH CANNOT BE CHANGED, OF COURSE, BY MISTAKEN INFORMATION.

ACCORDINGLY, PAYMENT ON THE VOUCHER, COVERING THE AMOUNT CLAIMED AS REFUND FOR THE MONTHS OF NOVEMBER 1953 THROUGH MARCH 1954, IS NOT AUTHORIZED AND THE VOUCHER WILL BE RETAINED IN THIS OFFICE.