B-121650, MAY 10, 1955

B-121650, MAY 10, 1955

PRECIS-UNAVAILABLE

COLONEL CLYDE W. O'HERN, USAF:

BY LETTER OF SEPTEMBER 10, 1954, THE DEPUTY DIRECTOR OF FINANCE FORWARDED HERE YOUR UNDATED LETTER, WITH ENCLOSURES, REQUESTING DECISION AS TO WHETHER PAYMENT IS PROPER ON A VOUCHER COVERING THE CLAIM OF MAJOR GENERAL ARTHUR W. VANAMAN, USAF, RETIRED, REPRESENTING REFUND OF DEDUCTIONS MADE FROM HIS RETIRED PAY, AT THE RATE OF $54.96 PER MONTH, FOR THE MONTHS OF JUNE AND JULY 1954, UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, 37 U.S.C. 371-381, 1952 EDITION, SUPP. I. IT IS INDICATED THAT NO ACTION WILL BE TAKEN BY THE AIR FORCE FINANCE CENTER TO TERMINATE THE REDUCTION OF $54.96 PER MONTH IN GENERAL VANAMAN'S RETIRED PAY PENDING RECEIPT OF DECISION.

GENERAL VANAMAN WAS RETIRED FROM THE AIR FORCE FOR PHYSICAL DISABILITY ON MAY 31, 1954, IN ACCORDANCE WITH PROVISIONS OF SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, 823, 37 U.S.C. 272, 279. AS POINTED OUT IN YOUR LETTER, HE HAD UNTIL THE DATE OF HIS RETIREMENT, MAY 31, 1954, TO ELECT TO RECEIVE A REDUCED AMOUNT OF RETIRED PAY AND THUS PROVIDE AN ANNUITY TO BE PAYABLE AFTER HIS DEATH IN A RETIRED STATUS TO HIS SURVIVING SPOUSE.

THERE WAS FORWARDED WITH YOUR LETTER A PHOTOSTATIC COPY OF AIR FORCE FORM 806, "ELECTION OF OPTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953," SIGNED BY GENERAL VANAMAN, AND DULY ATTESTED, EVIDENCING HIS ELECTION OF OPTION NO. 1, COMBINED WITH OPTION NO. 4, IN FAVOR OF HIS WIFE, MRS. BLANCHE GARROWAY VANAMAN. THE ELECTION FORM, DATED MAY 26, 1954, IS SHOWN TO HAVE BEEN SUBSCRIBED AND SWORN TO BY GENERAL VANAMAN AND IT APPEARS THAT IT WAS SUBMITTED ON MAY 26, 1954, TO THE OFFICE OF BASE PERSONAL AFFAIRS AT GENERAL VANAMAN'S POST OF DUTY AND WAS FORWARDED BY THAT OFFICE ON THE NEXT DAY, MAY 27, 1954, TO THE AIR FORCE FINANCE CENTER, DENVER, COLORADO.

IT APPEARS THAT GENERAL VANAMAN WAS INFORMED IN JUNE 1954 AS TO THE AMOUNT OF THE REDUCTION ($54.96 PER MONTH) REQUIRED TO BE MADE IN HIS RETIRED PAY AS A RESULT OF HIS ELECTION AND THAT, UPON RECEIPT OF SUCH INFORMATION, HE ADDRESSED A LETTER TO THE AIR FORCE FINANCE CENTER, DATED JUNE 25, 1954, STATING THAT "THE DEDUCTION FROM MY RETIRED PAY OF $54.96 IS MUCH GREATER THAN WAS MY UNDERSTANDING WHEN I SUBMITTED THE FORM COVERING THIS REDUCTION" AND "I WOULD NOW LIKE TO CANCEL ENTIRELY ALL THE USCOA COVERAGE." SUBSEQUENTLY, IN JULY 1954, GENERAL VANAMAN WAS ADVISED BY THE FINANCE CENTER THAT HIS REQUEST FOR CANCELLATION OF HIS ELECTION COULD NOT BE GIVEN ANY EFFECT IN VIEW OF THE PROVISIONS OF SECTION 3(A) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 502, 37 U.S.C. 372(A), 1952 EDITION, SUPP. I. THEREAFTER, GENERAL VANAMAN, IN LETTER OF JULY 19, 1954, TO THE FINANCE CENTER, SUGGESTED THAT THE MERE AFFIXING OF HIS SIGNATURE TO AIR FORCE FORM NO. 806 "DID NOT AMOUNT TO AN ELECTION" AND THAT SINCE THE ELECTION FORM WAS PUT ASIDE IN HIS DESK AND TAKEN FROM SUCH PLACE AND MAILED WITHOUT HIS KNOWLEDGE "AN ELECTION UNDER THE ACT WAS NEVER IN FACT MADE OR INTENDED TO BE MADE" BY HIM.

THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 AFFORDS EACH MEMBER OF THE UNIFORMED SERVICES AN OPPORTUNITY TO PROVIDE ONE OR MORE ANNUITIES TO BE PAID AFTER HIS DEATH IN A RETIRED STATUS TO HIS WIDOW, CHILD, OR CHILDREN. IN ORDER TO SECURE THE ADVANTAGE OF SUCH BENEFITS FOR HIS SURVIVORS, THE MEMBER, HOWEVER, IS REQUIRED TO MAKE AN ELECTION - WITHIN THE PERIOD SPECIFIED IN THE ACT AND APPLICABLE IN THE CIRCUMSTANCES OF HIS PARTICULAR CASE - TO RECEIVE A REDUCED AMOUNT OF THE RETIRED PAY WHICH MAY BE AWARDED HIM AS A RESULT OF HIS MILITARY SERVICE. UNDER THE PERTINENT REGULATIONS, THE ELECTION OF AN ACTIVE MEMBER (WHICH WAS GENERAL VANAMAN'S STATUS IN MAY 1954) BECOMES EFFECTIVE ON THE "DATE ELECTION IS SIGNED, ATTESTED TO BY A COMMISSIONED OFFICER OR NOTARIZED, AND SUBMITTED." SEE PARAGRAPH 10H(4), AIR FORCE REGULATION NO. 34-63, DATED JANUARY 27, 1954. ALSO, SEE SECTION 203A, REGULATIONS FOR THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, AS APPROVED BY THE SECRETARY OF DEFENSE PURSUANT TO THE AUTHORITY OF EXECUTIVE ORDER NO. 10499, DATED NOVEMBER 4, 1953.

IT WILL BE NOTED THAT THREE SPECIFIC STEPS ARE REQUIRED TO MAKE AN ELECTION EFFECTIVE. IN GENERAL VANAMAN'S SITUATION THESE WERE (1) HIS SIGNATURE, (2) ATTESTATION OF HIS SIGNATURE BY A COMMISSIONED OFFICER, AND (3) SUBMISSION OF HIS ELECTION TO THE AIR FORCE FINANCE CENTER. HIS ELECTION COULD NOT BECOME EFFECTIVE ON THE BASIS OF HIS SIGNATURE AND ITS ATTESTATION ALONE. HENCE THE POINT IN ISSUE IS WHETHER GENERAL VANAMAN'S ELECTION WAS "SUBMITTED" BY OR FOR HIM UNDER CIRCUMSTANCES MAKING IT LEGALLY EFFECTIVE AND BINDING FOR THE PURPOSES OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953.

WHILE GENERAL VANAMAN'S SIGNED AND DULY ATTESTED ELECTION FORM IS STATED TO HAVE BEEN SUBMITTED WITHOUT HIS KNOWLEDGE OR EXPRESS ORDERS, IT IS NOT ESTABLISHED THAT IT WAS SUBMITTED CONTRARY TO HIS SPECIFIC INSTRUCTIONS OR IN DISREGARD OF ANY ORDERS ISSUED BY HIM IN THE MATTER. SINCE THERE WAS SUCH A SHORT TIME LEFT IN WHICH HE COULD MAKE A VALID ELECTION AND SINCE HE WAS AWARE THAT THE EXISTENCE AND LOCATION OF THE SIGNED AND DULY ATTESTED ELECTION FORM WERE KNOWN TO MEMBERS OF HIS STAFF, IT WOULD NOT BE UNREASONABLE TO CONCLUDE THAT SUCH STAFF MEMBERS HAD IMPLIED AUTHORITY TO MAIL THE FORM FOR HIM. IN ANY EVENT, HE DID NOT TAKE TIMELY STEPS TO REPUDIATE OR DISAFFIRM THE ACTS OF MEMBERS OF HIS STAFF OR OFFICE ASSISTANTS IN MAILING THE ELECTION FORM. ON THE CONTRARY, IT SEEMS APPARENT THAT HE HAD RATIFIED SUCH ACTS AND ADOPTED THEM FOR HIS OWN PRIOR TO THE ASSERTION OF THE CLAIMS MADE IN HIS LETTER OF JULY 19, 1954, SINCE, AS ABOVE STATED, HE ADDRESSED A LETTER TO THE FINANCE CENTER ON JUNE 25, 1954, STATING THAT "I SUBMITTED THE FORM" AND "I WOULD NOW LIKE TO CANCEL ENTIRELY ALL THE USCOA COVERAGE." IN SUCH CIRCUMSTANCES, GENERAL VANAMAN'S ELECTION BECAME LEGALLY EFFECTIVE ON THE DATE SUBMITTED AND UNDER THE STATUTE HE SECURED FOR HIMSELF AND HIS WIFE THE ANNUITY ADVANTAGES AFFORDED BY THE OPTIONS HE SELECTED AND ON THAT DATE THE GOVERNMENT BECAME OBLIGATED TO THE EXTENT OF THE OPTIONS SELECTED BY THE OFFICER TO BECOME EFFECTIVE UPON HIS RETIREMENT ON MAY 31, 1954.

ACCORDINGLY, THE VOUCHER PRESENTED WITH YOUR LETTER IS NOT APPROVED FOR PAYMENT AND WILL BE RETAINED IN THIS OFFICE.