B-122222, MAY 20, 1955

B-122222: May 20, 1955

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SHIELDS) WERE MARRIED DECEMBER 14. THAT HE WAS RETIRED SEPTEMBER 16. THE FORM EVIDENCING THE ELECTION OF OPTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT WAS SIGNED BY THE OFFICER'S WIDOW AND ATTESTED BY COMMANDER F.T. HE WAS ON ACTIVE DUTY AT THE U.S. THAT CAPTAIN SHIELDS WAS A PATIENT UNDER HIS CARE. OTHER AVERMENTS BY COMMANDER NORRIS ARE TO THE EFFECT THAT HE ATTESTED TO THE SIGNING OF THE ELECTION OF OPTIONS FORM BY MRS. THE OFFICER WAS MENTALLY COMPETENT AT THE TIME THE FORM WAS EXECUTED. THAT THE CAPTAIN WAS UNABLE TO SIGN HIS NAME. IT IS REPORTED THAT THE ELECTION OF OPTIONS FORM WAS MAILED TO THE CHIEF OF NAVAL PERSONNEL BY THE PERSONNEL OFFICE AT THE HOSPITAL. THE ENVELOPE IS POSTMARKED 12:30 P.M.

B-122222, MAY 20, 1955

PRECIS-UNAVAILABLE

LIEUTENANT COMMANDER D. M. CARR (SC), DEPARTMENT OF THE NAVY:

YOUR LETTER OF SEPTEMBER 28, 1954, XR5:A:38, L16-4/1, REQUESTS DECISION AS TO WHETHER MRS. LAURA R. SHIELDS, THE WIDOW OF THE LATE CAPTAIN GEORGE P. SHIELDS, USN, RETIRED, MAY BE CONSIDERED A PROPER BENEFICIARY FOR ANNUITY PAYMENTS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501.

IT APPEARS THAT CAPTAIN SHIELDS AND LAURA R. WHITING (MRS. SHIELDS) WERE MARRIED DECEMBER 14, 1929, AND THAT HE WAS RETIRED SEPTEMBER 16, 1948. FURTHER APPEARS THAT THE OFFICER DIED AT 12:35 P.M., APRIL 16, 1954, WHILE HOSPITALIZED AT THE U.S. NAVAL HOSPITAL, OAKLAND, CALIFORNIA. THE FORM EVIDENCING THE ELECTION OF OPTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT WAS SIGNED BY THE OFFICER'S WIDOW AND ATTESTED BY COMMANDER F.T. NORRIS, MEDICAL CORPS, USN, ON APRIL 16, 1954.

BY AFFIDAVITS EXECUTED SEPTEMBER 13 AND NOVEMBER 3, 1954, COMMANDER NORRIS, THE ATTESTING OFFICER, AVERS THAT ON APRIL 16, 1954, HE WAS ON ACTIVE DUTY AT THE U.S. NAVAL HOSPITAL, OAKLAND, CALIFORNIA, AND THAT CAPTAIN SHIELDS WAS A PATIENT UNDER HIS CARE. HE FURTHER AVERS THAT HE DISCUSSED THE UNIFORMED SERVICES CONTINGENCY OPTION ACT WITH CAPTAIN SHIELDS AND HIS WIFE AND THAT CAPTAIN SHIELDS EXPRESSED HIS DESIRE TO BE COVERED BY THE STATUTE. OTHER AVERMENTS BY COMMANDER NORRIS ARE TO THE EFFECT THAT HE ATTESTED TO THE SIGNING OF THE ELECTION OF OPTIONS FORM BY MRS. SHIELDS, THE OFFICER'S WIFE, IN THEIR PRESENCE ON APRIL 16, 1954, AND THAT, IN HIS OPINION, THE OFFICER WAS MENTALLY COMPETENT AT THE TIME THE FORM WAS EXECUTED. IT APPEARS FROM A CERTIFICATION MADE AT 11:35 A.M., APRIL 16, 1954, BY COMMANDER JAMES H. BOYERS, MEDICAL CORPS, USN, WHO ALSO ATTENDED CAPTAIN SHIELDS, THAT THE CAPTAIN WAS UNABLE TO SIGN HIS NAME. IT IS REPORTED THAT THE ELECTION OF OPTIONS FORM WAS MAILED TO THE CHIEF OF NAVAL PERSONNEL BY THE PERSONNEL OFFICE AT THE HOSPITAL. THE ENVELOPE IS POSTMARKED 12:30 P.M., APRIL 17, 1954.

UNDER SECTION 3 OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT, 67 STAT. 502, A RETIRED MEMBER IN RECEIPT OF RETIRED PAY ON NOVEMBER 1, 1953, WAS PERMITTED TO ELECT WITHIN ONE HUNDRED AND EIGHTY DAYS AFTER THAT DATE - BY APRIL 30, 1954 - TO RECEIVE A REDUCED AMOUNT OF THAT RETIRED PAY IN ORDER TO PROVIDE CERTAIN SPECIFIED ANNUITIES, PAYABLE AFTER HIS DEATH TO HIS WIDOW OR CHILDREN.

ENTITLEMENT TO THE BENEFITS PROVIDED BY THE ACT DEPENDS UPON WHETHER AN ELECTION WAS MADE WITHIN THE TIME PERMITTED, AND COMPLIANCE WITH THE REGULATIONS IN PROPERLY EXECUTING AND SUBMITTING THE ELECTION OF OPTIONS FORM PRESCRIBED BY THE DEPARTMENT CONSTITUTES EVIDENCE OF A VALID ELECTION. HOWEVER, AN IMPROPER EXECUTION OF THE ELECTION OF OPTIONS FORM DOES NOT INVALIDATE AN OTHERWISE VALID ELECTION. REASONABLY, IN SUCH CASES, A VALID ELECTION IS TO BE REGARDED AS HAVING BEEN MADE WHERE THE RECORD SHOWS THAT THE RETIRED MEMBER HAD KNOWLEDGE OF HIS RIGHTS, AND HIS DUTY TO ELECT IF HE DESIRED THE BENEFITS OF THE LAW, AND HIS ACTS, VIEWED IN THE LIGHT OF ALL THE CIRCUMSTANCES, SHOW THAT HE INTENDED TO MADE AN ELECTION. COMPARE 34 COMP. GEN. 35; 34 COMP. GEN. 63.

THERE APPEARS NO REASON TO QUESTION THE AFFIDAVITS OF COMMANDER NORRIS AND IT SEEMS CLEAR FROM SUCH AFFIDAVITS THAT CAPTAIN SHIELDS INTENDED TO MAKE AN ELECTION UNDER THE ACT. THE STATUTORY PERIOD FOR MAKING THE ELECTION HAD NOT EXPIRED AND NO QUESTION OF INCOMPETENCY IS INVOLVED. WHILE THE ELECTION FORM WAS NOT SIGNED BY THE OFFICER, IT WAS EXECUTED BY HIS WIFE AT HIS REQUEST AND NOTHING APPEARS TO INDICATE ANY IMPROPER CONDUCT IN ITS EXECUTION.

SECTION 203 OF THE REGULATIONS FOR THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 PROVIDES, IN EFFECT, THAT TO BE EFFECTIVE THE ELECTION OF A MEMBER RETIRED PRIOR TO MAY 1, 1954, MUST BE SIGNED AND POSTMARKED NOT LATER THAN APRIL 30, 1954. SUCH PROVISIONS, HOWEVER, APPEAR TO HAVE BEEN FRAMED IN THE LIGHT OF THE USUAL SITUATION OF RETIRED PERSONNEL LIVING AMONG CIVILIANS, APART FROM MILITARY AND NAVAL INSTALLATIONS, AND WHO NORMALLY WOULD BE EXPECTED TO AVAIL THEMSELVES OF POSTAL FACILITIES FOR PURPOSES OF SUBMITTING THE ELECTION FORMS, IT BEING NOTED THAT FOR MEMBERS ON ACTIVE DUTY, THE REGULATIONS REQUIRE ONLY THAT THE FORM BE SIGNED AND WITNESSED PRIOR TO APRIL 30, 1954. CONSEQUENTLY, SUCH PROVISIONS DO NOT REQUIRE A CONCLUSION THAT AN OTHERWISE VALID ELECTION MADE ON A FORM SUBMITTED IN A WAY WHICH EFFECTIVELY TERMINATES THE MEMBER'S CONTROL OVER THE FORM IS NULLIFIED SIMPLY BECAUSE THE FORM WAS NOT TRANSMITTED THROUGH THE MAILS, OR WAS NOT IMMEDIATELY PUT IN THE MAILS, WHERE IT WAS OTHERWISE DELIVERED INTO OFFICIAL CHANNELS.

ACCORDINGLY, IF THE SUBMITTED ELECTION FORM IN THIS CASE PASSED IRRETRIEVABLY OUT OF THE CONTROL OF CAPTAIN SHIELDS AND HIS WIFE AND INTO THE HANDS OF THE AUTHORITIES OF THE U.S. NAVAL HOSPITAL AT OAKLAND PRIOR TO THE TIME OF HIS DEATH, AND EVIDENCE ESTABLISHING THAT FACT IS MADE A PART OF THE RECORD, AN ANNUITY, COMPUTED ON THE BASIS THAT THE OFFICER MADE THE ELECTION ON APRIL 16, 1954, MAY BE PAID TO MRS. SHIELDS UNDER THE OPTION SELECTED IN THE ELECTION OF OPTIONS FORM, WHICH IS RETURNED HEREWITH.