B-122479, JAN 11, 1955

B-122479, JAN 11, 1955

PRECIS-UNAVAILABLE

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

BY FIRST INDORSEMENT OF DECEMBER 31, 1954, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR REQUEST OF DECEMBER 17, 1954, FOR AN ADVANCE DECISION AS TO THE AMOUNT OF RETIREMENT PAY PROPERLY PAYABLE TO COLONEL WILLIAM D. MIDDLETON, AUS, RETIRED. THE VOUCHER SUBMITTED WITH YOUR LETTER IS FOR THE MONTH OF DECEMBER 1954 AND IS STATED FOR A REDUCED AMOUNT OF RETIRED PAY ($151.16, REDUCED FROM $264.69), APPARENTLY ON THE ASSUMPTION THAT THE OFFICER HAS MADE A VALID ELECTION, UNDER SECTION 4(A)(1) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 502, TO RECEIVE SUCH REDUCED AMOUNT TO PROVIDE AN ANNUITY FOR HIS WIDOW UPON HIS DEATH.

THE EVIDENCE SUBMITTED INDICATES THAT COLONEL MIDDLETON WAS NOT OFFICIALLY ADVISED OF THE ENACTMENT OF THE CONTINGENCY OPTION ACT BUT THAT HE HEARD RUMORS CONCERNING THE BENEFITS GRANTED UNDER THAT ACT AND MADE INQUIRY AS TO HIS RIGHTS AND THAT IT WAS HIS UNDERSTANDING OF THE INFORMATION RECEIVED BY TELEPHONE FROM A REPRESENTATIVE OF HEADQUARTERS, WISCONSIN MILITARY DISTRICT, MILWAUKEE, WISCONSIN, IN APRIL 1954 THAT HE HAD UNTIL NOVEMBER 1, 1954, TO MAKE AN ELECTION UNDER THE ACT. WHILE IT IS ALLEGED THAT HE FORWARDED A POSTCARD QUESTIONNAIRE PRIOR TO APRIL 30, 1954, INFORMING THE ARMY OF HIS INTENT TO MAKE AN ELECTION OF BENEFITS UNDER THAT ACT, THERE APPEARS TO BE NO EVIDENCE OF RECEIPT OF SUCH POSTCARD AND THE ELECTION ACTUALLY MADE BY HIM IS DATED SEPTEMBER 24, 1954.

SECTION 3(B) OF THE CONTINGENCY OPTION ACT (APPROVED AUGUST 8, 1953, EFFECTIVE NOVEMBER 1, 1953), 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."

THE RECORD SHOWS THAT COLONEL MIDDLETON WAS PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST ON AUGUST 31, 1949 "WITH ENTITLEMENT TO RETIREMENT PAY FROM 1 SEPTEMBER 1949." APPARENTLY NO RETIREMENT PAY WAS PAID TO HIM UNTIL JUNE 1954 SINCE IT APPEARS THAT HE WAS EMPLOYED BY THE VETERANS' ADMINISTRATION THROUGH MAY 31, 1954, AND THAT HE ELECTED TO RECEIVE THE SALARY ACCRUING FROM SUCH EMPLOYMENT, RATHER THAN RETIREMENT PAY, IN THE BELIEF THAT AN ELECTION BETWEEN THE TWO WAS REQUIRED BY THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF 1932, AS AMENDED, 5 U.S.C. 59A. WHILE RETIREMENT PAY WAS NOT PAID TO HIM PRIOR TO ENACTMENT OF THE CONTINGENCY OPTION ACT, IT IS CLEAR THAT SUCH PAY HAD BEEN AWARDED HIM PRIOR TO THAT TIME AND, HENCE, THAT HE WAS ENTITLED TO THE BENEFITS OF THAT ACT ONLY IF HE MADE AN ELECTION UNDER THE ACT WITHIN 180 DAYS AFTER NOVEMBER 1, 1953, THE EFFECTIVE DATE OF THE ACT. SINCE THE ELECTION DATED SEPTEMBER 24, 1954, WAS MADE AFTER THAT TIME, IT WAS OF NO EFFECT.

WHILE IT IS UNFORTUNATE THAT COLONEL MIDDLETON WAS NOT OFFICIALLY ADVISED OF HIS RIGHTS UNDER THE CONTINGENCY OPTION ACT PRIOR TO APRIL 30, 1954, THE PROVISIONS OF THAT ACT DID NOT REQUIRE THAT NOTICE BE GIVEN TO ANYONE. IT IS UNDERSTOOD THAT PROCEDURES WERE ADOPTED BY THE DEPARTMENT OF THE ARMY WHICH WERE THOUGHT TO BE ADEQUATE TO GIVE NOTICE TO RETIRED PERSONNEL CONCERNED. WHILE YOU STATE THAT THERE IS NO EVIDENCE WHICH SHOWS THAT HE WAS SO NOTIFIED, LACK OF SUCH NOTICE DID NOT SERVE TO EXTEND THE 180-DAY PERIOD FIXED IN THE STATUTE.

THE INFORMATION GIVEN COLONEL MIDDLETON BY TELEPHONE PROBABLY RELATED TO THE ACT OF APRIL 29, 1954, 68 STAT. 64, WHICH AMENDED SECTION 3(A) OF THE CONTINGENCY OPTION ACT SO AS TO EXTEND THE PERIOD SPECIFIED THEREIN FROM 180 DAYS TO ONE YEAR. HOWEVER, THAT EXTENSION APPLIED ONLY TO ACTIVE MEMBERS WHO HAD COMPLETED 18 YEARS OF SERVICE. SECTION 3(B), APPLICABLE TO RETIRED PERSONNEL, WAS NOT SO AMENDED. IT IS NOT MATERIAL WHETHER HE MISUNDERSTOOD THE INFORMATION GIVEN HIM BY TELEPHONE OR WHETHER THE PERSON TO WHOM HE TALKED WAS MISINFORMED AS TO THE EFFECT OF THE ACT OF APRIL 29, 1954, SINCE HIS RIGHTS ARE GOVERNED BY THE STATUTE RATHER THAN INFORMATION WHICH HE MAY HAVE RECEIVED AS TO ITS PROVISIONS.

NO VALID ELECTION UNDER THE CONTINGENCY OPTION ACT HAVING BEEN ESTABLISHED, COLONEL MIDDLETON SHOULD BE PAID HIS FULL RETIREMENT PAY, WITHOUT DEDUCTION FOR SURVIVORS' BENEFITS, AND PAYMENT ON THE VOUCHER, IF SO AMENDED, IS AUTHORIZED. THE VOUCHER IS ENCLOSED.