B-123945, SEP. 29, 1955

B-123945, SEP. 29, 1955

TO MR. T. P. CONDON, DISBURSING OFFICER, DEPARTMENT OF THE NAVY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 21, 1955,XR5:E:2 L16-4/1, REQUESTING A DECISION AS TO WHETHER, IN THE CIRCUMSTANCES DISCLOSED IN YOUR LETTER AND ENCLOSURES, AN ANNUITY IS PAYABLE UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, TO MRS. ELSIE SMITH, WIDOW OF THORVALD SMITH, 192-72-84, U.S. NAVY, RETIRED, DECEASED.

IT APPEARS THAT ON NOVEMBER 3, 1953, THE DECEDENT EXECUTED AND POSTED AN ELECTION FORM (NAVPERS 591A "ELECTION OF OPTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 (RETIRED MEMBERS)" ( ELECTING A COMBINATION OF OPTIONS UNDER SECTION 4/A) (1) AND (3) OF THE SAID ACT, 68 STAT. 503,TO PROVIDE AN ANNUITY UPON HIS DEATH FOR HIS WIDOW (OPTION 1)AND FOR HIS WIDOW AND CHILDREN (OPTION 3), EACH TO BE PAID AT THE RATE OF 1/8 OF HIS REDUCED RETIRED PAY. A LETTER FROM YOUR OFFICE DATED FEBRUARY 19, 1954, INFORMED HIM THAT THE COMBINATION OF OPTIONS (1) AND (3) ELECTED BY HIM WAS NOT ACCEPTABLE AND SUGGESTED THAT HE EXECUTE ANOTHER ELECTION FORM. BY LETTER DATED MARCH 13, 1954, HE ADVISED YOUR OFFICE THAT HE DID NOT WISH TO CHOOSE AN ANNUITY FOR HIS SURVIVOR.

THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"SEC. 3 * * *

"/B) 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.

"SEC. 4 (A) UNDER THE CONDITIONS SET FORTH IN SECTION 3, AN ACTIVE OR RETIRED MEMBER MAY ELECT ONE OR MORE OF THE FOLLOWING ANNUITIES, PAYABLE UNDER THIS ACT, IN SUCH AMOUNT, EXPRESSED AS A PERCENTAGE OF THE REDUCED AMOUNT OF HIS RETIRED PAY, AS HE MAY SPECIFY AT THE TIME OF ELECTION, IN AMOUNTS EQUAL TO ONE-HALF, ONE-QUARTER, OR ONE-EIGHTH OF THE REDUCED AMOUNT OF HIS RETIRED PAY.

"/1) AN ANNUITY PAYABLE TO OR ON BEHALF OF HIS WIDOW * * *.

"/2) AN ANNUITY PAYABLE TO OR ON BEHALF OF HIS SURVIVING CHILD OR CHILDREN * * *.

"/3) AN ANNUITY PAYABLE TO OR ON BEHALF OF HIS WIDOW AND SURVIVING CHILDREN * * *.

"/4) AN ANNUITY PAYABLE UNDER THE SAME TERMS AND CONDITIONS AS SPECIFIED IN (1), (2), OR (3), OF THIS SUBSECTION, WITH THE ADDITIONAL PROVISION THAT NO FURTHER DEDUCTIONS SHALL BE MADE FROM THE REQUIRED PAY OF THE MEMBER COMMENCING WITH THE FIRST DAY OF THE MONTH FOLLOWING THAT IN WHICH THERE WAS NO BENEFICIARY WHO WOULD HAVE BEEN ELIGIBLE TO RECEIVE, UPON THE DEATH OF THE MEMBER, AN ANNUITY PAYABLE UNDER THE ELECTION MADE BY HIM.

"/B) WHERE AN ACTIVE OR RETIRED MEMBER DESIRES TO PROVIDE MORE THAN ONE ANNUITY, HE MAY ELECT (1) AND (2) OF SUB-SECTION (A) OF THIS SECTION, WITH OR WITHOUT THE PROVISIONS OF (4) THEREOF, BUT IN NO CASE MAY THE COMBINED AMOUNTS OF THE ANNUITIES EXCEED 50 PERCENTUM OF THE AMOUNT OF HIS REDUCED RETIRED PAY.'

WHILE SUBSECTION 3 (B) SPECIFICALLY PROVIDES THAT AN ELECTION ONCE MADE BY A RETIRED MEMBER SHALL THEREAFTER BE IRREVOCABLE, THE DECEDENT IN THIS CASE ATTEMPTED TO ELECT A COMBINATION OF OPTIONS (1) AND (3), WHICH IS NOT AUTHORIZED BY THE STATUTE. SINCE SUCH AN ELECTION WAS NOT OPEN TO HIM, HIS ACTION DID NOT CONSTITUTE A VALID ELECTION UNDER THE LAW. COMPARE DECISION OF MAY 2, 1955, B-122507 (34 COMP. GEN. 555), TO THE SECRETARY OF DEFENSE, COPY HEREWITH, CONCERNING THE INVALIDITY OF AN ELECTION WHEN OPTIONS (2) AND (3) ARE COMBINED. ACCORDINGLY, SINCE HE MADE NO VALID ELECTION, THE PAYMENT OF AN ANNUITY TO HIS WIDOW IS NOT AUTHORIZED.