B-124013, OCT. 3, 1955

B-124013: Oct 3, 1955

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THE VOUCHER IS PREPARED IN THE AMOUNT OF $24.17. IT WAS STATED THAT PAYMENT HAD NOT BEEN MADE ON THE CLAIM BY THE DEPARTMENT OF THE ARMY IN VIEW OF AN EXISTING DOUBT AS TO THE VALIDITY OF THE ELECTION MADE IN THE CASE UNDER THE PROVISIONS OF THE 1953 ACT. INASMUCH AS IT APPEARS THAT A DETERMINATION AS TO THE PROPRIETY OF PAYMENT FOR THE PERIOD COVERED BY THE SUBMITTED VOUCHER IS DESIRED TO SUPPORT CONTINUING ANNUITY PAYMENTS TO MRS. THE MATTER IS PROPERLY ONE FOR SUBMISSION HERE FOR ADVANCE DECISION UNDER THE PROVISIONS OF THE ACT OF JULY 31. IT WILL BE CONSIDERED AS HAVING BEEN SUBMITTED IN THAT PURPOSE. THE RECORD SHOWS THAT THE OFFICER WAS RETIRED EFFECTIVE JULY 31. WHERE HIS ILLNESS WAS DIAGNOSED AS CANCER ON APRIL 3.

B-124013, OCT. 3, 1955

TO THE HONORABLE SECRETARY OF THE ARMY:

BY LETTER OF MARCH 4, 1955, THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED TO OUR CLAIMS DIVISION FOR SETTLEMENT AS A CLAIM A VOUCHER IN FAVOR OF MRS. JANE T. GONSETH, WIDOW OF COLONEL JULES E. GONSETH, 0-216 263, RETIRED, DECEASED. THE VOUCHER IS PREPARED IN THE AMOUNT OF $24.17, REPRESENTING AN INITIAL ANNUITY PAYMENT FOR THE PERIOD APRIL 1 TO 30, 1954, UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501. IT WAS STATED THAT PAYMENT HAD NOT BEEN MADE ON THE CLAIM BY THE DEPARTMENT OF THE ARMY IN VIEW OF AN EXISTING DOUBT AS TO THE VALIDITY OF THE ELECTION MADE IN THE CASE UNDER THE PROVISIONS OF THE 1953 ACT.

INASMUCH AS IT APPEARS THAT A DETERMINATION AS TO THE PROPRIETY OF PAYMENT FOR THE PERIOD COVERED BY THE SUBMITTED VOUCHER IS DESIRED TO SUPPORT CONTINUING ANNUITY PAYMENTS TO MRS. GONSETH, THE MATTER IS PROPERLY ONE FOR SUBMISSION HERE FOR ADVANCE DECISION UNDER THE PROVISIONS OF THE ACT OF JULY 31, 1894, AS AMENDED, 31 U.S.C. 74, RATHER THAN TO THE CLAIMS DIVISION AS A DOUBTFUL CLAIM, AND, IN THE CIRCUMSTANCES INVOLVED, IT WILL BE CONSIDERED AS HAVING BEEN SUBMITTED IN THAT PURPOSE.

THE RECORD SHOWS THAT THE OFFICER WAS RETIRED EFFECTIVE JULY 31, 1953, AS A LIEUTENANT COLONEL, ARMY OF THE UNITED STATES, UNDER THE PROVISIONS OF SECTIONS 301 AND 302 OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, AND THAT HE DIED ON APRIL 14, 1954, AT THE BILLINGS HOSPITAL IN CHICAGO, ILLINOIS. FROM INFORMATION CONTAINED IN VARIOUS AFFIDAVITS ACCOMPANYING THE SUBMITTED VOUCHER IT APPEARS THAT THE OFFICER HAD UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, AND THAT HE HAD INDICATED AN INTENTION SO TO DO. HE ENTERED THE HOSPITAL ON MARCH 30, 1954, WHERE HIS ILLNESS WAS DIAGNOSED AS CANCER ON APRIL 3. MRS. GONSETH WAS ADVISED AGAINST OBTAINING THE OFFICER'S SIGNATURE EVIDENCING HIS ELECTION TO PROVIDE AN ANNUITY FOR HER PRIOR TO AN OPERATION SCHEDULED FOR APRIL 6 BECAUSE OF THE PSYCHOLOGICAL FACTORS INVOLVED, BUT WAS ADVISED BY THE ATTENDING SURGEON THAT THERE WOULD BE SUFFICIENT OPPORTUNITY FOLLOWING THE OPERATION AND BEFORE APRIL 30, 1954, FOR HIM TO EXECUTE THE NECESSARY ELECTION FORM. FOLLOWING THE OPERATION, HOWEVER, ON THE MORNING OF APRIL 13, SHE WAS ADVISED THAT HER HUSBAND'S CONDITION WAS CRITICAL AND THAT HE WOULD LIVE BUT A SHORT TIME. AN ELECTION OF OPTIONS FORM WAS PREPARED AND THE OFFICER ATTEMPTED TO SIGN IT BUT WAS UNABLE TO DO SO DUE TO EXTREME PHYSICAL WEAKNESS AND AN INABILITY TO MOVE FREELY BECAUSE OF MEDICAL PARAPHERNALIA AFFIXED TO HIS BODY. MRS. GONSETH THEN HAD TYPED ON THE ELECTION FORM THE STATEMENT:

"JULES EMMABLE GONSETH, NAMED ABOVE, IS NOT COMPETENT TO SIGN. HEREWITH IS THE SIGNATURE OF HIS SPOUSE: "

SHE THEN SIGNED THE FORM AND HAD HER SIGNATURE NOTARIZED, AND THE FORM WAS MAILED TO THE RETIRED PAY BRANCH, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA.

IN DECISION OF MAY 20, 1955, B-122222, IT WAS HELD THAT A VALID ELECTION IS TO BE REGARDED AS HAVING BEEN MADE UNDER THE REQUIREMENTS OF SECTION 3 OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 502, 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 MAKE AN ELECTION. THE RECORD IN THIS CASE INDICATES THAT COLONEL GONSETH WAS AWARE OF THE REQUIREMENTS AND BENEFITS OF THE ACT. VIEW OF THE INFORMATION CONTAINED IN THE VARIOUS AFFIDAVITS SUBMITTED IT MAY BE CONSIDERED THAT IT WAS THE OFFICER'S INTENTION ON APRIL 13 TO SIGN THE ELECTION OF OPTIONS FORM AND THAT HIS FAILURE TO DO SO RESULTED ONLY FROM HIS PHYSICAL INCAPACITY. THEREFORE, SINCE THE FORM WAS COMPLETED IN HIS BEHALF BY HIS WIFE ON APRIL 13, AND APPARENTLY WAS MAILED TO THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, PRIOR TO HIS DEATH ON APRIL 14, IT MAY BE CONSIDERED THAT IT CONSTITUTED A VALID ELECTION UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953. ACCORDINGLY, THE VOUCHER, WHICH IS ENCLOSED, MAY BE RETURNED TO THE PROPER DISBURSING OFFICER FOR PAYMENT.