B-124017, JUL. 25, 1955

B-124017, JUL. 25, 1955

TO DIRECTOR, SPECIAL PAYMENTS DIVISION, U.S. NAVY FINANCE CENTER:

YOUR LETTER OF APRIL 27, 1955, FORWARDED HERE UNDER DATE OF MAY 17, 1955, BY THE JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE NAVY, REQUESTS A DECISION AS TO WHETHER MALCOLM R. MANSFIELD, CHIEF FIRE CONTROLMAN, U.S. NAVAL FLEET RESERVE, MAY BE AFFORDED COVERAGE UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, IN THE CIRCUMSTANCES SET FORTH BELOW.

IT APPEARS THAT MR. MANSFIELD WAS TRANSFERRED TO THE FLEET RESERVE AND RELEASED FROM ACTIVE DUTY ON MAY 3, 1948, AND THAT FOLLOWING A SHORT TOUR OF ACTIVE DUTY HE AGAIN WAS RELEASED TO INACTIVE DUTY ON NOVEMBER 30, 1952. A PHOTOSTATIC COPY OF HIS ELECTION OF BENEFITS UNDER PARAGRAPH (A) (2), SECTION 4 OF THE CONTINGENCY OPTION ACT, SHOWS THAT SUCH ELECTION WAS EXECUTED ON APRIL 30, 1954, BUT THE ENVELOPE IN WHICH IT WAS MAILED BEARS A 1 A.M. MAY 1, 1954, POSTMARK. MR. MANSFIELD STATES THAT HE DROPPED THE LETTER IN THE MAIL BOX AT 24TH AND DOUGLASS STREETS, SAN FRANCISCO, CALIFORNIA, AT 5:45 P.M. ON APRIL 30, 1954. A LETTER FROM THE SAN FRANCISCO POSTMASTER DATED AUGUST 10, 1954, STATES THAT THE NOTICES OF COLLECTION ON SUCH BOX INDICATE THAT THERE WERE NO COLLECTIONS BETWEEN THE LAST COLLECTION AT 7:39 P.M. ON THAT DATE AND 7:42 A.M. THE FOLLOWING MORNING, AND THAT IF SUCH LETTER BORE A 1 A.M. MAY 1, 1954, CANCELLATION, IT WAS NOT ACCORDED PROPER TREATMENT SINCE THE NORMAL CANCELLATION WOULD HAVE BEEN 8 P.M. APRIL 30, 1954.

SECTION 3 (B) OF THE CONTINGENCY OPTION ACT PROVIDES THAT A RETIRED MEMBER WHO HAS BEEN AWARDED RETIRED PAY PRIOR TO ENACTMENT OF THAT ACT MAY ELECT ONE OF THE OPTIONS PROVIDED THEREIN "WITHIN ONE HUNDRED EIGHTY DAYS AFTER THE EFFECTIVE DATE OF THIS ACT.' THE 180 DAYS EXPIRED ON APRIL 30, 1954. SECTION 8 OF THE ACT PROVIDES FOR THE ISSUANCE OF REGULATIONS UNDER WHICH THE ACT SHALL BE ADMINISTERED. PARAGRAPHS 203 A AND F OF THE REGULATIONS FOR THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, NOVEMBER 1, 1953, PROVIDE THAT TO BE EFFECTIVE THE ELECTION OF A MEMBER RETIRED BEFORE NOVEMBER 1, 1953, "MUST BE SIGNED AND POSTMARKED NOT LATER THAN 30 APRIL 1954.'

WHILE SECTION 8 PERMITS THE ISSUANCE OF NECESSARY IMPLEMENTING REGULATIONS, NO AUTHORITY IS GIVEN TO SHORTEN THE 180-DAY PERIOD FOR MAKING AN ELECTION AND ANY ELECTION MADE PRIOR TO MIDNIGHT APRIL 30, 1954, IS TO BE GIVEN EFFECT.

SINCE THE ENVELOPE CONTAINING THE ELECTION WAS POSTMARKED AT 1 A.M. MAY 1, 1954, AND SINCE IT APPEARS THAT THE ENVELOPE WAS MAILED IN A BOX FROM WHICH NO COLLECTION WAS MADE BETWEEN 7:39 P.M. APRIL 30, 1954, AND 7:42 A.M. THE FOLLOWING MORNING, THE POSTMARK INDICATES THAT MR. MANSFIELD MAILED HIS ELECTION ON APRIL 30, 1954. IN THE CIRCUMSTANCES, A CONCLUSION THAT HE MADE HIS ELECTION WITHIN THE PERIOD FIXED BY LAW APPEARS WARRANTED. COMPARE B-122601, JUNE 2, 1955.

THE POSTMARK ON AN ELECTION WAS REGARDED AS CONTROLLING UNDER THE REGULATIONS CONSIDERED IN DECISION OF OCTOBER 27, 1954, B-120253. HOWEVER, THE QUESTION THERE INVOLVED WAS NOT WHETHER A TIMELY ELECTION HAD BEEN MADE, BUT THE AMOUNT OF THE OFFICER'S REDUCED RETIRED PAY. IT WOULD SEEM THAT THE MATTER OF COMPUTING THE AMOUNT OF THE REDUCED RETIRED PAY IS A PROPER SUBJECT OF REGULATIONS ISSUED UNDER AUTHORITY CONTAINED IN SECTION 8 OF THE ACT.

ACCORDINGLY, YOU ARE ADVISED THAT MR. MANSFIELD'S ELECTION ENTITLES HIM TO COVERAGE UNDER THE CONTINGENCY OPTION ACT.