B-124568, MAR. 26, 1957

B-124568, MAR. 26, 1957

TO MRS. MARJORIE E. TAYLOR:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 8, 1957, CONCERNING YOUR CLAIM FOR AN ANNUITY PAYABLE AT THE RATE OF ONE-HALF OF THE REDUCED RETIRED PAY OF YOUR DECEASED HUSBAND, LIEUTENANT COLONEL JAMES G. TAYLOR, UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501.

IT APPEARS THAT YOU ARE NOW RECEIVING ANNUITY PAYMENTS, ON THE BASIS OF OUR DECISION OF SEPTEMBER 7, 1956, B-124568, PAYMENT BEING MADE AT THE RATE OF ONE-EIGHTH OF THE REDUCED RETIRED PAY PAYABLE AT THE TIME OF YOUR HUSBAND'S DEATH ON MAY 1, 1954, SINCE HIS ELECTION UNDER THAT ACT FAILED TO STATE WHETHER THE ONE-EIGHTH, ONE-QUARTER OR ONE-HALF RATE SHOULD BE APPLICABLE TO SUCH ELECTION. 34 COMP. GEN. 63. IN SUPPORT OF YOUR CONTENTION THAT IN SIGNING THE ELECTION HE INTENDED TO PURCHASE AN ANNUITY PAYABLE TO YOU AT ONE-HALF OF HIS REDUCED RETIRED PAY, YOU HAVE SUBMITTED YOUR AFFIDAVIT, THOSE OF FOUR FRIENDS, ONE OF WHOM DREW UP THE ELECTION YOUR HUSBAND SIGNED, AND ONE FROM THE NAVY NURSE WHO ATTENDED COLONEL TAYLOR DURING HIS LAST ILLNESS.

CAPTAIN LEON F. BROWN, USNR, IN HIS AFFIDAVIT DATED DECEMBER 19, 1956, STATES THAT HE CALLED ON YOUR HUSBAND ON APRIL 29, 1954, AT THE U.S. NAVAL HOSPITAL IN ANNAPOLIS FOR THE PURPOSE OF INDUCING HIM TO MAKE AN ELECTION OF BENEFITS IN YOUR FAVOR UNDER THE CONTINGENCY OPTION ACT AND THAT WHILE YOUR HUSBAND WAS RELUCTANT TO GIVE UP THE $80 TO $90 PER MONTH MENTIONED IN THEIR CONVERSATION, WHEN IT WAS EXPLAINED TO HIM THAT SUCH AMOUNT WOULD PURCHASE AN ANNUITY OF APPROXIMATELY $150 PER MONTH FOR YOU AND HE WAS REMINDED THAT YOU WOULD BE LEFT WITH PRACTICALLY NO MEANS OF SUPPORT IN THE EVENT OF HIS DEATH IF HE REFUSED, HE SIGNED THE ELECTION. MRS. ELEANOR M. BROWN'S AFFIDAVIT SUPPORTS THAT OF HER HUSBAND, CAPTAIN BROWN, AND STATES THAT SHE ACTED AS THE NOTARY PUBLIC IN THE EXECUTION OF THE ELECTION.

IN YOUR AFFIDAVIT DATED JANUARY 17, 1957, YOU STATE THAT CAPTAIN BROWN ADVISED YOU BY TELEPHONE ON APRIL 29, 1954, OF HIS INTENTION TO VISIT YOUR HUSBAND AND INDUCE HIM TO SIGN AN ELECTION WHICH WOULD PRODUCE A "SUBSTANTIAL INCOME" FOR YOU IN THE EVENT OF HIS DEATH; THAT YOU UNDERSTOOD THAT THE PROBABLE COST OF THIS PROTECTION WOULD BE BETWEEN $80 AND $90 PER MONTH; AND THAT YOU LEFT IT ENTIRELY TO CAPTAIN BROWN AS TO WHAT FINAL ACTION HE SHOULD TAKE. NURSE MARGARET F. NEELY'S AFFIDAVIT OF JANUARY 10, 1957, MENTIONS, AMONG OTHER THINGS, A REMARK MADE BY YOUR HUSBAND TO HER AFTER CAPTAIN BROWN LEFT THE HOSPITAL TO THE EFFECT THAT IF HE DID LIVE VERY LONG THE COST OF HIS ELECTION WOULD NOT LEAVE HIM WITH SUFFICIENT FUNDS TO LIVE ON.

IT IS UNDERSTOOD THAT COLONEL TAYLOR WAS BORN SEPTEMBER 16, 1880, THAT YOUR NEAREST AGE WAS 72 AT THE TIME OF HIS DEATH, AND THAT HE THEN WAS RECEIVING RETIRED PAY (NOT BASED ON PHYSICAL DISABILITY) AT THE RATE OF $346.79 PER MONTH. ON THAT BASIS, IF HE ELECTED TO PURCHASE AN ANNUITY PAYABLE TO YOU AFTER HIS DEATH AT THE RATE OF ONE HALF OF HIS REDUCED RETIRED PAY, THE COST OF SUCH ANNUITY WOULD HAVE BEEN $104.28 AND YOU WOULD RECEIVE $121.26 PER MONTH. WHILE IT APPEARS THAT HE WAS ERRONEOUSLY ADVISED AS TO THE MAXIMUM BENEFITS AVAILABLE UNDER THE CONTINGENCY OPTION ACT AND THE COST OF SUCH BENEFITS, THE FOREGOING INDICATES THAT HE INTENDED THAT YOU SHOULD RECEIVE THE MAXIMUM ANNUITY PAYABLE UNDER THAT ACT (ONE-HALF OF HIS REDUCED RETIRED PAY) AND THAT IN SIGNING HIS ELECTION, HE THOUGHT HE WAS PURCHASING SUCH ANNUITY. IN THE CIRCUMSTANCES, THE RECORD MAY BE ACCEPTED AS ESTABLISHING THAT HE ELECTED AN ANNUITY PAYABLE AT ONE HALF OF HIS REDUCED RETIRED PAY. COMPARE 34 COMP. GEN. 35; 34 COMP. GEN. 63, AND DECISION OF JUNE 15, 1955, B-120438.

A COPY OF THIS DECISION IS BEING MAILED TO THE DISBURSING OFFICER WHO ORIGINALLY SUBMITTED THIS MATTER HERE FOR ADVANCE DECISION AND THIS WILL SERVE AS AUTHORITY FOR INCREASING THE ANNUITY PAYMENTS TO YOU TO THE RATE OF ONE-HALF OF YOUR HUSBAND'S REDUCED RETIRED PAY, RETROACTIVE TO THE DATE YOU BECAME ENTITLED TO PAYMENT OF THE ANNUITY.