B-125468, JAN. 26, 1956

B-125468, JAN. 26, 1956

TO MRS. MYRTLE H. EVERETT:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 22, 1955, WRITTEN AS SUCCESSOR GUARDIAN FOR YOUR SON, CHARLES H. EVERETT, JR., LIEUTENANT (JG), UNITED STATES NAVY, RETIRED, REQUESTING REVIEW OF OUR SETTLEMENT OF OCTOBER 11, 1955, ADDRESSED TO YOUR LATE HUSBAND, CHARLES H. EVERETT, SR., THEN GUARDIAN FOR LIEUTENANT EVERETT, WHICH DISALLOWED A CLAIM FOR ADJUSTMENT OF THE OFFICER'S RETIRED PAY UNDER THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949.

LIEUTENANT EVERETT WAS RETIRED FOR PHYSICAL DISABILITY ON DECEMBER 12, 1938, AND WAS ENTITLED TO RETIRED PAY AT THE RATE OF $165 PER MONTH UNDER LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949. SECTION 411 OF THAT ACT, 63 STAT. 823, PROVIDES IN PERTINENT PART THAT PURSUANT TO SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, MEMBERS OF THE UNIFORMED SERVICES PREVIOUSLY RETIRED FOR PHYSICAL DISABILITY "MAY ELECT WITHIN THE FIVE-YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF THIS TITLE," OCTOBER 1, 1949, TO QUALIFY, UNDER OPTION (A), FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THAT ACT OR TO RECEIVE, UNDER OPTION (B), RETIRED PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THE ACT, 63 STAT. 829. SECTION 2 OF EXECUTIVE ORDER NO. 10124, APRIL 25, 1950, PROMULGATED BY THE PRESIDENT UNDER AUTHORITY OF THE CITED SECTION 411, PROVIDES THAT THE SECRETARY OF THE UNIFORMED SERVICE CONCERNED SHALL DETERMINE AND INFORM EACH MEMBER AND EACH FORMER MEMBER OF (1) THE STATUS AND BENEFITS TO WHICH HE IS OR MAY BE ENTITLED UNDER THE ALTERNATIVE CLAUSES (A) AND (B) OF SECTION 411, (2) SUCH PERSON'S RIGHT TO MAKE AN ELECTION OF BENEFIT UNDER THAT SECTION WITHIN THE FIVE-YEAR PERIOD PRESCRIBED, AND (3) THE EFFECT OF THE TAX PROVISIONS OF SECTION 402 (H) OF THE CAREER COMPENSATION ACT OF 1949 WITH RESPECT TO THE DISABILITY RETIREMENT PAY TO WHICH THE MEMBER OR FORMER MEMBER IS OR MAY BE ENTITLED.

THE DEPARTMENT OF THE NAVY HAS REPORTED THAT FORMS FOR THE EXERCISE OF ELECTION FOR YOUR SON UNDER THE PROVISIONS OF SECTION 411 OF THE 1949 ACT, INITIALLY FORWARDED TO YOUR HUSBAND IN JULY 1950, AFFORDED THE OPPORTUNITY OF ELECTING TO RECEIVE A MONTHLY RETIRED PAY OF $219.10 UNDER METHOD A OR $43.82 UNDER METHOD B, WITH THE ADVICE THAT IF NEITHER METHOD WAS ELECTED PRIOR TO OCTOBER 1, 1954, HIS WARD WOULD CONTINUE TO RECEIVE RETIRED PAY AT THE RATE OF $165 PER MONTH COMPUTED UNDER THE LAWS IN EFFECT PRIOR TO OCTOBER 1, 1949. NO ELECTION NOTICE HAVING BEEN RECEIVED FROM YOUR HUSBAND, A SECOND SET OF ELECTION FORMS WAS MAILED TO HIM IN JUNE 1954, CONTAINING SUBSTANTIALLY THE SAME INFORMATION AS THE FIRST. UNDER DATE OF SEPTEMBER 25, 1954, YOUR HUSBAND ELECTED TO RECEIVE RETIRED PAY IN ACCORDANCE WITH METHOD B, SHOWN ON THE FORM AS COMPUTED ON THE BASIS OF 15 PERCENT OF A BASIC MONTHLY PAY OF $292.13, OR $43.82, BUT INDICATED HIS UNDERSTANDING THAT THE RESULTING GROSS PAY WOULD BE $438.19 RATHER THAN THE $43.82 FIGURE COMPUTED BY THE NAVY DEPARTMENT AND INDICATED ON THE FORM.

IN VIEW OF THE OBVIOUS ERROR MADE BY YOUR HUSBAND IN COMPUTING THE AMOUNT BELIEVED DUE, IT WAS CONSIDERED THAT HIS ELECTION OF METHOD B ON THE SUBMITTED FORM DID NOT REFLECT AN INTENTION TO RECEIVE THE AMOUNT AUTHORIZED UNDER SUCH METHOD B, CORRECTLY COMPUTED AT $43.82, AND SO WAS WITHOUT FORCE OR EFFECT AS AN ELECTION. CONSEQUENTLY, SINCE A SUBSEQUENTLY FILED ELECTION FOR PAYMENT UNDER METHOD A WAS NOT MADE WITHIN THE PRESCRIBED FIVE-YEAR PERIOD IT WAS CONCLUDED IN THE SETTLEMENT OF OCTOBER 11, 1955, THAT YOUR SON WAS ENTITLED TO CONTINUE RECEIVING RETIRED PAY AS COMPUTED UNDER THE LAW IN EFFECT PRIOR TO OCTOBER 1, 1949, ON THE BASIS THAT NO ACCEPTABLE ELECTION HAD BEEN MADE UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949.

ENCLOSED WITH YOUR LETTER WAS A PHOTOSTATIC COPY OF AN "ELECTION ACKNOWLEDGEMENT" FROM THE DEPARTMENT OF THE NAVY BEARING THE MARK "8 54" WHICH, YOU SUGGEST, INDICATES THAT THE ELECTION FORM WAS ACKNOWLEDGED IN TIME TO HAVE CORRECTED ANY ERROR HAD YOU BEEN NOTIFIED AT ONCE. INDICATED ABOVE, HOWEVER, THE ELECTION FORM SUBMITTED BY YOUR HUSBAND WAS DATED SEPTEMBER 25, 1954. IT BEARS A DEPARTMENT OF THE NAVY RECEIPT STAMP DATED SEPTEMBER 27, 1954. IT IS APPARENT, THEREFORE, THAT THE "8-54" MARK ON THE ACKNOWLEDGEMENT COULD NOT HAVE MEANT THAT SUCH ELECTION FORM WAS RECEIVED FROM YOUR HUSBAND IN AUGUST OF 1954. THE PHRASE "IF WARRANTED" AS USED IN THE ELECTION ACKNOWLEDGEMENT, WHICH YOU QUESTION, MEANT ONLY THAT THE RETIRED PAY WOULD BE ADJUSTED IN ACCORDANCE WITH THE ELECTION MADE IF SUCH ADJUSTMENT WAS LEGALLY PROPER OTHERWISE.

THE CONCLUSION THAT AN EFFECTIVE ELECTION WAS NOT MADE WITHIN THE AUTHORIZED FIVE-YEAR PERIOD UNDER THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, APPEARS TO BE REQUIRED UNDER THE CIRCUMSTANCES INVOLVED IN YOUR SON'S CASE. ACCORDINGLY, THE SETTLEMENT OF OCTOBER 11, 1955, IS SUSTAINED.

IF YOU FEEL THAT AN ELECTION TO RECEIVE RETIRED PAY AT A GREATER AUTHORIZED RATE SHOULD HAVE BEEN MADE YOUR ATTENTION IS CALLED TO THE PROVISIONS OF SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED BY THE ACT OF OCTOBER 25, 1951, 65 STAT. 655. UNDER THE PROVISIONS OF THAT STATUTE THE SECRETARY OF THE NAVY, ON A RECOMMENDATION OF THE NAVAL BOARD ON THE CORRECTION OF NAVAL RECORDS, MAY CORRECT ANY NAVAL RECORD WHERE, IN HIS JUDGMENT,"SUCH ACTION IS NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE.' ANY REQUEST FOR CONSIDERATION OF THE MATTER BY THAT BOARD SHOULD BE ADDRESSED TO THE NAVAL BOARD ON THE CORRECTION OF NAVAL RECORDS, NAVY DEPARTMENT, WASHINGTON 25, D.C. ..END :