B-125489, JANUARY 13, 1956, 35 COMP. GEN. 397

B-125489, JANUARY 13, 1956, 35 COMP. GEN. 397

PAY - RETIRED - ANNUITIES FOR DEPENDENTS - PAY REDUCTION ELECTION REQUIREMENT - ELECTION VALIDITY THE AUTHORITY VESTED IN COMPETENT MEMBERS OF THE ARMED SERVICES TO MAKE A SURVIVORSHIP ANNUITY ELECTION UNDER THE UNIFORM SERVICES CONTINGENCY OPTION ACT OF 1953 CANNOT BE DELEGATED TO AN AGENT AND, THEREFORE, AN ELECTION FORM SIGNED BY THE DAUGHTER OF A RETIRED WARRANT OFFICER AFTER THE MEMBER HAD EXECUTED A POWER OF ATTORNEY IN FAVOR OF HIS DAUGHTER DOES NOT CONSTITUTE A VALID ELECTION SO AS TO ENTITLE HIS WIDOW TO AN ANNUITY.

TO LIEUTENANT COLONEL M. L. JOHNSON, DEPARTMENT OF THE ARMY, JANUARY 13, 1956:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 19, 1955, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, ENCLOSED WITH YOUR LETTER, STATED IN FAVOR OF FARMERS TRUST COMPANY OF CARLISLE, PENNSYLVANIA, AS GUARDIAN OF ELLA H. NATAFALUSY, WIDOW OF CHIEF WARRANT OFFICER ALEX NATAFALUSY, U.S. ARMY, RETIRED. THE VOUCHER, IN THE AMOUNT OF $1,094.66, COVERS A PROPOSED PAYMENT OF ANNUITY TO MRS. NATAFALUSY, UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, FOR THE PERIOD JANUARY 1, 1954, TO JULY 31, 1955, LESS PRO RATA DEDUCTION FOR THE COST OF THE ANNUITY FROM JANUARY 1 TO JANUARY 3, 1954.

IT APPEARS THAT CHIEF WARRANT OFFICER NATAFALUSY RETIRED ON OCTOBER 31, 1946, AFTER MORE THAN 37 YEARS' SERVICE; THAT ON DECEMBER 31, 1953, HE EXECUTED A POWER OF ATTORNEY, SIGNED BY HIS MARK, IN FAVOR OF HIS DAUGHTER, LA NELLE NATAFALUSY; THAT ON JANUARY 2, 1954, THE DAUGHTER SIGNED HER FATHER'S NAME ON A FORM INDICATING THAT HE ELECTED UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 TO RECEIVE REDUCED RETIRED PAY IN ORDER TO PROVIDE AN ANNUITY FOR HIS WIDOW OF ONE-FOURTH OF THE REDUCED RETIRED PAY; AND THAT THE OFFICER DIED ON JANUARY 3, 1954.

THE FILE SUBMITTED WITH YOUR REQUEST INDICATES THAT ATTORNEYS FOR LA NELLE NATAFALUSY CONTEND THAT SHE HAD AUTHORITY TO EXERCISE AN ELECTION UNDER THE ABOVE ACT ON BEHALF OF HER FATHER, AND THAT HER FAILURE TO INDICATE ON THE ELECTION FORM THAT SHE WAS SIGNING AS HIS AGENT WAS A HARMLESS ERROR OF OMISSION. THE NOTARY PUBLIC BEFORE WHOM HER SIGNATURE ON THE ELECTION FORM WAS ACKNOWLEDGED HAS FURNISHED A STATEMENT TO THE EFFECT THAT SHE SHOWED HIM THE POWER OF ATTORNEY IN THE CASE.

THE PURPOSE OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, AS STATED IN ITS TITLE, IS " TO PERMIT MEMBERS OF THE UNIFORMED SERVICES TO ELECT CERTAIN CONTINGENCY OPTIONS, AND FOR OTHER PURPOSES.' MEMBERS ELECTING SUCH OPTIONS RECEIVE REDUCED RETIRED PAY IN ORDER TO PROVIDE ANNUITIES FOR THEIR SURVIVING BENEFICIARIES. SECTION 3 (C) OF THE ACT, 67 STAT. 502, 37 U.S.C. 372, PROVIDES, UNDER STIPULATED CONDITIONS, FOR THE EXERCISE OF ELECTIONS BY THE HEAD OF THE DEPARTMENT CONCERNED ON BEHALF OF MEMBERS WHO HAVE BEEN DETERMINED TO BE MENTALLY INCOMPETENT. OTHER WORDS, IF A MEMBER IS MENTALLY INCAPABLE OF DECIDING WHETHER HE DESIRES TO ACCEPT A REDUCTION IN HIS RETIRED PAY IN ORDER TO PROVIDE AN ANNUITY FOR HIS SURVIVOR OR SURVIVORS, THE CHOICE MAY BE MADE FOR HIM. BUT THE STATUTE DOES NOT PROVIDE FOR THE SUBSTITUTION OF THE JUDGMENT OF ANYONE ELSE IN THE CASE OF A MENTALLY COMPETENT MEMBER. WHETHER SUCH A MEMBER ELECTS AN OPTION UNDER THE ACT IS, AND MUST BE, A MATTER OF HIS OWN CHOOSING, HIS OWN PERSONAL DECISION. IT FOLLOWS THAT AUTHORITY TO MAKE SUCH A DECISION CANNOT BE DELEGATED TO AN AGENT. SEE 2 CORPUS JURIS SECUNDUM 1183, WHERE IT IS STATED, IN EFFECT, THAT AUTHORITY CANNOT BE VESTED IN AN AGENT TO DO FOR HIS PRINCIPAL AN ACT WHICH CAN BE DONE ONLY IN PERSON. HENCE, MISS NATAFALUSY WAS NOT AUTHORIZED UNDER HER POWER OF ATTORNEY TO EXERCISE AN ELECTION ON HER FATHER'S BEHALF.

IT IS NOT ALLEGED THAT CHIEF WARRANT OFFICER NATAFALUSY WAS PRESENT WHEN HIS DAUGHTER SIGNED HIS NAME ON THE ELECTION FORM, WAS AWARE OF WHAT SHE WAS DOING AND OF WHAT ITS EFFECT WOULD BE, AND APPROVED OF HER ACT, SO AS, POSSIBLY, TO CONSTITUTE HER SIGNING OF HIS NAME HIS OWN SIGNATURE IN LEGAL EFFECT.

ACCORDINGLY, ON THE PRESENT RECORD, PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.