B-125625, OCT. 20, 1955

B-125625: Oct 20, 1955

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IT APPEARS THAT CAPTAIN KUSTEL WAS PLACED ON THE NAVY RETIRED LIST ON FEBRUARY 1. YOU HAVE FURNISHED EVIDENCE THAT ON NOVEMBER 1. YOU WERE APPOINTED EXECUTOR OF THE ESTATE OF ALEXIS O. ELECTING TO HAVE THE DECEDENT'S RETIRED PAY COMPUTED. THERE WAS CERTIFIED TO BE DUE YOU AS EXECUTOR OF THE ESTATE THE SUM OF $371.80. YOUR CLAIM FOR THE DIFFERENCE BETWEEN RETIRED PAY HE WOULD HAVE RECEIVED COMPUTED UNDER METHOD B WHICH YOU ELECTED ON HIS BEHALF WAS DISALLOWED SUBSTANTIALLY FOR THE REASON THAT A TIMELY ELECTION HAD NOT BEEN MADE. IT IS RELATED THAT CAPTAIN KUSTEL "DELAYED MAKING AN ELECTION DURING HIS LIFETIME.'. IT IS FURTHER RELATED THAT MRS. KUSTEL WAS AWAY FROM HER HOME AND DID NOT RECEIVE A LETTER DATED AUGUST 3.

B-125625, OCT. 20, 1955

TO MR. J. LEE RICHARDS:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 13, 1955, CONCERNING THE ACTION TAKEN IN SETTLEMENT DATED APRIL 8, 1955, WHICH DISALLOWED THAT PART OF YOUR CLAIM FOR ADDITIONAL RETIRED PAY FROM OCTOBER 1, 1949, TO JUNE 26, 1954, AS EXECUTOR OF THE ESTATE OF ALEXIS O. KUSTEL, CAPTAIN, UNITED STATES NAVY, RETIRED, WHO DIED ON JUNE 26, 1954. ALSO, THERE HAS BEEN RECEIVED A COMMUNICATION FROM THE HONORABLE WILLIAM F. KNOWLAND, UNITED STATES SENATE, CONCERNING THE MATTER.

IT APPEARS THAT CAPTAIN KUSTEL WAS PLACED ON THE NAVY RETIRED LIST ON FEBRUARY 1, 1932, AND THAT HE DIED ON JUNE 26, 1954. YOU HAVE FURNISHED EVIDENCE THAT ON NOVEMBER 1, 1954, YOU WERE APPOINTED EXECUTOR OF THE ESTATE OF ALEXIS O. KUSTEL, DECEASED, AND ON THAT DATE, NOVEMBER 1, 1954, YOU EXECUTED AN "ELECTION FORM" AS EXECUTOR OF THE ESTATE OF ALEXIS O. KUSTEL, ELECTING TO HAVE THE DECEDENT'S RETIRED PAY COMPUTED, EFFECTIVE OCTOBER 1, 1949, IN ACCORDANCE WITH METHOD B, SHOWN ON THAT FORM. BY THE SETTLEMENT OF APRIL 8, 1955, THERE WAS CERTIFIED TO BE DUE YOU AS EXECUTOR OF THE ESTATE THE SUM OF $371.80, REPRESENTING RETIRED PAY DUE THE DECEDENT FOR THE PERIOD JUNE 1 TO 26, 1954, THE DATE OF HIS DEATH, UNDER THE LAWS IN EFFECT ON SEPTEMBER 30, 1949. YOUR CLAIM FOR THE DIFFERENCE BETWEEN RETIRED PAY HE WOULD HAVE RECEIVED COMPUTED UNDER METHOD B WHICH YOU ELECTED ON HIS BEHALF WAS DISALLOWED SUBSTANTIALLY FOR THE REASON THAT A TIMELY ELECTION HAD NOT BEEN MADE.

IN YOUR LETTER OF SEPTEMBER 13, 1955, AND IN A LETTER DATED SEPTEMBER 20, 1955, FROM MR. JOSEPH F. DEMARTINI TO THE HONORABLE WILLIAM F. KNOWLAND, IT IS RELATED THAT CAPTAIN KUSTEL "DELAYED MAKING AN ELECTION DURING HIS LIFETIME.' IT IS FURTHER RELATED THAT MRS. KUSTEL WAS AWAY FROM HER HOME AND DID NOT RECEIVE A LETTER DATED AUGUST 3, 1954, FROM THE DEPARTMENT OF THE NAVY, BUREAU OF SUPPLIES AND ACCOUNTS, CLEVELAND, OHIO, ADVISING HER THAT IF SHE COULD QUALIFY AS A LEGAL REPRESENTATIVE SHE COULD EXECUTE THE ELECTION FORMS. A SECOND LETTER, SENT TO HER ON SEPTEMBER 16, 1954, WAS RECEIVED AND FORWARDED TO YOU. ALSO, IT APPEARS THAT BY LETTER DATED OCTOBER 14, 1954, MR. DEMARTINI NOTIFIED THE DEPARTMENT OF THE NAVY THAT YOU WERE NAMED EXECUTOR IN THE WILL, AND THAT IMMEDIATELY UPON YOUR OFFICIAL APPOINTMENT BY THE COURT ON NOVEMBER 1, 1954, YOU EXECUTED THE ELECTION FORMS, ELECTING THAT THE DECEDENT'S RETIRED PAY BE COMPUTED UNDER METHOD B.

SECTION 411, TITLE IV, OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, 27 U.S.C. 281, BECAME EFFECTIVE ON OCTOBER 1, 1949, AND IN PERTINENT PART, IT PROVIDES THAT PURSUANT TO SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, MEMBERS OF THE UNIFORMED SERVICES THERETOFORE RETIRED BY REASON OF PHYSICAL DISABILITY "MAY ELECT WITHIN THE FIVE YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF THIS TITLE" TO QUALIFY, UNDER OPTION (A), FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THAT ACT OR TO RECEIVE, UNDER OPTION (B), RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THE ACT, 63 STAT. 829, 37 U.S.C. 311.

IN ACCORDANCE WITH SECTION 411, REGULATIONS GOVERNING THE ELECTION OF RETIREMENT PAY BENEFITS WERE PROMULGATED BY THE PRESIDENT IN EXECUTIVE ORDER NO. 10124, DATED APRIL 25, 1950. SUCH REGULATIONS PROVIDED, GENERALLY, FOR A DETERMINATION BY THE SECRETARY OF THE UNIFORMED SERVICE CONCERNED AND FOR A SUBSEQUENT NOTIFICATION TO EACH MEMBER AND FORMER MEMBER OF THAT SERVICE OF THE STATUS AND BENEFITS TO WHICH EACH SUCH INDIVIDUAL WAS ENTITLED UNDER THE ALTERNATIVE OPTIONS (A) AND (B) AND OF THE RIGHT TO MAKE AN ELECTION OF BENEFITS WITHIN THE FIVE-YEAR PERIOD PRESCRIBED IN SECTION 411.

WE HELD IN DECISION OF JULY 28, 1950, 30 COMP. GEN. 40, THAT A LEGAL REPRESENTATIVE OF A DECEDENT'S ESTATE COULD EXERCISE THE RIGHT OF ELECTION PROVIDED IN SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, INSOFAR AS ELECTING TO RECEIVE "RETIRED PAY" UNDER ONE OR THE OTHER OF THE STATUTORY PROVISIONS. BUT SEE COURT OF CLAIMS DECISION IN THE CASE OF ESTATE OF SCOTT V. UNITED STATES, 122 C.CLS. 414. IT WAS HELD, HOWEVER, IN DECISION OF JUNE 2, 1955, 34 COMP. GEN. 642, COPY ENCLOSED, THAT THE RIGHT OF ELECTION UNDER SECTION 411 COULD BE ASSERTED ONLY WITHIN THE FIVE-YEAR PERIOD PRESCRIBED IN THAT SECTION. IN ORDER TO CONSTITUTE AN EFFECTIVE ELECTION UNDER SECTION 411, AN INDIVIDUAL MUST TAKE SOME UNEQUIVOCAL AFFIRMATIVE ACT OF ELECTION BETWEEN OPTIONS (A) AND (B), AND SUCH AN ELECTION WAS REQUIRED TO BE MADE BEFORE THE EXPIRATION DATE OF THE FIVE- YEAR PERIOD. IT WAS CONCLUDED IN THE DECISION OF JUNE 2, 1955, THAT AN ELECTION WHICH WAS NOT POSTMARKED PRIOR TO OCTOBER 2, 1954, MAY NOT BE GIVEN ANY EFFECT, EXCEPT UPON CLEAR PROOF THAT THE ELECTION WAS ACTUALLY EXECUTED AND WAS PLACED IN THE MAILS OR OTHERWISE PASSED OUT OF THE PERSON'S CONTROL BEFORE MIDNIGHT ON OCTOBER 1, 1954.

SINCE THE ELECTION EXECUTED BY YOU WAS ACTUALLY EXECUTED ON NOVEMBER 1, 1954, SUBSEQUENT TO THE EXPIRATION DATE OF THE FIVE-YEAR PERIOD, SUCH ELECTION MUST BE CONSIDERED INEFFECTIVE. WHILE IT IS UNFORTUNATE THAT CAPTAIN KUSTEL DID NOT MAKE AN ELECTION DURING HIS LIFETIME, OR THAT A LEGAL REPRESENTATIVE OF HIS ESTATE WAS NOT APPOINTED SO THAT HE COULD MAKE AN EFFECTIVE ELECTION ON OR BEFORE OCTOBER 1, 1954, IN THE ABSENCE OF A STATUTORY PROVISION AUTHORIZING AN ELECTION AFTER THE FIVE-YEAR PERIOD, WE HAVE NO ALTERNATIVE BUT TO DENY YOUR CLAIM.