B-126034, FEBRUARY 29, 1956, 35 COMP. GEN. 489

B-126034, FEBRUARY 29, 1956, 35 COMP. GEN. 489

RETIREMENT - SURVIVORSHIP ELECTIONS - SIX-MONTHS DEATH GRATUITY EVIDENCE WHICH ESTABLISHES THAT A LETTER SPECIFYING A SURVIVORSHIP ANNUITY OPTION ELECTION AND SIGNED BY THE WIFE OF A MEMBER OF THE UNIFORMED SERVICES PASSED OUT OF THE CONTROL OF THE MEMBER AND HIS WIFE PRIOR TO HIS DEATH AND THAT THE MEMBER'S FAILURE TO SIGN THE ELECTION OPTION FORMS, WHICH WERE SUBMITTED TO HIM DURING PROCESSING FOR RETIREMENT WAS DUE TO HIS PHYSICAL INCAPACITY, IS SUFFICIENT BASIS FOR A VALID ELECTION OPTION AND ANNUITY PAYMENTS MAY BE MADE TO THE WIDOW. A MEMBER OF THE UNIFORMED SERVICES IS PRESUMED TO HAVE BEEN NOTIFIED OF HIS TRANSFER TO THE RETIRED LIST WHEN THE NOTIFICATION WAS RECEIVED AT THE HOSPITAL WHERE THE MEMBER WAS A PATIENT, NOTWITHSTANDING WRITTEN ORDERS WERE NOT RECEIVED UNTIL TWO DAYS AFTER THE MEMBER'S DEATH, AND, THEREFORE, THE MEMBER'S ACTIVE DUTY STATUS HAVING BEEN TERMINATED, HIS WIDOW IS NOT ENTITLED TO PAYMENT OF THE SIX MONTHS' DEATH GRATUITY.

TO THE SECRETARY OF THE NAVY, FEBRUARY 29, 1956:

REFERENCE IS MADE TO LETTER OF DECEMBER 15, 1955, FROM THE ACTING JUDGE ADVOCATE GENERAL OF THE NAVY, FORWARDING A LETTER FROM THE DISBURSING OFFICER, SPECIAL PAYMENTS DIVISION, NAVY FINANCE CENTER, DATED NOVEMBER 17, 1955, WITH INDORSEMENTS AND ENCLOSURES, REQUESTING DECISION WHETHER A VALID ELECTION WAS MADE BY FRANK J. ROSE, CHIEF DENTAL TECHNICIAN, U.S. NAVY, RETIRED (DECEASED), UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, SO AS TO PERMIT PAYMENT OF AN ANNUITY TO HIS WIDOW AND DESIGNATED BENEFICIARY, MRS DOROTHY C. ROSE. DECISION ALSO IS REQUESTED ON THE FURTHER QUESTION WHETHER IN VIEW OF THE FACTS HEREINAFTER STATED THE DECEDENT MAY BE CONSIDERED TO HAVE BEEN IN AN ACTIVE-DUTY PAY STATUS AT THE TIME OF HIS DEATH ON JULY 11, 1955, SO AS TO ENTITLE HIS WIDOW TO PAYMENT OF THE SIX MONTHS' DEATH GRATUITY PRESCRIBED IN 34 U.S.C. 943.

IT APPEARS THAT ON JUNE 14, 1955, MR. ROSE WENT BEFORE A PHYSICAL EVALUATION BOARD ESTABLISHED AT THE NAVAL HOSPITAL, SAN DIEGO, CALIFORNIA. IT IS EXPRESSLY POINTED OUT HE WAS NOT TRANSFERRED THERE FOR HOSPITALIZATION AND TREATMENT BUT THAT HE WAS TRANSFERRED ON THAT SAME DATE TO THE NAVAL HOSPITAL, CAMP PENDLETON, CALIFORNIA. ON JULY 6, 1955, MR. ROSE WAS FURTHER TRANSFERRED BY MILITARY AIR TRANSPORTATION TO THE VETERANS ADMINISTRATION HOSPITAL, SPOKANE, WASHINGTON, FOR FURTHER TREATMENT AND DISPOSITION.

THE CHIEF OF NAVAL PERSONNEL IN ORDERS OF JUNE 30, 1955, ADDRESSED TO MR. ROSE, VIA THE COMMANDING OFFICER, U.S. NAVAL HOSPITAL, SAN DIEGO, CALIFORNIA, DIRECTED (1) ROSE'S RELEASE FROM ACTIVE DUTY EFFECTIVE AS OF 2400, JUNE 30, 1955, AND (2) HIS TRANSFER TO THE RETIRED LIST OF THE NAVY IN THE RATE OF CHIEF DENTAL TECHNICIAN BY REASON OF 100 PERCENTUM PERMANENT PHYSICAL DISABILITY (37 U.S.C. 272) EFFECTIVE JULY 1, 1955. SUCH ORDERS ADVISED MR. ROSE THAT HE HAD 15 YEARS OF ACTIVE SERVICE CREDITABLE FOR PURPOSES OF THE PERCENTAGE MULTIPLE IN THE EVENT HE ELECTED TO HAVE HIS RETIRED PAY COMPUTED ON THAT BASIS AS PRESCRIBED IN 37 U.S.C. 272 (D). THE RECORD SHOWS, HOWEVER, THAT MR. ROSE DIED BEFORE THE ORDERS OF JUNE 30, 1955, COULD BE DELIVERED TO HIM AND THE ORDERS WERE RETURNED TO THE CHIEF OF NAVAL PERSONNEL BY THE COMMANDANT OF THE THIRTEENTH NAVAL DISTRICT.

SECTION 3 (A) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 502, 37 U.S.C. 372, IN PERTINENT PART PROVIDES " WHERE THE ACTIVE MEMBER IS AWARDED RETIRED PAY BY HIS UNIFORMED SERVICE FOR PHYSICAL DISABILITY PRIOR TO THE COMPLETION OF THE 18 YEARS OF SERVICE, THE ELECTION MAY BE MADE AT THE TIME OF RETIREMENT.' ( ITALICS SUPPLIED.)

THERE HAVE BEEN SUBMITTED COPIES OF AFFIDAVITS EXECUTED BY LIEUTENANTS ARVIN CEARLEY AND ROLLAND L. COFFIELD, MEDICAL SERVICE CORPS, U.S. NAVY, WHICH STATE THAT THOSE OFFICERS WERE PRESENT ON JUNE 30, 1955, AND PERSONALLY PARTICIPATED IN THE EXPLANATION OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 "TO FRANK JOHN ROSE, 393 45 77, DTC, USN ( RETIRED (DECEASED) ); " THAT AT THAT TIME " ROSE WAS LUCID AND APPARENTLY MENTALLY COMPETENT, HOWEVER PHYSICALLY INCAPABLE OF AFFIXING HIS SIGNATURE; " AND THAT AFTER EXPLANATION OF THE CONTINGENCY OPTION ACT OF 1953 " ROSE INDICATED A DESIRE FOR THE OPTION ELECTED BY HIS WIFE, MRS. DOROTHY C. ROSE.' MR. ROSE'S "ELECTION," ON THAT BASIS, UNDER THE CONTINGENCY OPTION ACT OF 1953, IS SHOWN IN HIS WIFE'S LETTER DATED JUNE 30, 1955, ADDRESSED TO THE COMMANDANT, THIRTEENTH NAVAL DISTRICT, SEATTLE, WASHINGTON, IN WHICH SHE SPECIFIED "OPTION NO. 3, WITH ONE-HALF (1/2) OF REDUCED RETIRED PAY.'

THE INFORMATION CONTAINED IN THE AFFIDAVITS AND THE OTHER EVIDENCE IN THE CASE INDICATE THAT MR. ROSE WAS FULLY INFORMED ON JUNE 30, 1955, RESPECTING HIS RIGHTS AND HIS STATUS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953; THAT HE WAS THEN COMPLETELY AWARE THAT HIS RELEASE FROM ACTIVE DUTY AND HIS TRANSFER TO INACTIVE STATUS ON THE RETIRED LIST OF THE NAVY AS A RESULT OF A 100 PERCENTUM PHYSICAL DISABILITY WAS ABOUT TO BE ACCOMPLISHED; AND THAT BASED ON SUCH KNOWLEDGE HE UNDERSTOOD AND FULLY COMPREHENDED HIS RIGHT TO MAKE AN ELECTION "AT THE TIME OF (HIS) RETIREMENT" IN ORDER TO PROVIDE AN ANNUITY AS PRESCRIBED IN SECTION 4 OF THE CONTINGENCY OPTION ACT OF 1953, TO BE PAYABLE AFTER HIS DEATH IN A RETIRED STATUS TO HIS WIDOW AND CHILDREN LIVING AT THE DATE OF HIS RETIREMENT. THE RECORD IN THE CASE ALSO MAY BE CONSIDERED AS ESTABLISHING THAT MR. ROSE'S FAILURE TO SIGN THE ELECTION FORMS WHICH WERE SUBMITTED TO HIM DURING THE PROCESSING OF HIS RETIREMENT--- SEE MRS. ROSE'S AFFIDAVIT--- RESULTED SOLELY FROM HIS PHYSICAL INCAPACITY. THESE CIRCUMSTANCES, IF MRS. ROSE'S LETTER OF JUNE 30, 1955, WHICH IS ADDRESSED TO THE COMMANDANT, THIRTEENTH NAVAL DISTRICT, SEATTLE, WASHINGTON (WITNESSED BY LIEUTENANT COFFIELD), PASSED IRRETRIEVABLY OUT OF THE CONTROL OF BOTH HERSELF AND HER HUSBAND BEFORE MR. ROSE'S DEATH, AND WAS DULY RECEIVED BY THE PROPER NAVAL AUTHORITIES, AND EVIDENCE ESTABLISHING SUCH FACTS IS MADE A PART OF THE RECORD, ANNUITY PAYMENTS MAY BE MADE TO MRS. ROSE ON THE BASIS OF A VALID ELECTION OF OPTIONS. COMPARE B-122222, MAY 20, 1955.

CONCERNING THE FURTHER QUESTION WHETHER MR. ROSE MAY BE CONSIDERED TO HAVE BEEN IN AN AUTHORIZED ACTIVE-DUTY PAY STATUS AT THE TIME OF HIS DEATH OF JULY 11, 1955, SO AS TO ENTITLE HIS WIDOW TO THE SIX MONTHS' DEATH GRATUITY PAYMENT PRESCRIBED IN 34 U.S.C. 943, REFERENCE IS MADE IN THE LETTER OF DECEMBER 15, 1955, TO OUR DECISION OF OCTOBER 21, 1955, B- 124928, 35 COMP. GEN. 225. IN THAT CASE THE FACTS CLEARLY ESTABLISHED THAT THE INDIVIDUAL THERE CONCERNED, NOT HAVING RECEIVED NOTICE OF HIS RETIREMENT, WAS SERVING ON ACTIVE DUTY ON THE DATE OF HIS DEATH AND THAT HE WAS ENTITLED TO ACTIVE-DUTY PAY AND ALLOWANCES FROM THE DATE OF HIS TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST OCTOBER 1, 1953, TO OCTOBER 17, 1953, DATE OF DEATH, UNDER THE HOLDING IN THE CASE OF CRIST V. UNITED STATES, 124 C.1CLS. 825. WE FURTHER HELD IN THAT DECISION THAT AS THE ENLISTED MAN THERE CONCERNED WAS "ON THE RETIRED LIST WHEN ON ACTIVE DUTY" AT THE DATE OF HIS DEATH ON OCTOBER 17, 1953, HIS STATUS AT THAT TIME, IF THE WOUNDS OR DISEASE WHICH CAUSED HIS DEATH DID NOT RESULT FROM HIS OWN MISCONDUCT, PLACED HIM WITHIN THE PURVIEW OF THE SIX MONTHS' DEATH GRATUITY STATUTE. THE CONCLUSIONS REACHED IN THAT DECISION WERE BASED NOT ONLY ON THE REPORT IN THAT CASE, DATED SEPTEMBER 28, 1955, FROM THE CHIEF OF NAVAL PERSONNEL, STATING " THERE IS NOTHING IN THE RECORD TO INDICATE THAT MR. ROSE WAS ACTUALLY INFORMED OF THE EFFECTIVE DATE OF HIS RETIREMENT," BUT, ON THE ADDITIONAL FACT THAT THE RECORD REASONABLY ESTABLISHED THAT MR. ROSE WAS "AT HOME ON LIBERTY" BETWEEN THE DATE, OCTOBER 12, 1953, HIS RELEASE FROM ACTIVE DUTY ORDERS (RETIREMENT ORDERS) WERE RECEIVED AT HIS DUTY STATION AND OCTOBER 17, 1953, DATE OF HIS DEATH.

IN THE PRESENT CASE, ALTHOUGH THE WRITTEN ORDERS OF JUNE 30, 1955, ISSUED BY THE CHIEF OF NAVAL PERSONNEL WERE NOT RECEIVED BY THE COMMANDANT, THIRTEENTH NAVAL DISTRICT, SEATTLE, WASHINGTON, UNTIL JULY 13, 1955, OR TWO DAYS AFTER MR. ROSE HAD DIED AT THE VETERANS ADMINISTRATION HOSPITAL, SPOKANE, WASHINGTON, THE RECORD SHOWS THAT ON JUNE 30, 1955, THE BUREAU OF NAVAL PERSONNEL SENT A NAVAL MESSAGE TO THE NAVAL HOSPITAL, SAN DIEGO, CALIFORNIA, READING AS FOLLOWS:

ADVISE DISBURSING OFFICER AND MEMBER CONCERNED FOLLOWING RETIREMENT EFFECTIVE 1 JULY 1955 X PERMANENT X ROSE FRANK JOHN 393 45 77 DTC USN X 100 PERCENT X ORDERS FOLLOW

ON JULY 6, 1955, THE ABOVE NAVAL MESSAGE WAS RELAYED TO THE NAVAL AUTHORITIES AT THE NAVAL HOSPITAL, CAMP PENDLETON, TO WHICH HOSPITAL MR. ROSE HAD BEEN TRANSFERRED ON JUNE 14, 1955. THE RECORD SHOWS THAT HE WAS NOT TRANSFERRED TO THE JURISDICTION OF THE MANAGER, VETERANS ADMINISTRATION HOSPITAL, SPOKANE, WASHINGTON, FOR FURTHER TREATMENT AND DISPOSITION UNTIL JULY 8, 1955, AND IT IS APPARENT, THEREFORE, THAT NOTIFICATION OF HIS TRANSFER TO THE RETIRED LIST OF THE NAVY, WITH A 100 PERCENTUM DISABILITY RATING EFFECTIVE JULY 1, 1955, WAS IN THE HANDS OF THE NAVAL AUTHORITIES AT THE NAVAL HOSPITAL, CAMP PENDLETON, AT LEAST TWO DAYS BEFORE MR. ROSE WAS DETACHED THERE AS A PATIENT. THE NAVAL AUTHORITIES AT THE NAVAL HOSPITAL, CAMP PENDLETON, AT LEAST TWO DAYS BEFORE MR. ROSE WAS DETACHED THERE AS A PATIENT. THE NAVAL AUTHORITIES AT THE NAVAL HOSPITAL, CAMP PENDLETON, THUS WERE ON NOTICE AS EARLY AS JULY 6, 1955, AS TO THE EFFECTIVE DATE ( JULY 1, 1955), OF MR. ROSE'S TRANSFER TO THE RETIRED LIST BY REASON OF 100 PERCENTUM PHYSICAL DISABILITY. UNDER THE CIRCUMSTANCES, THE NOTIFICATION RECEIVED ON JULY 6, 1955, AT THE NAVAL HOSPITAL, CAMP PENDLETON, CONSTITUTED SUFFICIENT NOTIFICATION THAT MR. ROSE'S ACTIVE DUTY STATUS SHOULD BE DEEMED TO BE TERMINATED NOT LATER THAN THAT DATE AND THAT HE SHOULD BE CONSIDERED AS HAVING AN INACTIVE RETIRED STATUS EFFECTIVE THE NEXT DAY, JULY 7, 1955.

IN THE ABSENCE OF ANY EVIDENCE TO THE CONTRARY, IT MUST BE PRESUMED THAT THE NAVAL AUTHORITIES AT THE NAVAL HOSPITAL, CAMP PENDLETON, TOOK APPROPRIATE NOTIFICATION ACTION ON THE NAVAL MESSAGE OF JUNE 30, 1955, RELATIVE TO THE CHANGE IN MR. ROSE'S STATUS FROM THAT OF ACTIVE DUTY TO THAT OF AN INACTIVE STATUS ON THE RETIRED LIST. ACCORDINGLY, ON THE PRESENT RECORD, NO BASIS IS PRESENTED TO VIEW MR. ROSE AS HAVING CONTINUED IN AN AUTHORIZED ACTIVE DUTY STATUS BEYOND JULY 6, 1955, AND IT MUST BE CONCLUDED, THEREFORE, THAT THE SIX MONTHS' DEATH GRATUITY IS NOT PAYABLE IN HIS CASE.