B-126869, APR. 23, 1956

B-126869: Apr 23, 1956

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WHICH DISALLOWED YOUR CLAIM IN THE CAPACITY OF EXECUTRIX OF THE WILL OF YOUR LATE HUSBAND. YOUR CLAIM WAS BASED ON AN ELECTION MADE UNDER THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949. ANY ELECTIONS EXECUTED SUBSEQUENT TO THAT TIME ARE NOT VALID. 34 COMP. YOUR CLAIM WAS DISALLOWED BECAUSE THE ELECTION FORM SUBMITTED WITH SUCH CLAIM WAS EXECUTED BY YOU ON MAY 5. THAT THE FIVE-YEAR PERIOD PRESCRIBED IN SECTION 411 SHOULD NOT APPLY IN YOUR CASE BECAUSE YOU WERE NEVER NOTIFIED THAT A TIME LIMIT EXISTED WHICH YOU WERE REQUIRED TO MAKE AN ELECTION AND FILE A CLAIM. THAT ELECTION FORMS WERE FORWARDED TO YOU ON THAT DATE FOR COMPLETION. IS ASSUMED THAT IT IS THAT FORM OR A LIKE FORM ON WHICH YOUR ELECTION WAS MADE AND IT IS CLEARLY STATED ON THE ONE EXECUTED BY YOU THAT THE ELECTION MUST BE MADE PRIOR TO OCTOBER 1.

B-126869, APR. 23, 1956

TO MRS. MARY F. DOLAN:

YOUR LETTER OF DECEMBER 28, 1955, REQUESTS REVIEW OF OUR SETTLEMENT DATED DECEMBER 8, 1955, WHICH DISALLOWED YOUR CLAIM IN THE CAPACITY OF EXECUTRIX OF THE WILL OF YOUR LATE HUSBAND, WILLIAM R. DOLAN, FOR THE DIFFERENCE IN RETIRED PAY BETWEEN $412.50 AND $438.19 A MONTH FOR THE PERIOD OCTOBER 1, 1949, THROUGH MARCH 14, 1950, INCIDENT TO HIS NAVAL SERVICE.

YOUR CLAIM WAS BASED ON AN ELECTION MADE UNDER THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, WHICH AUTHORIZES ELECTIONS OF RETIRED PAY TO BE MADE WITHIN THE FIVE-YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF TITLE IV, OCTOBER 1, 1949. THE FIVE-YEAR PERIOD BEGAN ON OCTOBER 2, 1949, AND EXPIRED AT MIDNIGHT OCTOBER 1, 1954, AND ANY ELECTIONS EXECUTED SUBSEQUENT TO THAT TIME ARE NOT VALID. 34 COMP. GEN. 642. YOUR CLAIM WAS DISALLOWED BECAUSE THE ELECTION FORM SUBMITTED WITH SUCH CLAIM WAS EXECUTED BY YOU ON MAY 5, 1955.

IN YOUR LETTER OF DECEMBER 28, 1955, YOU MAINTAIN, IN EFFECT, THAT THE FIVE-YEAR PERIOD PRESCRIBED IN SECTION 411 SHOULD NOT APPLY IN YOUR CASE BECAUSE YOU WERE NEVER NOTIFIED THAT A TIME LIMIT EXISTED WHICH YOU WERE REQUIRED TO MAKE AN ELECTION AND FILE A CLAIM.

THE CHIEF OF FIELD BRANCH, BUREAU OF SUPPLIES AND ACCOUNTS, DEPARTMENT OF THE NAVY, CLEVELAND, OHIO, ADVISED US BY A LETTER DATED JANUARY 30, 1952, THAT ELECTION FORMS WERE FORWARDED TO YOU ON THAT DATE FOR COMPLETION. IS ASSUMED THAT IT IS THAT FORM OR A LIKE FORM ON WHICH YOUR ELECTION WAS MADE AND IT IS CLEARLY STATED ON THE ONE EXECUTED BY YOU THAT THE ELECTION MUST BE MADE PRIOR TO OCTOBER 1, 1954. THUS, IT APPEARS THAT YOU HAD OVER TWO YEARS TO MAKE AN ELECTION HAD YOU SO DESIRED AND EVEN IF YOU WERE NOT SPECIFICALLY NOTIFIED OF THE DATE WHEN THE ELECTION SHOULD BE MADE, WE WOULD HAVE NO AUTHORITY TO WAIVE THE EXPRESS REQUIREMENT OF THE STATUTE. ACCORDINGLY, FAVORABLE CONSIDERATION MAY NOT BE GIVEN YOUR CLAIM AND THE SETTLEMENT OF DECEMBER 8, 1955, IS SUSTAINED.