B-126954, APR. 12, 1956

B-126954: Apr 12, 1956

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WHICKER: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 22. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT MR. THE TRANSMITTAL LETTER WAS POSTMARKED SEPTEMBER 30. WAS NOT RECEIVED IN TIME TO BE RETURNED BY OCTOBER 1. THAT THE FORM WAS MAILED BY RETURN MAIL ON OCTOBER 2. THAT HE "AT NO TIME RECEIVED A FORM LIKE THIS ONE" AND HENCE COULD NOT HAVE MADE AN ELECTION EARLIER. FROM THE FIELD BRANCH OF THE BUREAU OF SUPPLIES AND ACCOUNTS SUGGESTING ELECTION OF METHOD "A" AS BEING MOST BENEFICIAL WAS NOT RECEIVED UNTIL OCTOBER 3. WAS ANSWERED. HAD NO TELEPHONE AND THAT ALL MESSAGES AND MAIL HAD TO BE RELAYED FROM SEATTLE TO ANACORTES AND THENCE TO GUEMES AND YOU SUGGEST THAT UNDER THE CIRCUMSTANCES INVOLVED AN ELECTION WAS MADE AS SOON AS POSSIBLE AND THAT AN ERROR WAS MADE IN NOT FORWARDING THE FORMS EARLIER.

B-126954, APR. 12, 1956

TO MRS. H. W. WHICKER:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 22, 1956, REQUESTING REVIEW OF OUR SETTLEMENT OF DECEMBER 22, 1955, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL RETIRED PAY BELIEVED TO BE DUE YOUR HUSBAND, THE LATE HAROLD W. WHICKER, LIEUTENANT, UNITED STATES NAVY (RETIRED), WHO DIED ON JUNE 26, 1955. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT MR. WHICKER FAILED TO EXERCISE HIS RIGHT OF ELECTION AS TO METHOD OF COMPUTATION OF RETIRED PAY, PURSUANT TO SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, WITHIN THE FIVE-YEAR PERIOD PRESCRIBED, WHICH EXPIRED AT MIDNIGHT OCTOBER 1, 1954. YOU CONTEND THAT WHILE THE NAVY DEPARTMENT FORWARDED TO MR. WHICKER A FORM FOR ELECTION OF METHODS OF COMPUTING RETIRED PAY, THE TRANSMITTAL LETTER WAS POSTMARKED SEPTEMBER 30, 1954, AND WAS NOT RECEIVED IN TIME TO BE RETURNED BY OCTOBER 1, 1954; THAT THE FORM WAS MAILED BY RETURN MAIL ON OCTOBER 2, 1954, AND THAT HE "AT NO TIME RECEIVED A FORM LIKE THIS ONE" AND HENCE COULD NOT HAVE MADE AN ELECTION EARLIER. HOWEVER, YOU INDICATE, ALSO, THAT HE RECEIVED A FORM ON JULY 20, 1954, WHICH HE DID NOT RETURN, AS HE BELIEVED IT DID NOT BENEFIT HIM IN ANY WAY, AND THAT A TELEGRAM DATED OCTOBER 1, 1954, FROM THE FIELD BRANCH OF THE BUREAU OF SUPPLIES AND ACCOUNTS SUGGESTING ELECTION OF METHOD "A" AS BEING MOST BENEFICIAL WAS NOT RECEIVED UNTIL OCTOBER 3, 1954, AND WAS ANSWERED, BY WIRE, ON OCTOBER 4, 1954. YOUR LETTER INCLUDES THE STATEMENTS THAT YOU AND MR. WHICKER LIVED ON A RATHER REMOTE ISLAND, HAD NO TELEPHONE AND THAT ALL MESSAGES AND MAIL HAD TO BE RELAYED FROM SEATTLE TO ANACORTES AND THENCE TO GUEMES AND YOU SUGGEST THAT UNDER THE CIRCUMSTANCES INVOLVED AN ELECTION WAS MADE AS SOON AS POSSIBLE AND THAT AN ERROR WAS MADE IN NOT FORWARDING THE FORMS EARLIER.

SECTION 411, TITLE IV, OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, 37 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 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 SERVICES CONCERNED AND FOR A SUBSEQUENT NOTIFICATION TO EACH MEMBER AND FORMER MEMBER OF THAT SERVICE OF THE STATUTES 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 JUNE 2, 1955, 34 COMP. GEN. 642, 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 HAVE TAKEN 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 PLACED IN THE MAILS OR OTHERWISE PASSED OUT OF THE PERSON'S CONTROL BEFORE MIDNIGHT ON OCTOBER 1, 1954.

SINCE THE ELECTION EXECUTED BY YOUR LATE HUSBAND WAS ACTUALLY EXECUTED AND DISPATCHED ON OCTOBER 2, 1954, SUBSEQUENT TO THE EXPIRATION DATE OF THE FIVE-YEAR PERIOD, SUCH ELECTION MUST BE CONSIDERED INEFFECTIVE AND WE HAVE NO ALTERNATIVE BUT TO DENY THE CLAIM.

ACCORDINGLY, THE SETTLEMENT OF DECEMBER 22, 1955, MUST BE SUSTAINED.

WITH REGARD TO YOUR STATEMENT THAT LIEUTENANT WHICKER COULD NOT POSSIBLY HAVE MADE AN ELECTION AT AN EARLIER DATE, YOUR ATTENTION IS INVITED TO LIEUTENANT WHICKER'S LETTER OF MARCH 4, 1955, WHEREIN HE WROTE TO THE CHIEF OF NAVAL PERSONNEL, THROUGH THE CHIEF, FIELD BRANCH, BUREAU OF SUPPLIES AND ACCOUNTS, AS FOLLOWS:

"2. IN * * * A LETTER UNDER DATE OF 20 JUL 1950, AND IN PARAGRAPH ONE OF THE ENDORSEMENT CONTAINED THEREON, IT WAS STATED:

"METHOD C WILL CONTINUE WITHOUT FURTHER ACTION ON YOUR PART,"THIS IN EXPOSITION OF THE POSSIBILITY THAT I MIGHT NOT DESIRE TO AVAIL MYSELF OF EITHER OF THE OTHER TWO METHODS OF ELECTION POSSIBLE UNDER * * * THE SUBJECT LAW.

"3. AT THIS TIME DUE TO TOTAL DISABILITY, I HAD MY WIFE TAKE THE LAW AND MAKE INQUIRY OF AN OFFICIAL OF THE INTERNAL REVENUE SERVICE, THE LEGAL DEPARTMENT OF THE THIRTEENTH NAVAL DISTRICT, AND A REPUTABLE CERTIFIED ACCOUNTANT. IT WAS THEIR CONSENSUS OF OPINION THAT MY RETIRED PAY, BY ANY ELECTION BY ANY OTHER THAN METHOD C,WOULD INVOLVE ME IN ANNUAL INCOME TAX RETURNS, AND THAT MY RETIRED PAY WOULD IN EFFECT BE LESS. ACTING UPON THIS INFORMATION, I THEREFORE LET THE MATTER REST AS IT WAS, IN THE BELIEF THAT SUCH WOULD CONSTITUTE ELECTION IN ACCORDANCE WITH THE INSTRUCTIONS CONTAINED IN THE TEXT OF (LETTER OF JULY 20, 1950) * * *.

"4. ON OR ABOUT 14 SEP 54, HOWEVER, I RECEIVED A CARD DIRECTIVE FROM THE FIELD BRANCH OF THE BUREAU OF SUPPLIES AND ACCOUNTS ADVISING ME THAT I HAD NOT YET MADE AN ELECTION, TOGETHER WITH A NEW ELECTION FORM AND ACCOMPANYING INSTRUCTIONS. TO THIS, IN PART, I REPLIED AS FOLLOWS:

" " THE FORM CONTAINED IN THE ENDORSEMENT ALLOWS FOR ONLY A CHOICE ON MY PART BETWEEN METHODS A AND B, NEITHER OF WHICH I DESIRE. THIS IS SOMEWHAT CONFUSING . . . . PLEASE, THEREFORE CONSIDER THIS MY LETTER OF ENDORSEMENT AND CHOICE OF METHOD C, THE METHOD BY WHICH I HAVE BEEN PAID SINCE RETIREMENT IN 1945. HAD IT NOT BEEN FOR THE STATEMENT CONTAINED IN PARAGRAPH 1 OF THE ENDORSEMENT, STATING THAT THE OLD METHOD, METHOD C,"WILL CONTINUE WITHOUT ANY FURTHER ENDORSEMENT ON YOUR PART" , AND THEREBY IMPLYING THAT, FOR THIS METHOD, NO FURTHER ACTION WAS NEEDED, I WOULD HAVE SENT YOU AN ENDORSEMENT LONG AGO.'"

THE FORM WHICH LIEUTENANT WHICKER FINALLY EXECUTED WAS SIMILAR TO THE ELECTION FORMS PREVIOUSLY SUBMITTED TO HIM, EXCEPT THAT "SAVED PAY" WAS SHOWN AS A SPECIFIC ELECTION, RATHER THAN AS A METHOD TO BE CONTINUED IN LIEU OF AN ELECTION OF ONE OF THE TWO OTHER METHODS. HENCE, IT CANNOT BE SAID THAT LIEUTENANT WHICKER WAS UNAWARE OF HIS RIGHTS IN AMPLE TIME TO MAKE A VALID ELECTION PRIOR TO THE EXPIRATION OF THE FIVE-YEAR ELECTION PERIOD.