B-129136, SEPTEMBER 27, 1956, 36 COMP. GEN. 244

B-129136: Sep 27, 1956

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MILITARY PERSONNEL - RETIREMENT - ELECTION OPTIONS - VALIDITY A RETIREMENT ELECTION OPTIONS FORM WHICH A COAST GUARD OFFICER ALLEGES WAS ONLY TENTATIVELY SIGNED AND WHICH WAS LOST WHEN IT WAS RETURNED BY THE COAST GUARD FOR NOTARIZATION OF THE MEMBER'S SIGNATURE DID NOT CONSTITUTE AN UNQUALIFIED AND VALID ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953. 1956: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 31. IT IS REPORTED THAT WHILE SERVING ON ACTIVE DUTY LIEUTENANT PEOPLES SUBMITTED AN " ELECTION OF OPTIONS UNDER THE UNIFORMED SERVICE CONTINGENCY OPTION ACT OF 1953. WHILE FORM CG 3490 HAS A SPACE INDICATING THAT THE ELECTION OF THE MEMBER CONCERNED IS TO BE SUBSCRIBED AND SWORN TO BEFORE A NOTARY PUBLIC OR OTHER ATTESTING OFFICER.

B-129136, SEPTEMBER 27, 1956, 36 COMP. GEN. 244

MILITARY PERSONNEL - RETIREMENT - ELECTION OPTIONS - VALIDITY A RETIREMENT ELECTION OPTIONS FORM WHICH A COAST GUARD OFFICER ALLEGES WAS ONLY TENTATIVELY SIGNED AND WHICH WAS LOST WHEN IT WAS RETURNED BY THE COAST GUARD FOR NOTARIZATION OF THE MEMBER'S SIGNATURE DID NOT CONSTITUTE AN UNQUALIFIED AND VALID ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953.

TO. C. C. GORDON, UNITED STATES COAST GUARD, SEPTEMBER 27, 1956:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 31, 1956, REQUESTING A DECISION AS TO THE VALIDITY OF AN ELECTION OF OPTIONS MADE BY LIEUTENANT JOHN M. PEOPLES, USCG, RETIRED, UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, 37 U.S.C. 371.

IT IS REPORTED THAT WHILE SERVING ON ACTIVE DUTY LIEUTENANT PEOPLES SUBMITTED AN " ELECTION OF OPTIONS UNDER THE UNIFORMED SERVICE CONTINGENCY OPTION ACT OF 1953," FORM CG 3490, IN DUPLICATE, DATED MARCH 18, 1954, ELECTING OPTION 1-4 FOR ONE-HALF OF HIS REDUCED RETIRED PAY, PAYABLE TO OR ON BEHALF OF HIS WIDOW. WHILE FORM CG 3490 HAS A SPACE INDICATING THAT THE ELECTION OF THE MEMBER CONCERNED IS TO BE SUBSCRIBED AND SWORN TO BEFORE A NOTARY PUBLIC OR OTHER ATTESTING OFFICER, THE FORM SUBMITTED BY LIEUTENANT PEOPLES BORE ONLY HIS OWN SIGNATURE. YOU STATE THAT PHOTOSTATIC COPIES WERE MADE AND THAT THE ORIGINAL AND ONE COPY WERE RETURNED TO HIM TO BE NOTARIZED, AND WERE NEVER RETURNED TO YOUR OFFICE. LIEUTENANT PEOPLES STATES THAT THE RETURNED DOCUMENTS WERE NOT RECEIVED BY HIM. HE NOW DESIRES THAT HIS ELECTION BE STRICKEN FROM HIS RECORD, AND THAT HIS FULL RETIRED PAY BE PAID TO HIM, OR FAILING THIS, THAT THE VALIDITY OF THE ELECTION BE CONFIRMED BY US.

THE CONTINGENCY OPTION ACT CONTAINS NO LANGUAGE REQUIRING THAT AN ELECTION UNDER THAT ACT BE SUBMITTED IN ANY PARTICULAR MANNER OR FORM, AND THE REGULATIONS ISSUED UNDER THAT ACT DO NOT APPEAR TO REQUIRE THAT THE SIGNATURE OF A MEMBER ON HIS ELECTION BE ATTESTED BY A NOTARY PUBLIC OR OTHER ATTESTING OFFICER. WHILE PARAGRAPH 206 OF THE REGULATIONS FOR THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, PROVIDES THAT THE FORM FOR MAKING ELECTIONS WILL BE SUBMITTED AS INDICATED BY THE DEPARTMENT CONCERNED AND PARAGRAPH 5, PERSONNEL CIRCULAR NO. 31-53, UNITED STATES COAST GUARD, PROVIDES THAT THE SIGNATURE ON AN ELECTION MUST BE EXECUTED UNDER OATH BEFORE A NOTARY PUBLIC OR OTHER OFFICER AUTHORIZED TO ADMINISTER SUCH OATHS, THERE IS NO REQUIREMENT IN PARAGRAPH 206 THAT THE MEMBER'S SIGNATURE BE NOTARIZED, IT BEING PROVIDED ONLY THAT " ALL COPIES FORWARDED WILL BE SIGNED, AND ANY SIGNED COPY MAY BE USED TO SUBSTANTIATE THE FACT OF ELECTION.' ON THIS BASIS IT HAS BEEN HELD THAT THE UNNOTARIZED SIGNATURE OF A MEMBER IS SUFFICIENT TO EFFECT A VALID ELECTION UNDER THAT ACT. 33 COMP. GEN. 455.

LIEUTENANT PEOPLES, HOWEVER, STATED IN A LETTER ADDRESSED TO US ON JUNE 22, 1956, AND RECEIVED HERE PRIOR TO HIS RETIREMENT ON JUNE 1, 1956, THAT HE SIGNED THE ELECTION FORM TENTATIVELY AND WITHOUT ATTESTATION BECAUSE HE HAD CERTAIN QUESTIONS CONCERNING THE OPERATION OF THE CONTINGENCY OPTION ACT IN HIS CASE. HE FURTHER STATED THAT THESE QUESTIONS, WHICH HAVE NEVER BEEN ANSWERED, WERE SUBMITTED BY HIM IN A LETTER OF TRANSMITTAL WITH THE ELECTION FORM. WE UNDERSTAND THAT THIS LETTER IS LOST AND CANNOT NOW BE FOUND. IN THESE CIRCUMSTANCES IT CANNOT BE SAID FOR A CERTAINTY THAT LIEUTENANT PEOPLES' FORM CG 3490 WAS AN UNQUALIFIED AND VALID ELECTION AT THE TIME IT WAS SUBMITTED. ACCORDINGLY, YOU ARE NOT REQUIRED TO MAKE DEDUCTIONS ON THAT ACCOUNT FROM HIS RETIRED PAY, AND ANY SUCH AMOUNTS WHICH MAY HAVE BEEN WITHHELD FROM HIS RETIRED PAY TO DATE SHOULD BE PAID TO HIM.