B-129456, JANUARY 31, 1957, 36 COMP. GEN. 547

B-129456: Jan 31, 1957

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BY A MEMBER OF THE UNIFORMED SERVICES WHOSE MILITARY RECORDS HAVE BEEN CORRECTED. IS A SEPARATE AND DISTINCT CLAIM FROM A CLAIM BASED SOLELY ON THE RECORD CORRECTION ACTION AND IS NOT BARRED BY SECTION 207 (C) OF THE LEGISLATIVE REORGANIZATION ACT OF 1946. 1957: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 27. REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER STATED IN FAVOR OF FIRST LIEUTENANT EUGENE H. AS A RESULT OF THE CORRECTION OF HIS MILITARY RECORDS AND HIS SUBSEQUENT ELECTION STATED TO HAVE BEEN EXERCISED UNDER THE AUTHORITY OF SECTION 411. HE WAS INCAPACITATED FOR ACTIVE SERVICE BY REASON OF ARTHRITIS. THAT THE INCAPACITY WAS PERMANENT AND WAS THE RESULT OF AN INCIDENT OF SERVICE HAVING BEEN INCURRED SUBSEQUENT TO 1 FEBRUARY 1945.

B-129456, JANUARY 31, 1957, 36 COMP. GEN. 547

MILITARY PERSONNEL - CORRECTION OF MILITARY RECORDS - DISABILITY RETIRED PAY ELECTIONS - TIMELY ELECTIONS A CLAIM FOR INCREASED RETIRED PAY BENEFITS BASED ON AN ELECTION OF THE METHOD OF COMPUTATION OF RETIRED PAY UNDER SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, BY A MEMBER OF THE UNIFORMED SERVICES WHOSE MILITARY RECORDS HAVE BEEN CORRECTED, IS A SEPARATE AND DISTINCT CLAIM FROM A CLAIM BASED SOLELY ON THE RECORD CORRECTION ACTION AND IS NOT BARRED BY SECTION 207 (C) OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, WHICH PRECLUDES THE ASSERTION OF FURTHER CLAIMS BASED ON THE CORRECTION OF MILITARY RECORDS. A MEMBER OF THE UNIFORMED SERVICES WHO EXERCISED AN ELECTION OF THE METHOD OF COMPUTATION OF RETIRED PAY MORE THAN 18 MONTHS AFTER NOTICE OF THE RECORD CORRECTION ACTION AND MORE THAN ELEVEN MONTHS AFTER JUNE 2, 1955--- THE DATE OF DECISION 34 COMP. GEN. 646, WHICH PERMITTED ELECTIONS IN RECORD CORRECTION CASES TO BE MADE AFTER THE EXPIRATION OF THE FIVE- YEAR PERIOD PRESCRIBED IN SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949--- MAY NOT BE CONSIDERED AS HAVING MADE A TIMELY ELECTION FOR INCREASED DISABILITY RETIRED PAY.

TO LIEUTENANT COLONEL C. W. GRIFFIN, UNITED STATES AIR FORCE, JANUARY 31, 1957:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 27, 1956, WITH ENCLOSURES, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER STATED IN FAVOR OF FIRST LIEUTENANT EUGENE H. AKERS, UNITED STATES AIR FORCE, RETIRED, REPRESENTING RETIRED PAY BELIEVED DUE HIM EFFECTIVE FROM OCTOBER 1, 1949, AS A RESULT OF THE CORRECTION OF HIS MILITARY RECORDS AND HIS SUBSEQUENT ELECTION STATED TO HAVE BEEN EXERCISED UNDER THE AUTHORITY OF SECTION 411, CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, 37 U.S.C. 281. ALSO, THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 5, 1956, WITH ADDITIONAL ENCLOSURES AND INFORMATION ON THE CASE.

THE RECORD NOW BEFORE THIS OFFICE DISCLOSES THAT ON MAY 21, 1954, THE ASSISTANT SECRETARY OF THE AIR FORCE, HAVING RECEIVED AND APPROVED THE RECOMMENDATION OF THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS IN THE CASE OF EUGENE H. AKERS, AND ACTING UNDER THE AUTHORITY OF SECTION 207, LEGISLATIVE REORGANIZATION ACT OF 1946, 60 STAT. 837, AS AMENDED BY THE ACT OF OCTOBER 25, 1951, 65 STAT. 655, 5 U.S.C. 191A, DIRECTED THAT:

1. THE PERTINENT MILITARY RECORDS OF THE AIR FORCE ESTABLISHMENT PERTAINING TO EUGENE H. AKERS, AO 2 1093 428, BE CORRECTED TO SHOW THAT ON 6 MARCH 1948, HE WAS INCAPACITATED FOR ACTIVE SERVICE BY REASON OF ARTHRITIS, TUBERCULOUS LEFT KNEE; THAT THE INCAPACITY WAS PERMANENT AND WAS THE RESULT OF AN INCIDENT OF SERVICE HAVING BEEN INCURRED SUBSEQUENT TO 1 FEBRUARY 1945, AND SUFFERED IN LINE OF DUTY FROM DISEASE OR INJURY WHILE EMPLOYED ON ACTIVE DUTY.

2. ALL NECESSARY AND APPROPRIATE ACTION BE TAKEN IN CONSONANCE WITH THIS DIRECTIVE.

THE CORRECTIONS THUS AUTHORIZED IN LIEUTENANT AKERS' MILITARY RECORDS ENTITLED HIM TO RECEIVE DISABILITY RETIRED PAY UNDER THE PROVISIONS OF SECTION 5, ACT OF APRIL 3, 1939, 53 STAT. 557, AS AMENDED, 10 U.S.C. (1952 USED.) 456, RETROACTIVELY EFFECTIVE FROM MARCH 7, 1948, THE DAY FOLLOWING THE DATE OF HIS RELEASE FROM ACTIVE DUTY. SEE 33 COMP. GEN. 1. A COPY OF VOUCHER NO. 10695 IN YOUR DECEMBER 1955 ACCOUNTS (SYMBOL 123) SHOWS THAT LIEUTENANT AKERS WAS ALLOWED DISABILITY RETIRED PAY FOR THE PERIOD MARCH 7, 1948, TO SEPTEMBER 7, 1949, INCLUSIVE, AT THE RATE OF $157.50 PER MONTH, LESS MUSTERING-OUT PAYMENT AND LESS VETERANS ADMINISTRATION COMPENSATION RECEIVED BY HIM FOR THAT SAME PERIOD. IN CONNECTION WITH THE PAYMENT ACCOMPLISHED ON VOUCHER NO. 10695, IT IS INDICATED THAT LIEUTENANT AKERS WAIVED HIS MONTHLY DISABILITY RETIRED PAY IN ORDER TO RECEIVE VETERANS ADMINISTRATION COMPENSATION IN A GREATER AMOUNT EFFECTIVE FROM SEPTEMBER 8, 1949 (SUCH ACTION APPARENTLY BEING BASED ON 37 U.S.C. 272 (I) AND 38 U.S.C. 26C). THE NET AMOUNT OF $51.65 FOUND DUE LIEUTENANT AKERS WAS PAID TO HIM ON THE BASIS OF A CLAIM CERTIFICATE EXECUTED BY HIM ON NOVEMBER 28, 1955, READING AS FOLLOWS:

SEDB/11 AKERS, EUGENE H. AMOUNT OF CLAIM $51.65

AO 209 3428

CLAIM CERTIFICATE

I HEREBY MAKE CLAIM IN THE AMOUNT SHOWN ABOVE FOR MONETARY SETTLEMENT DUE ME BY REASON OF CORRECTION OF THE MILITARY RECORDS OF EUGENE H. AKERS, SERIAL NUMBER AO 209 3428, AND FURTHER AS PROVIDED BY SECTION 207C OF PUBLIC LAW 601, 79TH CONGRESS, AS AMENDED, DO AGREE THAT THE ACCEPTANCE OF THIS SETTLEMENT SHALL CONSTITUTE A COMPLETE RELEASE BY ME OF ANY CLAIM AGAINST THE UNITED STATES BY REASON OF THE CORRECTION OF SUCH RECORDS. ALSO CERTIFY AND AFFIRM WITH FULL KNOWLEDGE OF THE PENALTIES PRESCRIBED BY LAW FOR MAKING A FALSE CLAIM AGAINST THE UNITED STATES (18 U.S.C. 287; 18 U.S.C. 1001), THAT I HAVE NOT HERETOFORE BEEN COMPENSATED BY CONGRESS THROUGH ENACTMENT OF A PRIVATE LAW, OR IN ANY OTHER MANNER FOR ANY MONETARY BENEFITS DUE BY REASON OF THE ABOVE REFERRED TO CORRECTION OF MILITARY RECORDS. NOVEMBER 28, 1955 (S) EUGENE H. AKERS

DATE

SIGNATURE OF CLAIMANT

ST LT. USAF

AO 209 3428

THE FIRST POINT TO CONSIDER IS WHETHER THE CLAIM CERTIFICATE SIGNED ON NOVEMBER 28, 1955, BY LIEUTENANT AKERS, STATING IN PERTINENT PART THAT "THE ACCEPTANCE OF THIS SETTLEMENT SHALL CONSTITUTE A COMPLETE RELEASE BY ME OF ANY CLAIM AGAINST THE UNITED STATES BY REASON OF THE CORRECTION OF SUCH RECORDS," AND THE ACCEPTANCE BY HIM OF THE PAYMENT ACCOMPLISHED ON VOUCHER NO. 10695 PROFFERED IN FULL SETTLEMENT OF THAT CLAIM, BARS THE PAYMENT TO LIEUTENANT AKERS OF THE ADDITIONAL AMOUNT STATED ON THE VOUCHER YOU HAVE SUBMITTED IN HIS FAVOR AND WHICH REPRESENTS ADDITIONAL RETIRED PAY PAYABLE TO HIM EFFECTIVE FROM OCTOBER 1, 1949, ON THE BASIS OF AN ELECTION PURPORTED TO HAVE BEEN EXERCISED BY HIM UNDER THE AUTHORITY OF SECTION 411 OF THE 1949 LAW.

SECTION 207 (C) OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED BY THE ACT OF OCTOBER 25, 1951, ABOVE CITED, 5 U.S.C. 191A (C), PROVIDES, WITH RESPECT TO CORRECTIONS OF MILITARY RECORDS AUTHORIZED BY THAT ACT, THAT " THE ACCEPTANCE BY THE CLAIMANT OF ANY SETTLEMENT MADE PURSUANT TO SUBSECTION (B) OF THIS SECTION SHALL CONSTITUTE A COMPLETE RELEASE BY THE CLAIMANT OF ANY CLAIM AGAINST THE UNITED STATES ON ACCOUNT OF SUCH CORRECTION OF RECORD.' THE SAID SUBSECTION (B), IN PERTINENT PART, PROVIDES:

THE DEPARTMENT CONCERNED IS AUTHORIZED TO PAY, OUT OF APPLICABLE CURRENT APPROPRIATIONS, CLAIMS OF ANY PERSONS, THEIR HEIRS AT LAW OR LEGAL REPRESENTATIVES AS HEREINAFTER PROVIDED, OF AMOUNTS PAID AS FINES, FORFEITURES, OR FOR LOSSES OF PAY (INCLUDING RETIRED OR RETIREMENT PAY), ALLOWANCES, COMPENSATION, EMOLUMENTS, OR OTHER MONETARY BENEFITS, AS THE CASE MAY BE, WHICH ARE FOUND TO BE DUE ON ACCOUNT OF MILITARY OR NAVAL SERVICE AS A RESULT OF THE ACTION HERETOFORE TAKEN PURSUANT TO SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, OR HEREAFTER TAKEN PURSUANT TO SUBSECTION (A) OF THIS SECTION * * *

THE PROVISIONS OF SECTION 207 (C) PRECLUDE LIEUTENANT AKERS FROM ASSERTING ANY FURTHER CLAIM AGAINST THE UNITED STATES AS A RESULT OF THE CORRECTION OF HIS MILITARY RECORDS AND WHICH IS BASED SOLELY ON THAT FACTOR. HOWEVER, THE RIGHT OF LIEUTENANT AKERS TO MAKE AN ELECTION OF THE NATURE AUTHORIZED BY SECTION 411 OF THE 1949 LAW IS SUPPLEMENTAL TO HIS BASIC RIGHT TO RECEIVE DISABILITY RETIRED PAY BENEFITS RETROACTIVELY EFFECTIVE FROM MARCH 7, 1948, ARISING FROM THE CORRECTIONS MADE IN HIS MILITARY RECORDS PURSUANT TO THE PROVISIONS OF 5 U.S.C. 191A. THEREFORE, THE PRESENT CLAIM OF LIEUTENANT AKERS FOR GREATER RETIRED PAY BENEFITS AFFECTIVE FROM OCTOBER 1, 1949, BASED ON AN ELECTION RESPECTING THE METHOD OF COMPUTATION OF RETIRED PAY IS CONSIDERED TO BE SEPARATE AND DISTINCT FROM HIS PRIOR CLAIM BASED SOLELY ON THE CORRECTIONS MADE IN HIS MILITARY RECORDS. HENCE, WE DO NOT VIEW THE RESTRICTIVE PROVISIONS OF SECTION 207 (C) AS BARRING CONSIDERATION OF THE PRESENT CLAIM BASED ON THE ELECTION. SEE OUR DECISION TO YOU OF TODAY, B-129458, 36 COMP. GEN. 552, ON THE CASE OF CAPTAIN SUMNER E. LOCKE.

MEMBERS OF THE UNIFORMED SERVICES WHO WERE RETIRED BY REASON OF PHYSICAL DISABILITY PRIOR TO OCTOBER 1, 1949, THE EFFECTIVE DATE OF THE CAREER COMPENSATION ACT OF 1949, WERE GRANTED A PERIOD OF FIVE YEARS (UNTIL MIDNIGHT OCTOBER 1, 1954--- SEE 34 COMP. GEN. 642, 645) TO ELECT TO RECEIVE RETIRED PAY COMPUTED UNDER EITHER OPTION (A) OR OPTION (B) OF SECTION 411 OF THAT ACT, 37 U.S.C. 281. IN DECISION OF JUNE 2, 1955, B- 122602, 34 COMP. GEN. 646, 648, WE HELD THAT A RETROACTIVE CHANGE IN STATUS, WHETHER ACCOMPLISHED PRIOR OR SUBSEQUENT TO OCTOBER 1, 1954, WHICH IS BASED UPON REVIEW ACTION TAKEN UNDER THE PROVISIONS OF 38 U.S.C. 693I, OR WHICH RESULTS FROM A CORRECTION OF MILITARY RECORDS MADE PURSUANT TO THE AUTHORITY OF 5 U.S.C. 191A, AND WHICH BRINGS AN INDIVIDUAL WITHIN THE PURVIEW OF SECTION 411 "ENTITLES SUCH AN INDIVIDUAL TO MAKE THE ELECTION GRANTED IN THAT SECTION.' THAT CONCLUSION WAS QUALIFIED BY THE STATEMENT THAT THE ELECTION "MUST BE MADE WITHIN A REASONABLE TIME AFTER THE RIGHT TO MAKE IT FIRST ACCRUES.'

THE BASIC FACTS SET FORTH IN YOUR LETTERS AND THE ENCLOSURES BEARING ON LIEUTENANT AKERS' RIGHT TO ELECT TO RECEIVE DISABILITY RETIRED PAY EFFECTIVE FROM OCTOBER 1, 1949, UNDER OPTION (A) OF SECTION 411 ARE AS FOLLOWS:(1) HE WAS ADVISED BY LETTER DATED MAY 24, 1954, FROM THE EXECUTIVE SECRETARY OF THE AIR FORCE BOARD FOR THE CORRECTION OF MILITARY RECORDS THAT HIS "APPLICATION HAD RECEIVED FAVORABLE CONSIDERATION," (2) THE ADMINISTRATIVE ACTION TO EFFECT HIS CERTIFICATION FOR DISABILITY RETIRED PAY WAS NOT ACCOMPLISHED PRIOR TO OCTOBER 1, 1954, (3) BY LETTER DATED NOVEMBER 1, 1954, FROM THE DEPARTMENT OF THE AIR FORCE, LIEUTENANT AKERS WAS FURTHER ADVISED THAT ALL PERTINENT RECORDS OF THE DEPARTMENT OF THE AIR FORCE HAD BEEN CORRECTED TO SHOW THAT HIS NAME "WAS PLACED ON THE USAF RETIRED LIST, DUE TO PHYSICAL DISABILITY EFFECTIVE 7 MARCH 1948" AND (4) BY LETTER FROM THE DIRECTOR OF MILITARY PERSONNEL DATED APRIL 12, 1956, LIEUTENANT AKERS WAS OFFERED THE OPPORTUNITY TO ELECT, WITHIN A PERIOD OF 30 DAYS FROM THE DATE OF SUCH LETTER, ONE OF THE SEVERAL ALTERNATIVE METHODS OF COMPUTING HIS RETIRED PAY UNDER THE PROVISIONS OF SECTION 411 OF THE 1949 LAW. THE OPPORTUNITY TO MAKE AN ELECTION UNDER SECTION 411 IS STATED TO HAVE BEEN EXTENDED TO LIEUTENANT AKERS IN APRIL 1956 UNDER THE HOLDING IN THE DECISION OF JUNE 2, 1955, 34 COMP. GEN. 646, ABOVE REFERRED TO, AND IT IS SHOWN THAT LIEUTENANT AKERS SIGNED AN ELECTION FORM ON MAY 5, 1956. IN THESE CIRCUMSTANCES, THE BASIC ISSUE PRESENTED IS WHETHER THE ELECTION MADE BY LIEUTENANT AKERS ON MAY 5, 1956, WAS "MADE WITHIN A REASONABLE TIME" AFTER HIS RIGHT TO MAKE IT FIRST ACCRUED WITHIN THE MEANING AND INTENT OF THE DECISION OF JUNE 2, 1955, WITH RESPECT TO INDIVIDUALS IN A STATUS SIMILAR TO THAT OF LIEUTENANT AKERS.

THIS OFFICE, IN REACHING THE CONCLUSION EXPRESSED IN THE DECISION OF JUNE 2, 1955, WAS FACED WITH THE PROBLEM THAT WHILE THE FIVE-YEAR PERIOD WITHIN WHICH TO EXERCISE THE ELECTION AUTHORIZED IN SECTION 411, CAREER COMPENSATION ACT OF 1949, HAD EXPIRED AT MIDNIGHT OCTOBER 1, 1954, THE ABSOLUTE DENIAL OF A COMPARABLE RIGHT OF ELECTION IN THE CASE OF A RETROACTIVE CHANGE OF STATUS ACCOMPLISHED TOO LATE TO AFFORD A REASONABLE OPPORTUNITY TO MAKE A TIMELY ELECTION UNDER SECTION 411 "WOULD SEEM TO BE DIRECTLY CONTRARY TO THE INTENT AND DESIGN OF THE STATUTORY PROVISIONS AUTHORIZING RETROACTIVE CHANGES OR CORRECTIONS OF STATUS.' IN THAT SITUATION IT WAS THEREFORE CONCLUDED THAT A RETROACTIVE CHANGE IN STATUS BASED UPON REVIEW ACTION TAKEN UNDER 38 U.S.C. 693I, OR RESULTING FROM A CORRECTION OF RECORDS MADE PURSUANT TO THE PROVISIONS OF 5 U.S.C. 191A, RETROACTIVELY BRINGING AN INDIVIDUAL WITHIN THE CATEGORY OF PERSONS WHICH HAD BEEN CONTEMPLATED BY SECTION 411, PROPERLY COULD BE CONSIDERED AS ENTITLING SUCH AN INDIVIDUAL TO MAKE AN ELECTION OF THE TYPE AUTHORIZED IN SECTION 411 "WITHIN A REASONABLE TIME AFTER THE RIGHT TO MAKE IT FIRST ACCRUES.'

IN THE PRESENT CASE THE RECORD SHOWS THAT THE FINDINGS AND CONCLUSIONS OF THE AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS WERE APPROVED BY THE ASSISTANT SECRETARY OF THE AIR FORCE ON MAY 21, 1954, A DATE OVER FOUR MONTHS PRIOR TO OCTOBER 1, 1954, WHEN THE FIVE YEAR PERIOD PRESCRIBED IN SECTION 411 OF THE 1949 LAW EXPIRED. IT APPEARS, HOWEVER, THAT LIEUTENANT AKERS MAY HAVE BEEN FIRST ADVISED AS TO THE PRECISE NATURE OF THE CORRECTIONS THAT HAD BEEN MADE IN HIS MILITARY RECORDS BY A LETTER DATED NOVEMBER 1, 1954, ADDRESSED TO HIM BY THE DEPARTMENT OF THE AIR FORCE. NOVEMBER 1, 1954, THE FIVE-YEAR PERIOD PRESCRIBED IN SECTION 411 HAD EXPIRED AND HENCE LIEUTENANT AKERS' STATUS WITH RESPECT TO THE LACK OF AN OPPORTUNITY TO EXERCISE AN ELECTION UNDER SECTION 411 WAS SIMILAR TO THAT OF LIEUTENANT COMMANDER HIRAM E. NEWBILL, U.S. NAVAL RESERVE, RETIRED, WHOSE CASE WAS SPECIFICALLY CONSIDERED IN THE DECISION OF JUNE 2, 1955.

COMMANDER NEWBILL'S NAVAL RECORDS WERE CORRECTED ON AUGUST 13, 1954, PURSUANT TO THE AUTHORITY OF 5 U.S.C. 191A, AND ON THE BASIS OF HIS CORRECTED NAVAL RECORDS HE BECAME ENTITLED TO RECEIVE DISABILITY RETIREMENT PAY BENEFITS RETROACTIVELY EFFECTIVE FROM JULY 21, 1946. THUS HE BECAME ENTITLED TO EXERCISE THE ELECTION PRESCRIBED IN SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949 PRIOR TO OCTOBER 1, 1954, BUT THE RECORD SUBMITTED INDICATED THAT HE WAS NOT NOTIFIED OF THE CORRECTION OF HIS RECORDS IN SUFFICIENT TIME TO AFFORD HIM ANY OPPORTUNITY TO EXERCISE SUCH AN ELECTION BEFORE THE EXPIRATION OF THE FIVE-YEAR PERIOD PRESCRIBED IN THAT SECTION. THEREFORE, BEARING IN MIND THE FACT THAT COMMANDER NEWBILL HAD NOT BEEN AFFORDED ANY OPPORTUNITY PRIOR TO THE EXPIRATION OF THE FIVE-YEAR PERIOD PRESCRIBED IN SECTION 411 TO EXERCISE HIS RIGHT OF ELECTION UNDER THAT SECTION, IT WILL BE SEEN THAT IT WAS THE EFFECT AND INTENT OF OUR DECISION OF JUNE 2, 1955, TO EXTEND TO HIM SUCH AN OPPORTUNITY, TO BE EXERCISED WITHIN A REASONABLE TIME FOLLOWING THE DATE OF THE DECISION, JUNE 2, 1955, TO MAKE THE ELECTION OTHERWISE BARRED BY THE EXPRESS TERMS OF THE STATUTE. THE DECISION OF JUNE 2, 1955, PROPERLY CAN BE GIVEN NO GREATER EFFECT WITH RESPECT TO OTHER INDIVIDUALS IN SIMILAR CIRCUMSTANCES THAN THAT INTENDED IN COMMANDER NEWBILL'S CASE. THAT CONNECTION WE FEEL THAT A PERIOD OF SIX MONTHS FOLLOWING THE DATE OF OUR DECISION OF JUNE 2, 1955, OR AFTER THE DATE OF RECEIPT OF THE NOTICE OF THE CORRECTION OF RECORD, WHICHEVER MAY BE LATER, MUST BE CONSIDERED AS CONSTITUTING THE MAXIMUM REASONABLE PERIOD FOR THE EXERCISE OF AN EFFECTIVE ELECTION OF THE TYPE DESCRIBED IN SECTION 411. APPLYING SUCH RULE TO THE FACTS PRESENTED IN LIEUTENANT AKERS' CASE, IT WILL BE SEEN THAT THE ACTION TAKEN BY HIM ON MAY 5, 1956 (OVER 11 MONTHS SUBSEQUENT TO THE DECISION OF JUNE 2, 1955, AND MORE THAN 18 MONTHS AFTER NOVEMBER 1, 1954, DATE OF THE AIR FORCE LETTER NOTIFYING HIM OF THE CORRECTIONS MADE IN HIS MILITARY RECORDS), PURPORTING TO BE AN ELECTION ON THE AUTHORITY OF THE DECISION OF JUNE 2, 1955, WAS NOT ACCOMPLISHED WITHIN A REASONABLE PERIOD OF TIME AS CONTEMPLATED IN THAT DECISION. HENCE, WE FIND IT NECESSARY TO CONCLUDE THAT LIEUTENANT AKERS HAS NOT MADE A VALID AND EFFECTIVE ELECTION FOR THE PURPOSES OF SECTION 411. SEE OUR DECISION TO YOU OF TODAY B-129458, ON THE SIMILAR CASE OF CAPTAIN SUMNER E. LOCKE.

THE VOUCHER, PAYMENT OF WHICH IS NOT AUTHORIZED ON THE BASIS OF THE PRESENT RECORD, WILL BE RETAINED HERE. THIS ACTION WOULD NOT, HOWEVER, PRECLUDE A FURTHER CORRECTION OF LIEUTENANT AKERS' MILITARY RECORDS TO SHOW THAT HE MADE AN ELECTION WITHIN SIX MONTHS AFTER JUNE 2, 1955. COMPARE 35 COMP. GEN. 643.