B-132012, JUN. 17, 1957

B-132012: Jun 17, 1957

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AFTER HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON OCTOBER 1. THE DISCREPANCY AGAIN WAS BROUGHT TO HIS ATTENTION BY LETTER OF NOVEMBER 13. IT WAS REQUESTED THAT HE FURNISH A STATEMENT AS TO THE FRACTION HE DESIRED TO BE APPLIED TO HIS ELECTION. IT IS ASSUMED THAT SINCE THE ELECTION WAS SIGNED ON OCTOBER 28. IT WAS TIMELY FILED. SUCH ANNUITY IS PAYABLE ONLY AT THE RATE OF EITHER ONE-EIGHTH. KEENE'S ELECTION WAS DEFICIENT IN THAT TWO RATES WERE STATED. - SUCH ELECTION EVIDENCED A CLEAR INTENT TO APPLY FOR COVERAGE UNDER THE CONTINGENCY OPTION ACT AND WAS SUBJECT TO CLARIFICATION BY HIM. THERE IS NO BASIS ON WHICH SUCH ACTION ON HIS PART MAY BE ACCEPTED AS A REVOCATION OF HIS ELECTION.

B-132012, JUN. 17, 1957

TO L. A. CAMPBELL, DISBURSING OFFICER, DEPARTMENT OF THE NAVY:

BY LETTER OF MAY 27, 1957, THE JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED YOUR LETTER OF DECEMBER 14, 1956, REQUESTING DECISION AS TO THE VALIDITY OF THE ELECTION MADE BY EMORY C. KEENE, CHIEF MACHINISTS MATE, USN, RETIRED, UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, AND IF VALID, THE FRACTION TO BE USED IN THE COMPUTATION OF HIS REDUCED RETIRED PAY.

IT APPEARS THAT ON OCTOBER 28, 1954, AFTER COMPLETING OVER 18 YEARS OF SERVICE IN THE U.S. NAVY, MR. KEENE EXECUTED FORM NAVPERS 591, ELECTING OPTION (2) TO PROVIDE AN ANNUITY UNDER THE ACT MENTIONED ABOVE PAYABLE TO HIS ELIGIBLE CHILDREN IF THEY SURVIVE HIM. HOWEVER, IN THE SPACES PROVIDED TO INDICATE THE PORTION OF HIS REDUCED RETIRED PAY WHICH SHOULD BE PAID TO THEM, HE CHECKED BOTH THE ONE-HALF AND ONE EIGHT RATES. FAILED TO REPLY TO A LETTER OF NOVEMBER 18, 1954, FROM THE CHIEF OF NAVAL PERSONNEL ADVISING HIM THAT SUCH DISCREPANCY SHOULD BE RECTIFIED. AFTER HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON OCTOBER 1, 1956, THE DISCREPANCY AGAIN WAS BROUGHT TO HIS ATTENTION BY LETTER OF NOVEMBER 13, 1956, AND IT WAS REQUESTED THAT HE FURNISH A STATEMENT AS TO THE FRACTION HE DESIRED TO BE APPLIED TO HIS ELECTION. HIS REPLY OF NOVEMBER 19, 1956, INFORMED THE DEPARTMENT OF THE NAVY THAT HE DID NOT DESIRE TO PARTICIPATE IN THE ANNUITY PROGRAM.

IT IS ASSUMED THAT SINCE THE ELECTION WAS SIGNED ON OCTOBER 28, 1954, IT WAS TIMELY FILED. UNDER SECTION 4 (A) OF THE CONTINGENCY OPTION ACT, A MEMBER MAY ELECT ONE OR MORE OF THE DIFFERENT OPTIONS THERE PROVIDED WHEREBY ANNUITIES MAY BE PAID "IN AMOUNTS EQUAL TO ONE HALF, ONE-QUARTER OR ONE-EIGHT OF THE REDUCED AMOUNT OF HIS RETIRED PAY.' OPTION (2) PROVIDES AN ANNUITY PAYABLE TO AN OTHERWISE ELIGIBLE CHILD OR CHILDREN, BUT SUCH ANNUITY IS PAYABLE ONLY AT THE RATE OF EITHER ONE-EIGHTH, ONE- QUARTER OR ONE-HALF OF A MEMBER'S REDUCED RETIRED PAY. WHILE MR. KEENE'S ELECTION WAS DEFICIENT IN THAT TWO RATES WERE STATED--- PROBABLY THROUGH INADVERTENCY--- SUCH ELECTION EVIDENCED A CLEAR INTENT TO APPLY FOR COVERAGE UNDER THE CONTINGENCY OPTION ACT AND WAS SUBJECT TO CLARIFICATION BY HIM. SEE 34 COMP. GEN. 63. COMPARE 34 COMP. GEN. 35, 555. HOWEVER, HIS FAILURE TO SO CLARIFY HIS ELECTION DID NOT NULLIFY SUCH ELECTION AND IN THE CIRCUMSTANCES SHOWN IT MAY BE ASSUMED THAT HE ELECTED OPTION (2) AT THE MINIMUM RATE OF ONE-EIGHT OF HIS REDUCED RETIRED PAY.

ALTHOUGH HE HAS EXPLAINED HIS FAILURE TO REPLY TO THE LETTER OF NOVEMBER 18, 1954, AS BEING DUE TO A DESIRE NOT TO PARTICIPATE IN THE ANNUITY PROGRAM, THERE IS NO BASIS ON WHICH SUCH ACTION ON HIS PART MAY BE ACCEPTED AS A REVOCATION OF HIS ELECTION, SINCE SECTION 3 (A) OF THE CONTINGENCY OPTION ACT PROVIDES THAT A REVOCATION OF AN ELECTION SHALL NOT BE EFFECTIVE IF THE MEMBER RETIRES WITHIN FIVE YEARS AFTER THE DATE THE REVOCATION IS MADE. MR. KEENE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST LESS THAN TWO YEARS AFTER HE EXECUTED HIS ELECTION OF OCTOBER 28, 1954. YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.