B-134958, FEBRUARY 7, 1958, 37 COMP. GEN. 515

B-134958: Feb 7, 1958

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IT IS REPORTED THAT MAJOR FREVOLA WAS RETIRED ON FEBRUARY 29. FOR PHYSICAL DISABILITY WITH A PERMANENT DISABILITY RATING OF 100 PERCENT AND THAT HE WAS CONSIDERED TO BE MENTALLY INCOMPETENT TO HANDLE HIS AFFAIRS. DA FORM 1041 WAS FORWARDED TO HIS WIFE FOR AN ELECTION OF OPTIONS UNDER THE CONTINGENCY OPTION ACT AND SHE WAS NOTIFIED THAT SHE SHOULD SUBMIT HER ELECTION AT THE EARLIEST POSSIBLE DATE TO ELIMINATE THE POSSIBILITY OF IT BEING . FREVOLA STATED THAT THE FIRST ELECTION WAS THE SAME AS THE SECOND. THAT IT WAS WITNESSED BY ROSE PAVONE. THAT IT WAS FORWARDED BY FIRST-CLASS MAIL TO THE ARMY FINANCE CENTER AT INDIANAPOLIS. FREVOLA WAS DULY APPOINTED AS COMMITTEE OF THE PERSON AND ESTATE OF HER HUSBAND BY THE SUPREME COURT OF NEW YORK IN QUEENS FOR SUFFOLK COUNTY.

B-134958, FEBRUARY 7, 1958, 37 COMP. GEN. 515

MILITARY PERSONNEL - RETIREMENT - ANNUITY ELECTION FOR DEPENDENTS - INCOMPETENTS - TIME FOR ELECTION AN ANNUITY ELECTION PROPOSED TO BE MADE, ON BEHALF OF A MENTALLY INCOMPETENT OFFICER, PURSUANT TO SECTION 3 OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, APPROXIMATELY TWO YEARS AFTER HIS RETIREMENT AND ALMOST ONE AND ONE-HALF YEARS AFTER RECEIPT OF A REQUEST FROM THE OFFICER'S WIFE FOR APPROVAL OF HER ELECTION AND OVER SIX MONTHS AFTER THE DEATH OF THE MEMBER MAY NOT BE REGARDED AS HAVING BEEN MADE AT THE TIME OF RETIREMENT TO EFFECT A VALID ELECTION.

TO LIEUTENANT COLONEL N. P. HANNA, DEPARTMENT OF THE ARMY, FEBRUARY 7, 1958:

BY FIRST ENDORSEMENT OF JANUARY 20, 1958, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF JANUARY 6, 1958, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF PAYING $927.78 ON A VOUCHER STATED IN FAVOR OF GILDA FREVOLA, THE WIDOW OF MAJOR JAMES D. FREVOLA, RETIRED (DECEASED JULY 22, 1957), REPRESENTING ANNUITY PAYMENTS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, FOR THE PERIOD JULY 1 TO DECEMBER 31, 1957, LESS AMOUNTS STATED TO BE THE PARTIAL COST OF THE ELECTION FOR THE PERIOD MARCH 1, 1956, TO JULY 22, 1957.

IT IS REPORTED THAT MAJOR FREVOLA WAS RETIRED ON FEBRUARY 29, 1956, FOR PHYSICAL DISABILITY WITH A PERMANENT DISABILITY RATING OF 100 PERCENT AND THAT HE WAS CONSIDERED TO BE MENTALLY INCOMPETENT TO HANDLE HIS AFFAIRS. YOU STATE THAT ON FEBRUARY 15, 1956, DA FORM 1041 WAS FORWARDED TO HIS WIFE FOR AN ELECTION OF OPTIONS UNDER THE CONTINGENCY OPTION ACT AND SHE WAS NOTIFIED THAT SHE SHOULD SUBMIT HER ELECTION AT THE EARLIEST POSSIBLE DATE TO ELIMINATE THE POSSIBILITY OF IT BEING ,NULLIFIED BY VIRTUE OF THE EXPIRATION OF THE 30-DAY PERIOD ALLOWED.' AFTER BEING ADVISED THAT THE FORM SHE STATED SHE SUBMITTED TO THE FINANCE CENTER, U.S. ARMY, ON OR ABOUT MARCH 19, 1956, COULD NOT BE LOCATED, AND PURSUANT TO AN ADMINISTRATIVE REQUEST THAT SHE EXECUTE ANOTHER DA FORM 1041 AND FURNISH SUPPORTING AFFIDAVITS AS TO THE FORM AND DATE OF THE PREVIOUS ELECTION, SHE SUBMITTED A DA FORM 1041 DATED AUGUST 28, 1956, REQUESTING OPTIONS 3 AND 4 AT ONE-HALF OF REDUCED RETIRED PAY. IN AN AFFIDAVIT DATED AUGUST 28, 1956, MRS. FREVOLA STATED THAT THE FIRST ELECTION WAS THE SAME AS THE SECOND; THAT IT WAS WITNESSED BY ROSE PAVONE; THAT IT WAS FORWARDED BY FIRST-CLASS MAIL TO THE ARMY FINANCE CENTER AT INDIANAPOLIS, INDIANA, AND THAT ON MAY 28, 1956, MRS. FREVOLA WAS DULY APPOINTED AS COMMITTEE OF THE PERSON AND ESTATE OF HER HUSBAND BY THE SUPREME COURT OF NEW YORK IN QUEENS FOR SUFFOLK COUNTY. IN AN ACCOMPANYING AFFIDAVIT, ESTHER FREVOLA AVERRED THAT SHE SAW THE FILLING OUT AND SIGNING OF THE FIRST ELECTION FORM ON OR ABOUT MARCH 19, 1956.

SECTION 3 (A) OF THE CONTINGENCY OPTION ACT, IN EFFECT AT THE TIME OF MAJOR FREVOLA'S RETIREMENT, PROVIDED THAT WHERE AN ACTIVE MEMBER IS AWARDED RETIRED PAY FOR PHYSICAL DISABILITY PRIOR TO THE COMPLETION OF 18 YEARS' SERVICE, AN ELECTION OF OPTIONS UNDER THE ACT "MAY BE MADE AT THE TIME OF RETIREMENT.' SECTION 3 (C) OF THAT ACT CONTAINED THE FOLLOWING PROVISION:

WHENEVER AN ACTIVE MEMBER, FORMER MEMBER, OR RETIRED MEMBER IS DETERMINED TO BE MENTALLY INCOMPETENT BY MEDICAL OFFICERS OF THE SERVICE CONCERNED OR OF THE VETERANS' ADMINISTRATION, OR IS ADJUDGED MENTALLY INCOMPETENT BY A COURT OF COMPETENT JURISDICTION, AND BECAUSE OF SUCH MENTAL INCOMPETENCY IS INCAPABLE OF MAKING ANY ELECTION PROVIDED IN THIS SECTION WITHIN THE TIME LIMITATIONS SPECIFIED THEREIN, THE HEAD OF THE DEPARTMENT CONCERNED MAY MAKE THE APPROPRIATE ELECTION PROVIDED FOR IN THIS SECTION ON BEHALF OF SUCH MEMBER IF SO REQUESTED BY THE SPOUSE OR IF THERE BE NO SPOUSE BY THE CHILD OR CHILDREN OF SUCH MEMBER. * * *

SEE 10 U.S.C. 1431 AND 1433 FOR PROVISIONS OF LAW CONCURRENTLY IN EFFECT.

MRS. FREVOLA HAS STATED THAT MAJOR FREVOLA HAD 13 YEARS' SERVICE. IT IS ASSUMED THAT ARMY MEDICAL OFFICERS HAD DETERMINED THAT HE WAS MENTALLY INCOMPETENT AT THE TIME OF HIS RETIREMENT. IN OUR DECISION OF MAY 11, 1955, 34 COMP. GEN. 582, THE OPINION WAS EXPRESSED THAT THERE WOULD BE GRAVE DOUBT THAT AN ELECTION MADE ANY TIME IN EXCESS OF 30 DAYS AFTER THE AWARD OF RETIRED PAY COULD BE REGARDED AS BEING MADE "AT THE TIME" OF RETIREMENT WITHIN THE MEANING OF THAT PHRASE AS USED IN THE ABOVE-QUOTED PROVISIONS OF LAW. PARAGRAPH 3C, ARMY REGULATIONS 35 1366, CHANGE 1, SEPTEMBER 8, 1955, GAVE EFFECT TO SUCH 30-DAY LIMITATION. IT WOULD APPEAR THAT A REASONABLE TIME MUST BE ALLOWED FOR A SECRETARIAL ELECTION IN CASES WHERE THE MEMBER, BECAUSE OF HIS MENTAL CONDITION AT THE TIME OF HIS RETIREMENT, IS NOT COMPETENT TO MAKE THE ELECTION HIMSELF. 36 COMP. GEN. 730, SECOND CASE.

THE QUOTED PROVISIONS OF LAW DO NOT PERMIT A WIDOW TO MAKE AN ELECTION OF OPTIONS, EITHER IN HER OWN RIGHT OR AS GUARDIAN, TRUSTEE, OR COMMITTEE OF HER HUSBAND'S ESTATE. SHE IS PERMITTED TO REQUEST SECRETARIAL ACTION AND INDICATE HER PREFERENCE; BUT IT IS THE SECRETARY OF THE DEPARTMENT CONCERNED WHO MAKES THE ACTUAL ELECTION. SHE SHOULD SUBMIT HER REQUEST PROMPTLY AND IF ACTION IS TAKEN ON SUCH REQUEST WITHIN A REASONABLE TIME AFTER THE MEMBER'S RETIREMENT, THE ELECTION MAY BE MADE EFFECTIVE AS OF THE DATE OF HIS RETIREMENT. 33 COMP. GEN. 428.

IT APPEARS TO BE UNNECESSARY TO DETERMINE WHAT IS A REASONABLE TIME FOR SECRETARIAL ACTION OR WHETHER THAT PERIOD MAY VARY ACCORDING TO THE FACTS AND CIRCUMSTANCES OF EACH CASE, SINCE IT SEEMS REASONABLY CLEAR THAT THE ELECTION IN THIS CASE PROPOSED TO BE MADE APPROXIMATELY TWO YEARS AFTER THE DATE OF RETIREMENT, ALMOST ONE AND ONE-HALF YEARS AFTER RECEIPT OF THE REQUEST OF RECORD FROM MRS. FREVOLA FOR APPROVAL OF HER ELECTION AND OVER SIX MONTHS AFTER THE DEATH OF HER HUSBAND, COULD NOT PROPERLY BE REGARDED AS BEING MADE "AT THE TIME" OF RETIREMENT WITHIN THE MEANING AND PURPOSE OF THE CONTINGENCY OPTION ACT.

ALSO, IT APPEARS THAT MRS. FREVOLA MAY NOT HAVE BEEN FREE FROM FAULT IN THIS MATTER SINCE THE RECORD DOES NOT DISCLOSE THAT ANY REPLY WAS MADE TO HER LETTER OF AUGUST 28, 1956, ADVISING THE ARMY FINANCE CENTER OF HER ELECTION ON BEHALF OF HER HUSBAND TO RECEIVE VETERANS ADMINISTRATION DISABILITY PAYMENTS IN LIEU OF RETIRED PAY AND REQUESTING TO BE ADVISED AS TO THE AMOUNT AND METHOD OF MAKING THE MONTHLY PAYMENTS REQUIRED TO PURCHASE THE ANNUITY BENEFITS PAYABLE UNDER AN ELECTION IN HER FAVOR. SEE SECTION 5 OF THE CONTINGENCY OPTION ACT. APPARENTLY SHE WAS NOT REQUESTED TO MAKE SUCH PAYMENTS AND SHE THUS HAD AT LEAST CONSTRUCTIVE NOTICE THAT THE ADMINISTRATIVE ACTION NECESSARY TO PERFECT HER RIGHT TO THE ANNUITY PAYMENTS HAD NOT BEEN TAKEN. AS FAR AS THE RECORD HERE SHOWS, SHE TOOK NO ACTION TO CORRECT THAT SITUATION.