B-135468, AUGUST 19, 1959, 39 COMP. GEN. 112

B-135468: Aug 19, 1959

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WHO IS SHOWN TO BE MENTALLY COMPETENT BUT PHYSICALLY INCAPABLE OF EXECUTING OR SIGNING. THE MEMBER MUST BE FULLY AWARE OF THE DECISION HE IS MAKING UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953. KNOW WHAT THE EFFECT WILL BE AND APPROVE THE ACTION SO AS TO CONSTITUTE THE SIGNING OF HIS NAME AS HIS OWN SIGNATURE IN LEGAL EFFECT. ALTHOUGH A MEMBER WAS PHYSICALLY INCAPABLE OF SIGNING AN ELECTION AT THE TIME HIS WIFE ATTEMPTED TO EXECUTE AN ELECTION UNDER A POWER OF ATTORNEY. HE HAD NO RECOLLECTION OF MAKING A DECISION REGARDING THE ELECTION DOES NOT ESTABLISH WITH ANY CERTAINTY THAT THE ELECTION IS A VALID ONE AND THE MEMBER IS ENTITLED TO A REFUND OF THE ANNUITY DEDUCTIONS MADE UNDER THE ELECTION.

B-135468, AUGUST 19, 1959, 39 COMP. GEN. 112

MILITARY PERSONNEL - SURVIVORSHIP ANNUITY OPTION ELECTIONS - EXECUTED BY OTHER THAN MEMBER - VALIDITY IN THE ABSENCE OF ANY AUTHORITY IN THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, NOW 10 U.S.C. 1431-1444, FOR THE EXECUTION OF A SURVIVORSHIP ANNUITY OPTION ELECTION BY ANYONE OTHER THAN THE MEMBER, IN THE CASE OF MENTAL COMPETENCY, ELECTION MADE BY THE WIFE OF A PHYSICALLY INCAPACITATED MEMBER BY VIRTUE OF A POWER OF ATTORNEY MAY NOT BE REGARDED AS A VALID ELECTION. IN ORDER FOR A SURVIVORSHIP ANNUITY OPTION ELECTION EXECUTED BY OTHER THAN THE MEMBER, WHO IS SHOWN TO BE MENTALLY COMPETENT BUT PHYSICALLY INCAPABLE OF EXECUTING OR SIGNING, TO CONSTITUTE A VALID ELECTION, THE MEMBER MUST BE FULLY AWARE OF THE DECISION HE IS MAKING UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, AND KNOW WHAT THE EFFECT WILL BE AND APPROVE THE ACTION SO AS TO CONSTITUTE THE SIGNING OF HIS NAME AS HIS OWN SIGNATURE IN LEGAL EFFECT; CONSEQUENTLY, EVIDENCE WHICH INDICATES THAT, ALTHOUGH A MEMBER WAS PHYSICALLY INCAPABLE OF SIGNING AN ELECTION AT THE TIME HIS WIFE ATTEMPTED TO EXECUTE AN ELECTION UNDER A POWER OF ATTORNEY, HE HAD NO RECOLLECTION OF MAKING A DECISION REGARDING THE ELECTION DOES NOT ESTABLISH WITH ANY CERTAINTY THAT THE ELECTION IS A VALID ONE AND THE MEMBER IS ENTITLED TO A REFUND OF THE ANNUITY DEDUCTIONS MADE UNDER THE ELECTION.

TO LIEUTENANT COLONEL J. L. WHIPPLE, DEPARTMENT OF THE ARMY, AUGUST 19, 1959:

YOUR LETTER OF MAY 20, 1959--- TRANSMITTED HERE WITH FIRST ENDORSEMENT DATED JUNE 9, 1959, BY THE OFFICE CHIEF FINANCE (UNDER D.O. NUMBER 427, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE/--- REQUESTS AN ADVANCE DECISION AS TO PROPRIETY OF THE PAYMENT PROPOSED ON A VOUCHER COVERING THE CLAIM OF LIEUTENANT COLONEL DONALD T. PATTERSON, RETIRED, REPRESENTING REFUND OF MONTHLY ANNUITY COST UNDER 10 U.S.C. 1431-1444 ( UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501-505, AS AMENDED), FOR THE PERIOD OCTOBER 1, 1958, TO FEBRUARY 28, 1959, INCLUSIVE.

LIEUTENANT COLONEL PATTERSON'S RIGHT TO RECEIVE DISABILITY RETIRED PAY ARISES FROM THE DECISION OF THE COURT OF CLAIMS RENDERED IN HIS FAVOR ON MARCH 5, 1958 ( DONALD T. PATTERSON V. UNITED STATES, C.1CLS; NO. 23-56). DA FORM 1041, ELECTION OF OPTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, WAS EXECUTED AND SIGNED BY HIS WIFE, MRS. CONSTANCE W. PATTERSON (WHO ACTED UNDER A POWER OF ATTORNEY), AND MAILED ON OCTOBER 31, 1958, TO THE RETIRED PAY DIVISION, FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS 49, INDIANA, ELECTING OPTION 1, AT THE ONE-HALF PERCENTAGE RATE TO PROVIDE AN ANNUITY FOR HERSELF. THIS ELECTION IF VALID, BECAME EFFECTIVE AS OF OCTOBER 1, 1958. 33 COMP. GEN. 162, 165.

LIEUTENANT COLONEL PATTERSON HAS WAIVED THE ENTIRE AMOUNT OF HIS MONTHLY RETIRED PAY IN FAVOR OF A GREATER AMOUNT OF VETERANS' DISABILITY COMPENSATION AND IN VIEW OF THE PROVISIONS OF 10 U.S.C. 1438, HE HAS BEEN REQUESTED TO REMIT TO THE RETIRED PAY DIVISION FOR DEPOSIT IN THE UNITED STATES TREASURY "THE AMOUNT THAT WOULD OTHERWISE HAVE BEEN DEDUCTED FROM HIS PAY FOR THE PERIOD TO PROVIDE THE ANNUITY.' THE COST OF THE ANNUITY ELECTED BY MRS. PATTERSON IS $76.34 PER MONTH, AND, FINDING THIS TO BE AN EXCESSIVE FINANCIAL BURDEN, IT IS SOUGHT TO CANCEL OR REVOKE THIS ELECTION. HOWEVER, THE ELECTION, IF VALID, IS IRREVOCABLE. 33 COMP. GEN. 460.

YOU INDICATE THAT YOU ARE NOT AWARE OF ANY SPECIFIC PROVISION OF LAW, DECISION, OR REGULATION DESIGNATING THE PERSON OR PERSONS, IF ANY, OTHER THAN THE RETIRED MEMBER, WHO ARE AUTHORIZED TO EXECUTE AN ELECTION IN CASE THE MEMBER IS PHYSICALLY INCAPACITATED. HENCE, IT APPEARS THAT YOU ARE IN DOUBT AS TO THE VALIDITY OF THE ELECTION EXERCISED BY MRS. PATTERSON UNDER THE AUTHORITY VESTED IN HER BY THE POWER OF ATTORNEY GRANTED IN HER FAVOR BY LIEUTENANT COLONEL PATTERSON.

THE VALIDITY OF AN ELECTION OF OPTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 EXECUTED AND SIGNED UNDER AUTHORITY OF A POWER OF ATTORNEY WAS THE PRECISE ISSUE CONSIDERED IN OUR DECISION OF JANUARY 13, 1956, 35 COMP. GEN. 397 (B-125489). IT WAS HELD (QUOTING FROM THE SYLLABUS) THAT:

THE AUTHORITY VESTED IN COMPETENT MEMBERS OF THE ARMED SERVICES TO MAKE A SURVIVORSHIP ANNUITY ELECTION UNDER THE UNIFORM SERVICES CONTINGENCY OPTION ACT OF 1953 CANNOT BE DELEGATED TO AN AGENT AND, THEREFORE, AN ELECTION FORM SIGNED BY THE DAUGHTER OF A RETIRED WARRANT OFFICER AFTER THE MEMBER HAD EXECUTED A POWER OF ATTORNEY IN FAVOR OF HIS DAUGHTER DOES NOT CONSTITUTE A VALID ELECTION SO AS TO ENTITLE HIS WIDOW TO AN ANNUITY.

THIS CONCLUSION RESTS ON THE VIEW THAT WHILE AN ELECTION MAY BE EXERCISED (BY THE HEAD OF THE DEPARTMENT CONCERNED AND IN THE MANNER SPECIFICALLY PRESCRIBED IN THE STATUTE) ON BEHALF OF MEMBERS WHO HAVE BEEN DETERMINED TO BE MENTALLY INCOMPETENT, NO SIMILAR COURSE IS PRESCRIBED FOR A MENTALLY COMPETENT MEMBER. ON THAT POINT, IT WAS STATED IN THE DECISION OF JANUARY 13, 1956, THAT THE CONTINGENCY OPTION ACT---

* * * DOES NOT PROVIDE FOR THE SUBSTITUTION OF THE JUDGMENT OF ANYONE ELSE IN THE CASE OF A MENTALLY COMPETENT MEMBER. WHETHER SUCH A MEMBER ELECTS AN OPTION UNDER THE ACT IS, AND MUST BE, A MATTER OF HIS OWN CHOOSING, HIS OWN PERSONAL DECISION. IT FOLLOWS THAT AUTHORITY TO MAKE SUCH A DECISION CANNOT BE DELEGATED TO AN AGENT.

THE RULE OF THAT DECISION IS APPLICABLE TO THE PRESENT MATTER AND HENCE IT MUST BE CONCLUDED THAT MRS. CONSTANCE PATTERSON WAS NOT AUTHORIZED BY VIRTUE OF THE POWER OF ATTORNEY VESTED IN HER TO EXERCISE AN ELECTION OF OPTIONS ON BEHALF OF HER HUSBAND, LIEUTENANT COLONEL PATTERSON.

THERE REMAINS, HOWEVER, THE QUESTION WHETHER IN THE CIRCUMSTANCES SHOWN IT MAY BE CONSIDERED THAT IT WAS THE OFFICER'S INTENTION TO SIGN THE ELECTION OF OPTIONS FORM AND THAT ON OCTOBER 31, 1958, MRS. PATTERSON AFFIXED HIS NAME ON HIS BEHALF DUE SOLELY TO HIS PHYSICAL INCAPACITY. WAS HELD IN DECISION OF MAY 20, 1955, B-122222, THAT--

* * * A VALID ELECTION IS TO BE REGARDED AS HAVING BEEN MADE WHERE THE RECORD SHOWS THAT THE RETIRED MEMBER HAD KNOWLEDGE OF HIS RIGHTS, AND HIS DUTY TO ELECT IF HE DESIRED THE BENEFITS OF THE LAW, AND HIS ACTS, VIEWED IN THE LIGHT OF ALL THE CIRCUMSTANCES, SHOW THAT HE INTENDED TO MAKE AN ELECTION.

THE PERTINENT FACTS IN THE DECISION OF MAY 20, 1955, CLEARLY ESTABLISHED THAT THE NAVAL OFFICER THERE CONCERNED "INTENDED TO MAKE AN ELECTION UNDER THE ACT," THAT NO QUESTION OF INCOMPETENCY WAS INVOLVED, AND THAT WHILE THE ELECTION FORM WAS NOT SIGNED BY THE OFFICER "* * * IT WAS EXECUTED BY HIS WIFE AT HIS REQUEST AND NOTHING APPEARS TO INDICATE ANY IMPROPER CONDUCT IN ITS EXECUTION.' ON THAT BASIS IT WAS CONCLUDED THAT THE ELECTION WAS VALID AND BECAME EFFECTIVE WHEN IT "PASSED IRRETRIEVABLY OUT OF THE CONTROL" OF THE OFFICER AND HIS WIFE AND INTO THE HANDS OF THE APPROPRIATE NAVAL AUTHORITIES. IN ANOTHER SIMILAR CASE (DECISION OF OCTOBER 3, 1955, B-124013, TO THE SECRETARY OF THE ARMY) IT WAS HELD THAT A VALID ELECTION OF OPTIONS HAD BEEN EXERCISED WHERE THE FACTS DISCLOSED THAT THE OFFICER CONCERNED WAS AWARE OF THE REQUIREMENTS AND BENEFITS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, THAT IT WAS HIS INTENTION TO MAKE AN ELECTION, AND THAT THE ELECTION OF OPTIONS FORM WAS COMPLETED BY HIS WIFE IN HIS BEHALF DUE TO HIS PHYSICAL INCAPACITY TO SIGN THE FORM HIMSELF.

THUS IT WILL BE SEEN THAT IN THE CASE OF A MENTALLY COMPETENT MEMBER OF THE UNIFORMED SERVICES WHO IS NOT CAPABLE OF EXECUTING OR SIGNING AN ELECTION OF OPTIONS FORM DUE TO PHYSICAL INCAPACITY, THE ELECTION OF OPTIONS FORM MAY BE VALIDLY EXECUTED AND SIGNED ON HIS BEHALF, PROVIDED THAT THE MEMBER IS FULLY AWARE OF THE DECISION HE IS MAKING UNDER AUTHORITY OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT, KNOWS WHAT ITS EFFECT WILL BE, AND APPROVES SUCH ACTION SO AS TO CONSTITUTE THE "SIGNING OF HIS NAME HIS OWN SIGNATURE IN LEGAL EFFECT.' 35 COMP. GEN. 397, 398.

IN THE PRESENT CASE, THE RECORD INDICATES THAT LIEUTENANT COLONEL PATTERSON WAS PHYSICALLY INCAPABLE OF SIGNING AN ELECTION OF OPTIONS FORM AT THE TIME (IN OCTOBER 1958) THAT HIS WIFE ATTEMPTED TO ACT ON HIS BEHALF UNDER AUTHORITY OF THE POWER OF ATTORNEY HELD BY HER. HOWEVER, THE RECORD BEFORE THIS OFFICE FAILS TO ESTABLISH THAT THE OFFICER, WHO APPEARS TO BE MENTALLY COMPETENT, WAS AWARE OF THE REQUIREMENTS AND BENEFITS OF THE CONTINGENCY OPTION ACT, THAT THE ELECTION OF OPTIONS WAS THE RESULT OF HIS OWN FREE AND INDEPENDENT CHOICE, AND THAT HE IN FACT INTENDED TO SIGN SUCH ELECTION FORM, BUT BEING UNABLE TO DO SO SOLELY BECAUSE OF HIS PHYSICAL INCAPACITY, AUTHORIZED AND APPROVED THE SIGNING OF HIS NAME THEREON BY HIS WIFE SO AS TO CONSTITUTE SUCH SIGNING HIS OWN SIGNATURE IN LEGAL EFFECT. IN FACT, THE OFFICER ACTUALLY STATES IN A LETTER DATED APRIL 27, 1959, ADDRESSED BY HIM TO THE RETIRED PAY DIVISION THAT " BEING QUITE ILL FROM SEPT. THRU JANUARY, I HAVE NO RECOLLECTION OF MAKING THIS DECISION REGARDING AN ELECTION.' THE LETTER OF APRIL 27, 1959, CONCLUDES WITH THE STATEMENT THAT " NO DEDUCTION OR ELECTION IS AUTHORIZED.'

IN THE CIRCUMSTANCES THUS DISCLOSED, IT CANNOT BE DETERMINED WITH ANY DEGREE OF CERTAINTY THAT THE DA FORM 1041 EXECUTED BY MRS. PATTERSON CONSTITUTED A VALID ELECTION OF OPTIONS BY OR ON BEHALF OF COLONEL PATTERSON ON THE DATE, OCTOBER 31, 1958, IT WAS SUBMITTED. ACCORDINGLY, REFUND TO LIEUTENANT COLONEL PATTERSON IS AUTHORIZED OF THE REMITTANCES MADE TO COVER THE COSTS OF THE ANNUITY.

THE VOUCHER STATED IN FAVOR OF LIEUTENANT COLONEL PATTERSON HAS BEEN APPROVED BY THE CERTIFYING OFFICER IN THE AMOUNT OF $381.80. THE CORRECT AMOUNT APPEARS TO BE $381.70 ( OCTOBER 1958 TO FEBRUARY 1959, INCLUSIVE, 5 MONTHS AT $76.34). THE VOUCHER, WHICH IS RETURNED HEREWITH, STATED IN THE CORRECT AMOUNT, MAY BE PAID.