B-135793, JUNE 24, 1958, 37 COMP. GEN. 843

B-135793, JUNE 24, 1958, 37 COMP. GEN. 843

MILITARY PERSONNEL - PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - VALIDITY A MEMBER OF THE UNIFORMED SERVICES WHO, AT THE TIME OF AN APPEARANCE BEFORE A PHYSICAL EVALUATION BOARD AND BEFORE COMPLETION OF 18 YEARS OF SERVICE, SIGNED A PAPER INDICATING A DESIRE TO MAKE AN ELECTION TO PROVIDE AN ANNUITY FOR HIS DEPENDENTS, ALTHOUGH NEITHER THE DEPENDENTS NOR AMOUNT OF BENEFITS WAS INDICATED, BUT WHO DID NOT EXECUTE AN ELECTION OPTION FORM UNTIL SEVERAL MONTHS AFTER PLACEMENT ON THE DISABILITY RETIRED LIST MAY NOT BE REGARDED AS HAVING MADE A VALID ELECTION AT THE TIME OF RETIREMENT AS REQUIRED IN 10 U.S.C. 1431.

TO L. A. CAMPBELL, DEPARTMENT OF THE NAVY, JUNE 24, 1958:

BY LETTER OF APRIL 9, 1958, THE JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED YOUR LETTER OF DECEMBER 4, 1957, REQUESTING AN ADVANCE DECISION AS TO THE ELIGIBILITY OF THE WIDOW OF THOMAS J. LANDREVILLE, AT1, USN, RETIRED, TO ANNUITY PAYMENTS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 IN THE CIRCUMSTANCES DISCUSSED BELOW.

IT IS REPORTED THAT MR. LANDREVILLE, WHO DIED ON SEPTEMBER 7, 1957, WAS PLACED ON THE RETIRED LIST OF THE NAVY FOR PHYSICAL DISABILITY ON APRIL 1, 1957--- PRESUMABLY BEFORE HE COMPLETED 18 YEARS OF SERVICE FOR WHICH HE WAS ENTITLED TO CREDIT IN THE COMPUTATION OF HIS BASIC PAY--- AND THAT THE FORM, DATED MARCH 31, 1957, ON WHICH HE ELECTED THE METHOD BY WHICH HE WISHED TO HAVE HIS RETIRED PAY COMPUTED, FAILED TO INDICATE IN THE APPROPRIATE SPACE PROVIDED FOR THAT PURPOSE WHETHER OR NOT HE WISHED TO RECEIVE REDUCED RETIRED PAY TO PROVIDE AN ANNUITY FOR HIS DEPENDENTS. WHEN HE WAS INFORMED THAT THERE WAS NO OFFICIAL RECORD OF HIS HAVING MADE AN ELECTION UNDER THE CONTINGENCY OPTION ACT, HE REPLIED IN LETTER OF APRIL 24, 1957, THAT HE FILED THE ELECTION FORM ( NAVPERS 591A) AT A MEETING OF THE PHYSICAL EVALUATION BOARD WHICH MET IN HIS CASE, THAT IT WAS WITNESSED BY THE BOARD'S COUNSEL, AND THAT HE WAS ADVISED THAT THE ELECTION WOULD BE SENT TO THE PROPER OFFICES FOR PROCESSING AND ACTION. HE REQUESTED THAT AN ATTEMPT BE MADE TO TRACE THE OPTION FORM HE SAID HE SIGNED.

WHILE A SEARCH OF AVAILABLE RECORDS HAS FAILED TO DISCLOSE ANY RECORD OF THE ELECTION FORM THE MEMBER STATED HE SIGNED, IT IS SHOWN THAT WHEN HE APPEARED BEFORE THE PHYSICAL EVALUATION BOARD HE SIGNED A FORM INDICATING THAT THE CONTINGENCY OPTION ACT HAD BEEN EXPLAINED TO HIM AND THAT, WHILE HE HAD NOT MADE AN ELECTION UNDER THAT ACT OF NAVPERS FORM 591A, HE DESIRED TO DO SO. IT IS SHOWN THAT UNDER DATE OF JUNE 14, 1957, HE SIGNED A FORM 591A ELECTING A COMBINATION OF OPTIONS 3 AND 4 IN FAVOR OF HIS SURVIVING WIFE AND CHILDREN AT THE RATE OF ONE EIGHTH OF HIS REDUCED RETIRED PAY.

UNDER THE PROVISIONS OF THE SECOND SENTENCE OF SECTION 3 OF THE CONTINGENCY OPTION ACT, AN ELECTION TO RECEIVE REDUCED RETIRED PAY TO PROVIDE AN ANNUITY FOR HIS SURVIVING DEPENDENTS BY A MEMBER WHO WAS AWARDED RETIRED PAY FOR PHYSICAL DISABILITY BEFORE COMPLETING 18 YEARS OF SERVICE WAS REQUIRED TO BE MADE "AT THE TIME OF RETIREMENT.' WHEN THAT ACT WAS CODIFIED IN 10 U.S.C. CODE, CHAPTER 73, IT WAS THE INTENT OF THE CONGRESS TO RESTATE THE LAW WITHOUT SUBSTANTIVE CHANGE. SEE SECTION 49 (A) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 640. SINCE THE LEGISLATIVE HISTORY OF THAT ACT SHOWS THAT THE SECOND SENTENCE OF SECTION 3 OF THE CONTINGENCY OPTION ACT WAS OMITTED FROM THE CODIFICATION BECAUSE IT WAS THOUGHT TO BE SURPLUSAGE, THE LANGUAGE IN THE CODIFICATION REQUIRING THE MAKING OF AN ELECTION BEFORE THE COMPLETION OF 18 YEARS OF SERVICE APPARENTLY WAS REGARDED AS REQUIRING AN ELECTION AT THE TIME OF RETIREMENT FOR PHYSICAL DISABILITY WHEN THE MEMBER CONCERNED WAS SO RETIRED BEFORE COMPLETING 18 YEARS OF SERVICE. IN LINE WITH THAT VIEW, IT IS NOTED THAT 10 U.S.C. 1432 PERMITS THE FORMER MEMBERS THERE MENTIONED TO MAKE AN ELECTION OF BENEFITS IN FAVOR OF THEIR SURVIVING DEPENDENTS "AT THE TIME" THEY ARE GRANTED RETIRED OR RETAINER PAY. WE FIND NO LANGUAGE IN CHAPTER 73 (10 U.S.C. 1431-1444) WHICH WARRANTS A CONCLUSION THAT PERSONS WHO ARE RETIRED FOR PHYSICAL DISABILITY BEFORE COMPLETING 18 YEARS OF SERVICE MAY MAKE AN ELECTION OF BENEFITS AFTER RETIREMENT.

EXCEPT FOR A STATEMENT IN A LETTER OF AUGUST 19, 1957, FROM THE COMMANDING OFFICER AT THE U.S. NAVAL HOSPITAL, CORONA, CALIFORNIA, THAT THE ENLISTED MAN STATED ON MARCH 31, 1957, THAT HE HAD COMPLETED A NAVPERS FORM 591 WHEN HE APPEARED BEFORE THE PHYSICAL EVALUATION BOARD, MR. LANDREVILLE'S STATEMENT THAT HE SIGNED AN ELECTION FORM ELECTING BENEFITS UNDER THAT ACT HAS NOT BEEN CORROBORATED IN ANY WAY FROM AN OFFICIAL SOURCE. UNDER DATE OF JULY 25, 1957, THE COUNSEL FOR THE BOARD REPORTED THAT THE ONLY FORM CONCERNING THE CONTINGENCY OPTION ACT WHICH IS COMPLETED BY PERSONNEL APPEARING BEFORE THE BOARD WAS THE FORM, MENTIONED ABOVE, WHEREIN THE ENLISTED MAN EXPRESSED HIS DESIRE TO MAKE AN ELECTION UNDER THAT ACT. IT MAY BE THAT HE THOUGHT THE PAPER HE SIGNED WHILE HIS CASE WAS BEFORE THE PHYSICAL EVALUATION BOARD CONSTITUTED AN ELECTION OF BENEFITS UNDER THAT ACT. WHILE IT HAS BEEN HELD THAT AN ELECTION CLEARLY EVIDENCING AN INTENT TO APPLY FOR COVERAGE UNDER THE CONTINGENCY OPTION ACT, BUT BEING DEFICIENT IN SOME RESPECT NOT VITIATING THE ELECTION, MAY BE CLARIFIED BY THE MEMBER CONCERNED AT A LATER DATE (SEE DECISION TO YOU DATED JUNE 17, 1957, B 132012), THE PAPER SIGNED BY MR. LANDREVILLE WHILE HIS CASE WAS BEING CONSIDERED BY THE PHYSICAL EVALUATION BOARD WAS NOT AN ELECTION, SINCE IT MENTIONED NO BENEFICIARIES AND CONTAINED NO INFORMATION AS TO THE AMOUNT OF BENEFITS HE WISHED HIS DEPENDENTS TO RECEIVE. SUCH PAPER CONSTITUTED ONLY AN EXPRESSION OF A DESIRE TO MAKE AN ELECTION OF BENEFITS AT A FUTURE DATE.

ON THE PRESENT RECORD, IT APPEARS THAT MR. LANDREVILLE DID NOT CONSUMMATE HIS EXPRESSED DESIRE AT THE TIME HE WAS RETIRED AND, CONSEQUENTLY, HIS WIDOW IS NOT ELIGIBLE TO RECEIVE ANNUITY PAYMENTS UNDER THE CONTINGENCY OPTION ACT.