B-136499, SEPTEMBER 16, 1958, 38 COMP. GEN. 208

B-136499, SEPTEMBER 16, 1958, 38 COMP. GEN. 208

MILITARY PERSONNEL - RETIRED PAY - ANNUITY ELECTIONS FOR DEPENDENTS - RECORD CORRECTIONS - EFFECTIVE DATE THE RIGHTS OF A MEMBER OF THE UNIFORMED SERVICES WHOSE RECORDS ARE CORRECTED UNDER AUTHORITY IN SECTION 207, OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, 5 U.S.C. 191A, TO SHOW RETROACTIVE PLACEMENT ON A TEMPORARY DISABILITY RETIRED LIST ARE FOR DETERMINATION ON THE BASIS OF THE LAWS IN EFFECT ON SUCH RETROACTIVE DATE, EXCEPT WITH RESPECT TO A SURVIVOR'S ANNUITY ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, WHICH ELECTION MAY BE MADE CONTEMPORANEOUSLY WITH THE CORRECTION OF RECORDS. A MEMBER OF THE UNIFORMED SERVICES WHO, CONTEMPORANEOUSLY WITH A RECORD CORRECTION ACTION WHICH RETROACTIVELY PLACED THE MEMBER ON THE TEMPORARY DISABILITY RETIRED LIST ON A DATE PRIOR TO NOV. 1, 1953--- THE EFFECTIVE DATE OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953--- MADE A SURVIVOR'S ANNUITY OPTION ELECTION ON BEHALF OF A SECOND WIFE TO WHOM HE WAS MARRIED AFTER A DIVORCE TERMINATED THE PREVIOUS MARRIAGE ON AUGUST 31, 1955, MUST BE REGARDED AS HAVING BEEN A RETIRED MEMBER ON NOVEMBER 1, 1953, AND SINCE THE SECOND WIFE WAS NOT AN ELIGIBLE BENEFICIARY ON THAT DATE NO ANNUITY DEDUCTIONS ARE REQUIRED TO BE MADE FROM THE MEMBER'S RETIRED PAY.

TO R. A. WILSON, DEPARTMENT OF THE NAVY, SEPTEMBER 16, 1958:

BY LETTER DATED JUNE 13, 1958 JAG:1342.2:SH 4864, THE JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED YOUR LETTER DATED APRIL 22, 1958 (XR:HA:40; L16-4/1 (, REQUESTING AN ADVANCE DECISION RELATIVE TO AN ELECTION MADE BY A MEMBER UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 37 U.S.C. 371 NOTE, AFTER CORRECTION OF HIS MILITARY RECORDS TO SHOW THAT HIS NAME WAS PLACED UPON THE TEMPORARY PHYSICAL DISABILITY RETIRED LIST ON APRIL 1, 1952. THE REQUEST FOR ADVANCE DECISION WAS APPROVED BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AND ASSIGNED SUBMISSION NO. 350.

IT APPEARS THAT JAMES L. CHUDY, 300 84 64, QMS3, USNR ( RETIRED) WAS DISCHARGED FROM THE NAVAL SERVICE ON MARCH 25, 1952, BY REASON OF PHYSICAL DISABILITY INCURRED WHILE NOT ENTITLED TO RECEIVE BASIC PAY. ON OCTOBER 26, 1955, THE SECRETARY OF THE NAVY APPROVED THE DECISION AND RECOMMENDATION OF THE BOARD OF CORRECTION FOR NAVAL RECORDS THAT THE RECORDS BE CORRECTED TO SHOW THAT CHUDY WAS NOT DISCHARGED FROM THE NAVAL SERVICE; THAT HE WAS RETAINED ON ACTIVE DUTY THROUGH MARCH 31, 1952, AND THAT HIS NAME WAS PLACED UPON THE TEMPORARY DISABILITY RETIRED LIST ON APRIL 1, 1952, WITH RETIRED PAY ENTITLEMENT EFFECTIVE THE SAME DATE. WAS PLACED ON THE PERMANENT DISABILITY RETIRED LIST AS OF APRIL 1, 1957. PAYMENT OF RETIRED PAY HAS NOT BEEN MADE TO HIM, AS HE WAIVED HIS RETIRED PAY IN ORDER TO RECEIVE COMPENSATION FROM THE VETERANS ADMINISTRATION.

NOTIFICATION DATED DECEMBER 29, 1955, OF THE ACTIVE CORRECTING HIS RECORDS AND OF AWARD OF RETIRED PAY WAS FORWARDED TO CHUDY BY LETTER OF JANUARY 13, 1956, BUT WAS NOT DELIVERED TO HIM, BECAUSE OF A CHANGE IN HIS ADDRESS. IT WAS REMAILED TO HIM ABOUT JANUARY 19, 1956. HE WAS ADVISED IN BOTH THE ACTION NOTIFICATION LETTER AND BY FORWARDING LETTER THAT, IN ORDER TO RECEIVE COVERAGE UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 502, HIS ELECTION MUST BE EXECUTED AND POSTMARKED NOT LATER THAN 30 DAYS AFTER DECEMBER 29, 1955, THE DATE OF THE LETTER NOTIFYING HIM OF THE ACTION TAKEN TO CORRECT HIS RECORDS.

ON FEBRUARY 7, 1956, CHUDY MADE HIS ELECTION TO RECEIVE RETIRED PAY BASED ON HIS PERCENTAGE OF DISABILITY UNDER SECTION 402 (D) OF PUBLIC LAW 351, APPROVED OCTOBER 12, 1949, AS AMENDED, 37 U.S.C. 272 (D). HE EXECUTED AN ELECTION ON FEBRUARY 9, 1956, OF OPTIONS 1-4 AT ONE-HALF REDUCED RETIRED PAY UNDER SECTION 4 (A) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT, 67 STAT. 502. SUCH ELECTION ADVICE WAS RECEIVED IN THE NAVY FINANCE CENTER ON FEBRUARY 15, 1956. CHUDY INDICATED ON FORM 591A THAT HIS WIFE WAS RUTH MARGARET CHUDY AND THAT THE DATE OF THEIR MARRIAGE WAS NOVEMBER 12, 1955. HE ALSO INDICATED THAT HE HAD A PREVIOUS MARRIAGE WHICH WAS TERMINATED BY DIVORCE ON AUGUST 31, 1955. THE NAVY DEPARTMENT LATER RECEIVED INFORMATION THAT HE WAS MARRIED TO GENEVIEVE ELEANOR CHUDY ON NOVEMBER 4, 1945.

BY LETTERS OF FEBRUARY 23, 1956, AND MARCH 28, 1956, FROM THE NAVY FINANCE CENTER AND OFFICE OF THE COMPTROLLER, NAVY DEPARTMENT RESPECTIVELY, CHUDY WAS ADVISED THAT ON THE BASIS OF OUR HOLDING IN 34 COMP. GEN. 582, HIS ELECTION WAS NOT VALID, SINCE IT WAS EXECUTED AND POSTMARKED SUBSEQUENT TO JANUARY 28, 1956, WHICH DATE WAS 30 DAYS FROM THE DATE OF THE LETTER NOTIFYING HIM OF THE CORRECTION OF HIS NAVAL RECORD. HOWEVER, YOU NOW STATE THAT IN VIEW OF OUR HOLDING IN 36 COMP. GEN. 586, IT APPEARS THAT THE ELECTION IS VALID BUT, IN THE CIRCUMSTANCES, POSES THREE QUESTIONS ON WHICH AN ADVANCE DECISION IS REQUESTED AS FOLLOWS:

A. WHAT IS THE EFFECTIVE DATE OF THE SURVIVOR'S ANNUITY ELECTION FOR THE PURPOSE OF COMPUTING THE COST OF THE ANNUITY?

B. FROM WHAT DATE IS CHUDY REQUIRED TO PAY THE COST OF THE ANNUITY?

C. IS RUTH MARGARET CHUDY AN ELIGIBLE BENEFICIARY?

IN DECISION OF JULY 7, 1954, TO THE SECRETARY OF THE ARMY, 34 COMP. GEN. 7, WE AFFIRMED AN EARLIER DECISION THAT PAYMENTS BASED ON CORRECTIONS OF MILITARY OR NAVAL RECORDS EFFECTED UNDER SECTION 207 OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED BY THE ACT OF OCTOBER 25, 1951, 65 STAT. 655, 5 U.S.C. 191A, ARE REQUIRED TO BE MADE IN THE AMOUNTS DETERMINED TO BE DUE BY APPLYING PERTINENT LAWS AND REGULATIONS TO ALL THE MATERIAL FACTS SHOWN BY THE RECORDS AS SO CORRECTED. IN OTHER WORDS, THE FACTS AS REFLECTED BY THE CORRECTED RECORDS DETERMINE THE RIGHTS OF THE MEMBERS INVOLVED AS IF THE CORRECTED RECORDS REFLECT THE TRUE FACTS. FOLLOWS THAT, IF THE CORRECTED RECORD SHOWS THAT A MEMBER'S NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON APRIL 1, 1952, HIS RIGHTS WOULD BE DETERMINED ON THE SAME BASIS AS THEY WOULD BE DETERMINED IF HIS NAME IN FACT HAD BEEN SO PLACED ON THAT DATE EXCEPT WITH RESPECT TO THE MAKING OF THE SURVIVOR'S ANNUITY ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953. IN THAT SITUATION IN ORDER TO GIVE FULL EFFECT TO THE CORRECTION OF THE RECORDS, WE HAVE RECOGNIZED THAT A SURVIVOR'S ANNUITY ELECTION MAY BE MADE CONTEMPORANEOUSLY WITH THE CORRECTION OF THE RECORDS SO THAT THE MEMBER WOULD BE PLACED IN THE SAME POSITION HE WOULD HAVE BEEN IN HAD HE BEEN AWARDED RETIRED PAY AS OF THE EFFECTIVE DATE OF RETIRED PAY AS SHOWN BY THE CORRECTED RECORD. SEE 36 COMP. GEN. 586.

SECTION 4 (A) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT AUTHORIZED THE ELECTION BY A SERVICE MEMBER OF AN ANNUITY PAYABLE TO HIS "WIDOW.' SECTION 2 (E), 67 STAT. 501, PROVIDED:

THE TERM "WIDOW" INCLUDES A WIDOWER AND REFERS ONLY TO THE SPOUSE AT THE DATE OF RETIREMENT OF AN ACTIVE MEMBER OR TO THE SPOUSE AT THE EFFECTIVE DATE OF THIS ACT IN THE CASE OF A RETIRED MEMBER AT THE EFFECTIVE DATE OF THIS ACT.

UNDER THE RECORD AS CORRECTED, ON THE EFFECTIVE DATE OF THAT ACT, NOVEMBER 1, 1953, CHUDY MUST BE REGARDED AS HAVING BEEN A RETIRED MEMBER. ON THAT DATE RUTH MARGARET CHUDY WAS NOT HIS WIFE AND THEREFORE SHE IS NOT AN ELIGIBLE BENEFICIARY. ACCORDINGLY, QUESTION C IS ANSWERED IN THE NEGATIVE AND QUESTIONS A AND B REQUIRE NO ANSWER.