B-138732, MAR 19, 1959

B-138732: Mar 19, 1959

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REQUESTS AN ADVANCE DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER TRANSMITTED THEREWITH. YOUR LETTER WAS FORWARDED TO US BY 1ST INDORSEMENT DATED FEBRUARY 13. FOR A NUMBER OF YEARS THEREAFTER THERE WAS SOME QUESTION AS TO HIS MENTAL COMPETENCY. IT IS SHOWN THAT HE WAS A PATIENT AT ST. THE HOSPITAL ADVISED THE DEPARTMENT OF THE ARMY THAT HE WAS CONSIDERED TO BE MENTALLY COMPETENT TO ADMINISTER HIS AFFAIRS. HE WAS HOSPITALIZED AT FITZSIMMONS ARMY HOSPITAL. THAT HE WAS MENTALLY INCOMPETENT. AS THE RESULT OF THAT FINDING COLONEL ANDERSON'S WIFE WAS DESIGNATED AS TRUSTEE TO RECEIVE AND ADMINISTER THE PROCEEDS OF HIS RETIRED PAY EFFECTIVE NOVEMBER 1. THE PAMPHLET INCLUDED INSTRUCTIONS TO THE EFFECT THAT IF A RETIRED MEMBER IS INCOMPETENT.

B-138732, MAR 19, 1959

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL J. L. WHIPPLE, F. C., DEPARTMENT OF THE ARMY:

YOUR LETTER OF DECEMBER 29, 1958, REQUESTS AN ADVANCE DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER TRANSMITTED THEREWITH, IN FAVOR OF MRS. WILLIE W. ANDERSON, WIDOW OF LIEUTENANT COLONEL SAM W. ANDERSON, 07 256, RETIRED, IN THE AMOUNT OF $145.72, REPRESENTING AN ANNUITY PAYMENT FOR THE MONTH OF NOVEMBER 1958. YOUR LETTER WAS FORWARDED TO US BY 1ST INDORSEMENT DATED FEBRUARY 13, 1959, UNDER D.O. NUMBER 396, ALLOCATED BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

IT APPEARS THAT COLONEL ANDERSON RETIRED ON APRIL 30, 1943, AND FOR A NUMBER OF YEARS THEREAFTER THERE WAS SOME QUESTION AS TO HIS MENTAL COMPETENCY. IT IS SHOWN THAT HE WAS A PATIENT AT ST. ELIZABETH'S HOSPITAL, WASHINGTON, D. C., DURING THE YEARS 1945 TO 1947, AND THAT BY LETTER DATED JULY 31, 1945, THE HOSPITAL ADVISED THE DEPARTMENT OF THE ARMY THAT HE WAS CONSIDERED TO BE MENTALLY COMPETENT TO ADMINISTER HIS AFFAIRS, SPECIFICALLY THE PROCEEDS OF HIS RETIRED PAY. HOWEVER, HE WAS HOSPITALIZED AT FITZSIMMONS ARMY HOSPITAL, DENVER, COLORADO, FROM 1947 TO 1950 AND AGAIN FROM FEBRUARY 6 TO AUGUST 15, 1951, AND A MEDICAL BOARD APPOINTED BY THE COMMANDING OFFICER AT THAT HOSPITAL DETERMINED ON JUNE 14, 1951, THAT HE WAS MENTALLY INCOMPETENT. AS THE RESULT OF THAT FINDING COLONEL ANDERSON'S WIFE WAS DESIGNATED AS TRUSTEE TO RECEIVE AND ADMINISTER THE PROCEEDS OF HIS RETIRED PAY EFFECTIVE NOVEMBER 1, 1951. WHILE SERVING IN THAT CAPACITY MRS. ANDERSON RECEIVED FROM THE DEPARTMENT OF THE ARMY A DESCRIPTIVE PAMPHLET, AND A FORM FOR EXECUTION BY A RETIRED MEMBER, FOR THE PURPOSE OF ELECTING TO RECEIVE A REDUCED AMOUNT OF RETIRED PAY IN ORDER TO PROVIDE FOR ONE OR MORE ANNUITIES, PAYABLE AFTER HIS DEATH IN A RETIRED STATUS, TO HIS WIDOW AND/OR CHILDREN.

THE PAMPHLET INCLUDED INSTRUCTIONS TO THE EFFECT THAT IF A RETIRED MEMBER IS INCOMPETENT, HIS SPOUSE OR THE GUARDIAN OF HIS CHILDREN SHOULD SUBMIT A REQUEST TO THE SECRETARY OF THE ARMY IN ORDER THAT AN ELECTION MAY BE MADE ON BEHALF OF THE WIDOW OR CHILDREN. MRS. ANDERSON DID NOT FOLLOW SUCH INSTRUCTIONS. INSTEAD, SHE MAILED THE FORM TO THE OFFICER WHO AT THAT TIME WAS A MENTAL PATIENT IN THE VETERANS HOSPITAL, SHERIDAN, WYOMING. COLONEL ANDERSON EXECUTED THE FORM ELECTING OPTIONS 1 AND 4. THIS WAS AN ELECTION WHICH WOULD RESULT IN THE MAXIMUM DEDUCTION FROM HIS RETIRED PAY AND WOULD PROVIDE AN ANNUITY FOR HIS WIDOW UPON HIS DEATH. THE FORM WAS SUBMITTED BY THE WIFE TO THE DEPARTMENT OF THE ARMY AND ACCEPTED BY IT AS VALID, RESULTING IN DEDUCTIONS FROM COLONEL ANDERSON'S RETIRED PAY AT THE RATE OF $113.16 PER MONTH FOR THE PERIOD JANUARY 1, 1954 TO OCTOBER 31, 1958.

IN THE SAME YEAR THAT THE DEDUCTIONS BEGAN, COLONEL ANDERSON WAS DISCHARGED FROM THE VETERANS HOSPITAL AT SHERIDAN AS RECOVERED. THEREAFTER, THE DISTRICT COURT FOR SHERIDAN COUNTY, WYOMING, UPON CONSIDERATION OF COLONEL ANDERSON'S SANITY, ADJUDGED HIM TO BE LEGALLY COMPETENT AND BY COURT ORDER DATED SEPTEMBER 30, 1954, RESTORED HIM TO ALL HIS RIGHTS AS A CITIZEN. THE DEDUCTIONS CONTINUED TO BE MADE FROM HIS RETIRED PAY, APPARENTLY WITHOUT ANY PROTEST OR ACTION ON HIS PART. DIED ON NOVEMBER 3, 1958. YOUR QUESTION AS TO THE PROPRIETY OF PAYMENT OF THE ANNUITY TO COLONEL ANDERSON'S WIDOW ARISES FROM THE FACT THAT THE ELECTION WAS MADE BY HIM AT A TIME WHEN HE WAS CONSIDERED INCOMPETENT AND, THEREFORE, INCAPABLE OF MAKING AN ELECTION.

SECTION 3(C) OF THE CONTINGENCY OPTION ACT OF 1953, 67 STAT. 502 - NOW 10 U.S.C. 1433 - PROVIDES THAT 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 THAT SECTION, THE HEAD OF THE DEPARTMENT CONCERNED MAY MAKE THE APPROPRIATE ELECTION ON BEHALF OF THE MEMBER IF REQUESTED BY THE SPOUSE OR IF THERE BE NO SPOUSE BY THE CHILD OR CHILDREN OF THE MEMBER. IT FURTHER PROVIDES THAT IF THE MEMBER IS SUBSEQUENTLY DETERMINED TO BE MENTALLY COMPETENT BY MEDICAL OFFICERS OF THE VETERANS ADMINISTRATION OR ADJUDGED MENTALLY COMPETENT BY A COURT OF COMPETENT JURISDICTION, HE MAY, WITHIN 180 DAYS OF SUCH DETERMINATION OR JUDGMENT, MODIFY OR TERMINATE THE ELECTION MADE IN HIS BEHALF.

THE PURPOSE OF SECTION 3(C) OF THE ACT IS TO AFFORD AN OPPORTUNITY TO DEPENDENTS OF INCOMPETENT MEMBERS TO SHARE IN THE BENEFITS OF THE ACT ON AN EQUAL BASIS WITH DEPENDENTS OF COMPETENT MEMBERS BY ENABLING THE HEADS OF THE DEPARTMENTS CONCERNED TO MAKE TIMELY ELECTIONS ON BEHALF OF INCOMPETENT MEMBERS WHO ARE INCAPABLE OF MAKING ELECTIONS THEMSELVES WITHIN THE PERIOD SPECIFIED IN THE ACT. 33 COMP. GEN. 428. A FURTHER SAFEGUARD IS PROVIDED FOR INCOMPETENT MEMBERS IN THAT IF THEY ARE LATER DETERMINED TO BE COMPETENT THEY MAY MODIFY OR TERMINATE ANY ELECTION MADE IN THEIR BEHALF. APPARENTLY, UNDER THE TERMS OF THE ACT, THE MEMBER'S FAILURE TO MODIFY OR TERMINATE THE ELECTION WITHIN 180 DAYS AFTER HE HAS BEEN ADJUDGED COMPETENT IS REGARDED AS A RATIFICATION OF THE ELECTION WITHOUT ANY AFFIRMATIVE ACT ON HIS PART TO ASSERT SUCH RATIFICATION.

WHILE THE COURTS ARE NOT IN AGREEMENT AS TO WHETHER THE CONTRACTS OF A MENTALLY INCOMPETENT PERSON ARE WHOLLY VOID OR MERELY VOIDABLE, IT IS WELL ESTABLISHED THAT CONTRACTS WHICH ARE VIEWED AS VOIDABLE ONLY ARE SUBJECT TO RATIFICATION AFTER SUCH PERSON IS LEGALLY RESTORED TO A STATUS OF COMPETENCY. SEE, IN THIS CONNECTION, EAGLE V. PETERSON, 206 S.W. 55, 7 A.L.R. 553, WESTERLAND V. FIRST NATIONAL BANK, 164 N.W. 323, 7 A.L.R. 562, AND CATHCART V. STEWART, 142 S.E. 498. ALTHOUGHT THE CONTINGENCY OPTION ACT DOES NOT CONTEMPLATE THE MAKING OF ELECTIONS BY INSANE PERSONS, IN VIEW OF THE BENEFICIAL CHARACTER OF THAT LEGISLATION AND THE FACT THAT THE ELECTION MADE BY COLONEL ANDERSON WAS COMPLETELY CONSISTENT WITH THE ACTION HE COULD HAVE TAKEN AT THAT TIME HAD HE BEEN ENTIRELY SANE, WE FEEL THAT SUCH ELECTION MAY NOT BE PROPERLY VIEWED AS A NULLITY. THE LAW PERMITS A FORMER INCOMPETENT MEMBER TO RATIFY, MODIFY OR TERMINATE AN ELECTION MADE ON HIS BEHALF BY THE SECRETARY CONCERNED AT THE TIME HE WAS INCOMPETENT, AFTER BEING RESTORED TO A STATUS OF COMPETENCY AND IT IS BELIEVED THAT THE PURPOSES OF THE LAW WILL BEST BE SERVED BY PERMITTING SUCH MEMBER TO RATIFY HIS OWN ELECTION AFTER BEING DETERMINED TO BE LEGALLY COMPETENT. IN THE PRESENT CASE THE RETIRED MEMBER EXECUTED AN ELECTION AT A TIME WHEN HE WAS CONSIDERED INCOMPETENT AND INCAPABLE OF MAKING A VALID ELECTION. UPON BEING RESTORED TO ALL HIS RIGHTS AS A CITIZEN HE DID NOT MODIFY OR TERMINATE THE ELECTION. INSTEAD HE CONTINUED TO ACCEPT REDUCED RETIRED PAY FOR MORE THAN FOUR YEARS APPARENTLY WITH FULL KNOWLEDGE THAT DEDUCTIONS WERE BEING MADE FOR THE PURPOSE OF PAYING AN ANNUITY TO HIS WODOW UPON HIS DEMISE. IN THE CIRCUMSTANCES, HIS ACQUIESCENCE MAY BE REGARDED AS A RATIFICATION OF THE ELECTION. THEREFORE, HIS WIDOW IS ENTITLED TO THE ANNUITY.

ACCORDINGLY, THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED HEREWITH, PAYMENT THEREON BEING AUTHORIZED AS INDICATED ABOVE.