B-138775, AUGUST 5, 1959, 39 COMP. GEN. 74

B-138775, AUGUST 5, 1959, 39 COMP. GEN. 74

MILITARY PERSONNEL - RETIRED PAY - SURVIVOR ANNUITY OPTION ELECTIONS - CORRECTION OF MILITARY RECORDS - SUBSEQUENT TO MEMBER'S DEATH A RIGHT OF A MEMBER OF THE UNIFORMED SERVICES TO ELECT A SURVIVORSHIP ANNUITY UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, WHICH ARISES AS A RESULT OF THE CORRECTION OF A MILITARY RECORD, COMES INTO EXISTENCE WHEN THE CORRECTION IS MADE AND SUCH RIGHT MAY NOT BE EXERCISED IN ADVANCE; THEREFORE, AN ANNUITY ELECTION MADE BY A RETIRED NAVAL RESERVE OFFICER WHEN HE WAS NOT ELIGIBLE TO MAKE AN ELECTION DOES NOT HAVE ANY FORCE AND EFFECT WHEN, AFTER THE OFFICER'S DEATH, HIS MILITARY RECORDS ARE CORRECTED TO RETROACTIVELY PLACE HIM ON THE DISABILITY RETIRED LIST AT THE TIME OF RELEASE FROM ACTIVE DUTY.

TO COMMANDER R. A. WILSON, DEPARTMENT OF THE NAVY, AUGUST 5, 1959:

BY SECOND ENDORSEMENT DATED FEBRUARY 17, 1959, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF JANUARY 15, 1959 ( XR:HWM:MB, L 16 4/1), REQUESTING AN ADVANCE DECISION RELATIVE TO THE EFFECT OF AN ELECTION FORM EXECUTED BY A MEMBER UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 PRIOR TO THE CORRECTION OF HIS MILITARY RECORDS TO SHOW THAT HIS NAME WAS PLACED ON THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY ON MARCH 27, 1946. THE REQUEST WAS ASSIGNED SUBMISSION NO. DO-N-401 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

IN YOUR LETTER YOU RELATE THAT COMMANDER CRAWFORD N. BAGANZ, 126398, MC, USNR ( RETIRED) ( DECEASED) WAS RELEASED FROM ACTIVE DUTY IN THE NAVAL RESERVE ON MARCH 26, 1946, AND WAS TRANSFERRED TO RETIRED RESERVE WITHOUT PAY ON JANUARY 1, 1954. ALTHOUGH NOT IN A PAY STATUS, ON APRIL 5, 1954, HE EXECUTED AN ELECTION FORM SHOWING OPTION 1 AT ONE-HALF REDUCED RETIRED PAY UNDER THE TERMS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501. IT APPEARS THAT SUCH ELECTION WAS RECEIVED BY THE BUREAU OF NAVAL PERSONNEL ON APRIL 29, 1954. COMMANDER BAGANZ DIED ON DECEMBER 21, 1955. SUBSEQUENTLY, THE SECRETARY OF THE NAVY, ON AUGUST 2, 1957, APPROVED THE DECISION AND RECOMMENDATION OF THE BOARD FOR CORRECTION OF NAVAL RECORDS THAT XNVAL RECORDS BE CORRECTED TO SHOW THAT COMMANDER BAGANZ- NAME "WAS PLACED ON THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY ON 27 MARCH 1946 WITH RANK AND PAY OF CDR.' AS OF MARCH 26, 1946, IT IS STATED THAT COMMANDER BAGANZ HAD COMPLETED 4 YEARS, 1 MONTH, AND 18 DAYS SERVICE FOR BASIC PAY PURPOSES.

YOU POINT OUT IN YOUR LETTER THAT SINCE COMMANDER BAGANZ WAS IN THE RETIRED RESERVE ON APRIL 5, 1954, THE DATE HE EXECUTED HIS ELECTION FORM, AND HAD NOT BEEN AWARDED RETIRED PAY, IT DOES NOT APPEAR THAT HE WAS ELIGIBLE TO MAKE SUDH ELECTION. HOWEVER, YOU SUGGEST THAT HE BEEN ALIVE ON AUGUST 2, 1957, WHEN HIS NAME WAS PLACED RETROACTIVELY ON THE DISABILITY RETIRED LIST BY THE BOARD FOR CORRECTION OF NAVAL RECORDS, HE MIGHT HAVE HAD AN OPPORTUNITY BY VIRTUE OF OUR DECISION IN 36 COMP. GEN. 586, TO ELECT ANNUITY BENEFITS WITHIN 30 DAYS AFTER HIS RECEIPT OF NOTICE OF THE AWARD OF RETIRED PAY. IN VIEW OF THE FOREGOING, YOU ASK IF COMMANDER BAGANZ- ELECTION IS VALID, AND IF VALID, YOU FURTHER ASK THE EFFECTIVE DATE OF SUCH ELECTION FOR THE PURPOSE OF COMPUTING AND DEDUCTING COSTS.

SECTION 3 (A) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, AS AMENDED BY THE ACT OF APRIL 29, 1954, 68 STAT. 64, 37 U.S.C. 372, PROVIDES, IN PERTINENT PART, THAT:

AN ACTIVE MEMBER MAY ELECT, PRIOR TO THE COMPLETION OF EIGHTEEN YEARS OF SERVICE WHICH IS CREDITABLE IN THE COMPUTATION OF ACTIVE-DUTY IN THE UNIFORMED SERVICE OF WHICH HE IS A MEMBER, TO RECEIVE A REDUCED AMOUNT OF ANY RETIRED PAY WHICH MAY BE AWARDED HIM AS THE RESULT OF SERVICE IN HIS UNIFORMED SERVICE IN ORDER TO PROVIDE ONE OR MORE OF THE ANNUITIES SPECIFIED IN SECTION 4, PAYABLE AFTER HIS DEATH IN A RETIRED STATUS TO HIS WIDOW, CHILD, OR CHILDREN, IF SUCH WIDOW, CHILD, OR CHILDREN ARE LIVING AT THE DATE OF HIS RETIREMENT. WHERE THE ACTIVE MEMBER IS AWARDED RETIRED PAY BY HIS UNIFORMED SERVICE FOR PHYSICAL DISABILITY PRIOR TO THE COMPLETION OF THE EIGHTEEN YEARS OF SERVICE, THE ELECTION MAY BE MADE AT THE TIME OF RETIREMENT. AN ACTIVE MEMBER WHO HAS HERETOFORE COMPLETED THE EIGHTEEN YEARS OF SERVICE MAY MAKE THIS ELECTION WITHIN ONE YEAR AFTER THE EFFECTIVE DATE OF THIS ACT. * * * A PERSON WHO IS A FORMER MEMBER ON THE EFFECTIVE DATE OF THE ACT ( NOVEMBER 1, 1953), AND WHO IS THEREAFTER AWARDED RETIRED PAY BY A UNIFORMED SERVICE MAY MAKE THE ELECTION AT THE TIME HE IS AWARDED THAT PAY. (ITALICS SUPPLIED.)

IN OUR DECISION OF FEBRUARY 8, 1957, B-130010, 36 COMP. GEN. 586, REFERRED TO IN YOUR LETTER, THE OFFICER CONCERNED WAS ALIVE ON THE DATE OF THE CORRECTION OF HIS RECORDS AND EXERCISED HIS ELECTION UNDER THE CONTINGENCY OPTION ACT AFTER NOTIFICATION OF SUCH RETROACTIVE AWARD OF RETIRED PAY. WHILE 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 IN THE ORDINARY WAY AS OF THE EFFECTIVE DATE SHOWN BY THE CORRECTED RECORD, ANY RIGHT TO ELECT AN ANNUITY UNDER THE CONTINGENCY OPTION ACT WHICH AROSE AS A RESULT OF A CORRECTION OF A RECORD CAME INTO EXISTENCE WHEN THAT CORRECTION WAS MADE AND COULD NOT BE EXERCISED IN ADVANCE OF THAT TIME. SINCE BAGANZ DIED BEFORE THE CORRECTION OF HIS RECORDS, IT WAS IMPOSSIBLE FOR HIM TO EXERCISE THE RIGHT TO MAKE AN ELECTION UNDER THE CORRECTED RECORD. THE ELECTION FORM HE EXECUTED ON APRIL 5, 1954, WHEN HE WAS NOT ELIGIBLE TO MAKE SUCH ELECTION, HAS NO FORCE OR EFFECT. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE, RENDERING UNNECESSARY AN ANSWER TO YOUR SECOND QUESTION.