B-139695, AUG. 7, 1959

B-139695, AUG. 7, 1959

TO LIEUTENANT COLONEL J. L. WHIPPLE, F.C., DISBURSING OFFICER:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 5, 1959, FORWARDED UNDER D.O. NUMBER 418 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REQUESTING AN ADVANCE DECISION ON AN ENCLOSED VOUCHER PROPOSING PAYMENT OF RETIRED PAY IN THE NET AMOUNT OF $5,729.41, TO THE ESTATE OF THE LATE MAJOR EDMUND T. DOUGLAS, RETIRED.

MAJOR DOUGLAS WAS AWARDED RETIRED PAY BY LETTER ORDER DATED APRIL 7, 1959, AND WAS PLACED ON THE RETIRED LIST UNDER THE PROVISIONS OF 10 U.S.C. 1331-1337, WITH ENTITLEMENT TO RECEIVE RETIRED PAY EFFECTIVE JANUARY 1, 1950.

MAJOR DOUGLAS COMPLETED AND SIGNED A DA FORM 1041 ENTITLED "ELECTION OF OPTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953," 10 U.S.C. 1431-1438, ON JANUARY 21, 1959. WHILE THEREBY INDICATING THAT HE DESIRED TO PARTICIPATE IN THE CONTINGENCY OPTION ACT PROGRAM AND ELECTING OPTION I WITH OPTION IV AT ONE-HALF REDUCED RETIRED PAY, HE ALSO CHECKED ITEM 11 OF THE FORM READING "I DO NOT DESIRE TO RECEIVE REDUCED RETIRED PAY IN ORDER TO PROVIDE AN ANNUITY FOR MY DEPENDENTS.' SINCE THE ELECTION OF AN ANNUITY UNDER THE PROGRAM REQUIRES A PRESCRIBED REDUCTION IN RETIRED PAY THE MILITARY AUTHORITIES WROTE TO MAJOR DOUGLAS ASKING HIM TO SUBMIT A SIGNED STATEMENT REGARDING HIS INTENT. BY LETTER OF APRIL 19, 1959, THE MILITARY AUTHORITIES WERE INFORMED THAT MAJOR DOUGLAS DIED FEBRUARY 9, 1959, WITHOUT FURTHER WRITTEN INDICATION OF HIS INTENT. THIS LETTER, SIGNED BY W. T. DOUGLAS, SON, AND MRS. MARY A. DOUGLAS, SPOUSE OF THE DECEDENT, CO-EXECUTORS OF HIS WILL, STATED THAT THE CHECK AT ITEM 11 WAS AN ERROR AND THAT AN ANNUITY WAS INTENDED. FORM DD 418, ALSO SIGNED BY THE CO-EXECUTORS, WAS FORWARDED INDICATING THIS INTENT. THE AMOUNT PROPERLY PAYABLE ON THE SUBMITTED VOUCHER DEPENDS UPON WHETHER MAJOR DOUGLAS IS TO BE REGARDED AS HAVING VALIDLY ELECTED THE ANNUITY FOR HIS WIDOW.

ADMITTEDLY, TO THE INFORMED, THE INTENT OF MAJOR DOUGLAS AS RECORDED ON THE FORM 1041 IS NOT CLEAR. THE RECORD AS A WHOLE, HOWEVER, SUGGESTS THAT MAJOR DOUGLAS UNDERSTOOD ITEM 11 TO MEAN THAT HE HAD THE CHOICE OF ELECTING THE SELECTED ANNUITY EITHER WITH OR WITHOUT A REDUCTION IN HIS RETIRED PAY. SUCH AN INTERPRETATION--- BY A PERSON NOT FAMILIAR WITH THAT PORTION OF THE STATUTE REQUIRING A REDUCTION OF RETIRED PAY AND BASED SOLELY ON THE FORM--- DOES NOT APPEAR TO BE UNREASONABLE. IN THIS RESPECT, ASIDE FROM MAKING IT CLEAR TO PARTICIPANTS IN THE CONTINGENCY OPTION ACT PROGRAM THAT THEIR RETIRED PAY WILL BE REDUCED, THE PURPOSE OF INCLUDING ITEM 11 IN THE FORM IS NOT APPARENT. OBVIOUSLY ITS PURPOSE IS NOT TO DEFEAT AN OTHERWISE VALID ELECTION AS EVIDENCED BY THE VOLUNTARY EXECUTION OF THE FORM AND COMPLETION OF THE MATERIAL ITEMS OF THE FORM. THUS, REGARDLESS OF WHAT MAJOR DOUGLAS INTENDED WHEN HE CHECKED ITEM 11, IT IS OUR VIEW THAT HIS ACT IN THAT RESPECT MAY NOT BE VIEWED AS EVIDENCE THAT HE DID NOT INTEND TO PROVIDE THE SELECTED ANNUITY FOR HIS WIDOW.

THE PAYMENT PROPOSED ON THE SUBMITTED VOUCHER REFLECTS AN ADJUSTMENT TO EFFECT RETIRED PAY DEDUCTIONS TO PROVIDE THE ANNUITY ELECTED BY MAJOR DOUGLAS AND IT IS ASSUMED THAT SUCH ADJUSTMENT HAS BEEN PROPERLY COMPUTED. ACCORDINGLY, THE PAYMENT AS PROPOSED IS AUTHORIZED, IF OTHERWISE CORRECT. THE VOUCHER IS RETURNED HEREWITH.