B-139866, AUGUST 7, 1959, 39 COMP. GEN. 80

B-139866: Aug 7, 1959

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MILITARY PERSONNEL - RETIRED PAY - ANNUITY ELECTIONS - VALIDITY A SURVIVOR'S ANNUITY ELECTION FORM WHICH WAS SIGNED. WAS INADVERTENTLY MISLAID AND NOT LOCATED UNTIL OVER A YEAR AND A HALF LATER CONSTITUTES A VALID. ELECTION AND THE CORRECTIONS WHICH WERE CONSISTENT WITH THE ORIGINAL ELECTION DO NOT CONSTITUTE A MODIFICATION OF THE ORIGINAL ELECTION OR A NEW AND DIFFERENT ELECTION. 1959: REFERENCE IS MADE TO YOUR LETTER OF JUNE 1. MAYOR GREGORY IS ENTITLED TO A REFUND OF THE AMOUNT DEDUCTED FROM HIS RETIRED PAY. HE WAS AN "ACTIVE MEMBER" FOR THE PURPOSES OF THE CONTINGENCY OPTION ACT (SECTION 2 (C). IT IS STATED THAT MAYOR GREGORY EXECUTED DA FORM 1041. THE ELECTION FORM WAS RETURNED TO MAYOR GREGORY (APPARENTLY BEFORE OCTOBER 31.

B-139866, AUGUST 7, 1959, 39 COMP. GEN. 80

MILITARY PERSONNEL - RETIRED PAY - ANNUITY ELECTIONS - VALIDITY A SURVIVOR'S ANNUITY ELECTION FORM WHICH WAS SIGNED, WITNESSED AND SUBMITTED WITHIN THE ONE-YEAR TIME LIMITATION FOR APPLICATION BY ACTIVE MEMBERS STIPULATED IN SECTION 3 (A) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 10 U.S.C. 1432, BUT WHICH, WHEN RETURNED FOR CORRECTION AND/OR COMPLETION OF THE DESIGNATED OPTIONS, WAS INADVERTENTLY MISLAID AND NOT LOCATED UNTIL OVER A YEAR AND A HALF LATER CONSTITUTES A VALID, EFFECTIVE, ELECTION AND THE CORRECTIONS WHICH WERE CONSISTENT WITH THE ORIGINAL ELECTION DO NOT CONSTITUTE A MODIFICATION OF THE ORIGINAL ELECTION OR A NEW AND DIFFERENT ELECTION.

TO LIEUTENANT COLONEL J. L. WHIPPLE, DEPARTMENT OF THE ARMY, AUGUST 7, 1959:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 1, 1959, AND ENCLOSURES, FORWARDED HERE UNDER D.). NO. 426 (ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE), REQUESTING AN ADVANCE DECISION CONCERNING THE PAYMENT PROPOSED ON A VOUCHER STATED IN FAVOR OF MAYOR ERNEST P. GREGORY, UNITED STATES ARMY RESERVE, RETIRED, REPRESENTING REFUND OF THE DEDUCTION MADE IN HIS RETIRED PAY ACCOUNT FOR THE MONTH OF MAY 1959, UNDER AUTHORITY OF THE UNIFORMED SERVICE CONTINGENCY OPTION ACT OF 1953, AS CODIFIED IN CHAPTER 73, 10 U.S.C.IN THE ABSENCE OF A VALID ELECTION OF BENEFITS UNDER THAT ACT, MAYOR GREGORY IS ENTITLED TO A REFUND OF THE AMOUNT DEDUCTED FROM HIS RETIRED PAY.

IT APPEARS THAT ON NOVEMBER 1, 1953, THE EFFECTIVE DATE OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, MAYOR GREGORY HAD COMPLETED OVER 20 SATISFACTORY YEARS OF SERVICE AS DEFINED IN SECTION 302 OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, 62 STAT. 1087, 10 U.S.C. 1036. HENCE, HE WAS AN "ACTIVE MEMBER" FOR THE PURPOSES OF THE CONTINGENCY OPTION ACT (SECTION 2 (C), 67 STAT. 501), AND SINCE HE HAD THERETOFORE COMPLETED OVER 18 YEARS OF SERVICE, UNDER SECTION 3 (A) OF THAT ACT, 10 U.S.C. 1432, AS AMENDED BY THE ACT OF APRIL 29, 1954, 68 STAT. 64, HE COULD MAKE AN ELECTION OF BENEFITS UNDER THAT ACT "WITHIN ONE YEAR" AFTER THE EFFECTIVE DATE OF THE ACT.

IT IS STATED THAT MAYOR GREGORY EXECUTED DA FORM 1041," ELECTION OF OPTIONS UNDER THE UNIFORMED SERVICE CONTINGENCY OPTION ACT OF 1953" ON APRIL 29, 1954; THAT HE MAILED THE ELECTION FORM TO THE SOUTH CAROLINA MILITARY DISTRICT OFFICE AT COLUMBIA, SOUTH CAROLINA; AND THAT THE FORM AS EXECUTED BY HIM SHOWED THAT HE "ELECTED TO COMBINE OPTIONS III AND IV AND ERRONEOUSLY CHECKED THE BLOCK AUTHORIZING 1/2 REDUCED RETIRED PAY UNDER OPTION I.' THE ELECTION FORM WAS RETURNED TO MAYOR GREGORY (APPARENTLY BEFORE OCTOBER 31, 1954) WITH A NOTE FROM THE ASSISTANT ADJUTANT OF THE SOUTH CAROLINA MILITARY DISTRICT OFFICE "FOR CORRECTION AND/OR COMPLETION OF OPTION 1 AND 3.' MAYOR GREGORY EXPLAINING IN HIS LETTER DATED JUNE 22, 1956, THAT HIS ELECTION FORM "WAS COMPLETED AND/OR CORRECTED IMMEDIATELY, BUT WAS INADVERTENTLY MISLAID AND WAS ONLY DISCOVERED THIS WEEK" RETURNED IT TO THE SOUTH CAROLINA MILITARY DISTRICT OFFICE AND ON JUNE 26, 1956, THE FORM WAS FORWARDED TO THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY.

MAJOR GREGORY WAS PLACED ON THE RETIRED LIST ON DECEMBER 31, 1958, WITH ENLISTMENT TO RETIRED PAY EFFECTIVE FROM JANUARY 1, 1959, UNDER THE PROVISIONS OF 10 U.S.C. 1331-1337. YOU STATE THAT " DOUBT EXISTS AS TO THE VALIDITY OF AN ELECTION WHERE A MEMBER HAS ERRONEOUSLY COMPLETED DA FORM 1041 AND FAILED TO RETURN THE CORRECTED DOCUMENT WITHIN THE PRESCRIBED TIME LIMITATION.' THE ISSUE THUS PRESENTED IS WHETHER MAJOR GREGORY MADE A TIMELY AND VALID ELECTION OF OPTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT.

THE CONTINGENCY OPTION ACT AFFORDS EACH MEMBER OF THE UNIFORMED SERVICES AN OPPORTUNITY TO PROVIDE ONE OR MORE ANNUITIES TO BE PAID AFTER HIS DEATH IN A RETIRED STATUS TO HIS WIDOW, CHILD, OR CHILDREN. IN ORDER TO SECURE THE ADVANTAGE OF SUCH BENEFITS FOR HIS SURVIVORS, THE MEMBER IS REQUIRED TO MAKE AN ELECTION TO THAT EFFECT WITHIN THE PERIOD SPECIFIED IN THE ACT, IN THIS CASE PRIOR TO NOVEMBER 2, 1954, THE AMOUNTS PAYABLE IN EACH CASE BEING BASED ON HIS AGREEMENT TO RECEIVE A REDUCED AMOUNT OF THE RETIRED PAY WHICH MAY BE AWARDED HIM AS A RESULT OF HIS MILITARY SERVICE. UNDER THE PERTINENT REGULATIONS, THE ELECTION OF AN "ACTIVE MEMBER" ( MAJOR GREGORY'S STATUS) BECAME EFFECTIVE WHEN "SIGNED, WITNESSED, AND SUBMITTED (OR POSTMARKED) NOT LATER THAN 1 NOVEMBER 1954.' SEE PARAGRAPH 5A, DEPARTMENT OF THE ARMY SPECIAL REGULATION NO. 35-1365-1, CHANGES NO. 2, JULY 19, 1954.

AS ABOVE STATED, THE RECORD INDICATES THAT MAJOR GREGORY'S DA FORM 1041, FULLY EXECUTED, SIGNED AND WITNESSED, WAS MAILED AND RECEIVED IN THE SOUTH CAROLINA MILITARY DISTRICT OFFICE PRIOR TO NOVEMBER 2, 1954. IT WILL BE SEEN THAT THE THREE BASIC ESSENTIALS REQUIRED TO MAKE HIS ELECTION OF OPTIONS EFFECTIVE--- SIGNATURE, WITNESSING AND SUBMISSION (MAILING) PRIOR TO NOVEMBER 2, 1954--- WERE MET WHEN HE MAILED AND RELINQUISHED ALL CONTROL OVER HIS SIGNED AND WITNESSED DA FOR 1041. COMPARE 35 COMP. GEN. 489. CONSEQUENTLY, MAJOR GREGORY'S ELECTION OF OPTIONS UNDER THE CONTINGENCY OPTION ACT BECAME EFFECTIVE PRIOR TO NOVEMBER 2, 1954, UNLESS THE MANNER IN WHICH HE INITIALLY EXECUTED DA FORM 1041 IS SO AMBIGUOUS OR DEFECTIVE AS TO RENDER HIS ELECTION OF OPTIONS THEREON NULL AND VOID.

THE PHOTOSTATIC COPY OF DA FORM 1041 (RECEIVED AS AN ENCLOSURE WITH THE LETTER OF JUNE 1, 1959) DISCLOSES THAT MAJOR GREGORY ELECTED OPTIONS 3 AND 4--- AN AUTHORIZED AND PROPER ELECTION (COMPARE 34 COMP. GEN. 555/--- AND THAT HE HAD CHECKED THE 1/2 OF REDUCED RETIRED PAY FACTOR IN THE BLOCK APPLICABLE TO OPTION 1. HOWEVER, SINCE HE CLEARLY ELECTED OPTIONS 3 AND 4 AND NOT OPTION 1, THE SOLE AMBIGUITY WHICH WE CAN PERCEIVE IN THIS SITUATION RESTED NOT BETWEEN OPTIONS 3 AND 4 AND OPTION 1, BUT MERELY RAISED THE ISSUE WHETHER THE 1/2 RATE FACTOR WHICH HE HAD CHECKED IN THE BLOCK APPLICABLE TO OPTION 1 WAS IN FACT INTENDED BY HIM TO APPLY TO HIS ELECTION OF OPTION 3 AND 4. HIS ELECTION OPTION 3 AND 4, BEING AN OTHERWISE VALID AND AUTHORIZED ELECTION OF OPTIONS, BECAME EFFECTIVE PRIOR TO NOVEMBER 2, 1954, AND IN THE ABSENCE OF ANY SUBSEQUENT CLARIFICATION AS TO THE EXACT PERCENTAGE RATE INTENDED TO APPLY TO HIS ELECTION OF OPTION 3 AND 4, IT WOULD HAVE BEEN APPROPRIATE TO APPLY THE MINIMUM RATE (ONE- EIGHTH) PRESCRIBED IN THE CONTINGENCY OPTION ACT. COMPARE 34 COMP. GEN. 63.

DA FORM 1041 WAS RETURNED TO MAJOR GREGORY AND THE CORRECTIONS WHICH HE MADE THEREON--- ELIMINATING THE 1/2 RATE IN THE BLOCK UNDER OPTION 1 AND ENTERING THE SAME RATE IN THE BLOCK APPLICABLE TO OPTION 3--- ARE BASICALLY CONSISTENT WITH HIS INITIAL ACTION AND DO NOT CONSTITUTE A MODIFICATION OF HIS ORIGINAL ELECTION OR A NEW AND DIFFERENT ELECTION. COMPARE 36 COMP. GEN. 764. HENCE, IT IS OUR VIEW THAT WHILE THE ELECTION FORM IS SHOWN TO HAVE REMAINED IN HIS CUSTODY UNTIL THE MONTH OF JUNE 1956, SUCH FACT IN THE CIRCUMSTANCES SHOWN DOES NOT NULLIFY THE VALIDITY OF HIS ELECTION OF OPTIONS 3 AND 4 WHICH WAS ACCOMPLISHED AND BECAME EFFECTIVE PRIOR TO NOVEMBER 2, 1954.

ACCORDINGLY, THE PAYMENT PROPOSED TO MAJOR GREGORY REPRESENTING REFUND OF THE CONTINGENCY OPTION ACT DEDUCTION FOR THE MONTH OF MAY 1959, IS NOT AUTHORIZED, AND THE VOUCHER SUBMITTED WILL BE RETAINED HERE.