B-141121, DECEMBER 22, 1959, 39 COMP. GEN. 456

B-141121: Dec 22, 1959

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MILITARY PERSONNEL - RETIRED - ANNUITIES FOR DEPENDENTS A RETIRED MEMBER OF THE UNIFORMED SERVICES WHO FAILED TO SIGN ANY ANNUITY OPTION ELECTION FORM WHICH WAS MAILED TO THE FINANCE CENTER PRIOR TO APRIL 30. - IS REGARDED AS HAVING MADE AN ACTUAL TIMELY ELECTION. WHICH WERE CONSISTENT WITH THE PRIOR ACTION. WERE CONFIRMATORY IN NATURE AND MAY BE CONSIDERED AS MERELY CORRECTING FORMAL DEFECT IN AN OTHERWISE VALID AND BINDING ELECTION. - ADVISING THAT HE HAD LOST THE ELECTION PAPERS AND THAT HE WANTED TO TAKE ADVANTAGE OF THE OPTION FOR HIS YOUNGEST CHILD MAY BE REGARDED AS HAVING MADE A VALID ELECTION EVEN THOUGH THE RATE OF REDUCED RETIRED PAY APPLICABLE TO THE ELECTION WAS NOT STATED IN THE TELEGRAM.

B-141121, DECEMBER 22, 1959, 39 COMP. GEN. 456

MILITARY PERSONNEL - RETIRED - ANNUITIES FOR DEPENDENTS A RETIRED MEMBER OF THE UNIFORMED SERVICES WHO FAILED TO SIGN ANY ANNUITY OPTION ELECTION FORM WHICH WAS MAILED TO THE FINANCE CENTER PRIOR TO APRIL 30, 1954--- THE DEADLINE FOR SUBMISSION OF ELECTIONS BY RETIRED MEMBERS NOT ON ACTIVE DUTY ON NOVEMBER 1, 1953, THE EFFECTIVE DATE OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, NOW 10 U.S.C. 1431-1444 --- IS REGARDED AS HAVING MADE AN ACTUAL TIMELY ELECTION, AND SUBSEQUENT ACTIONS IN EXECUTING AND SIGNING AN ELECTION OF OPTION FORMS AFTER THE DEADLINE DATE, WHICH WERE CONSISTENT WITH THE PRIOR ACTION, WERE CONFIRMATORY IN NATURE AND MAY BE CONSIDERED AS MERELY CORRECTING FORMAL DEFECT IN AN OTHERWISE VALID AND BINDING ELECTION. A RETIRED MEMBER OF THE UNIFORMED SERVICES WHO SENT A TELEGRAM TO THE FINANCE CENTER ON APRIL 30, 1954--- THE DEADLINE FOR SUBMISSION OF ANNUITY OPTION ELECTIONS BY RETIRED MEMBERS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, NOW 10 U.S.C. 1431-1444--- ADVISING THAT HE HAD LOST THE ELECTION PAPERS AND THAT HE WANTED TO TAKE ADVANTAGE OF THE OPTION FOR HIS YOUNGEST CHILD MAY BE REGARDED AS HAVING MADE A VALID ELECTION EVEN THOUGH THE RATE OF REDUCED RETIRED PAY APPLICABLE TO THE ELECTION WAS NOT STATED IN THE TELEGRAM, AND THE SUBSEQUENT CONFIRMATION AND EXECUTION OF THE ELECTION MAY BE REGARDED AS CONFIRMATORY IN NATURE AND MERELY CORRECTING A FORMAL DEFECT IN AN OTHERWISE VALID AND BINDING ELECTION.

TO COMMANDER R. A. WILSON, UNITED STATES NAVY, DECEMBER 22, 1959:

YOUR LETTER OF SEPTEMBER 23, 1959, AND ENCLOSURES, PRESENTS FOR ADVANCE DECISION UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEES SUBMISSION NO. DO-N-464, THE QUESTION WHETHER IN THE CIRCUMSTANCES SET FORTH BELOW, WARRANT OFFICER JOHN D. PETTY, U.S. NAVY, RETIRED, AND LIEUTENANT (JG) IRVIN A. EUBANKS, U.S. NAVAL RESERVE, RETIRED, MAY BE CONSIDERED AS HAVING MADE VALID ELECTIONS OF OPTIONS UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, 10 U.S.C. 1431-1444.

IN THE CASE OF WARRANT OFFICER PETTY IT IS STATED THAT ON APRIL 21, 1954, HE MAILED TO THE NAVY FINANCE CENTER AN "ELECTION OF OPTIONS 2 AND 4 AT ONE-HALF REDUCED PAY.' HOWEVER, THE ELECTION FORM ( NAVPERS 591A) WAS NOT SIGNED BY HIM AND IN THE ABSENCE OF HIS SIGNATURE THEREON NO DEDUCTIONS WERE THEN INITIATED FROM HIS RETIRED PAY. THEREAFTER, IN THE MONTH OF SEPTEMBER 1954, HE WAS ADVISED BY THE NAVY FINANCE CENTER THAT SINCE HIS "UNSIGNED ELECTION FORM WAS POSTMARKED 28 APRIL 1954, YOU ARE AFFORDED THE OPPORTUNITY TO BE COVERED BY THE ACT IF YOU SO DESIRE.' IN ACCORDANCE WITH THE OPPORTUNITY THUS EXTENDED TO HIM, HE EXECUTED AND SIGNED AN ELECTION OF OPTIONS FORM, ELECTING THE SAME OPTIONS, 2 AND 4 AT ONE-HALF REDUCED RETIRED PAY. THIS LATTER ELECTION IS REPORTED TO HAVE BEEN POSTMARKED OCTOBER 8, 1954, AND IT IS STATED THAT DEDUCTIONS AT THE RATE OF $2.94 PER MONTH WERE THEN ESTABLISHED IN HIS RETIRED PAY ACCOUNT EFFECTIVE FROM APRIL 1, 1954.

THE FACTS CONCERNING LIEUTENANT EUBANKS SHOW THAT ON APRIL 30, 1954, HE SENT A TELEGRAPH MESSAGE STATING THAT HE HAD LOST THE PAPERS PERTAINING TO THE UNIFORMED SERVICES CONTINGENCY OPTION ACT AND THAT HE DESIRED TO "TAKE ADVANTAGE OPTION WHERE I PAY UNTIL YOUNGEST CHILD 18. THIS AUTHORIZES YOU DEDUCT NECESSARY AMOUNT FROM PAY.' ON MAY 3, 1954, BLANK ELECTION OF OPTION FORMS WERE MAILED TO HIM AND IT IS REPORTED THAT HIS SIGNED ELECTION OF OPTIONS 2 AND 4 AT ONE-HALF REDUCED RETIRED PAY--- APPARENTLY THE SAME BENEFITS INTENDED TO BE COVERED BY HIS ORIGINAL ELECTION--- WAS RECEIVED IN THE NAVY FINANCE CENTER ON MAY 24, 1954, AND THAT DEDUCTIONS AT THE RATE OF $5.88 PER MONTH WERE THEN ESTABLISHED IN HIS RETIRED PAY ACCOUNT EFFECTIVE FROM APRIL 1, 1954.

UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, RETIRED MEMBERS OF THE UNIFORMED SERVICES WHO HAD THERETOFORE BEEN AWARDED RETIRED PAY WERE PERMITTED TO ELECT TO RECEIVE THE BENEFITS OF THAT ACT, ON OR BEFORE APRIL 30, 1954. AN ELECTION SO MADE BECAME IRREVOCABLE AND, SINCE BOTH WARRANT OFFICER PETTY AND LIEUTENANT EUBANKS WERE THERETOFORE RETIRED WITHIN THE MEANING OF THE ACT, THEIR ELECTIONS OF OPTIONS IN ORDER TO BE EFFECTIVE WERE REQUIRED TO BE MADE ON OR BEFORE THAT DATE. SECTION 206 OF THE REGULATIONS FOR THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 PROVIDES THAT " THE FORM FOR MAKING ELECTIONS WILL BE SUBMITTED AS INDICATED BY THE DEPARTMENT CONCERNED. ALL COPIES FORWARDED WILL BE SIGNED, AND ANY SIGNED COPY MAY BE USED TO SUBSTANTIATE THE FACT OF ELECTION.'

THE BASIC QUESTION PRESENTED AND CONSIDERED IN DECISION OF APRIL 15, 1954, TO WHICH YOU MAKE SPECIFIC REFERENCE (B-118336, 33 COMP. GEN. 455), CONCERNED THE METHOD EMPLOYED IN MAKING THE ELECTION THERE INVOLVED, I.E., THE USE OF A PERSONAL LETTER INSTEAD OF UTILIZING THE SPECIFIC FORM PRESCRIBED BY THE DEPARTMENT CONCERNED FOR REGISTERING SUCH AN ELECTION. ON THAT PRECISE ISSUE THE DECISION OF APRIL 15, 1954, HELD THAT AN OTHERWISE VALID ELECTION OF OPTIONS EVIDENCED BY A LETTER PROPERLY SIGNED AND DULY FILED WAS NOT RENDERED INVALID SIMPLY BECAUSE IT HAD NOT BEEN EXECUTED ON THE PRESCRIBED FORM. IT WAS POINTED OUT IN THAT CONNECTION THAT NO LANGUAGE HAS BEEN FOUND IN THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT "REQUIRING THAT THE ELECTIONS AUTHORIZED THEREUNDER BE SUBMITTED IN ANY PARTICULAR MANNER OR ON ANY PARTICULAR FORM" AND THAT THE PERTINENT REGULATIONS PRESCRIBED IN ACCORDANCE WITH SUCH ACT PROVIDE THAT FOR AN ELECTION TO BE EFFECTIVE IN THE CASE OF A RETIRED MEMBER NOT ON ACTIVE DUTY ON NOVEMBER 1, 1953, THE EFFECTIVE DATE OF THE CONTINGENCY OPTION ACT "IT NEED ONLY BE SIGNED AND POSTMARKED NOT LATER THAN APRIL 30, 1954.'

THE QUESTION WHETHER THERE HAS BEEN ACCOMPLISHED A VALID AND BINDING ELECTION OF OPTIONS MUST BE ASCERTAINED AND DETERMINED FROM ALL THE CIRCUMSTANCES IN THE PARTICULAR CASE. THE PROVISION THAT AN ELECTION TO BE EFFECTIVE MUST BE SIGNED BY THE MEMBER CONCERNED IS FOUNDED PRIMARILY ON THE VIEW THAT A WRITTEN ELECTION SO SIGNED CONSTITUTES THE BEST EVIDENCE OF HIS INTENT WITH RESPECT TO THAT MATTER. HOWEVER, WHEN THE INTENT TO MAKE AN ELECTION CAN BE OTHERWISE CLEARLY AND CONCLUSIVELY ESTABLISHED, THE LACK OF THE MEMBER'S PERSONAL AUTOGRAPH DOES NOT VITIATE AN ELECTION, AS FOR EXAMPLE, WHEN THE MEMBER CONCERNED IS UNABLE PHYSICALLY TO WRITE HIS NAME. IN SUCH A CASE IT HAS BEEN HELD THAT AN ELECTION EXECUTED BY A MEMBER'S WIFE ON HIS BEHALF AND AT HIS REQUEST--- THE RECORD SHOWING THAT THE MEMBER WAS FULLY AWARE OF HIS RIGHTS AND HIS DUTY TO ELECT IF HE DESIRED THE BENEFITS OF THE CONTINGENCY OPTION ACT AND THAT HIS FAILURE TO SIGN PERSONALLY WAS DUE ENTIRELY TO HIS PHYSICAL INCAPACITY--- CONSTITUTES A VALID ELECTION OF OPTION. SEE 35 COMP. GEN. 489 AND COMPARE DECISION OF AUGUST 19, 1959, 39 COMP. GEN. 112. ALSO, COMPARE DECISION OF SEPTEMBER 27, 1956, B 129136 (36 COM. GEN. 244), IN WHICH IT WAS HELD THAT AN ELECTION FORM "TENTATIVELY SIGNED" DID NOT CONSTITUTE AN UNQUALIFIED AND VALID ELECTION UNDER THE CONTINGENCY OPTION ACT. IN DECISION DATED MAY 20, 1955, B-122222 (CITED IN 35 COMP. GEN. 489 AND ALSO IN B-135468, AUGUST 19, 1959) IT WAS STATED THAT:

ENTITLEMENT TO THE BENEFITS PROVIDED BY THE ACT DEPENDS UPON WHETHER AN ELECTION WAS MADE WITHIN THE TIME PERMITTED, AND COMPLIANCE WITH THE REGULATIONS IN PROPERLY EXECUTING AND SUBMITTING THE ELECTION OF OPTIONS FORM PRESCRIBED BY THE DEPARTMENT CONSTITUTES EVIDENCE OF A VALID ELECTION. HOWEVER, AN IMPROPER EXECUTION OF THE ELECTION OF OPTIONS FORM DOES NOT INVALIDATE AN OTHERWISE VALID ELECTION. REASONABLY, IN SUCH CASES, A VALID ELECTION IS TO BE REGARDED AS HAVING BEEN MADE WHERE THE RECORD SHOWS THAT THE RETIRED MEMBER HAD KNOWLEDGE OF HIS RIGHTS, AND HIS DUTY TO ELECT IF HE DESIRED THE BENEFITS OF THE LAW, AND HIS ACTS, VIEWED IN THE LIGHT OF ALL THE CIRCUMSTANCES, SHOW THAT HE INTENDED TO MAKE AN ELECTION. COMPARE 34 COMP. GEN. 35; 34 COMP. GEN. 63. ( ITALICS SUPPLIED.)

IT WILL BE OBSERVED THAT IN APPLYING THE RULE ABOVE QUOTED, THE SIGNATURE OF A MEMBER ON AN ELECTION FORM NOT INTENDED AS AN ELECTION DOES NOT ESTABLISH A VALID ELECTION OF OPTIONS AND, CONVERSELY, THAT THE ABSENCE OF SUCH A SIGNATURE DOES NOT FORECLOSE A VALID AND BINDING ELECTION OF OPTIONS WHEN "VIEWED IN THE LIGHT OF ALL THE CIRCUMSTANCES" THE MEMBER'S ACTS CLEARLY SHOW HIS INTENT TO MAKE SUCH AN ELECTION. THUS IN THE CASE OF WARRANT OFFICER PETTY, THE ELECTION OF OPTIONS FORM (OTHERWISE FULLY AND PROPERLY COMPLETED) WHICH HE MAILED ON APRIL 21, 1954, TO THE NAVY FINANCE CENTER--- THEREBY IRRETRIEVABLY RELINQUISHING CONTROL OF SAME PRIOR TO THE DEADLINE DATE OF APRIL 30, 1954--- REASONABLY IS TO BE CONSIDERED AS NOT ONLY ESTABLISHING HIS INTENT TO MAKE AN ELECTION OF OPTIONS BUT AS AN ACTUAL ELECTION. HIS SUBSEQUENT ACTIONS IN EXECUTING AND SIGNING AN ELECTION OF OPTIONS FORM AFTER THE DEADLINE DATE (CONSISTENT WITH HIS ACTIONS PRIOR THERETO) WAS CONFIRMATORY IN NATURE AND MAY BE CONSIDERED AS MERELY CORRECTING A FORMAL DEFECT IN AN OTHERWISE VALID AND BINDING ELECTION OF OPTIONS. THE ACTION TAKEN ADMINISTRATIVELY IN ESTABLISHING ANNUITY DEDUCTIONS IN HIS RETIRED PAY ACCOUNT EFFECTIVE FROM APRIL 1, 1954, IS DEEMED PROPER AND CORRECT.

THE SAME CONCLUSION IS REACHED WITH RESPECT TO LIEUTENANT EUBANKS WHOSE ACT OF SENDING A TELEGRAM ON APRIL 30, 1954 (THE DEADLINE DATE), TO THE NAVY FINANCE CENTER, SUBSEQUENTLY CONFIRMED AND CLARIFIED BY EXECUTING AND SIGNING AN ELECTION OF OPTIONS FORM--- THE FAILURE TO STATE IN THE TELEGRAM THE RATE OF REDUCED RETIRED PAY APPLICABLE TO THE ELECTION WAS NOT A FATAL DEFECT, 34 COMP. GEN. 63, 64--- WHEN "VIEWED IN THE LIGHT OF ALL THE CIRCUMSTANCES," REASONABLY MAY BE HELD TO CONSTITUTE A VALID AND BINDING ELECTION OF OPTIONS.