B-142361, MAY 25, 1960, 39 COMP. GEN. 790

B-142361, MAY 25, 1960, 39 COMP. GEN. 790

MILITARY PERSONNEL - RETIRED PAY - ANNUITY ELECTIONS FOR DEPENDENTS - INCOMPETENT MEMBERS A SURVIVORSHIP ANNUITY ELECTION ON BEHALF OF A MENTALLY INCOMPETENT MEMBER OF THE UNIFORMED SERVICES, WHICH WAS MADE BY THE SECRETARY OF ARMY FIVE MONTHS AFTER THE MEMBER WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST AND SUBSEQUENT TO THE MEMBER'S DEATH DUE TO A DELAY IN ACTING ON THE WIFE'S REQUEST FOR AN ANNUITY IN ORDER TO OBTAIN VERIFICATION OF THE AGES OF THE BENEFICIARIES WHO WERE BORN IN A FOREIGN COUNTRY, MAY BE REGARDED AS A TIMELY ELECTION IN THE ABSENCE OF ANY SPECIFIC PROVISION CONCERNING THE TIME WITHIN WHICH AN ELECTION BY A DEPARTMENT HEAD ON BEHALF OF AN INCOMPETENT MEMBER MUST BE MADE AND IN VIEW OF THE NECESSITY TO CONSIDER THE TIME FOR CORRESPONDENCE INVOLVED IN THIS PARTICULAR CASE.

TO LIEUTENANT COLONEL R. H. MACPHERSON, DEPARTMENT OF THE ARMY, MAY 25, 1960:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 8, 1960, FORWARDED HERE BY THE OFFICE OF THE CHIEF OF FINANCE ON MARCH 21, 1960, REQUESTING A DECISION WHETHER YOU ARE AUTHORIZED TO PAY THE ENCLOSED VOUCHER IN THE CASE OF PRIVATE FIRST CLASS EDWARD DUCHNOFSKY, REPRESENTING THE INITIAL ANNUITY PAYMENT TO HIS WIDOW FOR SEPTEMBER 1959. THE SUBMISSION WAS ALLOCATED D.O. NO. 488 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT THE FORMER SERVICE MEMBER WAS ADMINISTRATIVELY DETERMINED TO BE MENTALLY INCOMPETENT ON JUNE 9, 1959, AND WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE JUNE 10, 1959, WITH A DISABILITY RATING OF 100 PERCENTUM BY LETTER ORDER BEARING THE SAME DATE.

IT FURTHER APPEARS THAT PRIVATE DUCHNOFSKY WAS MARRIED TO A JAPANESE GIRL, SUZUKO SHIMIZU DUCHNOFSKY. SHE WAS EN ROUTE TO THE UNITED STATES AT THE TIME THE SERVICE MEMBER WAS PLACED ON THE RETIRED LIST. ON JULY 24, 1959, MRS. DUCHNOFSKY COMPLETED FC USA FORM 20-82, REQUESTING THAT THE SECRETARY OF THE ARMY MAKE AN ELECTION ON BEHALF OF HER HUSBAND OF OPTIONS 3 AND 4 AT THE ONE-HALF RATE, UNDER WHAT WAS FORMERLY THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953. BY LETTER DATED AUGUST 6, 1959, SHE WAS REQUESTED TO FURNISH BIRTH CERTIFICATES. UPON RECEIPT OF THE ORIGINAL BIRTH CERTIFICATES THEY WERE FORWARDED TO THE OFFICE OF THE ADJUTANT GENERAL ON SEPTEMBER 30, 1959, FOR TRANSLATION AS THE INFORMATION FURNISHED WAS WRITTEN IN JAPANESE. THE BIRTH CERTIFICATES WERE TRANSLATED AND RETURNED AND THE ELECTION WAS SIGNED BY THE COMMANDING GENERAL, FINANCE CENTER, U.S. ARMY, ACTING FOR THE SECRETARY OF THE ARMY, ON NOVEMBER 12, 1959. THE RETIRED MEMBER DIED ON SEPTEMBER 27, 1959.

IN 34 COMP. GEN. 582, IT WAS NECESSARY TO DETERMINE THE MEANING AND INTENT OF THE STATUTORY PROVISION THAT A FORMER MEMBER OF THE UNIFORMED SERVICES ON NOVEMBER 1, 1953, AWARDED RETIRED PAY AFTER THAT DATE, MIGHT MAKE AN ELECTION TO PROVIDE AN ANNUITY FOR HIS SURVIVORS "AT THE TIME" HE IS AWARDED RETIRED PAY. SINCE THE ELECTIONS OF OPTIONS OF THE PERSONS THERE INVOLVED WERE MADE MORE THAN 30 DAYS AFTER THE DATES OF THE LETTERS NOTIFYING THEM OF AN AWARD OF RETIRED PAY, IT WAS CONCLUDED THAT THEIR ELECTIONS COULD NOT REASONABLY BE CONSIDERED TO HAVE BEEN MADE "AT THE TIME" OF SUCH AWARD AND THAT, THEREFORE, THE ELECTIONS COULD NOT BE CONSIDERED VALID UNDER THE TERMS OF THE STATUTE. HOWEVER, THAT DECISION IS NOT FOR APPLICATION IN THE CASE OF A MEMBER DETERMINED TO BE INCOMPETENT BY PROPER ADMINISTRATIVE AUTHORITY AT THE TIME OF HIS RETIREMENT FOR DISABILITY, AND WHO FOR THAT REASON CANNOT MAKE AN ELECTION WITHIN THE PRESCRIBED TIME.

SECTION 3 (C) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 (NOW 10 U.S.C. 1433) PROVIDES AS FOLLOWS (QUOTING FROM 10 U.S.C. 1433):

IF A PERSON WHO WOULD BE ENTITLED TO MAKE AN ELECTION UNDER SECTION 1431 OR 1432 OF THIS TITLE IS DETERMINED TO BE MENTALLY INCOMPETENT BY MEDICAL OFFICERS OF THE ARMED FORCE CONCERNED OR OF THE VETERANS' ADMINISTRATION, OR BY A COURT OF COMPETENT JURISDICTION, AND FOR THAT REASON CANNOT MAKE THE ELECTION WITHIN THE PRESCRIBED TIME, THE SECRETARY CONCERNED MAY MAKE AN ELECTION FOR THAT PERSON UPON THE REQUEST OF HIS SPOUSE OR, IF THERE IS NO SPOUSE, OF HIS CHILDREN WHO WOULD BE ELIGIBLE TO BE MADE BENEFICIARIES UNDER SECTION 1435 OF THIS TITLE. * * *

THE QUOTED PROVISIONS OF LAW DO NOT PERMIT A WIDOW TO MAKE AN ELECTION OF OPTIONS, EITHER IN HER OWN RIGHT OR AS GUARDIAN, TRUSTEE, OR COMMITTEE OF HER HUSBAND'S ESTATE. SHE IS PERMITTED TO REQUEST THE SECRETARIAL ACTION AND INDICATE HER PREFERENCE; BUT IT IS THE SECRETARY OF THE DEPARTMENT CONCERNED WHO MAKES THE ACTUAL ELECTION. SHE SHOULD SUBMIT HER REQUEST AS PROMPTLY AS POSSIBLE AND IF ACTION IS TAKEN ON SUCH REQUEST WITHIN A REASONABLE TIME AFTER THE MEMBER'S RETIREMENT, THE ELECTION MAY BE MADE EFFECTIVE AS OF THE DATE OF HIS RETIREMENT, EVEN THOUGH THE MEMBER DIES BEFORE ACTION IS TAKEN. 37 COMP. GEN. 515.

NEITHER 10 U.S.C. 1433 NOR THE REGULATIONS FOR THE ADMINISTRATION OF THE PERTINENT LAW CONTAINS ANY SPECIFIC PROVISION CONCERNING THE TIME WITHIN WHICH AN ELECTION BY A DEPARTMENT HEAD ON BEHALF OF THE INCOMPETENT MEMBER SHALL BE MADE IN ORDER TO BECOME EFFECTIVE. THE PLAIN PURPOSE OF THE STATUTORY PROVISION IS TO AFFORD 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 OTHERWISE REQUIRED IN THE STATUTE.

PARAGRAPH 16-144F/2), ARMY REGULATIONS 37-104, PROVIDES THAT WHEN A MEMBER IS DETERMINED TO BE MENTALLY INCOMPETENT AT THE TIME OF HIS RETIREMENT, THE COMMANDING GENERAL, FINANCE CENTER, U.S. ARMY, MUST BE SO ADVISED AND THAT HE THEN SHOULD AFFORD THE WIDOW AN OPPORTUNITY TO REQUEST SECRETARIAL ACTION UNDER THE ABOVE-QUOTED PROVISIONS OF LAW. OBVIOUSLY, CONSIDERATION MUST BE GIVEN TO THE TIME ELEMENT INVOLVED IN SUCH CORRESPONDENCE AND SOME TIME MUST BE ALLOWED THE WIDOW TO CONSIDER THE CHOICE OF ELECTIONS WHICH ARE AUTHORIZED. MRS. DUCHNOFSKY WAS NOT IN THE UNITED STATES WHEN HER HUSBAND WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST AND IT APPEARS THAT SHE HAD LITTLE KNOWLEDGE OF THE ENGLISH LANGUAGE. THE RECORD SHOWS THAT FORM 20-82, WHICH WAS MAILED TO HER AND WHICH ADVISED HER AS TO HER RIGHTS IN THE PREMISES, BEARS THE DATE OF JULY 20, 1959. SHE REQUESTED SECRETARIAL ACTION FOUR DAYS LATER. WHILE THERE WAS SOME DELAY IN ACTING ON HER REQUEST, SUCH DELAY APPEARS TO HAVE BEEN THE RESULT OF A BELIEF THAT NO ACTION SHOULD BE TAKEN ON HER REQUEST UNTIL THE AGES OF THE BENEFICIARIES COULD BE VERIFIED AND THE AMOUNT OF THE ANNUITY THUS DEFINITELY DETERMINED.

WHILE THE MATTER IS NOT ENTIRELY FREE FROM DOUBT, IT IS OUR VIEW THAT THE PARTICULAR FACTS AND CIRCUMSTANCES OF THIS CASE DO NOT WARRANT THE CONCLUSION THAT THE SECRETARIAL ELECTION OF NOVEMBER 12, 1959, WAS NOT TIMELY MADE.

PAYMENT ON THE VOUCHER WHICH, TOGETHER WITH THE PERTINENT PAPERS, IS RETURNED HEREWITH MAY BE MADE, IF OTHERWISE CORRECT.