B-142791, JUN. 9, 1960

B-142791: Jun 9, 1960

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THE REQUEST FOR ADVANCE DECISION WAS ASSIGNED SUBMISSION NUMBER DO-N-500. COMMANDER PARNELL WAS TRANSFERRED TO THE RETIRED LIST EFFECTIVE APRIL 1. WAS SUBJECT TO THE APRIL 30. OPTION 4 WAS NOT ELECTED. DEDUCTIONS HAVE BEEN MADE ON THE BASIS OF AN ELECTION OF OPTIONS 1 AND 4 AT ONE-HALF REDUCED RETIRED PAY. COMMANDER PARNELL WAS ASKED TO CONFIRM HIS OPTIONS. CONFIRMING HIS DESIRE TO HAVE OPTIONS 1 AND 4 AT ONE-HALF REDUCED PAY. YOU POINT OUT THAT AS A RESULT OF A RECENT REVIEW OF HIS CASE IT WAS DEVELOPED THAT AT THE TIME COMMANDER PARNELL EXECUTED HIS ELECTION ON APRIL 23. HE DID NOT HAVE ANY CHILDREN WHO QUALIFIED AS ELIGIBLE BENEFICIARIES UNDER THE ACT AND THE ELECTION OF OPTION 2 COULD NOT HAVE BEEN MADE IN ANTICIPATION OF ACQUIRING ELIGIBLE CHILDREN SINCE ONLY THOSE CHILDREN WHO QUALIFIED ON NOVEMBER 1.

B-142791, JUN. 9, 1960

TO COMMANDER R. A. WILSON, DISBURSING OFFICER, SPECIAL PAYMENTS DEPARTMENT, U.S. NAVY FINANCE CENTER:

BY SECOND ENDORSEMENT DATED MAY 3, 1960, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF APRIL 11, 1960, REQUESTING AN ADVANCE DECISION AS TO THE LEGAL EFFECT OF ELECTIONS MADE BY COMMANDER ERIC PARNELL, USNR, RETIRED, UNDER THE PROVISION OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, NOW CODIFIED IN 10 U.S.C. 1431-1444. THE REQUEST FOR ADVANCE DECISION WAS ASSIGNED SUBMISSION NUMBER DO-N-500, BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

COMMANDER PARNELL WAS TRANSFERRED TO THE RETIRED LIST EFFECTIVE APRIL 1, 1948, AND WAS SUBJECT TO THE APRIL 30, 1954, DEADLINE FIXED BY THE STATUTE FOR MAKING AN ELECTION. ON APRIL 23, 1954, HE EXECUTED AN ELECTION OF OPTION 2 AT ONE-HALF OF REDUCED RETIRED PAY. HOWEVER, HE LISTED NO CHILDREN AND FURNISHED NO BIRTH CERTIFICATES. OPTION 4 WAS NOT ELECTED. BY TELEGRAM OF APRIL 30, 1954, TO COMMANDER PARNELL THE NAVY FINANCE CENTER EXPLAINED THE OPTIONS AND ASKED HIM TO ADVISE IMMEDIATELY BY LETTER HIS INTENTIONS. HE REPLIED BY LETTER DATED MAY 1, 1954, CHANGING HIS PREVIOUS DESIGNATION FROM OPTION 2 TO OPTIONS 1 AND 4 STATING THAT THE PREVIOUS OPTION HAD BEEN IN ERROR. FROM APRIL 1, 1954, DEDUCTIONS HAVE BEEN MADE ON THE BASIS OF AN ELECTION OF OPTIONS 1 AND 4 AT ONE-HALF REDUCED RETIRED PAY. BY NOTATION ON THE PAYROLL COMPUTING FORM PREPARED FOR JUNE, 1954, COMMANDER PARNELL WAS ASKED TO CONFIRM HIS OPTIONS. REPLIED BY LETTER DATED JUNE 14, 1954, CONFIRMING HIS DESIRE TO HAVE OPTIONS 1 AND 4 AT ONE-HALF REDUCED PAY.

YOU POINT OUT THAT AS A RESULT OF A RECENT REVIEW OF HIS CASE IT WAS DEVELOPED THAT AT THE TIME COMMANDER PARNELL EXECUTED HIS ELECTION ON APRIL 23, 1954, HE DID NOT HAVE ANY CHILDREN WHO QUALIFIED AS ELIGIBLE BENEFICIARIES UNDER THE ACT AND THE ELECTION OF OPTION 2 COULD NOT HAVE BEEN MADE IN ANTICIPATION OF ACQUIRING ELIGIBLE CHILDREN SINCE ONLY THOSE CHILDREN WHO QUALIFIED ON NOVEMBER 1, 1953, COULD BE CONSIDERED ELIGIBLE. YOU REQUEST A DECISION AS TO WHETHER ON THE FACTS PRESENTED, THE ORIGINAL ELECTION, AS SUBSEQUENTLY CLARIFIED, MAY BE CONSIDERED AS A VALID ELECTION OF OPTION 1 AT ONE-HALF REDUCED PAY. YOU INDICATE IN YOUR SUBMISSION THAT IN VIEW OF OUR DECISION B 141122, DATED JANUARY 6, 1960, IT CANNOT BE CONSIDERED THAT COMMANDER PARNELL COMBINED OPTION 4 WITH OPTION 1 SINCE OPTION 4 WAS NOT DESIGNATED ON HIS ORIGINAL ELECTION.

UNDER SECTION 4 OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, OPTIONS 1, 2 AND 3 MAY BE ELECTED SINGLY OR IN CERTAIN COMBINATIONS WITH OPTION 4. OPTION 1 PROVIDES AN ANNUITY PAYABLE TO OR ON BEHALF OF A WIDOW UNTIL HER REMARRIAGE OR DEATH. OPTION 2 PROVIDES AN ANNUITY PAYABLE TO AN ELIGIBLE CHILD OR CHILDREN UNDER 18 YEARS OF AGE. THE ACTION TAKEN BY COMMANDER PARNELL IN THE EXECUTION OF THE ELECTION FORM WITHIN THE PRESCRIBED TIME LIMITATION INDICATES A CLEAR INTENTION ON HIS PART TO APPLY FOR COVERAGE UNDER THE ACT. THE OFFICER HAD NO CHILDREN ELIGIBLE FOR AN ANNUITY ON APRIL 23, 1954, DATE OF HIS ORIGINAL ELECTION, AND COULD ACQUIRE NONE FOR PURPOSES OF THE 1953 ACT, AND THE ELECTION FORM CONTAINS NO REFERENCE TO THE NAMES AND AGES OF CHILDREN, WHICH INFORMATION IS REQUIRED WHEN OPTION 2 (ANNUITY FOR DEPENDENT CHILDREN) IS ELECTED. THE OTHER HAND THE FORM CONTAINS THE NAME AND AGE OF HIS WIFE AND, ASIDE FROM THE SELECTION OF OPTION 2, IS ENTIRELY ADEQUATE TO SUPPORT A VALID ELECTION OF OPTION 1 TO PROVIDE AN ANNUITY FOR HIS WIFE. THE ELECTION WAS SUBSEQUENTLY CLARIFIED SHOWING THE OFFICER'S ORIGINAL INTENTION AS INDICATED IN HIS LETTERS OF MAY 1 AND JUNE 14, 1954, TO REFLECT SELECTION OF OPTION 1, ANNUITY TO HIS WIFE. THESE LETTERS REASONABLY MAY BE ACCEPTED AS A SUBSTANTIALLY CONTEMPORANEOUS CORRECTION OF A PATENT ERROR IN THE ELECTION OF APRIL 23, 1954, RATHER THAN A WHOLLY NEW ELECTION MADE AFTER THE EXPIRATION OF THE TIME LIMITATION FIXED BY THE STATUTE WHICH WOULD HAVE MADE IT INEFFECTIVE. SEE 36 COMP. GEN. 764 AND 39 COMP. GEN. 481, AND THE CASES THERE CITED. IN SUCH CIRCUMSTANCES WE BELIEVE THE OFFICER IS TO BE REGARDED AS HAVING MADE A VALID ELECTION OF OPTION 1 TO PROVIDE AN ANNUITY FOR HIS WIFE.

SECTION 3 (B) OF THE 1953 ACT, PROVIDES THAT AN ELECTION ONCE MADE BY A RETIRED MEMBER SHALL THEREAFTER BE IRREVOCABLE. WITH RESPECT TO THE ATTEMPTED COMBINATION OF OPTION 4 WITH OPTION 1 AS INDICATED IN THE ABOVE- CLARIFYING LETTERS, SINCE OPTION 4 WAS NOT A PART OF THE ORIGINAL ELECTION THE CLARIFYING LETTERS MAY NOT BE VIEWED AS A CORRECTION OF A PATENT ERROR, INSOFAR AS OPTION 4 IS CONCERNED, BUT RATHER A NEW OR ADDITIONAL ELECTION MADE AFTER FURTHER DELIBERATION SUBSEQUENT TO THE EXPIRATION OF THE TIME ALLOWED FOR MAKING A VALID ELECTION. SEE DECISION TO YOU OF JANUARY 6, 1960, B-141122.

ACCORDINGLY, AN ADJUSTMENT SHOULD BE MADE IN THE OFFICER'S RETIRED PAY ON THE BASIS OF OPTION 1 RATHER THAN OPTION 1 COMBINED WITH OPTION 4, EFFECTIVE FROM APRIL 1, 1954.