B-147095, SEP. 22, 1961

B-147095, SEP. 22, 1961

TO CAPTAIN S. NORTON, FC:

BY FIRST INDORSEMENT DATED AUGUST 29, 1961, THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER DATED AUGUST 4, 1961, WITH ENCLOSURES, SUBMITTING A VOUCHER IN THE AMOUNT OF $9.05 IN FAVOR OF MASTER SERGEANT (E-7) EDGAR A. POPE, RO 6 823 667, RETIRED, REPRESENTING RETIRED PAY WITHHELD FROM HIM FOR THE COST OF AN ANNUITY UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, FOR THE MONTH OF JULY 1961. AN ADVANCE DECISION AS TO THE PROPRIETY OF ESTABLISHING AN ELECTION UNDER THE 1953 LAW, BASED ON AVAILABLE EVIDENCE IN THIS CASE, IS REQUESTED. THE REQUEST WAS ASSIGNED DO NUMBER 603 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE FACTS STATED BELOW ARE THOSE FURNISHED WITH YOUR LETTER. SERGEANT POPE RETIRED DECEMBER 1, 1960. THE MEMBER COMPLETED DD FORM 418, DATA FOR PAYMENT OF RETIRED ARMED FORCES PERSONNEL, ON NOVEMBER 18, 1960, WHEREIN HE STATED THAT "I HAVE ELECTED TO PARTICIPATE IN THE UNIFORMED SERVICES CONTINGENCY OPTION ACT PROGRAM.' THE DATE OF THE ALLEGED ELECTION WAS NOT FURNISHED. DD FORM 424, INFORMATION FOR RETIREMENT PAY, DATED NOVEMBER 8, 1960, WAS RECEIVED INDICATING THAT NO DA FORM 1041, ELECTION OF OPTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, WAS ON FILE IN THE OFFICE OF THE ADJUTANT GENERAL. THE RETIRED MEMBER WAS REQUESTED TO FURNISH A COPY OF THE ELECTION OR AN AFFIDAVIT DISCLOSING THE FACTS OF THE ELECTION. THE MEMBER'S AFFIDAVIT DATED DECEMBER 19, 1960, STATED THAT HE COMPLETED A DA FORM 1041 ON OR ABOUT FEBRUARY OR MARCH 1954, AT FORT LEONARD WOOD, MISSOURI, AND NAMED CHIEF WARRANT OFFICER MCGRAW AS A WITNESS. THE ELECTION WAS ESTABLISHED, BASED ON THE AFFIDAVIT, EFFECTIVE DECEMBER 1, 1960.

THEREAFTER A DA FORM 1041 DATED FEBRUARY 26, 1954, WAS RECEIVED, WHEREIN THE MEMBER STATED THAT HE DID NOT DESIRE TO RECEIVE REDUCED RETIRED PAY IN ORDER TO PROVIDE AN ANNUITY FOR HIS DEPENDENTS. THE ADJUTANT GENERAL WAS INFORMED OF THE CIRCUMSTANCES IN THE CASE AND A SEARCH FOR A POSITIVE ELECTION WAS REQUESTED. ON MAY 24, 1961, THE COMMANDING OFFICER, FORT LEONARD WOOD, MISSOURI, ADVISED THAT THERE IS NO RECORD IN THAT HEADQUARTERS OF SERGEANT POPE INITIATING DA FORM 1041 AND THAT THERE ARE NO RECORDS AT THAT STATION OF A CHIEF WARRANT OFFICER MCGRAW. THE ELECTION WAS TERMINATED IN THE ABSENCE OF SUFFICIENT EVIDENCE TO SUBSTANTIATE A TIMELY AND VALID ELECTION.

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. UNDER THE LAW THE ELECTION OF AN "ACTIVE MEMBER" WITH OVER 18 YEARS OF SERVICE ON NOVEMBER 1, 1953 (APPARENTLY SERGEANT POPE'S STATUS), WAS REQUIRED TO BE FILED NOT LATER THAN NOVEMBER 1, 1954.

ALTHOUGH THE USE OF SECONDARY EVIDENCE IS NOT BARRED WHEN THE PRIMARY EVIDENCE CANNOT BE LOCATED BY THE ADMINISTRATIVE OFFICE DUE TO INADVERTENT LOSS OR DESTRUCTION, ANY DETERMINATION OF THE VALIDITY OF AN ELECTION ON THE BASIS OF SECONDARY EVIDENCE DEPENDS UPON THE DEGREE OF CERTAINTY OF SUCH EVIDENCE TO ESTABLISH THE NECESSARY FACTS. ON THE BASIS OF THE INFORMATION FURNISHED, IT CANNOT BE DETERMINED THAT SERGEANT POPE MADE A TIMELY ELECTION UNDER THE 1953 LAW AND DEDUCTIONS ARE NOT AUTHORIZED TO BE MADE ON THAT ACCOUNT FROM HIS RETIRED PAY.

ACCORDINGLY, PAYMENT IS AUTHORIZED ON THE VOUCHER WHICH IS RETURNED HEREWITH, IF OTHERWISE PROPER.