B-148250, MARCH 30, 1962, 41 COMP. GEN. 633

B-148250: Mar 30, 1962

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - INCOMPETENTS - TIME FOR ELECTION WHERE THERE IS A DELAY OF 4 MONTHS BETWEEN THE TIME THE WIFE OF A MARINE CORPS MEMBER. THE TIME FINAL ACTION ON THE ELECTION WAS TAKEN BY THE SECRETARY BECAUSE OF THE INADVERTENT HANDLING OF THE MEMBER'S FILE. WAS ENACTED RESTRICTING PARTICIPATION BY MEMBERS WITH LESS THAN 18 YEARS OF SERVICE. THE ELECTION IS REGARDED AS TIMELY AND AS EFFECTIVE FROM THE DATE OF THE MEMBER'S RETIREMENT SO THAT THE RESTRICTIONS IN 10 U.S.C. 1446 ARE NOT FOR APPLICATION. - REQUESTS DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE SURVIVOR ANNUITY PAYMENTS UNDER CHAPTER 73. YOU STATE THAT PRIVATE FIRST CLASS MCMILLAN WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST OF THE U.S.

B-148250, MARCH 30, 1962, 41 COMP. GEN. 633

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - INCOMPETENTS - TIME FOR ELECTION WHERE THERE IS A DELAY OF 4 MONTHS BETWEEN THE TIME THE WIFE OF A MARINE CORPS MEMBER, WITH LESS THAN 18 YEARS OF SERVICE, SELECTED A SURVIVOR ANNUITY OPTION AND REQUESTED THE SECRETARY OF THE NAVY TO MAKE AN ELECTION ON BEHALF OF THE MEMBER WHO, ON THE SAME DAY, HAD BEEN DETERMINED MENTALLY INCOMPETENT AND PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, AND THE TIME FINAL ACTION ON THE ELECTION WAS TAKEN BY THE SECRETARY BECAUSE OF THE INADVERTENT HANDLING OF THE MEMBER'S FILE, DURING WHICH TIME THE MEMBER DIED AND PUBLIC LAW 87-381, APPROVED OCTOBER 4, 1961, 10 U.S.C. 1446, WAS ENACTED RESTRICTING PARTICIPATION BY MEMBERS WITH LESS THAN 18 YEARS OF SERVICE, THE DELAY SHOULD NOT BE IMPUTED TO THE WIDOW TO VITIATE ANY RIGHTS THAT HAD BEEN TIMELY PERFECTED BUT FOR THE ADMINISTRATIVE DELAY; THEREFORE, THE ELECTION IS REGARDED AS TIMELY AND AS EFFECTIVE FROM THE DATE OF THE MEMBER'S RETIREMENT SO THAT THE RESTRICTIONS IN 10 U.S.C. 1446 ARE NOT FOR APPLICATION.

TO MAJOR JOHN A. RAPP, UNITED STATES MARINE CORPS, MARCH 30, 1962:

YOUR LETTER OF FEBRUARY 18, 1962--- TRANSMITTED HERE BY FIRST ENDORSEMENT DATED FEBRUARY 19, 1962, BY THE COMMANDANT OF THE MARINE CORPS (UNDER NO. DO-MC-631 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE/--- REQUESTS DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE SURVIVOR ANNUITY PAYMENTS UNDER CHAPTER 73, TITLE 10, U.S. CODE, FROM AND AFTER SEPTEMBER 1961 TO JOAN D. MCMILLAN, WIDOW OF PRIVATE FIRST CLASS DAVID B. MCMILLAN, 1458120, U.S. MARINE CORPS, RETIRED.

YOU STATE THAT PRIVATE FIRST CLASS MCMILLAN WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST OF THE U.S. MARINE CORPS ON AUGUST 17, 1961, UNDER 10 U.S.C. 1202; THAT AT THE TIME OF HIS TRANSFER HE HAD COMPLETED LESS THAN 18 YEARS OF SERVICE FOR BASIC PAY PURPOSES AND THAT HE WAS UNCONSCIOUS FROM AUGUST 17, 1961, TO THE DATE OF HIS DEATH SEPTEMBER 6, 1961. IT IS STATED FURTHER THAT ON AUGUST 18, 1961, JOAN B. MCMILLAN CONFIRMED IN WRITING HER MESSAGE REQUEST OF AUGUST 17, 1961, THAT THE SECRETARY OF THE NAVY ELECT SURVIVOR ANNUITY ON BEHALF OF HER HUSBAND IN ACCORDANCE WITH 10 U.S.C. 1433; THAT MRS. MCMILLAN'S LETTER WAS FORWARDED BY HEADQUARTERS, MARINE CORPS, ON DECEMBER 8, 1961, TO THE SECRETARY OF THE NAVY AND THAT THE UNDER SECRETARY OF THE NAVY ELECTED SURVIVOR ANNUITY FOR PRIVATE FIRST CLASS MCMILLAN ON DECEMBER 8, 1961 (3 MONTHS AND 21 DAYS FOLLOWING HIS RETIREMENT AND OVER 3 MONTHS AFTER HIS DEATH).

YOU CITE OUR DECISION 39 COMP. GEN. 790 AS AFFORDING SOME BASIS FOR CONCLUDING THAT THE SECRETARIAL ELECTION HEREIN WAS MADE IN SUFFICIENT TIME TO BE EFFECTIVE, BUT YOU INFER THAT DOUBT REMAINS, SINCE THAT DECISION IS CONFINED TO ITS PARTICULAR FACTS AND CIRCUMSTANCES. QUESTION IS RAISED AS TO THE APPLICABILITY OF SECTION 1446 OF TITLE 10, U.S. CODE, AS ADDED BY SECTION 6 OF THE ACT OF OCTOBER 4, 1961, PUBLIC LAW 87-381, 75 STAT. 811, WHICH RESTRICTS PARTICIPATION IN THE ANNUITIES AUTHORIZED IN CHAPTER 73, 10 U.S. CODE, BY BENEFICIARIES OF MEMBERS WITH LESS THAN 18 YEARS OF SERVICE WHO ARE ELIGIBLE FOR BENEFITS UNDER CHAPTER 11 OR 13 OF TITLE 38, U.S.C.

TWO ISSUES ARE PRESENTED FOR RESOLUTION BY YOUR SUBMISSION, (1) WHETHER THE ELECTION MADE BY THE SECRETARY UNDER 10 U.S.C. 1443 WAS EFFECTIVE AND, (2) IF EFFECTIVE, WHETHER IT BECAME SO BEFORE OR AFTER OCTOBER 4, 1961, THE DATE PUBLIC LAW 87-381 WAS APPROVED.

SECTION 1433 OF TITLE 10, U.S. CODE, WHICH WAS NOT CHANGED BY THE ACT OF OCTOBER 4, 1961, PROVIDES AS FOLLOWS:

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. IF THE PERSON FOR WHOM THE SECRETARY HAS MADE AN ELECTION IS LATER DETERMINED TO BE MENTALLY COMPETENT BY MEDICAL OFFICERS OF THE VETERANS' ADMINISTRATION OR BY A COURT OF COMPETENT JURISDICTION, HE MAY, WITHIN 180 DAYS AFTER THAT DETERMINATION, CHANGE OR REVOKE THAT ELECTION. HOWEVER, DEDUCTIONS MADE FROM HIS RETIRED OR RETAINER PAY BEFORE THAT DATE MAY NOT BE REFUNDED.

SUBSECTIONS 3E (1) AND (2) OF PARAGRAPH 11204 OF THE MARINE CORPS PERSONNEL MANUAL PROVIDE AS FOLLOWS:

(1) IF A MARINE ON ACTIVE DUTY HAS BEEN DETERMINED TO BE MENTALLY INCOMPETENT BY MEDICAL OFFICERS OF THE NAVY DEPARTMENT OR OF THE VETERANS' ADMINISTRATION OR HAS BEEN ADJUDGED MENTALLY INCOMPETENT BY A COURT OF COMPETENT JURISDICTION, AND BECAUSE OF SUCH MENTAL INCOMPETENCY IS INCAPABLE OF MAKING ANY ELECTION WITHIN THE TIME LIMITATIONS PRESCRIBED, THE SECRETARY OF THE NAVY MAY MAKE THE APPROPRIATE ELECTION ON BEHALF OF THE MARINE IF SO REQUESTED BY THE MARINE'S SPOUSE OR, IF NOT MARRIED, BY OR ON BEHALF OF HIS CHILDREN.

(2) IF A MARINE HAS BEEN DECLARED TO BE MENTALLY INCOMPETENT, IT IS THE RESPONSIBILITY OF HIS COMMANDER TO INFORM THE WIFE AND/OR CHILDREN OR THEIR LEGAL GUARDIAN OF THEIR RIGHTS IN THIS RESPECT.

UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, 10 U.S.C. 1431, AN ACTIVE MEMBER WHO WISHES TO MAKE AN ELECTION OF BENEFITS IN FAVOR OF HIS DEPENDENTS, MUST TAKE SUCH ACTION PRIOR TO COMPLETING 18 YEARS OF CREDITABLE SERVICE UNLESS HE IS AWARDED RETIRED PAY FOR PHYSICAL DISABILITY BEFORE THAT TIME, IN WHICH EVENT THE ELECTION MAY BE MADE "AT THE TIME OF RETIREMENT.' THE PROVISIONS OF 10 U.S.C. 1431 IN EFFECT IN AUGUST AND SEPTEMBER 1961 PROVIDED THAT TO BE EFFECTIVE AN ELECTION MUST BE MADE BEFORE THE COMPLETION OF 18 YEARS OF SERVICE AND THAT MEMBERS ON THE RETIRED LIST ARE INELIGIBLE TO MAKE ELECTIONS. HENCE, UNDER THOSE PROVISIONS IT APPEARS THAT TO BE EFFECTIVE AN ELECTION HAD TO BE MADE BEFORE THE COMPLETION OF 18 YEARS' SERVICE OR BEFORE RETIREMENT WHICHEVER OCCURRED FIRST. IN ORDER TO FURNISH A BASIS FOR A SECRETARIAL ELECTION AFTER A MEMBER'S RETIREMENT FOR PHYSICAL DISABILITY, IT IS NECESSARY THAT MEDICAL OFFICERS OF THE DEPARTMENT CONCERNED DETERMINE BEFORE HIS RETIREMENT THAT HE IS INCOMPETENT TO HANDLE HIS PERSONAL AND BUSINESS AFFAIRS. A FINDING OF INCOMPETENCY AT THE TIME OF DISABILITY RETIREMENT WOULD EXTEND THE TIME FOR MAKING AN ELECTION FOR A REASONABLE PERIOD TO PERMIT SECRETARIAL ACTION AT THE REQUEST OF THE MEMBER'S SPOUSE, CHILD OR CHILDREN.

IN 39 COMP. GEN. 790 IT WAS POINTED OUT THAT NEITHER 10 U.S.C. 1433 NOR THE REGULATIONS FOR THE ADMINISTRATION OF THE PERTINENT LAW CONTAIN 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 AND THAT 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.

COPY OF MARINE CORPS MESSAGES DATED AUGUST 17, 1961, ENCLOSED WITH YOUR SUBMISSION, FROM THE COMMANDANT OF THE MARINE CORPS TO THE NAVY HOSPITAL, YOKOSUKA, ADVISED THAT MEMBER WAS PLACED ON TEMPORARY DISABILITY RETIRED LIST EFFECTIVE AUGUST 17, 1961, WITH 100 PERCENT PHYSICAL DISABILITY. MESSAGE OF SAME DATE ADDRESSED TO THE SECRETARY OF THE NAVY BY THE COMMANDANT OF THE MARINE CORPS ADVISED THE SECRETARY THAT THE WIFE OF THE MEMBER REQUESTED ELECTION OF OPTION 1 AT ONE-HALF REDUCED RETIRED PAY UNDER PROVISIONS OF SECTION 1433 OF TITLE 10, U.S. CODE, AND THAT THE MARINE CORPS HEADQUARTERS CONSIDERED THE MEMBER MENTALLY INCOMPETENT WITHIN THE CONTEMPLATION OF SECTION 1433 IN THAT THE HOSPITAL ADVISED OF MEDICAL FACT AND OPINION THAT THE MEMBER WAS PRESENTLY UNCONSCIOUS AND PROBABLY WOULD NOT REGAIN CONSCIOUSNESS PRIOR TO DEATH, WHICH WAS IMMINENT. WHILE THE SUBMISSION CONTAINS NO INFORMATION AS TO WHY THE WIFE'S CONFIRMATORY REQUEST DATED AUGUST 18, 1961, TO THE SECRETARY OF THE NAVY WAS NOT FORWARDED FOR HIS ACTION BY THE COMMANDANT OF THE MARINE CORPS UNTIL DECEMBER 8, 1961, IT HAS BEEN ASCERTAINED INFORMALLY THAT THE DELAY WAS OCCASIONED BY INADVERTENT HANDLING IN PROCESSING THE MEMBER'S FILE.

A DETERMINATION OF WHAT IS A REASONABLE TIME FOR SECRETARIAL ACTION IS FOR CONSIDERATION IN THE LIGHT OF THE CIRCUMSTANCES SURROUNDING THE CASE. IN THE CIRCUMSTANCES DISCLOSED A DETERMINATION OF INCOMPETENCY WAS MADE AT THE TIME OF THE MEMBER'S TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST. SIMULTANEOUSLY, THE WIFE'S SELECTION OF OPTION AND REQUEST FOR ELECTION BY THE SECRETARY WAS MADE BY A MESSAGE FORM COMMUNICATION TO THAT OFFICIAL WITH A SIGNED CONFIRMATION PLACED IN OFFICIAL CHANNELS THE FOLLOWING DAY. THE DELAY BEFORE FINAL ACTION BY THE SECRETARY CANNOT BE IMPUTED TO THE MEMBER'S WIDOW AND SHOULD NOT BE PERMITTED TO VITIATE ANY RIGHTS THAT HAD BEEN TIMELY PERFECTED BUT FOR ADMINISTRATIVE DELAY IN ACTING UPON HER REQUEST.

IT IS OUR VIEW THAT THE PARTICULAR FACTS AND CIRCUMSTANCES OF THIS CASE DO NOT WARRANT A CONCLUSION THAT THE SECRETARIAL ELECTION OF DECEMBER 8, 1961, WAS NOT TIMELY MADE. AN ELECTION TIMELY MADE IN THESE CIRCUMSTANCES BECOMES EFFECTIVE AS OF THE DATE OF RETIREMENT. 37 COMP. GEN. 515. HAVING BEEN TRANSFERRED TO THE TEMPORARY RETIRED LIST ON AUGUST 17, 1961, WITH ALL MEASURES TAKEN SIMULTANEOUSLY TO AFFORD A PROPER ELECTION OF ANNUITY, SUCH ELECTION, WHEN MADE BY THE SECRETARY, BECAME EFFECTIVE ON AUGUST 17, 1961, THE DATE OF RETIREMENT. ACCORDINGLY, THE ELECTION MAY BE CONSIDERED AS HAVING APPLICABLE TO IT ALL THE PERTINENT PROVISIONS OF CHAPTER 73 OF TITLE 10, U.S. CODE, EXISTING PRIOR TO THE DATE OF ENACTMENT OF PUBLIC LAW 87-381, APPROVED OCTOBER 4, 1961, AND THEREFORE NOT SUBJECT TO THE LIMITATIONS SET OUT IN 10 U.S.C. 1446.

PAYMENT OF SURVIVOR ANNUITY PAYMENTS MAY BE MADE TO THE WIDOW, IF OTHERWISE PROPER.