B-149044, JUL. 9, 1962

B-149044, JUL. 9, 1962

TO COLONEL WEBSTER MILLS:

YOUR LETTER OF MAY 10, 1962, FINCS-EF, FORWARDED HERE BY FIRST INDORSEMENT OF MAY 28, 1962, FROM THE OFFICE OF THE CHIEF OF FINANCE, INDORSEMENT OF MAY 28, 1962, FROM THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, UNDER D.O. NO. 653 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REQUESTS DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER TOTALING $79.60 IN THE CASE OF SERGEANT FIRST CLASS HOWARD W. WILSON, RA 39 375 569, RETIRED, MENTALLY INCOMPETENT, DECEASED, REPRESENTING ANNUITY PAYMENT TO HIS WIDOW UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, FORMERLY THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, FOR THE PERIOD FROM APRIL 1, 1962, THROUGH APRIL 30, 1962.

YOU STATE THAT SERGEANT WILSON WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE 2400 HOURS ON OCTOBER 3, 1961, UNDER THE PROVISIONS OF SECTION 1202, TITLE 10, U.S. CODE, BY REASON OF 100 PERCENT DISABILITY; THAT AT SUCH TIME HE HAD COMPLETED LESS THAN 18 YEARS OF SERVICE FOR BASIC PAY PURPOSES; THAT AT THAT TIME HE WAS CONSIDERED TO BE MENTALLY INCOMPETENT; AND THAT HE DIED AT 1625 HOURS ON OCTOBER 4, 1961, AS THE RESULT OF A GUNSHOT WOULD SELF-INFLICTED ON OCTOBER 2, 1961, WHILE MENTALLY UNSOUND.

YOU STATE FURTHER THAT MRS. PERSIS M. WILSON, WIDOW OF SERGEANT WILSON,SIGNED DA FORM 1041 INDICATING HER DESIRE FOR AN ELECTION OF OPTION 1 AT ONE-HALF REDUCED RETIRED PAY UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, AND THAT, ALTHOUGH THE DA FORM 1041 BEARS THE DATE OF OCTOBER 4, 1961, A STATEMENT DATED NOVEMBER 3, 1961, (ACTUALLY DATED NOVEMBER 21, 1961), SIGNED BY CAPTAIN ROBERT H. DAINE, MSC, CHIEF, REGISTRAR DIVISION, U.S. ARMY HOSPITAL, FORT LEONARD WOOD, MISSOURI, THE SAME OFFICER WHO WITNESSED DA FORM 1041 DATED OCTOBER 4, 1961, INDICATES THAT MRS. WILSON ACTUALLY SIGNED THE DA FORM 1041 AT APPROXIMATELY 1630 HOURS ON OCTOBER 3, 1961. IN SUCH STATEMENT, CAPTAIN DAINE SAYS THAT AT APPROXIMATELY 2400 HOURS ON OCTOBER 3, 1961, HE PERSONALLY MAILED "AT THE POST'S MAIN POST OFFICE, THE DA FORM 1041 AS WELL AS A LETTER TO THE VETERANS ADMINISTRATION.'

SUBSEQUENTLY, MRS. WILSON WAS FURNISHED AN FCUSA FORM 20-82, ELECTION OF OPTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, AND SHE AGAIN REQUESTED ELECTION OF OPTION 1 AT ONE-HALF REDUCED RETIRED PAY. THE FCUSA FORM 20-82 BEARS THE DATE OF OCTOBER 26, 1961. YOU SAY THAT ON THE BASIS OF MRS. WILSON'S ORIGINAL REQUEST FOR ELECTION ON DA FORM 1041 DATED OCTOBER 4, 1961, THE COMMANDING GENERAL MADE ELECTION DATED MARCH 20, 1962, OF OPTION 1 AT ONE-HALF REDUCED RETIRED PAY ON BEHALF OF MRS. WILSON. YOU SAY FURTHER THAT COMPUTATION OF THE COST OF ELECTION AND ANNUITY PAYABLE WAS BASED ON REDUCTION FACTOR IN EFFECT PRIOR TO OCTOBER 4, 1961, AND THAT THE ANNUITY HAS BEEN PAID FOR THE PERIOD FROM OCTOBER 1, 1961, THROUGH MARCH 31, 1962.

YOU CITE OUR DECISION OF APRIL 2, 1954, B-118468, 33 COMP. GEN. 428, WHERE IT WAS HELD THAT AN ELECTION MADE BY THE HEAD OF THE DEPARTMENT CONCERNED ON BEHALF OF AN INCOMPETENT MEMBER OF THE UNIFORMED SERVICES, AT THE REQUEST OF THE MEMBER'S SPOUSE OR CHILD, AS AUTHORIZED BY SECTION 3 (C) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, MAY BE MADE EFFECTIVE AS OF THE DATE THE MEMBER'S ELECTION WOULD HAVE BEEN EFFECTIVE HAD THE MEMBER BEEN COMPETENT AND MADE AN ELECTION AT THE TIME OF THE DEPENDENT'S REQUEST. YOU SAY THAT IN VIEW OF SUCH DECISION IT WOULD APPEAR THAT THE EFFECTIVE DATE OF THE ELECTION IS THE DATE OF MRS. WILSON'S ORIGINAL INDICATION THAT SHE DESIRED AN ELECTION TO BE MADE ON HER BEHALF, EITHER OCTOBER 3, 1961, OR OCTOBER 4, 1961.

YOU RAISE A QUESTION, HOWEVER, AS TO THE APPLICABILITY OF SECTION 1446 OF CHAPTER 73 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 PROVIDES THAT IN THE CASE OF A PERSON WHO, AFTER APPROPRIATE ELECTION UNDER THAT CHAPTER, IS RETIRED FOR PHYSICAL DISABILITY BEFORE HE COMPLETES 18 YEARS OF SERVICE FOR WHICH HE IS ENTITLED TO CREDIT IN THE COMPUTATION OF HIS BASIC PAY, AND THEREAFTER DIES, HIS BENEFICIARIES ARE NOT ENTITLED TO THE ANNUITIES PROVIDED FOR UNDER THAT CHAPTER UNTIL THEY GIVE PROOF TO THE DEPARTMENT CONCERNED THAT THEY ARE NOT ELIGIBLE FOR BENEFITS UNDER CHAPTER 11 OR 13 OF TITLE 38, U.S.C. YOU SAY THAT IF PUBLIC LAW 87-381 IS FOR APPLICATION AND THE DATE OF OCTOBER 4, 1961, IS TO BE ACCEPTED AS THE DATE MRS. WILSON ACTUALLY SIGNED THE DA FORM 1041, HER FIRST INDICATION THAT SHE DESIRED AN ELECTION FOR ANNUITY BENEFITS TO BE MADE ON HER BEHALF, IT APPEARS SHE IS NOT ENTITLED TO RECEIVE AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN DUE TO HER APPARENT ELIGIBILITY TO RECEIVE DEPENDENCY AND INDEMNITY COMPENSATION FROM THE VETERANS ADMINISTRATION UNDER THE PROVISIONS OF CHAPTER 13 OF TITLE 38, U.S.C.

SECTION 1433 OF TITLE 10, U.S. CODE, WHICH WAS DERIVED FROM SECTION 3 (C) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 502, AND WHICH WAS NOT CHANGED BY THE ACT OF OCTOBER 4, 1961, PROVIDES, IN PERTINENT PART 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. * * *"

PARAGRAPH 6-3 OF ARMY REGULATIONS NO. 37-104-1, JULY 1961, PROVIDES THAT THE COMMANDING GENERAL, FINANCE CENTER, U.S. ARMY, MAY MAKE THE APPROPRIATE ELECTION ON BEHALF OF A MEMBER WHO IS INCAPABLE OF DOING SO WITHIN THE PRESCRIBED TIME LIMITATION BECAUSE OF MENTAL INCOMPETENCE, IF REQUESTED TO DO SO BY THE SPOUSE, AND THAT HE WILL MAKE SUCH ELECTION IN ACCORDANCE WITH APPLICABLE REGULATIONS, PRINCIPLES, AND RULES ESTABLISHED IN SIMILAR CASES BY THE SECRETARY OF THE ARMY, FOR WHOM HE ACTS. THAT PARAGRAPH FURTHER PROVIDES (1) THAT, WHEN ANY MEMBER WHO HAS LESS THAN 18 YEARS OF SERVICE CREDITABLE IN THE COMPUTATION OF BASIC PAY IS TO BE RETIRED BECAUSE OF BEING MENTALLY INCOMPETENT, HIS SPOUSE WILL BE AFFORDED AN OPPORTUNITY TO REQUEST THAT AN ELECTION BE MADE ON THE MEMBER'S BEHALF BY THE COMMANDING GENERAL, FINANCE CENTER, U.S. ARMY, AND (2), CITING 33 COMP. GEN. 428, THAT THE EFFECTIVE DATE OF AN ELECTION MADE ON BEHALF OF A MENTALLY INCOMPETENT MEMBER WILL BE THE DATE THE REQUEST FOR ELECTION IS POSTMARKED (OR DELIVERED TO THE APPROPRIATE SERVICE OFFICIALS). THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 (NOW CODIFIED AS CHAPTER 73 OF TITLE 10, U.S. CODE) CONTAINS NO LANGUAGE REQUIRING THAT AN ELECTION BE SUBMITTED IN ANY PARTICULAR FORM, AND WE HAVE HELD THAT SUCH AN ELECTION IS NOT TO BE VIEWED AS INVALID BECAUSE OF THE FACT THAT IT WAS NOT EXECUTED ON THE FORM PRESCRIBED FOR REGISTERING ELECTIONS UNDER THE ACT. SEE 33 COMP. GEN. 455, 458.

IT IS OUR VIEW THAT THE PARTICULAR FACTS AND CIRCUMSTANCES OF THIS CASE DO NOT WARRANT A CONCLUSION THAT THE COMMANDING GENERAL'S ELECTION OF MARCH 20, 1962, 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 DISABILITY RETIRED LIST ON OCTOBER 3, 1961, WITH ALL MEASURES TAKEN SIMULTANEOUSLY TO AFFORD A PROPER ELECTION OF ANNUITY, SUCH ELECTION, WHEN MADE BY THE COMMANDING GENERAL, BECAME EFFECTIVE ON OCTOBER 3, 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. SEE DECISION OF MARCH 30, 1962, B-148250, 41 COMP. GEN. - .

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