B-151149, APRIL 29, 1963, 42 COMP. GEN. 601

B-151149: Apr 29, 1963

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ARE FOR REFUND TO THE MEMBER IN THE ABSENCE OF PRIMARY EVIDENCE OF THE TIMELY RECEIPT OF THE ELECTION FORM AND. SUPPORTS THE CONCLUSION THAT THE RECEIPT OF THE ANNUITY ELECTION APPLICATION WAS ADMINISTRATIVELY CONSIDERED IN 1954 AS NOT BEING TIMELY. WAS FORWARDED TO THIS OFFICE ON MARCH 25. ON WHICH THE ELECTION WAS MADE. IS DATED APRIL 29. THAT THE ENVELOPE IN WHICH THE FORM WAS MAILED. IS NOT IN THE MEMBER'S ACCOUNT FILE AND NOT AVAILABLE FOR REFERENCE. THAT THE MEMBER'S ADDRESS AT THE TIME OF ELECTION WAS SANTA BARBARA. YOU STATE FURTHER THAT LIEUTENANT JONES WAS INFORMED OF AN INDEBTEDNESS OF $1. THAT DEDUCTIONS OF $11.36 A MONTH TO COVER THE CURRENT COST OF THE ELECTION WERE ESTABLISHED FROM RETIRED PAY EFFECTIVE SEPTEMBER 1.

B-151149, APRIL 29, 1963, 42 COMP. GEN. 601

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - TIME FOR ELECTION - DELAYED IMPLEMENTATION OF ELECTION THE ANNUITY DEDUCTIONS FOR THE COST OF AN ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN FROM THE RETIRED PAY OF AN ARMY OFFICER IN A RETIRED STATUS ON NOVEMBER 1, 1953, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION MADE 8 YEARS AFTER THE MEMBER'S ELECTION OF OPTION II AT ONE-HALF REDUCED RETIRED PAY, COMBINED WITH OPTION IV TO PROVIDE AN ANNUITY FOR SURVIVING ELIGIBLE CHILDREN UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, PRIOR TO THE APRIL 30, 1954, EXPIRATION DATE, ARE FOR REFUND TO THE MEMBER IN THE ABSENCE OF PRIMARY EVIDENCE OF THE TIMELY RECEIPT OF THE ELECTION FORM AND, ALTHOUGH SECONDARY EVIDENCE MAY BE USED TO ESTABLISH A VALID AND BINDING ELECTION OF OPTIONS, THE CONFLICTING SECONDARY EVIDENCE NOT HAVING PROVED THE MAILING OF THE ELECTION FORM PRIOR TO THE APRIL 30, 1954, MIDNIGHT DEADLINE, COUPLED WITH THE FAILURE OF THE ADMINISTRATIVE OFFICE TO MAKE ANNUITY DEDUCTIONS UNTIL 1962, SUPPORTS THE CONCLUSION THAT THE RECEIPT OF THE ANNUITY ELECTION APPLICATION WAS ADMINISTRATIVELY CONSIDERED IN 1954 AS NOT BEING TIMELY.

TO COLONEL WEBSTER MILLS, DEPARTMENT OF THE ARMY, APRIL 29, 1963:

YOUR REQUEST FOR ADVANCE DECISION DATED FEBRUARY 8, 1963, FORWARDING A VOUCHER TOTALING $56.80 IN THE CASE OF FIRST LIEUTENANT ELMER L. JONES, O404299, RETIRED, REPRESENTING DEDUCTIONS FOR COST OF ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN (FORMERLY THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953), 10 U.S.C. 1431-1444, FOR THE PERIOD SEPTEMBER 1, 1962, THROUGH JANUARY 31, 1963, WAS FORWARDED TO THIS OFFICE ON MARCH 25, 1963, AS D.O. NUMBER 698 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU STATE THAT THE MEMBER MADE AN ELECTION OF OPTION II AT ONE-HALF REDUCED RETIRED PAY COMBINED WITH OPTION IV TO PROVIDE AN ANNUITY FOR HIS SURVIVING ELIGIBLE CHILD, OR CHILDREN, UNDER THE PROVISIONS OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN; THAT THE DA FORM 1041, ON WHICH THE ELECTION WAS MADE, IS DATED APRIL 29, 1954, AND DATE-STAMPED AS RECEIVED IN THE RETIRED PAY DIVISION ON MAY 4, 1954; THAT THE ENVELOPE IN WHICH THE FORM WAS MAILED, BEARING THE POSTMARK, IS NOT IN THE MEMBER'S ACCOUNT FILE AND NOT AVAILABLE FOR REFERENCE, AND THAT THE MEMBER'S ADDRESS AT THE TIME OF ELECTION WAS SANTA BARBARA, CALIFORNIA.

YOU STATE FURTHER THAT LIEUTENANT JONES WAS INFORMED OF AN INDEBTEDNESS OF $1,136 EXISTING IN HIS ACCOUNT FOR THE PERIOD APRIL 1, 1954, THROUGH JULY 31, 1962, CAUSED BY NONDEDUCTION OF THE MONTHLY COST OF $11.36; THAT AN ADDITIONAL INDEBTEDNESS OF $11.36 EXISTS FOR THE MONTH OF AUGUST 1962, AND THAT DEDUCTIONS OF $11.36 A MONTH TO COVER THE CURRENT COST OF THE ELECTION WERE ESTABLISHED FROM RETIRED PAY EFFECTIVE SEPTEMBER 1, 1962. WHILE LIEUTENANT JONES HAS SUBMITTED AN AFFIDAVIT DATED SEPTEMBER 20, 1962, THAT HE RECEIVED NOTICE FROM THE RETIRED PAY DIVISION SHORTLY AFTER SEPTEMBER 6, 1954, THAT HIS ELECTION WAS INVALID DUE TO ITS BEING RECEIVED IN THAT OFFICE SUBSEQUENT TO APRIL 30, 1954, THE POSTMARK DEADLINE, YOU STATE THAT NO COPY OF A FORM OR LETTER FURNISHING HIM WITH THIS INFORMATION IS OF RECORD IN YOUR OFFICE. THE MEMBER HAS FURNISHED A PHOTOCOPY OF A PURPORTED CARBON COPY OF A LETTER SIGNED BY HIM AND DATED SEPTEMBER 6, 1954, REQUESTING INFORMATION FROM THE RETIRED PAY BRANCH AS TO THE REASON NO DEDUCTIONS HAD BEEN MADE FROM HIS RETIRED PAY TO COVER THE COST OF THE ELECTION. YOU STATE THAT THE ORIGINAL LETTER IS NOT ON FILE IN YOUR OFFICE. THE MEMBER HAS ALSO FURNISHED AN AFFIDAVIT DATED DECEMBER 17, 1962, AVERRING THAT USING REGULAR MAIL SERVICE HE DID ON OR ABOUT MIDNIGHT OF APRIL 30, 1954, DEPOSIT THE DA FORM 1041 IN A UNITED STATES POST OFFICE RECEPTACLE.

THE UNITED STATES POST OFFICE, INDIANAPOLIS, INDIANA, STATES THAT IT WOULD HAVE BEEN NECESSARY FOR THE FORM TO HAVE BEEN MAILED ON WEDNESDAY, APRIL 28, 1954, IN ORDER TO REACH THEIR OFFICE ON SUNDAY, MAY 2, 1954, OR MONDAY, MAY 3, 1954. THE DA FORM IS STATED TO HAVE BEEN STAMPED IN AT :30 A.M. IN THE RETIRED PAY DIVISION ON MAY 4, 1954. YOU CONCLUDE THAT THEREFORE THE FORM WOULD HAVE BEEN RECEIVED IN THE CENTRAL MAIL ROOM, FINANCE CENTER, U.S. ARMY, NOT LATER THAN MONDAY, MAY 3, 1954.

SUBSECTION 203 OF THE REGULATIONS FOR THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 PROVIDED THAT TO BE EFFECTIVE THE ELECTION BY A RETIRED MEMBER (OR RETIRED FORMER MEMBER) NOT ON ACTIVE DUTY MUST BE SIGNED AND WITNESSED NOT LATER THAN 30 APRIL 1954 AND MUST BE POSTMARKED NOT LATER THAN 30 APRIL 1954. THE EVIDENCE OF ELECTION OF RECORD IS A FORM SIGNED, WITNESSED AND DATED APRIL 29, 1954, 1 DAY PRIOR TO THE EXPIRATION OF THE PERIOD GRANTED TO MEMBERS WHO WERE IN A RETIRED STATUS ON NOVEMBER 1, 1953.

WHETHER THE MEMBER TIMELY POSTED THE EXECUTED ELECTION FORM IS THE SOLE ISSUE TO BE RESOLVED, SINCE IT IS ESTABLISHED THAT HE DESIRED TO MAKE AN ELECTION AND SUBMITTED A FORM DATED WITHIN THE TIME LIMITATION PROVIDED. WE SAID IN 39 COMP. GEN. 349, IN CONSIDERING WHETHER A VALID ELECTION HAD BEEN MADE THOUGH THE FORM ITSELF WAS NOT AVAILABLE, THAT IN ANY CASE WHERE THE PRIMARY WRITTEN EVIDENCE HAS BEEN LOST OR DESTROYED, THE QUESTION OF WHETHER A VALID AND BINDING ELECTION OF OPTIONS CAN BE ESTABLISHED ON THE BASIS OF SECONDARY EVIDENCE IS DEPENDENT UPON THE PARTICULAR FACTS OF THE INDIVIDUAL CASE, THE NATURE OF THE SECONDARY EVIDENCE, AND THE DEGREE OF CERTAINTY THAT SUCH SECONDARY EVIDENCE MAY BE VIEWED AS REASONABLY ESTABLISHING THE ACTUAL FACT AT ISSUE.

THE SECONDARY EVIDENCE IN THIS CASE CONSISTS OF THE MEMBER'S AFFIDAVIT THAT HE DID NOT POST THE FORM UNTIL ABOUT MIDNIGHT ON APRIL 30, 1954, IN SANTA BARBARA, CALIFORNIA, AND THE RECORD OF A RECEIVING DATE OF MAY 4, 1954, STAMPED ON THE FORM, A DATE 4 DAYS AFTER THE POSTMARK DEADLINE OF APRIL 30, 1954, THE ACTUAL POSTMARK HAVING BEEN LOST OR DESTROYED. THE MEMBER'S STATEMENT THAT HE CARRIED THE APPLICATION TO THE POST OFFICE IN SANTA BARBARA, ABOUT MIDNIGHT ON APRIL 30 MAY BE AN ADMISSION AGAINST HIS OWN INTEREST AT THIS TIME AND AS SUCH WOULD NORMALLY BE ENTITLED TO GREAT PROBATIVE VALUE. IN ADDITION, THE STATEMENT SUBMITTED BY THE POSTMASTER AT INDIANAPOLIS, INDIANA, TO ESTABLISH THE FACT THAT IN ORDER TO HAVE BEEN RECEIVED IN THE INDIANAPOLIS POST OFFICE ON MAY 2 OR 3, 1954, BY REGULAR MAIL, THE FORM WOULD HAVE HAD TO HAVE BEEN MAILED FROM SANTA BARBARA, CALIFORNIA, ON APRIL 28, 1954 (AN INDICATED REQUIRED HANDLING TIME INTERVAL OF AT LEAST 4 DAYS), IS AN APPARENT CONFLICT WITH THE MEMBER'S AVERMENT OF THE CIRCUMSTANCES SURROUNDING THE POSTING OF THE APPLICATION. ADDITIONAL FACTORS FOR CONSIDERATION IN CONNECTION WITH THE SECONDARY EVIDENCE ARE THE FAILURE OF THE ADMINISTRATIVE OFFICE TO ESTABLISH DEDUCTIONS AND THE MEMBER'S STATEMENT THAT HE INQUIRED ABOUT THE FAILURE TO DO SO AND THAT HE WAS ADVISED THAT HIS ELECTION WAS INVALID BECAUSE IT HAD NOT BEEN POSTMARKED WITHIN THE TIME LIMITATION SET BY THE REGULATIONS.

AN EXAMINATION OF A 1954 EDITION OF "THE OFFICIAL GUIDE OF THE RAILWAYS" SHOWS THAT MAIL DISPATCHED BY A TRAIN LEAVING SANTA BARBARA, CALIFORNIA, AS LATE AS 6:10 A.M., SATURDAY, MAY 1, 1954, WOULD HAVE REACHED LOS ANGELES AT 9 A.M. AND COULD HAVE LEFT LOS ANGELES AT 2 P.M. THE SAME DAY, ARRIVING IN CHICAGO ON MONDAY, MAY 3, 1954, AT 7:45 A.M., AND IN INDIANAPOLIS, INDIANA, AT :46 P.M. ON MONDAY, MAY 3, 1954.

THE ABOVE SCHEDULES THUS SHOW THAT IT WOULD HAVE BEEN POSSIBLE FOR THE APPLICATION TO HAVE BEEN POSTMARKED AFTER MIDNIGHT OF APRIL 30, 1954, AND STILL HAVE ARRIVED IN INDIANAPOLIS AS EARLY AS EARLY AFTERNOON ON MAY 3, 1954. THAT INFORMATION COUPLED WITH THE FAILURE TO ESTABLISH DEDUCTIONS UNTIL 1962, OVER 8 YEARS AFTER THE ELECTION FORM WAS SIGNED, SUPPORTS A CONCLUSION THAT RECEIPT OF THE APPLICATION WAS ADMINISTRATIVELY CONSIDERED IN 1954 AS NOT BEING TIMELY. COMPARE 39 COMP. GEN. 349.

ACCORDINGLY, IT REASONABLY MAY BE CONCLUDED THAT THE SECONDARY EVIDENCE OF THE RETIRED MEMBER HAVING MET THE POSTMARK DEADLINE IN THE CASE IS INSUFFICIENT TO ESTABLISH THAT THE MEMBER MADE A TIMELY ELECTION OF OPTIONS FOR WHICH DEDUCTIONS FROM HIS RETIRED PAY SHOULD HAVE BEEN MADE. THE VOUCHER IS FOR PAYMENT IN THE CIRCUMSTANCES AND IS RETURNED HEREWITH.