B-151843, AUG. 5, 1963, 43 COMP. GEN. 125

B-151843: Aug 5, 1963

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MAY NOT HAVE THE ELECTION CONSIDERED AS AN ELECTION MADE BEFORE THE DATE OF THE ACT TO COME WITHIN THE SAVINGS PROVISIONS IN SECTION 8 AND WHILE THE TIME THE PRESIDENT SIGNED THE ACT ON OCTOBER 4. IS NOT MATERIAL. THERE IS NO EVIDENCE THAT ACTUALLY PROVES THAT THE ACT WAS SIGNED AFTER THE TIME THAT THE MEMBER EXECUTED HIS ELECTION. A SURVIVOR ANNUITY IS NOT PAYABLE TO THE WIDOW INCIDENT TO THE MEMBER'S DEATH IN DECEMBER 1961 AS THE RESULT OF A SERVICE -CONNECTED DISABILITY. YOUR REQUEST WAS ALLOCATED D.O. WHO WAS THEN A BED PATIENT IN THAT HOSPITAL. CAPTAIN JOHNSON ADVISED HIM THAT SINCE HIS OFFICE WAS CLOSED FOR THE DAY HE WOULD HAVE THE ELECTION FORM TYPED FOR SIGNATURE AND BROUGHT TO HIM ON THE FOLLOWING MORNING.

B-151843, AUG. 5, 1963, 43 COMP. GEN. 125

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - TIME FOR ELECTION - ELECTIONS ON DATE OF AMENDATORY ACT A MEMBER OF THE UNIFORMED SERVICES WITH NEARLY 16 YEARS OF SERVICE WHO EXECUTED A SURVIVORSHIP ANNUITY ELECTION FOR HIS WIFE ON OCTOBER 4, 1961, THE SAME DAY THAT THE PRESIDENT SIGNED PUBLIC LAW 87-381 WHICH RESTRICTED FROM PARTICIPATION IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN THE BENEFICIARIES OF MEMBERS ELECTING UNDER THE PLAN WHO RETIRE FOR PHYSICAL DISABILITY BEFORE COMPLETING 18 YEARS OF SERVICE AND THEREAFTER DIE OF A SERVICE-CONNECTED DISABILITY, MAY NOT HAVE THE ELECTION CONSIDERED AS AN ELECTION MADE BEFORE THE DATE OF THE ACT TO COME WITHIN THE SAVINGS PROVISIONS IN SECTION 8 AND WHILE THE TIME THE PRESIDENT SIGNED THE ACT ON OCTOBER 4, 1961, IS NOT MATERIAL, THERE IS NO EVIDENCE THAT ACTUALLY PROVES THAT THE ACT WAS SIGNED AFTER THE TIME THAT THE MEMBER EXECUTED HIS ELECTION; THEREFORE, A SURVIVOR ANNUITY IS NOT PAYABLE TO THE WIDOW INCIDENT TO THE MEMBER'S DEATH IN DECEMBER 1961 AS THE RESULT OF A SERVICE -CONNECTED DISABILITY.

TO LIEUTENANT COLONEL J. L. CLANCY, DEPARTMENT OF THE ARMY, AUGUST 5, 1963:

BY FIRST INDORSEMENT, DATED JULY 3, 1963, THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER DATED MAY 24, 1963, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF EFFECTING A SURVIVOR ANNUITY PAYMENT UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, 10 U.S.C. 1431, ET SEQ. (1958 ED.), OF $3,308.88, COVERING THE PERIOD DECEMBER 1, 1961, TO APRIL 30, 1963, ON A VOUCHER STATED IN FAVOR OF RUBY P. MUNFORD, AS UNREMARRIED WIDOW OF MAJOR ROBERT A. MUNFORD, 057448, RETIRED, DECEASED. YOUR REQUEST WAS ALLOCATED D.O. NUMBER 713 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS FROM THE COPIES OF THE DOCUMENTS AND PAPERS ACCOMPANYING THE VOUCHER THAT ONE CAPTAIN ROGNAR P. JOHNSON, JR., ASSISTANT CHIEF, MILITARY PERSONNEL BRANCH, BROOKE GENERAL HOSPITAL, FORT SAM HOUSTON, TEXAS, ON OCTOBER 2, 3, AND 4, 1961, COUNSELED MAJOR MUNFORD, WHO WAS THEN A BED PATIENT IN THAT HOSPITAL, REGARDING THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 AND THAT ABOUT 4:45 P.M. (CENTRAL STANDARD TIME), OCTOBER 3, 1961, MAJOR MUNFORD MADE KNOWN TO HIM HIS DESIRE TO ELECT OPTION 1 AT ONE HALF REDUCED RETIRED PAY. CAPTAIN JOHNSON ADVISED HIM THAT SINCE HIS OFFICE WAS CLOSED FOR THE DAY HE WOULD HAVE THE ELECTION FORM TYPED FOR SIGNATURE AND BROUGHT TO HIM ON THE FOLLOWING MORNING. AT ABOUT 8:30 A.M. ON OCTOBER 4, 1961, MAJOR MUNFORD SIGNED THE FORM (DA FORM 1041), WHICH APPARENTLY WAS BROUGHT TO HIM BY CAPTAIN JOHNSON, CONTAINING AN ELECTION OF OPTION 1 COMBINED WITH OPTION 4 AT ONE- HALF REDUCED RETIRED PAY IN ORDER TO PROVIDE FOR AN ANNUITY TO HIS WIFE UNDER THE ACT. AT THE SAME TIME MAJOR MUNFORD'S FATHER SIGNED THE FORM AS A WITNESS AND CAPTAIN JOHNSON SIGNED IT AS THE PERSONNEL OFFICER. IT IS STATED THAT THE ELECTION WAS POSTED BY 9:30 A.M. OF THE SAME DAY IN MAJOR MUNFORD'S MILITARY PERSONNEL FILE AND A COPY THEREOF WAS MAILED TO THE ADJUTANT GENERAL'S OFFICE.

EFFECTIVE NOVEMBER 28, 1961, MAJOR MUNFORD, WHO HAD NEARLY 16 YEARS OF SERVICE FOR BASIC PAY PURPOSES, WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER AUTHORITY OF 10 U.S.C. 1202 BY REASON OF 100 PERCENT PHYSICAL DISABILITY. HE DIED ON DECEMBER 4, 1961, AND THE VETERANS ADMINISTRATION CERTIFIED THAT HIS DEATH WAS THE RESULT OF DISEASE INCURRED WHILE ON ACTIVE DUTY.

ON THE SAME DATE THAT MAJOR MUNFORD SIGNED THE APPLICATION, OCTOBER 4, 1961, THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, WHICH AMENDED THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, WAS ENACTED INTO LAW BY PUBLIC LAW 87-381, 75 STAT. 810, 10 U.S.C. 1431. SECTION 1446 AS ADDED BY THAT AMENDATORY ACT READS AS FOLLOWS:

(A) NOTWITHSTANDING SECTION 1441 OF THIS TITLE, IF A PERSON---

(1) HAS MADE AN ELECTION UNDER THIS CHAPTER; AND

(2) 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 UNDER THIS CHAPTER UNTIL THEY GIVE PROOF TO THE DEPARTMENT CONCERNED THAT THEY ARE NOT ELIGIBLE FOR BENEFITS UNDER CHAPTER 11 OR 13 OF TITLE 38. IF THE BENEFICIARIES ARE NOT ELIGIBLE FOR BENEFITS UNDER CHAPTER 11 OR 13 OF TITLE 38, THE ANNUITY SHALL BEGIN ON THE FIRST DAY OF THE MONTH IN WHICH THE DEATH OCCURS.

(B) WHENEVER THE BENEFICIARIES ON WHOSE BEHALF THE ELECTION WAS MADE ARE RESTRICTED, UNDER SUBSECTION (A), FROM PARTICIPATING IN THE ANNUITIES PROVIDED UNDER THIS CHAPTER, THE AMOUNT WITHHELD FROM THE ELECTOR'S RETIRED OR RETAINER PAY AS A RESULT OF AN ELECTION UNDER THIS CHAPTER SHALL BE REFUNDED TO THE BENEFICIARIES, LESS THE AMOUNT OF ANY ANNUITIES PAID UNDER THIS CHAPTER, AND IN EITHER CASE WITHOUT INTEREST.

THUS, BY ENACTING THE NEW SECTION 1446, THE CONGRESS RESTRICTED FROM PARTICIPATION IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN THE BENEFICIARIES OF ALL MEMBERS ELECTING UNDER THE PLAN WHO ARE RETIRED FOR PHYSICAL DISABILITY BEFORE COMPLETING 18 YEARS OF SERVICE FOR BASIC PAY PURPOSES AND THEREAFTER DIE OF A SERVICE-CONNECTED DISABILITY. THE LAW NOW PERMITS PARTICIPATION BY THIS GROUP ONLY WHERE THE MEMBER DIES OF A NONSERVICE-CONNECTED DISABILITY. MAJOR MUNFORD DIED OF A SERVICE- CONNECTED DISABILITY.

IN OUR DECISION OF JANUARY 17, 1952, 31 COMP. GEN. 305, WE SAID THAT---

GENERALLY, A STATUTE IS HELD TO BE EFFECTIVE FROM THE BEGINNING OF THE DAY OF APPROVAL BY THE CHIEF EXECUTIVE, PARTICULARLY SO WHERE THERE IS NO EVIDENCE TO SHOW WHAT HOUR OF THE DAY HE APPROVED THE STATUTE. UNITED STATES V. NORTON, 97 U.S. 164; LAPEYRE V. UNITED STATES, 17 WALL. 191; AND LEHIGH CARRIAGE COMPANY, ET AL. V. STENGEL, ET AL., 95 F. 637. HOWEVER, IN CERTAIN CASES, WHERE THERE IS EVIDENCE OF THE ACTUAL TIME OF DAY THAT THE CHIEF EXECUTIVE SIGNS A BILL AND WHERE, IN ORDER TO DO SUBSTANTIAL JUSTICE OR TO PROTECT VESTED RIGHTS, THE COURTS HAVE LOOKED ON THE ACTUAL TIME OF THE SIGNING OF A BILL AND HAVE GIVEN EFFECT TO THE SAME ONLY FOR THAT HOUR. LOUISVILLE V. SAVINGS BANK, 104 U.S. 469; BURGESS V. SALMON, 97 U.S. 381; RICHARDSON'S CASE (CASE NO. 11777), 20 FEDERAL CASES 699; AND BRISTOL MFG. CO. V. UNITED STATES, 77 C.CLS. 182.

YOU EXPRESS THE VIEW THAT THE ABOVE DECISION FURNISHES A BASIS FOR PAYING MRS. MUNFORD'S CLAIM IF IT CAN BE ESTABLISHED THAT MAJOR MUNFORD'S ELECTION AT ABOUT 8:30 A.M. (CENTRAL STANDARD TIME), OCTOBER 4, 1961, WAS PRIOR TO THE ACTUAL TIME THE PRESIDENT SIGNED THE ENROLLED BILL (RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN). HOWEVER, FOR REASONS HEREINAFTER INDICATED, IT APPEARS THAT THE TIME FACTOR IS NOT AN ELEMENT OF MAJOR IMPORTANCE IN THIS CASE.

THE AUTHORITY OF THE CONGRESS TO PASS LEGISLATION IS VERY BROAD. HOWEVER, THERE ARE CONSTITUTIONAL LIMITATIONS AND THERE IS THE REQUIREMENT THAT VESTED RIGHTS MAY NOT BE DISTURBED EXCEPT IN THE EXERCISE OF LEGITIMATE POLICE POWERS. 38 COMP. GEN. 103. SINCE THE MERE FILING OF AN ELECTION OF BENEFITS UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN DOES NOT GIVE RISE TO AN IMMEDIATE VESTED RIGHT- - AN ELECTION CANNOT BECOME EFFECTIVE IF A MEMBER DIES BEFORE RETIREMENT AND AN ELECTION IN A WIFE'S FAVOR CREATES ONLY AN INCHOATE RIGHT WHICH IS SUBJECT TO THE CONTINGENCY THAT SHE SURVIVE HER HUSBAND -- THE VESTED RIGHT RESTRICTION ON NEW LEGISLATION IS NOT A FACTOR FOR CONSIDERATION IN THIS CASE.

IT IS OUR VIEW THAT MRS. MUNFORD'S RIGHTS AS A BENEFICIARY DEPEND ON A DETERMINATION OF THE INTENT OF THE SAVINGS PROVISIONS CONTAINED IN SECTION 8 OF PUBLIC LAW 87-381. THAT SECTION STATES SPECIFICALLY WHO SHALL HAVE THE BENEFITS AUTHORIZED BY THE LAW AS IT EXISTED PRIOR TO THE DATE OF ENACTMENT OF THE 1961 AMENDMENT. THOSE BENEFITS ARE RESERVED FOR "ANY PERSON WHO (1) MADE AN ELECTION BEFORE THE DATE OF ENACTMENT OF THIS ACT WHICH WOULD BE EFFECTIVE IF HE RETIRED ON THE DAY BEFORE SUCH DATE; AND (2) HEREAFTER RETIRES FOR PHYSICAL DISABILITY BEFORE COMPLETING 18 YEARS SERVICE.' IN VIEW OF THE FACT THAT SUCH LAW WAS ENACTED ON OCTOBER 4, 1961, AN ELECTION MADE ON THAT DATE WAS TOO LATE TO COME WITHIN SUCH SAVINGS PROVISIONS. THIS IS MADE DOUBLY CLEAR BY THE LANGUAGE REFERRING TO AN ELECTION "WHICH WOULD BE EFFECTIVE IF HE RETIRED ON THE DAY BEFORE SUCH DATE" OF ENACTMENT. AN ELECTION MADE BY A MEMBER AFTER HE RETIRES IN THE NORMAL COURSE OF EVENTS IS NOT EFFECTIVE IN ANY CIRCUMSTANCES. ELECTION MADE ON OCTOBER 4, 1961, BY A MEMBER WHO RETIRED ON OCTOBER 3, 1961, WOULD BE WITHOUT LEGAL EFFECT. THUS, THERE CAN BE NO DOUBT THAT THE CONGRESS DID NOT INTEND THAT THE LAW AS IT EXISTED PRIOR TO THE 1961 AMENDMENT SHOULD BE APPLIED IN THE CASE OF ANY PERSON WHO HAD NOT MADE AN ELECTION ON OR BEFORE OCTOBER 3, 1961. MAJOR MUNFORD'S ELECTION OF OCTOBER 4, 1961, DOES NOT MEET THAT CONDITION. WHILE WE DO NOT CONSIDER THE TIME THE PRESIDENT SIGNED THE ENROLLED BILL TO BE IMPORTANT IN THIS CASE, IT MAY BE STATED THAT THERE IS NO EVIDENCE AS TO THE EXACT TIME OF SIGNING. THE ONLY EVIDENCE AVAILABLE IS THAT THE LAW WAS NOT MENTIONED BY THE PRESS SECRETARY TO THE PRESIDENT IN HIS PRESS BRIEFING AT 11:05 A.M. ON OCTOBER 4, 1961. CONSIDERING THE FACT THAT ON OCTOBER 4, 1961, EASTERN DAYLIGHT SAVING TIME WAS IN EFFECT IN WASHINGTON, D.C., AND THAT MAJOR MUNFORD SIGNED THE ELECTION FORM AT ABOUT 8:30 A.M., OCTOBER 4, 1961, IN A HOSPITAL AT FORT SAM HOUSTON, TEXAS, SUCH SIGNING TOOK PLACE WHEN IT WAS ABOUT 10:30 A.M. IN WASHINGTON, D.C. IT IS UNDERSTOOD THAT THERE IS A TIME LAG--- IN MANY CASES OF AT LEAST ONE HALF HOUR OR MORE--- BETWEEN THE TIME AN ENROLLED BILL IS SIGNED BY THE PRESIDENT AND THE TIME OF THE PRESS RELEASE, DUE TO (1) THE DELIVERY OF THE SIGNED ENROLLED BILL TO THE RECORDS OFFICE (THE WHITE HOUSE) FOR LOGGING AND PREPARATION OF A RECEIPT FOR EXECUTION BY THE NATIONAL ARCHIVES AND RECORDS SERVICE, (2) THE PREPARATION IN THE RECORDS OFFICE OF A STENCIL AND MIMEOGRAPHED COPIES OF A PRESS RELEASE, AND (3) THE DELIVERY OF A MIMEOGRAPHED COPY OF THE PRESS RELEASE TO THE PRESS SECRETARY FOR THE BRIEFING CONFERENCE. IF MORE THAN ONE SIGNED ENROLLED BILL IS INVOLVED, THE DELAY IS FOR A LONGER PERIOD. THERE WERE 46 BILLS WHICH WERE SIGNED BY THE PRESIDENT ON OCTOBER 4, 1961. IN SUCH CIRCUMSTANCES, IT MAY WELL BE THAT THE PRESIDENT SIGNED THE SUBJECT ENROLLED BILL BEFORE 10:30 A.M., OCTOBER 4, 1961, AND THAT THE LAW WAS NOT INCLUDED IN THE 11:05 A.M., OCTOBER 4, 1961, PRESS BRIEFING BECAUSE OF THE DELAYS ATTENDANT TO THE NORMAL ADMINISTRATIVE PROCESSES PRECEDING THE DELIVERY OF THE PRESS RELEASE TO THE PRESS SECRETARY. THERE IS NO EVIDENCE WHICH ACTUALLY PROVES THAT THE PRESIDENT SIGNED THE BILL AFTER 10:30 A.M.

IT APPEARING THAT PAYMENT OF THE SUBMITTED VOUCHER IS NOT AUTHORIZED, SUCH VOUCHER AND THE SUBMITTED COPIES OF THE PAPERS AND DOCUMENTS WILL BE RETAINED HERE.