B-151999, NOV. 1, 1963

B-151999: Nov 1, 1963

Additional Materials:

Contact:

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

 

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

SO AS TO PERMIT THE ESTABLISHMENT OF ANNUITY PAYMENTS ON BEHALF OF HIS CHILDREN AFTER OFFSETTING COSTS FOR THE PERIOD THE MEMBER WAS ENTITLED TO RETAINER PAY. THE FOLLOWING FACTS ARE REPORTED IN YOUR LETTER. GLEISBERG WAS TRANSFERRED TO THE FLEET RESERVE EFFECTIVE MAY 18. PAYMENTS OF RETAINER PAY WERE ESTABLISHED WITHOUT ANY REDUCTION FOR PARTICIPATION IN THE PLAN ESTABLISHED BY THE 1953 ACT. MAILED WITH EACH RETIRED OR RETAINER PAY CHECK A PRINTED NOTICE CONCERNING THE RECONCILIATION OF THE RECORDS PERTAINING TO ANNUITY ELECTIONS WHICH REQUESTED THAT EACH MEMBER NOTIFY YOUR OFFICE IF HE MADE AN ELECTION AND DEDUCTIONS WERE NOT BEING MADE FROM HIS RETIRED OR RETAINER PAY. GLEISBERG'S INQUIRY A THOROUGH SEARCH WAS MADE BUT THE ORIGINAL ELECTION FORM.

B-151999, NOV. 1, 1963

TO COMMANDER M. M. ALEXANDER, SC, USN, U.S. NAVY FINANCE CENTER:

BY SECOND ENDORSEMENT DATED JULY 8, 1963, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF JUNE 18, 1963, REQUESTING AN ADVANCE DECISION AS TO WHETHER IN THE CIRCUMSTANCES PRESENT IN THE CASE OF LLOYD MORRIS GLEISBERG, 342 15 05, HMC, USNFR, DECEASED, YOU MAY CONSIDER THAT THE MEMBER MADE A VALID ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, APPROVED AUGUST 8, 1953, CH. 393, 67 STAT. 501, SO AS TO PERMIT THE ESTABLISHMENT OF ANNUITY PAYMENTS ON BEHALF OF HIS CHILDREN AFTER OFFSETTING COSTS FOR THE PERIOD THE MEMBER WAS ENTITLED TO RETAINER PAY.

THE FOLLOWING FACTS ARE REPORTED IN YOUR LETTER. MR. GLEISBERG WAS TRANSFERRED TO THE FLEET RESERVE EFFECTIVE MAY 18, 1959. SINCE YOU HAD NO RECORD OF HIS HAVING ELECTED TO RECEIVE REDUCED RETIRED PAY IN ORDER TO PROVIDE AN ANNUITY FOR HIS DEPENDENTS, PAYMENTS OF RETAINER PAY WERE ESTABLISHED WITHOUT ANY REDUCTION FOR PARTICIPATION IN THE PLAN ESTABLISHED BY THE 1953 ACT, NOW DESIGNATED AS THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. IN MAY 1961 THE RETIRED PAY DIVISION, NAVY FINANCE CENTER, MAILED WITH EACH RETIRED OR RETAINER PAY CHECK A PRINTED NOTICE CONCERNING THE RECONCILIATION OF THE RECORDS PERTAINING TO ANNUITY ELECTIONS WHICH REQUESTED THAT EACH MEMBER NOTIFY YOUR OFFICE IF HE MADE AN ELECTION AND DEDUCTIONS WERE NOT BEING MADE FROM HIS RETIRED OR RETAINER PAY. YOU RECEIVED NO ADVICE FROM MR. GLEISBERG CONCERNING AN ELECTION. WHEN THE WIDOW, FRANCES S. GLEISBERG, NOTIFIED YOU OF THE MEMBER'S DEATH ON MARCH 5, 1963, SHE FURNISHED A COPY OF THE DUPLICATE OF AN ELECTION OF OPTION 2 AT ONE-HALF REDUCED RETIRED PAY UNDER THE 1953 ACT FOR HIS THREE CHILDREN WHICH INDICATED IT HAD BEEN EXECUTED NOVEMBER 3, 1957, AND ASKED THAT SHE BE FURNISHED APPLICATION FORMS FOR ANNUITY PAYMENTS. UPON RECEIPT OF MRS. GLEISBERG'S INQUIRY A THOROUGH SEARCH WAS MADE BUT THE ORIGINAL ELECTION FORM, OR A COPY OR ANY EVIDENCE OF RECEIPT OF AN ELECTION BY A NAVAL ACTIVITY HAS NOT BEEN LOCATED.

EXAMINATION OF THE COPY OF THE DUPLICATE OF THE ELECTION OF OPTION FORM FOUND BY THE WIDOW AMONG THE MEMBER'S PAPERS FORWARDED WITH YOUR LETTER DISCLOSES THAT THE SIGNED FORM WAS SUBSCRIBED AND SWORN TO BEFORE LIEUTENANT R. E. NOVOTNY, PERSONNEL OFFICER, NAVAL AIR STATION, OLATHE, KANSAS, ON NOVEMBER 3, 1957, WHICH WAS 3 DAYS BEFORE THE MEMBER COMPLETED 18 YEARS OF SERVICE. WE HAVE BEEN ADVISED INFORMALLY THAT THE FILE OF LIEUTENANT COMMANDER RAYMOND EUGENE NOVOTNY SHOWS THE OFFICER WAS STATIONED AT THE NAVAL AIR STATION, OLATHE, KANSAS, IN NOVEMBER 1957. LETTER DATED OCTOBER 16, 1963, HE ADVISED THAT, WHILE HE DID NOT RECALL SPECIFICALLY THE CASE OF MR. GLEISBERG, IT WAS NEVER THE POLICY TO TURN THE COMPLETED FORM OVER TO THE INDIVIDUAL FOR ROUTING; FINAL ROUTING WAS HANDLED BY HIS OFFICE STAFF; AND THAT IF HIS SIGNATURE APPEARS ON THE COPY OF THE FORM HE FEELS CERTAIN THAT IT IS A VALID DOCUMENT. THUS TIMELY EXECUTION OF THE ELECTION AND THE INTENTION OF THE MEMBER TO MAKE AN ELECTION AT THAT TIME MAY NOT BE QUESTIONED. SINCE THE ATTESTING OFFICER WAS SERVING AS PERSONNEL OFFICER AT THE STATION TO WHICH THE MEMBER WAS ATTACHED AT THE TIME ELECTION FORM WAS EXECUTED, IT IS REASONABLE TO ASSUME THAT THE ELECTION WAS CONSUMMATED AS THE RESULT OF OFFICIAL ADVICE FURNISHED PURSUANT TO BUPERS INSTRUCTION 1750.1B, FEBRUARY 11, 1957, CONCERNING THE MEMBER'S RIGHT TO MAKE SUCH ELECTION, AND THAT THE ORIGINAL OF THE EXECUTED FORM PASSED OUT OF MR. GLEISBERG'S CONTROL INTO THE HANDS OF AN AUTHORIZED NAVAL OFFICIAL ON THE DATE ON WHICH THE MEMBER'S SIGNATURE WAS ATTESTED. WHILE THE MEMBER'S FAILURE TO RESPOND TO THE FORM NOTICE CONCERNING ELECTIONS MAILED IN MAY 1961 IS A FACTOR FOR CONSIDERATION IN THIS MATTER, HIS SILENCE WOULD NOT INVALIDATE AN OTHERWISE VALID ELECTION.

IT IS BELIEVED THAT THE EVIDENCE IN THE CASE IS SUFFICIENT TO ESTABLISH THAT A TIMELY AND VALID ELECTION WAS MADE. SEE B-152399, SEPTEMBER 30, 1963. ACCORDINGLY, AN ANNUITY SHOULD BE ESTABLISHED ON BEHALF OF THE DECEASED MEMBER'S CHILDREN AND, AFTER THE COSTS FOR THE PERIOD MR. GLEISBERG WAS ENTITLED TO RETAINER PAY HAVE BEEN OFFSET, THE ANNUITY MAY BE ALLOWED IN FAVOR OF THE CHILDREN UNDER THE TERMS OF OPTION 2.