B-152399, SEP. 30, 1963, 43 COMP. GEN. 309

B-152399: Sep 30, 1963

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WHICH WAS FURNISHED BY A MEMBER SHORTLY AFTER HIS TRANSFER TO THE FLEET RESERVE MORE THAN 3 YEARS AFTER THE ELECTION. WHICH IN ACCORDANCE WITH THE PRACTICE IN EFFECT WAS PLACED IN THE "TO BE MAILED" BOX. THE REQUEST WAS ASSIGNED SUBMISSION NO. THE FACTS STATED BELOW ARE THOSE FURNISHED WITH YOUR LETTER. PHILLIPS WAS TRANSFERRED TO THE FLEET RESERVE EFFECTIVE SEPTEMBER 14. PAYMENTS OF RETAINER PAY WERE ESTABLISHED WITHOUT ANY REDUCTION FOR PARTICIPATION IN THAT PLAN. THE MEMBER INQUIRED AS TO WHETHER SUCH DEDUCTIONS WERE BEING MADE FROM HIS RETAINER PAY. UPON BEING ADVISED THAT THEY WERE NOT. IT APPEARS THAT SUCH A DUPLICATE COPY IS INTENDED FOR THE MEMBER'S SERVICE RECORD. APPROPRIATE DEDUCTIONS WERE ESTABLISHED ON A TENTATIVE BASIS FROM THE MEMBER'S RETAINER PAY.

B-152399, SEP. 30, 1963, 43 COMP. GEN. 309

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - EVIDENCE A SIGNED AND TIMELY EXECUTED DUPLICATE COPY OF FORM NAVPERS 591 USED BY NAVAL PERSONNEL IN EXECUTING AN ELECTION OF OPTIONS AND DESIGNATION OF BENEFICIARIES FOR THE PURPOSE OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446, WHICH WAS FURNISHED BY A MEMBER SHORTLY AFTER HIS TRANSFER TO THE FLEET RESERVE MORE THAN 3 YEARS AFTER THE ELECTION, MAY BE ACCEPTED TO ESTABLISH THE FACT THAT THE MEMBER TIMELY FILED THE EXECUTED FORM, THE SIGNATURE OF THE ATTESTING OFFICER ON THE COPY OF THE ELECTION FORM IN THE POSSESSION OF THE MEMBER AFTER JUNE 1, 1959, THE DATE THE DESIGNATED OFFICER ATTESTED THE FORM, ESTABLISHING THAT A DULY EXECUTED ORIGINAL FORM, WHICH IN ACCORDANCE WITH THE PRACTICE IN EFFECT WAS PLACED IN THE "TO BE MAILED" BOX, PROPERLY TAGGED, PASSED OUT OF THE OFFICER'S CONTROL ON THAT DAY AND INTO THE POSSESSION OF THE PROPER AUTHORITIES; THEREFORE, THE ACTION CONSTITUTES A VALID ELECTION UNDER THE CONTINGENCY OPTION ACT.

TO COMMANDER M. M. ALEXANDER, DEPARTMENT OF THE NAVY, SEPTEMBER 30, 1963:

BY SECOND INDORSEMENT DATED AUGUST 30, 1963, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF AUGUST 6, 1963, REQUESTING AN ADVANCE DECISION WHETHER, IN THE CIRCUMSTANCES SET FORTH BELOW, HUGH EDGAR PHILLIPS, 268 91 20, PHC, USNFR, MAY BE CONSIDERED AS HAVING MADE A VALID AND TIMELY ELECTION UNDER THE PROVISIONS OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446. THE REQUEST WAS ASSIGNED SUBMISSION NO. DO-N-723 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE FACTS STATED BELOW ARE THOSE FURNISHED WITH YOUR LETTER. MR. PHILLIPS WAS TRANSFERRED TO THE FLEET RESERVE EFFECTIVE SEPTEMBER 14, 1962. IN THE ABSENCE OF A RECORD OF THE MEMBER HAVING MADE AN ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, PAYMENTS OF RETAINER PAY WERE ESTABLISHED WITHOUT ANY REDUCTION FOR PARTICIPATION IN THAT PLAN. ON OCTOBER 27, 1962, THE MEMBER INQUIRED AS TO WHETHER SUCH DEDUCTIONS WERE BEING MADE FROM HIS RETAINER PAY. UPON BEING ADVISED THAT THEY WERE NOT, THE MEMBER TRANSMITTED A SIGNED AND TIMELY EXECUTED DUPLICATE COPY OF FORM NAVPERS 591 (THE FORM PROVIDED BY THE DEPARTMENT OF THE NAVY FOR USE OF NAVAL PERSONNEL IN EXECUTING AN ELECTION OF OPTIONS AND DESIGNATION OF BENEFICIARIES FOR PURPOSES OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN), ATTESTED TO BY A NAVY OFFICER ON JUNE 1, 1959. IT APPEARS THAT SUCH A DUPLICATE COPY IS INTENDED FOR THE MEMBER'S SERVICE RECORD. MR. PHILLIPS HAS STATED THAT HE HAS NO KNOWLEDGE CONCERNING THE DISPOSITION OF THE ORIGINAL FORM NAVPERS 591.

UPON RECEIPT OF THE DUPLICATE COPY OF FORM NAVPERS 591, APPROPRIATE DEDUCTIONS WERE ESTABLISHED ON A TENTATIVE BASIS FROM THE MEMBER'S RETAINER PAY. IN VIEW OF A FAILURE TO LOCATE ANY ADDITIONAL EVIDENCE RELATIVE TO THE TIMELY RECEIPT OF THE MEMBER'S ELECTION, SUCH DEDUCTIONS WERE STOPPED, AND THE AMOUNT DEDUCTED FOR THE PERIOD SEPTEMBER 15, 1962, THROUGH MARCH 31, 1963, WAS REFUNDED TO THE MEMBER.

WHETHER THE MEMBER TIMELY FILED THE EXECUTED ELECTION FORM APPEARS TO BE THE SOLE ISSUE TO BE RESOLVED, SINCE IT IS ESTABLISHED THAT HE DESIRED TO MAKE AN ELECTION AND EXECUTED A PROPER FORM DATED WITHIN THE TIME LIMITATION PROVIDED BY LAW.

PARAGRAPH 5A, BUPERS INSTRUCTION 1750.1B, FEBRUARY 11, 1957, PLACED ON RESPONSIBLE COMMANDERS THE DUTY OF INSURING THAT ALL PERSONNEL, UPON THE COMPLETION OF 17 YEARS OF CREDITABLE SERVICE FOR PAY PURPOSES, EXECUTE FORM NAVPERS 591 PRIOR TO COMPLETING 18 YEARS OF SERVICE AND EITHER SELECT ONE OF THE OPTIONS AVAILABLE UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 10 U.S.C. 1431, OR INDICATE THEIR DESIRE NOT TO BE COVERED BY THAT ACT. SUCH INSTRUCTION REQUIRED THAT "DISTRIBUTION OF THE EXECUTED FORM WILL BE IN ACCORDANCE WITH INSTRUCTIONS ON THE FORM ITSELF.' PARAGRAPH 6 OF THE INSTRUCTIONS ON THE ELECTION FORM STATES THAT THE ORIGINAL WILL BE FORWARDED TO THE BUREAU OF NAVAL PERSONNEL AND ONE COPY RETURNED TO THE MEMBER.

IN A COMMUNICATION DATED SEPTEMBER 16, 1963, LIEUTENANT COMMANDER JOHN L. FREDERICK, THE ATTESTING OFFICER WHO SIGNED THE ELECTION FORM EXECUTED BY MR. PHILLIPS, STATED THAT, UNDER THE PRACTICE IN EFFECT AT THAT TIME, THREE SIGNED COPIES OF THE ELECTION FORM WERE PLACED ON HIS DESK FOR CERTIFICATION; THAT THEREAFTER THE ORIGINAL WAS PLACED IN THE "TO BE MAILED" BOX AND WAS ,TAGGED FOR BUPERS," AND THAT ONE COPY WAS GIVEN TO THE MEMBER FOR HIS INFORMATION AND POSSIBLE FUTURE USAGE. IN SUCH CIRCUMSTANCES, THE SIGNATURE OF THE ATTESTING OFFICER ON THE COPY OF THE ELECTION FORM IN MR. PHILLIPS' POSSESSION AFTER JUNE 1, 1959, MAY BE ACCEPTED AS ESTABLISHING THAT THE DULY EXECUTED ORIGINAL ELECTION FORM PASSED OUT OF HIS CONTROL ON THAT DAY INTO THE POSSESSION OF THE PROPER AUTHORITIES AT HIS STATION. SUCH ACTION CONSTITUTED A VALID ELECTION UNDER THE CONTINGENCY OPTION ACT. SEE B 122222, MAY 20, 1955.

ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE AFFIRMATIVE, AND APPROPRIATE MONTHLY DEDUCTIONS MAY BE ESTABLISHED IN THIS CASE, IF OTHERWISE PROPER.