B-153186, FEBRUARY 12, 1964, 43 COMP. GEN. 551

B-153186, FEBRUARY 12, 1964, 43 COMP. GEN. 551

PAY - RETIRED - WAIVER FOR CIVILIAN RETIREMENT BENEFITS - INEFFECTIVE A MEMBER OF THE UNIFORMED SERVICES WHO AFTER RETIREMENT COMPLETED 5 YEARS OF CREDITABLE SERVICE FOR CIVILIAN RETIREMENT AND BEFORE DYING ORALLY WAIVED RETIRED PAY IN ORDER TO ADD HIS MILITARY TO HIS CIVILIAN SERVICE FOR THE GREATER CIVILIAN ANNUITY BENEFITS, WHICH ORAL STATEMENT CONFIRMED IN WRITING WAS SIGNED FOR HIM BY HIS WIFE AND RECEIVED AFTER HIS DEATH, HAD NOT FILED A VALID AND UNQUALIFIED WAIVER OF RETIRED PAY AND THE WIDOW MAY BE PAID THE FINAL RETIRED PAY DUE THE MEMBER AT THE TIME OF DEATH, HIS ORAL STATEMENT HAVING PROBATIVE VALUE ONLY BY WAY OF CORROBORATING AFFIRMATIVE EVIDENCE OF AN ACTUAL WAIVER, THE MEMBER IN A COMA FOR OVER 2 WEEKS BEFORE HIS DEATH COULD NOT HAVE DIRECTED THE PREPARATION OF THE WAIVER REQUEST, OR THAT HIS WIFE SIGN IN HIS BEHALF AND, THEREFORE, A VALID AND UNQUALIFIED WAIVER OF THE RETIRED PAY NOT HAVING BEEN FILED, THE MEMBER AT THE TIME OF DEATH WAS ENTITLED TO RETIRED PAY.

TO C. C. GORDON, UNITED STATES COAST GUARD, FEBRUARY 12, 1964:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 30, 1963, AND ENCLOSURES, REQUESTING A DECISION IN THE CASE OF LOREN D. MILLER, CRM, USCG, RETIRED, DECEASED, 107-364, AS TO WHETHER THE CLAIM FOR HIS FINAL RETIRED PAY DUE FROM MAY 1 THROUGH MAY 17, 1963, MAY BE PAID TO THE CLAIMANT, MRS. VERNA C. MILLER, AS SHOWN ON THE ENCLOSED VOUCHER.

IT IS REPORTED THAT MR. MILLER RETIRED FROM THE COAST GUARD ON OCTOBER 1, 1953, WITH OVER 25 YEARS' SERVICE. THEREAFTER HE WAS APPOINTED TO A CIVILIAN POSITION UNDER THE U.S. GOVERNMENT AND COMPLETED OVER 5 YEARS' CREDITABLE SERVICE FOR CIVILIAN RETIREMENT PURPOSES. IT IS ALLEGED THAT ON APRIL 30, 1963, MR. MILLER STATED ORALLY THAT HE WANTED TO RETIRE AND WOULD LIKE TO WAIVE HIS RETIRED PAY FROM THE COAST GUARD IN ORDER TO ADD SUCH SERVICE TO HIS CIVILIAN SERVICE FOR THE PURPOSE OF OBTAINING A GREATER BENEFIT IN THE FORM OF CIVILIAN ANNUITY, BUT THAT BEFORE A WRITTEN STATEMENT TO THAT EFFECT COULD BE PREPARED FOR HIS SIGNATURE, HE LAPSED INTO A COMA FROM WHICH HE DID NOT RECOVER. ON MAY 20, 1963, THERE WAS RECEIVED BY THE COAST GUARD A REQUEST DATED MAY 15, 1963--- OSTENSIBLY FROM MR. MILLER BUT ACTUALLY SIGNED FOR HIM BY HIS WIFE, THE CLAIMANT--- TO WAIVE HIS RETIRED PAY IN LIEU OF CIVIL SERVICE ANNUITY. ON THE SAME DAY A NOTICE WAS RECEIVED BY THE COAST GUARD OF THE MEMBER'S DEATH ON MAY 17, 1963. IT IS INDICATED THAT NOTICE OF THE ALLEGED ORAL WAIVER OF RETIRED PAY ON APRIL 30, 1963, WAS NOT PLACED IN THE MAIL UNTIL AFTER THE DATE OF DEATH OF THE DECEDENT.

THE STATUTORY PROVISIONS RELATING TO THE CIVIL SERVICE RETIREMENT PROGRAM ARE CONTAINED IN CHAPTER 30 OF TITLE 5, UNITED STATES CODE. WHILE WE CONSISTENTLY HAVE TAKEN THE POSITION THAT WHAT CONSTITUTES CREDITABLE SERVICE FOR THE PURPOSE OF SUCH STATUTORY PROVISIONS IS A MATTER PRIMARILY FOR DETERMINATION BY THE CIVIL SERVICE COMMISSION, THE CLAIMANT'S ENTITLEMENT TO PAYMENT OF THE FINAL RETIRED PAY DUE MR. MILLER FROM THE COAST GUARD IS FOR DETERMINATION BY THIS OFFICE.

A STATEMENT BY A RETIRED MILITARY MEMBER TO A PRIVATE INDIVIDUAL EXPRESSING A DESIRE TO WAIVE HIS RETIRED PAY IN ORDER TO INCLUDE HIS MILITARY SERVICE FOR THE PURPOSE OF COMPUTING A PROSPECTIVE CIVIL SERVICE ANNUITY HAS PROBATIVE VALUE ONLY BY WAY OF CORROBORATING AFFIRMATIVE EVIDENCE BY AN ACTUAL WAIVER. THE ONLY INFORMATION FURNISHED WHICH PURPORTS TO DEAL WITH THE MATTER OF A WAIVER IS THE REQUEST DATED MAY 15, 1963, SIGNED BY MRS. MILLER FOR HER HUSBAND. SINCE HE HAD THEN BEEN IN A COMA FOR OVER 2 WEEKS, HE APPARENTLY COULD NOT HAVE DIRECTED THE PREPARATION OF SUCH REQUEST AT THAT TIME OR THAT HIS WIFE SIGN IT IN HIS BEHALF. CF. 35 COMP. GEN. 397; ID. 489; 39 COMP. GEN. 112. IN SUCH CIRCUMSTANCES AND IN THE ABSENCE OF ANY FURTHER INFORMATION, IT IS OUR VIEW THAT A VALID AND UNQUALIFIED WAIVER OF RETIRED PAY WAS NOT FILED BY MR. MILLER AND, HENCE, THAT AT THE TIME OF HIS DEATH HE WAS ENTITLED TO DEMAND AND RECEIVE HIS RETIRED PAY.

ACCORDINGLY, THE VOUCHER, TOGETHER WITH THE ORIGINAL DOCUMENTS SUBMITTED, IS RETURNED HEREWITH AND SUCH VOUCHER MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.