B-154764, OCTOBER 28, 1964, 44 COMP. GEN. 229

B-154764, OCTOBER 28, 1964, 44 COMP. GEN. 229

PAY - RETIRED - ANNUITY ELECTION FOR DEPENDENTS - VALIDITY NOTWITHSTANDING THE ADMINISTRATIVE FAILURE TO FOLLOW THE PROCEDURE PRESCRIBED BY NAVAL PERSONNEL INSTRUCTIONS 1750.1 D IN ESTABLISHING AN ELECTION OF SURVIVOR ANNUITY BENEFITS UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN (10 U.S.C. 1431) UPON TRANSFER OF AN OFFICER TO THE NAVAL FLEET RESERVE, AND THE IMPROPER RETURN OF THE ORIGINAL ELECTION FORM TO THE OFFICER AT THE TIME OF HIS TRANSFER, AND THAT ONLY A COPY OF THE ELECTION FORM AND CERTIFIED BIRTH CERTIFICATES WERE FURNISHED THE FAMILY ALLOWANCE ACTIVITY, A VALID AND TIMELY ELECTION RESULTED, THE FAMILY PROTECTION PLAN REQUIRING NO PARTICULAR MANNER IN WHICH TO SUBMIT A SURVIVORSHIP ANNUITY, THE FAILURE TO COMPLY WITH THE ADMINISTRATIVE REQUIREMENTS IS VIEWED AS THOUGH A COMPLETED ELECTION FORM HAD PASSED INTO THE POSSESSION OF THE APPROPRIATE NAVY OFFICIALS PRIOR TO THE OFFICER'S TRANSFER TO THE FLEET RESERVE, AND THE EVIDENCE INDICATING THE OFFICER'S INTENT TO MAKE AN ELECTION IS SUFFICIENT TO ESTABLISH A TIMELY AND VALID ELECTION WAS MADE BY HIM BEFORE COMPLETING 18 YEARS OF SERVICE.

TO COMMANDER M. L. CONNER, DEPARTMENT OF THE NAVY, OCTOBER 28, 1964:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 10, 1964, AND ENCLOSURES, PRESENTING FOR DECISION UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NO. DO-N-785, THE QUESTION WHETHER, IN THE CIRCUMSTANCES THERE SET FORTH, IT MAY BE CONSIDERED THAT JAMES LESLIE PARKER, 381 99 55, AC2, U.S. NAVAL FLEET RESERVE, MADE A VALID AND TIMELY ELECTION OF SURVIVOR ANNUITY BENEFITS UNDER 10 U.S.C. 1431 RELATING TO THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN.

THE FACTS STATED BELOW ARE THOSE FURNISHED IN YOUR LETTER AND THE ACCOMPANYING ENCLOSURES. JAMES LESLIE PARKER WAS TRANSFERRED TO THE U.S. NAVAL FLEET RESERVE, F-6, EFFECTIVE FEBRUARY 21, 1963, AT WHICH TIME THE U.S. NAVY FAMILY ALLOWANCE ACTIVITY TRANSFERRED TO THE RETIRED PAY DEPARTMENT ITS RECORDS AND CORRESPONDENCE CONCERNING THE MEMBER'S ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. SUCH RECORDS INCLUDED CERTIFIED COPIES OF BIRTH CERTIFICATES FOR (1) THE MEMBER HIMSELF, (2) HIS WIFE, BARBARA HELEN (HOLLUM) PARKER, (3) HIS MINOR SON, STEPHEN LESLIE PARKER, AND (4) HIS MINOR SON, JAMES FRANCIS PARKER. AFTER THOSE DOCUMENTS HAD BEEN RECEIVED ON OCTOBER 16, 1962, THE U.S. NAVY FAMILY ALLOWANCE ACTIVITY, ON NOVEMBER 16, 1962, WROTE THE COMMANDING OFFICER, U.S.S. BON HOMME RICHARD, TO WHICH PARKER WAS THEN ATTACHED, STATING THAT ALTHOUGH SUCH DOCUMENTS WERE APPARENTLY SUBMITTED FOR USE IN CONNECTION WITH AN ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, PARKER'S ELECTION FORM HAD NOT BEEN RECEIVED. PARAGRAPH 3 AND 4 OF THAT LETTER ARE AS FOLLOWS:

3. IF PARKER INTENDS TO PARTICIPATE IN THE PLAN, IT WILL BE NECESSARY FOR HIM TO FORWARD HIS NAVPERS FORM 591 TO THIS ACTIVITY.

4.IN THE EVENT THAT PARKER HAS SUBMITTED A NAVPERS FORM 591, IT IS REQUESTED THAT THE DUPLICATE (SERVICE RECORD) COPY OR THE TRIPLICATE (THE MEMBER'S COPY) BE FORWARDED TO ESTABLISH HIS ELIGIBILITY UNDER THE PLAN.

ON DECEMBER 4, 1962, THE FAMILY ALLOWANCE ACTIVITY RECEIVED, WITHOUT A FORWARDING LETTER, THE DUPLICATE (SERVICE RECORD) COPY OF NAVPERS FORM 591, DATED FEBRUARY 26, 1962, INDICATING THAT ON THAT DATE JAMES LESLIE PARKER HAD ELECTED OPTIONS 3 AND 4 AT ONE-HALF REDUCED PAY IN ORDER TO PROVIDE AN ANNUITY FOR HIS WIFE (BARBARA HELEN PARKER) AND HIS TWO MINOR SONS (STEPHEN LESLIE PARKER AND JAMES FRANCIS PARKER). SUCH COPY WAS SIGNED BY NEITHER THE MEMBER NOR THE ATTESTING OFFICER. BY LETTER OF JANUARY 17, 1963, THE FAMILY ALLOWANCE ACTIVITY INFORMED THE MEMBER THAT, SINCE SUCH COPY WAS NOT SIGNED, IT WAS NOT CONSIDERED TO BE A VALID ELECTION AND THAT IF HE WISHED TO PARTICIPATE IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, HE COULD CORRECT HIS VOID ELECTION IN ACCORDANCE WITH THE PROVISIONS OF 10 U.S.C. 1431 (D). NO REPLY WAS RECEIVED TO THAT LETTER.

AT THE TIME OF ESTABLISHING PARKER'S RETAINER PAY ACCOUNT, YOU TENTATIVELY ESTABLISHED DEDUCTIONS ON THE BASIS OF THE DUPLICATE COPY OF NAVPERS FORM 591, AND, BY NOTATION ON THE INITIAL PAY ACCOUNT CERTIFICATION FORM, ASKED HIM TO ADVISE WHAT DISPOSITION WAS MADE OF THE ORIGINAL NAVPERS FORM 591. ON MAY 21, 1963, YOU RECEIVED THE ORIGINAL ELECTION FORM, WHICH WAS FORWARDED BY THE MEMBER WITHOUT A LETTER OF EXPLANATION, AND ON JUNE 18, 1963, YOU WROTE HIM, ASKING WHY HE HAD THE ORIGINAL ELECTION. HE REPLIED IN LETTER OF JULY 24, 1963, THAT THE ORIGINAL NAVPERS FORM 591 WAS AMONG PAPERS WHICH WERE REMOVED FROM HIS SERVICE JACKET AND GIVEN TO HIM AT THE TIME OF HIS TRANSFER TO THE FLEET RESERVE ON FEBRUARY 21, 1963; THAT UNTIL THAT TIME HE HAD ASSUMED THAT IT HAD BEEN SENT IN BY THE SHIP'S PERSONNEL OFFICER; THAT AT NO TIME BEFORE FEBRUARY 21, 1963, DID HE HAVE THE ORIGINAL OR COPIES OF THE ELECTION; AND THAT AFTER FINDING THE FORM HE ASSUMED THE ELECTION WAS NOT IN EFFECT, SO DID NOTHING ABOUT IT UNTIL HE RECEIVED YOUR INQUIRY.

CHIEF SHIPCLERK EDWARD B. BROCKMAN, W-2, USN, WHOSE NAME AND TITLE WERE TYPED ON BOTH THE ORIGINAL AND THE COPY OF THE NAVPERS FORM 591 IN THE SPACE PROVIDED FOR THE SIGNATURE AND TITLE OF ATTESTING OFFICER, WAS REQUESTED TO FURNISH (1) ANY INFORMATION HE COULD RECALL WHICH MIGHT BE OF ASSISTANCE IN DETERMINING WHETHER THE MEMBER'S ELECTION WAS DELIVERED TO NAVAL OFFICIALS ON OR BEFORE THE DEADLINE OF AUGUST 1, 1962, AND (2) INFORMATION AS TO HOW ELECTIONS WERE PROCESSED ON THE U.S.S. BON HOMME RICHARD AT THE TIME UNDER CONSIDERATION. HE STATED IN HIS LETTER OF APRIL 8, 1964, THAT HE SERVED AS PERSONNEL OFFICER OF THAT VESSEL FROM NOVEMBER 1960 TO JUNE 1962, AND THAT IT WAS THE PRACTICE IN CASES WHERE A MEMBER HAD COMPLETED 17 YEARS OF SERVICE, AND BEFORE HE HAD COMPLETED 18 YEARS OF SERVICE, THAT HE BE INTERVIEWED AND APPRISED OF THE "CONTINGENCY OPTION ACT," AND HE INDICATED THAT, IF THE MEMBER DESIRED TO MAKE AN ELECTION, A NAVPERS FORM 591 WOULD BE FILLED OUT AND SIGNED BY THE INDIVIDUAL, AT WHICH TIME HE WOULD BE ADVISED OF THE NECESSARY DOCUMENTS HE WOULD BE REQUIRED TO PROVIDE TO THE FINANCE CENTER. HE STATED FURTHER IN THAT ETTER:

THE NAVPERS 591 FORM WOULD THEN BE FORWARDED TO THE PERSONNEL OFFICE FOR REVIEW AND MY SIGNATURE. APPARENTLY IN THE CASE OF PARKER, HIS FORM DID NOT FOLLOW THE PRESCRIBED ROUTE AND WAS INADVERTENTLY FILED IN HIS RECORD. HOWEVER, SINCE IT WAS FILED IN HIS RECORD HE WOULD NOT HAVE HAD COMPLETE ACCESS TO THE FORM INASMUCH AS WHEN PERSONNEL DESIRED TO REVIEW THEIR SERVICES RECORD, THIS WAS ACCOMPLISHED UNDER THE SUPERVISION OF A QUALIFIED PERSONNELMAN. THEREFORE IT IS CONSIDERED THAT A FORM, NAVPERS 591, ONCE SIGNED BY THE MAN WOULD PASS IRRETRIEVABLY OUT OF HIS CONTROL AND INTO THE POSSESSION OF THE PERSONNEL OFFICE.

WITH EXCEPTIONS AND LIMITATIONS NOT HERE MATERIAL, THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, FORMERLY THE UNIFORMED SERVICES CONTINGENCY OPTION ACT, PERMITS EACH MEMBER OF THE NAVY TO ELECT TO RECEIVE A REDUCED AMOUNT OF ANY RETIRED OR RETAINER PAY WHICH MAY BE AWARDED HIM AS A RESULT OF HIS MILITARY SERVICE IN ORDER TO PROVIDE ONE OR MORE OF THE SPECIFIED ANNUITIES, PAYABLE AFTER HIS DEATH TO HIS WIDOW, CHILD, OR CHILDREN. IT CONTAINS NO LANGUAGE WHICH REQUIRES AN ELECTION THEREUNDER TO BE SUBMITTED IN ANY PARTICULAR MANNER OR FORM. THE APPLICABLE REGULATIONS (NAVPERS INSTRUCTION 1750.1D) REQUIRED THAT TO BE EFFECTIVE THE ELECTION MUST BE SIGNED AND WITNESSED AND THE PRESCRIBED FORM (NAVPERS FORM 591) REQUIRED THAT IT BE SWORN TO BEFORE AN ATTESTING OFFICER OR NOTARY. IT APPEARS THAT SUCH REQUIREMENTS WERE NOT COMPLIED WITH IN PROCESSING ELECTIONS ON THE U.S.S. BON HOMME RICHARD AT THE TIME UNDER CONSIDERATION, SINCE MR. BROCKMAN, APPARENTLY THE INTENDED ATTESTING OFFICER, STATES THAT THE USUAL PROCEDURE WAS SUCH THAT THE ELECTION FORM WOULD BE FILLED OUT AND SIGNED BEFORE IT WAS FORWARDED TO "THE PERSONNEL OFFICE FOR REVIEW AND FOR MY SIGNATURE.' IN OTHER WORDS, IT APPEARS THAT THE ATTESTING OFFICER DID NOT ACTUALLY WITNESS A MEMBER'S SIGNATURE ON AN ELECTION FORM AND THAT HE DID NOT PLACE THE MEMBER UNDER OATH AT ANY TIME IN CONNECTING WITH THE SIGNING. IN SUCH CIRCUMSTANCES, THE ATTESTING OFFICER'S SIGNATURE WOULD HAVE LITTLE SIGNIFICANCE.

WE BELIEVE THAT THE EVIDENCE IN PARKER'S CASE IS CONSISTENT WITH THE VIEW THAT HIS COMPLETED ELECTION FORM PASSED OUT OF HIS CONTROL INTO THE POSSESSION OF THE APPROPRIATE NAVY OFFICIALS ON FEBRUARY 26, 1962, THAT IT CLEARLY EVIDENCES HIS INTENT IN THE MATTER AND HENCE, THAT IT IS SUFFICIENT TO ESTABLISH THAT A TIMELY AND VALID ELECTION WAS MADE BY HIM ON THAT DATE BEFORE HE HAD COMPLETED 18 YEARS OF SERVICE. IN THIS CONNECTION, IT IS TO BE NOTED THAT THERE APPEARS NO REASON WHY HE WOULD FURNISH TO THE NAVY DEPARTMENT BIRTH CERTIFICATES FOR HIMSELF, HIS WIFE, AND HIS TWO MINOR CHILDREN UNLESS HE HAD IN FACT PREVIOUSLY MADE AN ELECTION OF OPTIONS UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. SEE 39 COMP. GEN. 349. ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE AFFIRMATIVE.