B-155404, NOV. 25, 1964

B-155404, NOV. 25, 1964

TO COMMANDER M. L. CONNER, SC. USN:

BY SECOND ENDORSEMENT DATED OCTOBER 14, 1964, UNDER SUBMISSION NUMBER DO- N-809, ASSIGNED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF SEPTEMBER 18, 1964, REQUESTING AN ADVANCE DECISION AS TO WHETHER ON THE BASIS OF THE FACTS IN EACH CASE, FLEET RESERVISTS EARL FLOYD COUNTS, 866 42 50, AND MICHAEL JACOBS, 405 79 69, HAVE EFFECTIVELY CLARIFIED THEIR ELECTIONS UNDER THE RETIREDSERVICEMAN'S FAMILY PROTECTION PLAN, CH. 73, TITLE 10, U. S. CODE, SECTIONS 1431 1446.

AT THE TIME COUNTS WAS TRANSFERRED TO THE FLEET RESERVE EFFECTIVE JUNE 1, 1964, IT WAS DISCOVERED THAT HIS ELECTION UNDER 10 U.S.C. 1431 WAS AMBIGUOUS IN THAT HE PLACED AN "X" IN THE 1/2 SQUARE OPPOSITE OPTION 1 INDICATING HE WANTED TO MAKE AN ANNUITY PAYABLE TO HIS WIDOW UNTIL HER REMARRIAGE OR DEATH, WHEREAS HE INDICATED THAT HE WANTED OPTION 4 COMBINED WITH OPTION 2 OR AN ANNUITY ON BEHALF OF HIS SURVIVING DEPENDENT CHILD OR CHILDREN WITH NO FURTHER DEDUCTIONS TO BE MADE FROM HIS RETIRED PAY COMMENCING WITH THE FIRST DAY OF THE MONTH FOLLOWING THAT IN WHICH THERE IS NO BENEFICIARY ELIGIBLE TO RECEIVE AN ANNUITY UPON HIS DEATH. HE ALSO LISTED THE NAMES AND BIRTHDATES OF HIS CHILDREN IN THE SPACE PROVIDED FOR USE IF EITHER OPTION 2 OR OPTION 3 IS ELECTED.

THE MEMBER'S FIRST RESPONSE TO REQUEST FOR CLARIFICATION WAS THAT HE DID NOT DESIRE TO PARTICIPATE IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. HOWEVER, UPON BEING ADVISED THAT HIS REVOCATION WOULD NOT BECOME EFFECTIVE FOR 3 YEARS FROM THE DATE OF HIS LETTER, NOVEMBER 21, 1961, PROVIDED HE DID NOT RETIRE OR TRANSFER TO THE FLEET RESERVE PRIOR TO THAT DATE, HE THEN EXECUTED ANOTHER ELECTION FORM IN WHICH HE ELECTED OPTION 2 WITH 4 AT 1/2 REDUCED RETIRED PAY WHICH APPARENTLY WAS INTENDED AS A CLARIFICATION OF HIS ORIGINAL ELECTION.

WHEN JACOBS TRANSFERRED TO THE FLEET RESERVE EFFECTIVE OCTOBER 20, 1960, IT WAS FOUND THAT HIS ELECTION WAS ALSO AMBIGUOUS SINCE HE PLACED AN "X" IN THE 1/4 SQUARE OPPOSITE OPTION 3, INDICATING HIS DESIRE TO MAKE AN ANNUITY PAYABLE TO HIS WIDOW UNTIL HER REMARRIAGE OR DEATH AND THEREAFTER, TO HIS SURVIVING DEPENDENT CHILD OR CHILDREN AND SPECIFIED THAT OPTION 4 WAS TO BE COMBINED WITH OPTION 2 AND LISTED HIS CHILDREN. BY LETTER DATED DECEMBER 14, 1960, HE STATED THAT IT WAS HIS DESIRE THAT OPTION 4 BE COMBINED WITH OPTION 3.

YOU REFER TO OUR DECISION, B-139866, OF AUGUST 7, 1959, 39 COMP. GEN. 80, WHEREIN WE HELD THAT A SURVIVOR'S ANNUITY ELECTION FORM WHICH WAS SIGNED, WITNESSED AND SUBMITTED WITHIN THE STATUTORY TIME LIMITATION BUT WHICH WHEN RETURNED FOR CORRECTION WAS INADVERTENTLY MISLAID AND NOT LOCATED UNTIL A YEAR AND HALF LATER, CONSTITUTES A VALID EFFECTIVE ELECTION SINCE THE CORRECTIONS MADE THEREON WERE BASICALLY CONSISTENT WITH THE ORIGINAL ELECTION AND DID NOT CONSTITUTE A MODIFICATION OF HIS ORIGINAL ELECTION OR A NEW AND DIFFERENT ELECTION. IN THE CASE INVOLVED IN THAT DECISION THE MEMBER HAD CHECKED THE BLOCK FOR 1/2 REDUCED PAY OPPOSITE OPTION 1 AND HAD COMBINED OPTION 4 WITH OPTION 3. YOU EXPRESSED AN UNCERTAINTY AS TO THE APPLICABILITY OF THE DECISION TO THE PRESENT CASES SINCE THE DECISION DOES NOT DISCLOSE THE BASIS FOR CONSIDERING THAT THE MEMBER HAD ,CLEARLY ELECTED OPTIONS 3 AND 4 AND NOT OPTION 1.'

THAT CASE INVOLVED AN ARMY OFFICER WHO MADE HIS ELECTION ON DA FORM 1041. THAT FORM, IN ADDITION TO THE BLOCKS INDICATING 1/8, 1/4 OR 1/2 OF REDUCED RETIRED PAY PROVIDED BLOCKED SPACES OPPOSITE EACH OPTION AND THE MEMBER HAD PLACED AN "X" OPPOSITE OPTION 3 AND OPTION 4 BUT NOT OPPOSITE OPTION 1 ALTHOUGH HE HAD PLACED AN "X" IN THE 1/2 PERCENT BLOCK OPPOSITE OPTION 1. THIS ACCOUNTS FOR THE LANGUAGE USED IN THE AUGUST 7, 1959, DECISION. THE SAME SITUATION DOES NOT EXIST IN THE PRESENT CASES SINCE FORM NAVPERS 591 USED FOR MAKING THE ELECTIONS DID NOT PROVIDE SUCH ADDITIONAL BLOCKS AND REQUIRED THAT ONLY THE APPROPRIATE FRACTION SQUARES BE CHECKED.

IT IS CLEAR THAT COUNTS AND JACOBS INTENDED TO ELECT UNDER THE PLAN BECAUSE THEY EXECUTED FORMS PROVIDED FOR THAT PURPOSE. WHILE IN EACH CASE AMBIGUOUS OPTIONS WERE DESIGNATED THE ELECTIONS WERE NOT INVALID ON THEIR FACE AND WERE SUBJECT TO CLARIFICATION.

THE ORIGINAL ELECTION FORM AS EXECUTED BY COUNTS INDICATE A VALID INTENTION TO PROVIDE ANNUITIES FOR HIS WIFE AND ALSO FOR HIS CHILDREN. A MISTAKE WAS MADE IN PLACING "X" IN THE 1/2 SQUARE OF OPTION 1, IT IS NOT APPARENT FROM THE FORM ITSELF AND IT IS NOT SUBJECT TO MODIFICATION SO AS TO ELIMINATE HIS WIFE AS A POTENTIAL BENEFICIARY. 39 COMP. GEN. 481, 484, CASE OF BRAY. WHILE THE ELECTION FORM EXECUTED BY COUNTS ON JUNE 20, 1962, EFFECTED A CLARIFICATION OF THAT PART OF HIS ELECTION RELATING TO AN ANNUITY FOR HIS CHILDREN, HE DOES NOT APPEAR TO BE AWARE OF THE FACT THAT HE MAY NOT ELIMINATE HIS WIFE AS A POTENTIAL BENEFICIARY. SINCE THE OPTIONS AS ELECTED, TOTALING 100 PERCENT, EXCEED THE MAXIMUM 50 PERCENT OF REDUCED RETAINER OR RETIRED PAY PERMITTED BY THE STATUTE, HE SHOULD BE ADVISED THAT DEDUCTIONS FROM HIS RETAINER PAY WILL BE ESTABLISHED ON THE BASIS OF AN ELECTION OF ANNUITIES AT 1/4 OF HIS REDUCED RETAINER PAY FOR (1) HIS WIDOW AND (2) HIS CHILDREN, BUT SUCH ACTION WILL BE DELAYED PENDING RECEIPT FROM HIM OF INFORMATION AS TO WHETHER HE DESIRES OPTION 1, AS WELL AS OPTION 2, COMBINED WITH OPTION 4.

JACOBS INDICATED ON HIS ORIGINAL ELECTION FORM AN INTENTION TO PROVIDE AN ANNUITY ON BEHALF OF BOTH HIS WIFE AND CHILDREN. WHILE HIS DESIGNATION OF OPTION 3 AT 1/4 AND OPTION 4 COMBINED WITH OPTION 2 WAS AMBIGUOUS, HIS LETTER OF DECEMBER 14, 1960, MAKING CLEAR HIS DESIRE TO HAVE OPTION 4 COMBINED WITH OPTION 3 MAY BE GIVEN FULL EFFECT AS A CLARIFICATION TO ESTABLISH THE PROPER DEDUCTION FROM HIS RETAINER PAY ON THE BASIS OF HIS ELECTION OF AN ANNUITY AT 1/4 REDUCED RETIRED PAY UNDER OPTION 3 WITH OPTION 4 IN FAVOR OF HIS WIDOW AND CHILDREN.