B-156776, JUN. 10, 1965

B-156776, JUN. 10, 1965

TO COMMANDER M. L. CONNER:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 12, 1965, FORWARDED HERE BY SECOND ENDORSEMENT DATED MAY 12, 1965, OF THE COMPTROLLER OF THE NAVY, REQUESTING A DECISION WHETHER THE ELECTION OF A SURVIVOR'S ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN EXECUTED IN THE CASE OF LIEUTENANT COMMANDER MERRILL H. HOFER, USNR, 503 510, ON APRIL 1, 1959, IS A VALID AND TIMELY ELECTION. YOUR REQUEST FOR DECISION HAS BEEN ASSIGNED SUBMISSION NO. DO-N-847 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT MR. HOFER WAS TRANSFERRED TO THE RETIRED LIST PURSUANT TO 10 U.S.C. 6323 EFFECTIVE JULY 1, 1964, AT WHICH TIME THERE WAS NO RECORD IN THE NAVY FINANCE CENTER, OR IN THE U.S. NAVY FAMILY ALLOWANCE ACTIVITY, OF HIS HAVING MADE AN ELECTION TO PARTICIPATE IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446. CONSEQUENTLY NO DEDUCTIONS WERE MADE FROM HIS RETIRED PAY TO COVER THE COST OF THE SURVIVOR'S ANNUITY.

ON NOVEMBER 30, 1964, THE U.S. NAVY FAMILY ALLOWANCE ACTIVITY DELIVERED TO THE RETIRED PAY DEPARTMENT FORM NAVPERS 591 EXECUTED ON APRIL 1, 1959, BY LIEUTENANT MERRILL HERMAN HOFER, USNR, 503 510, BORN MARCH 21, 1923, ELECTING OPTIONS 1 AND 4 OF HIS REDUCED RETIRED PAY PAYABLE UNTIL HER REMARRIAGE OR HER DEATH TO OR ON BEHALF OF HIS WIFE, MILDRED ELIZABETH (NEE JOHNSON) HOFER, BORN FEBRUARY 11, 1923, TO WHOM HE WAS MARRIED ON JUNE 22, 1943, IN LOWMOOR, IOWA. THAT ELECTION WAS ATTESTED BY R. B. HOGAN, PERSONNEL OFFICER. THAT FORM HAD BEEN TRANSMITTED TO A LIEUTENANT COMMANDER REDFIELD IN THE BUREAU OF NAVAL PERSONNEL, WASHINGTON, D.C., ALONG WITH A STATEMENT DATED OCTOBER 28, 1964, SIGNED BY COMMANDER R. B. HOGAN, USNR, COMMANDING OFFICER, NAVAL RESERVE TRAINING CENTER, SAVANNAH, GEORGIA, STATING THAT:

"THE ATTACHED NAVPERS 591 WAS SIGNED BY ME WHILE I WAS PERSONNEL OFFICER AT NAS WILLOW GROVE, PA. THROUGH AN OVERSIGHT, THIS DOCUMENT FAILED TO BE PLACED IN THE MAIL.'

IN RESPONSE TO REQUESTS FROM THE RETIRED PAY DEPARTMENT FOR INFORMATION AS TO HOW AND WHEN THE ORIGINAL ELECTION FORM CAME INTO HIS POSSESSION, MR. HOFER, BY LETTER DATED DECEMBER 20, 1964, STATED THAT UPON RECEIPT OF HIS RETIRED PAY ACCOUNT CERTIFICATE IN SEPTEMBER HE REALIZED THAT NO WITHHOLDING WAS BEING MADE FOR THE SURVIVOR'S ANNUITY, ALTHOUGH HE REMEMBERED HAVING SIGNED AN ELECTION THEREFOR AT NAS WILLOW GROVE, PENNSYLVANIA, IN 1959, THE DUPLICATE COPY OF WHICH HAD BEEN PUT IN HIS PERSONAL FILE. HE STATED ALSO THAT HE WENT THROUGH THE FILE AND DISCOVERED HE ALSO HAD THE ORIGINAL, THAT HE TOOK THE ORIGINAL TO THE BUREAU OF NAVAL PERSONNEL AND DISCUSSED THE PROBLEM WITH LIEUTENANT COMMANDER REDFIELD, WHO ADVISED HIM TO GET A VERIFICATION FROM THE PERSONNEL OFFICER (COMMANDER HOGAN) WHO HAD WITNESSED HIS SIGNATURE ON THE ORIGINAL FORM, THAT THE ORIGINAL ELECTION FORM WAS FORWARDED TO COMMANDER HOGAN, WHO RETURNED IT WITH VERIFICATION OF HIS SIGNATURE, AND THAT HE THEN FORWARDED THE ORIGINAL ELECTION FORM TO MR. REDFIELD IN THE BUREAU OF NAVAL PERSONNEL.

YOU SAY THAT, SINCE THE DUPLICATE IS THE COPY FILED IN THE MEMBER'S SERVICE RECORD (PERSONNEL JACKET) AT HIS DUTY STATION, YOU ASKED HIM TO ADVISE WHETHER THE "PERSONAL FILE" TO WHICH HE REFERRED WAS HIS SERVICE RECORD. IN A LETTER TO YOU DATED JANUARY 23, 1965, HE STATED THAT:

"WHILE STATIONED AT N.A.S. WILLOW GROVE, THE OFFICER'S PERSONNEL OFFICE MAINTAINED THE SERVICE RECORDS AS WELL AS A SEPARATE FILE WITH EXTRA COPIES OF ALL ORDERS, CORRESPONDENCE, LETTERS OF COMMENDATION, ETC.

"WHEN I WAS RELEASED TO INACTIVE DUTY IN OCTOBER 1959 THIS SEPARATE FILE WAS GIVEN TO ME AND I STORED IT WITH OTHER PERSONAL FILES IN A CRUISE BOX FOR SAFE KEEPING.

"I HAVE NO IDEA WHY THEY WERE PLACED IN MY PERSONAL FILE UNLESS THE YEOMAN PLACED THEM THERE BY MISTAKE. YOU HAVE THE INFORMATION AS TO WHAT TRANSPIRED FROM THERE.'

IN DECISION OF MAY 20, 1955, B-122222, WE CONSIDERED A CASE WHERE THE ANNUITY ELECTION FORM WAS POSTMARKED AFTER THE DEATH OF THE RETIRED MEMBER BUT HAD BEEN TURNED OVER TO THE NAVAL AUTHORITIES AT THE HOSPITAL WHERE HE WAS A PATIENT. OBSERVING THAT THE REGULATIONS CONCERNING POSTMARK DATE PRESUMABLY RELATED TO THE USUAL CASE WHERE RETIRED MEMBERS ARE LIVING AMONG CIVILIANS APART FROM MILITARY AND NAVAL INSTALLATIONS, SINCE FOR ANNUITY ELECTIONS MADE BY MEMBERS ON ACTIVE DUTY THE REGULATIONS REQUIRED ONLY THAT THE ELECTION FORM BE SIGNED AND WITNESSED WITHIN THE PRESCRIBED PERIOD, WE SAID THAT:

"* * * SUCH PROVISIONS DO NOT REQUIRE A CONCLUSION THAT AN OTHERWISE VALID ELECTION MADE ON A FORM SUBMITTED IN A WAY WHICH EFFECTIVELY TERMINATES THE MEMBER'S CONTROL OVER THE FORM IS NULLIFIED SIMPLY BECAUSE THE FORM WAS NOT TRANSMITTED THROUGH THE MAILS, OR WAS NOT IMMEDIATELY PUT IN THE MAILS, WHERE IT WAS OTHERWISE DELIVERED INTO OFFICIAL CHANNELS.

"ACCORDINGLY, IF THE SUBMITTED ELECTION FORM IN THIS CASE PASSED IRRETRIEVABLY OUT OF THE CONTROL OF * * * AND INTO THE HANDS OF THE AUTHORITIES OF THE U.S. NAVAL HOSPITAL AT OAKLAND PRIOR TO THE TIME OF HIS DEATH, AND EVIDENCE ESTABLISHING THAT FACT IS MADE A PART OF THE RECORD, AN ANNUITY * * * MAY BE PAID * * * UNDER THE OPTION SELECTED IN THE ELECTION OF OPTIONS FORM * * *.'

IN DECISION OF OCTOBER 28, 1964, B-154764, 44 COMP. GEN. - , WE CONSIDERED THE CASE OF JAMES LESLIE PARKER, A MEMBER OF THE FLEET RESERVE, IN WHICH AT THE TIME OF HIS TRANSFER TO THE FLEET RESERVE IN FEBRUARY 1963 THE U.S. NAVY FAMILY ALLOWANCE ACTIVITY TRANSFERRED TO THE RETIRED PAY DEPARTMENT RECORDS AND CORRESPONDENCE CONCERNING THE MEMBER'S ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, INCLUDING CERTIFIED COPIES OF BIRTH CERTIFICATES OF MEMBERS OF HIS FAMILY, WHICH DOCUMENTS THE FAMILY ALLOWANCE ACTIVITY HAD RECEIVED IN OCTOBER 1962 WITHOUT ANY ANNUITY ELECTION FORM. PURSUANT TO A REQUEST MADE TO THE MEMBER'S COMMANDING OFFICER FOR THE ORIGINAL OR DUPLICATE ANNUITY ELECTION FORM, THE FAMILY ALLOWANCE ACTIVITY RECEIVED THE DUPLICATE (SERVICE RECORD) COPY OF THE ANNUITY ELECTION FORM DATED FEBRUARY 26, 1962, WHICH HAD NOT BEEN SIGNED BY EITHER THE MEMBER OR THE ATTESTING OFFICER. IN MAY 1963 THE RETIRED PAY DEPARTMENT RECEIVED THE ORIGINAL ELECTION FORM WITHOUT A LETTER OF EXPLANATION FROM THE MEMBER, WHO IN JUNE 1963 WAS REQUESTED TO STATE WHY HE HAD THE ORIGINAL ELECTION. IN JULY 1963 HE REPLIED THAT THE ORIGINAL ELECTION FORM WAS AMONG PAPERS WHICH WERE REMOVED FROM HIS SERVICE JACKET AND GIVEN TO HIM AT TIME OF HIS TRANSFER TO THE FLEET RESERVE IN FEBRUARY 1963, AT NO TIME BEFORE WHICH DID HE HAVE THE ORIGINAL OR COPIES OF THE ELECTION. THE OFFICER WHOSE NAME AND TITLE WERE TYPED ON BOTH THE ORIGINAL AND COPY OF THE ELECTION FORM STATED THAT THE MEMBER'S ELECTION FORM APPARENTLY "WAS INADVERTENTLY FILED IN HIS RECORD" AND THAT UNDER THE PRACTICE BEING FOLLOWED AT THAT TIME, THE ELECTION FORM "ONCE SIGNED BY THE MAN WOULD PASS IRRETRIEVABLY OUT OF HIS CONTROL AND INTO THE POSSESSION OF THE PERSONNEL OFFICE.'

IN THAT DECISION, NOTING THAT THERE WOULD HAVE BEEN NO APPARENT REASON FOR FURNISHING THE BIRTH CERTIFICATES IF NO ANNUITY ELECTION HAD BEEN MADE, WE CONCLUDED:

"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 DECISION OF SEPTEMBER 30, 1963, B-152399, 43 COMP. GEN. 309, IN THE CASE OF HUGH EDGAR PHILLIPS THE ONLY EVIDENCE OF A VALID TIMELY ANNUITY ELECTION CONSISTED OF A SIGNED AND TIMELY EXECUTED DUPLICATE COPY OF THE ANNUITY ELECTION FORM ATTESTED TO BY A NAVAL OFFICER ON JUNE 1, 1959, AND A STATEMENT FROM THE ATTESTING OFFICER WHO SIGNED THE DULY EXECUTED ELECTION FORM THAT IT WAS THE PRACTICE TO PLACE THE ORIGINAL IN THE "TO BE MAILED" BOX "TAGGED FOR BUPERS," AND THAT ONE COPY WAS GIVEN TO THE MEMBER FOR HIS INFORMATION AND POSSIBLE FUTURE USAGE. WE THERE CONCLUDED:

"* * * 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 RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN.

IN THE CIRCUMSTANCES PRESENT IN THIS CASE IT MAY REASONABLY BE CONCLUDED THAT THE ANNUITY ELECTION FORM PASSED OUT OF CONTROL OF MR. HOFER ON APRIL 1, 1959, AND SUBSEQUENTLY WAS RETURNED TO HIM THROUGH ERROR WHEN HE WAS RELEASED FROM ACTIVE DUTY. ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE AFFIRMATIVE, AND APPROPRIATE MONTHLY DEDUCTIONS FROM HIS RETIRED PAY MAY BE ESTABLISHED IN THIS CASE, IF OTHERWISE PROPER.