B-156862, JUN. 30, 1965

B-156862: Jun 30, 1965

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AFTER OFFSETTING COSTS FOR THE PERIOD HE WAS ENTITLED TO RETIRED PAY. YOU SAY THAT AT THE TIME CAPTAIN ALEXANDER WAS TRANSFERRED TO THE RETIRED LIST EFFECTIVE JULY 1. NO EVIDENCE OF AN ELECTION WAS FURNISHED YOU AND HIS RETIRED PAY WAS NOT REDUCED TO PROVIDE FOR AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. WHEN PRINTED NOTICES CONCERNING THE RECONCILIATION OF THE RECORDS PERTAINING TO ANNUITY ELECTIONS WERE MAILED TO EACH RETIRED MEMBER IN MAY 1961. NO REPLY WAS RECEIVED FROM CAPTAIN ALEXANDER DESPITE A REQUEST IN SUCH NOTICES FOR INFORMATION AS TO THIS MATTER FROM MEMBERS WHO HAD MADE AN ELECTION BUT WHOSE RETIRED PAY WAS NOT BEING REDUCED TO PAY FOR THE ELECTED ANNUITY.

B-156862, JUN. 30, 1965

TO COMMANDER M. L. CONNER, U.S. NAVY FINANCE CENTER:

BY SECOND ENDORSEMENT DATED MAY 24, 1965, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF APRIL 19, 1965, REQUESTING AN ADVANCE DECISION AS TO WHETHER THE ELECTION FORM SIGNED BY CAPTAIN O. HENRY ALEXANDER, 62824, MC, USN, RETIRED, DECEASED, ON MARCH 19, 1954, CONSTITUTES A VALID AND TIMELY ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, APPROVED AUGUST 8, 1953, CH. 393, 67 STAT. 501, NOW RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446, AND WHETHER ANNUITY PAYMENTS MAY BE ESTABLISHED ON BEHALF OF THE OFFICER'S WIDOW, MRS. MURIEL W. ALEXANDER, AFTER OFFSETTING COSTS FOR THE PERIOD HE WAS ENTITLED TO RETIRED PAY.

YOU SAY THAT AT THE TIME CAPTAIN ALEXANDER WAS TRANSFERRED TO THE RETIRED LIST EFFECTIVE JULY 1, 1959, NO EVIDENCE OF AN ELECTION WAS FURNISHED YOU AND HIS RETIRED PAY WAS NOT REDUCED TO PROVIDE FOR AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. WHEN PRINTED NOTICES CONCERNING THE RECONCILIATION OF THE RECORDS PERTAINING TO ANNUITY ELECTIONS WERE MAILED TO EACH RETIRED MEMBER IN MAY 1961, NO REPLY WAS RECEIVED FROM CAPTAIN ALEXANDER DESPITE A REQUEST IN SUCH NOTICES FOR INFORMATION AS TO THIS MATTER FROM MEMBERS WHO HAD MADE AN ELECTION BUT WHOSE RETIRED PAY WAS NOT BEING REDUCED TO PAY FOR THE ELECTED ANNUITY. UPON HIS DEATH ON SEPTEMBER 26, 1964, MRS. ALEXANDER FOUND AMONG HIS EFFECTS A COPY OF FORM NAVPERS 591, ELECTION OF OPTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, SIGNED BY HIM ON MARCH 19, 1954. THE FORM, A COPY OF WHICH WAS ENCLOSED WITH YOUR LETTER, PURPORTS TO BE AN ELECTION OF OPTION 1 AT 1/2 REDUCED RETIRED PAY COMBINED WITH OPTION 4 TO PROVIDE AN ANNUITY IN FAVOR OF MRS. ALEXANDER. SINCE THE FORM, WHICH IS THE TRIPLICATE COPY INTENDED FOR RETENTION BY THE MEMBER, WAS NOT SIGNED BY AN ATTESTING OFFICER OR NOTARY YOU HAVE MADE EXTENSIVE EFFORTS TO LOCATE THE ORIGINAL OR DUPLICATE OF THE ELECTION OR TO PROVIDE EVIDENCE OF DELIVERY OF SAME TO PROPER NAVAL OFFICERS ON OR BEFORE THE DEADLINE NOVEMBER 1, 1954, BUT NO RECORD HAS BEEN FOUND. ATTEMPTS TO ESTABLISH WHETHER THE ORIGINAL OR DUPLICATE OF THE ELECTION WAS DELIVERED TO NAVAL OFFICERS ON OR BEFORE NOVEMBER 1, 1954, HAVE FAILED TO ELICIT DEFINITE INFORMATION CONCERNING THE ELECTION FROM OFFICERS WHO WERE STATIONED ON THE U.S.S. HAVEN ON WHICH CAPTAIN ALEXANDER WAS SERVING AT THE TIME THE PURPORTED ELECTION WAS MADE. WHILE CAPTAIN GEORGE L. TABOR, MC, USNR, STATED IN LETTER OF DECEMBER 24, 1964, THAT HE HAS A DISTINCT MEMORY THAT CAPTAIN ALEXANDER "SENT HIS REQUEST FOR THIS OPTION TO THE NAVY DEPARTMENT," HE FURNISHED NO INFORMATION AS TO THE ACTUAL PHYSICAL EVENTS HE OBSERVED IN THIS CONNECTION.

WHILE IT MAY BE THAT CAPTAIN ALEXANDER INTENDED TO MAKE AN ELECTION OF AN ANNUITY, HIS SIGNATURE WAS NOT ATTESTED BY AN OFFICER OR NOTARY AND THERE IS NO ACTUAL EVIDENCE THAT THE ORIGINAL OR ANY OTHER COPY OF THAT FORM PASSED OUT OF HIS CONTROL INTO THE POSSESSION OF THE PROPER OFFICIALS ON THE U.S.S. HAVEN OR WAS FORWARDED TO THE BUREAU OF NAVAL PERSONNEL, WASHINGTON 25, D.C., IN ACCORDANCE WITH THE INSTRUCTIONS APPEARING ON THE REVERSE SIDE OF THE FORM. ALTHOUGH THE USE OF SECONDARY EVIDENCE IS NOT BARRED WHEN PRIMARY EVIDENCE CANNOT BE LOCATED BY THE ADMINISTRATIVE OFFICE DUE TO INADVERTENT LOSS OR DESTRUCTION, ANY DETERMINATION OF VALIDITY OF AN ELECTION ON THE BASIS OF SECONDARY EVIDENCE DEPENDS TO A LARGE DEGREE ON THE CERTAINTY OF SUCH EVIDENCE TO ESTABLISH THE NECESSARY FACTS. ON THE BASIS OF THE INFORMATION FURNISHED IT CANNOT BE DETERMINED THAT CAPTAIN ALEXANDER MADE A VALID ELECTION UNDER THE PLAN AND THEREFORE THERE IS NO AUTHORITY FOR ESTABLISHING AN ANNUITY ON BEHALF OF HIS WIDOW. SEE DECISION OF APRIL 29, 1965, B-156523, 44 COMP. GEN. - , COPY HEREWITH.