B-158707, JUN. 22, 1966

B-158707: Jun 22, 1966

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NAVY FINANCE CENTER: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 16. YOUR REQUEST WAS FORWARDED TO THIS OFFICE BY SECOND ENDORSEMENT OF THE COMPTROLLER OF THE NAVY. RABE WAS TRANSFERRED TO THE FLEET RESERVE ON NOVEMBER 29. AT THE TIME HIS RETAINER PAY ACCOUNT WAS ESTABLISHED. AS A RESULT IT WAS PRESUMED THAT NO ELECTION HAD BEEN INTENDED AND HIS RETAINER PAY ACCOUNT WAS ESTABLISHED WITHOUT ANNUITY DEDUCTIONS BEING MADE. HE ADVISED YOUR OFFICE THAT NO DEDUCTIONS FOR THE ANNUITY WERE BEING MADE AND REQUESTED VERIFICATION OF HIS PARTICIPATION IN THE PROGRAM. IT IS REPORTED THAT HE COMPLETED 18 YEARS OF SERVICE FOR BASIC PAY PURPOSES ON THE LATTER DATE. DEDUCTIONS WERE ESTABLISHED ON A TENTATIVE BASIS AND OTHER APPROPRIATE NAVAL ACTIVITIES WERE REQUESTED TO MAKE A THOROUGH SEARCH OF THEIR RECORDS FOR THE ORIGINAL AND THE SERVICE COPY (DUPLICATE) OF THE ELECTION FORM SIGNED BY THE MEMBER.

B-158707, JUN. 22, 1966

TO DISBURSING OFFICER, RETIRED PAY DEPARTMENT, U.S. NAVY FINANCE CENTER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 16, 1966 (XO:HWM:WR 7220/755 21 66), REQUESTING AN ADVANCE DECISION AS TO WHETHER ALVIN A. RABE, 755 21 66, ETCS, USNFR, F6, MADE A TIMELY AND VALID ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446. YOUR REQUEST WAS FORWARDED TO THIS OFFICE BY SECOND ENDORSEMENT OF THE COMPTROLLER OF THE NAVY, DATED MARCH 10, 1966, HAVING BEEN ASSIGNED SUBMISSION NUMBER DO-N-898 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE MATERIAL CONTAINED IN THE FILE, INCLUDING A COPY OF THE DUPLICATE OF THE MEMBER'S NAVPERS 591 FORM TRANSMITTED TO THIS OFFICE BY YOUR LETTER DATED MAY 3, 1966, INDICATES THAT MR. RABE WAS TRANSFERRED TO THE FLEET RESERVE ON NOVEMBER 29, 1964, AFTER SERVING ON ACTIVE DUTY FOR MORE THAN 20 YEARS. AT THE TIME HIS RETAINER PAY ACCOUNT WAS ESTABLISHED, THE RECORDS IN YOUR OFFICE AND THOSE OF THE U.S. NAVY FAMILY ALLOWANCE ACTIVITY, CONTAINED NO INFORMATION THAT AN ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN HAD BEEN MADE BY HIM. AS A RESULT IT WAS PRESUMED THAT NO ELECTION HAD BEEN INTENDED AND HIS RETAINER PAY ACCOUNT WAS ESTABLISHED WITHOUT ANNUITY DEDUCTIONS BEING MADE. HOWEVER, BY LETTER DATED DECEMBER 29, 1964, HE ADVISED YOUR OFFICE THAT NO DEDUCTIONS FOR THE ANNUITY WERE BEING MADE AND REQUESTED VERIFICATION OF HIS PARTICIPATION IN THE PROGRAM, CONTENDING THAT HE HAD CHOSEN OPTIONS 2 AND 4. LATER, UPON REQUEST BY YOUR OFFICE, HE SUBMITTED A COPY OF THE TRIPLICATE OF THE NAVPERS 591 FORM DATED NOVEMBER 22, 1962, RETAINED BY HIM, AS CONFIRMATION OF HIS ELECTION. IT IS REPORTED THAT HE COMPLETED 18 YEARS OF SERVICE FOR BASIC PAY PURPOSES ON THE LATTER DATE.

YOU STATE THAT UPON RECEIPT OF THE TRIPLICATE COPY OF THE 591 FORM, DEDUCTIONS WERE ESTABLISHED ON A TENTATIVE BASIS AND OTHER APPROPRIATE NAVAL ACTIVITIES WERE REQUESTED TO MAKE A THOROUGH SEARCH OF THEIR RECORDS FOR THE ORIGINAL AND THE SERVICE COPY (DUPLICATE) OF THE ELECTION FORM SIGNED BY THE MEMBER. ALTHOUGH THE ORIGINAL OF THE DOCUMENT WAS NEVER LOCATED, THE SERVICE COPY WAS FOUND IN THE MEMBER'S SERVICE FILE AT THE NAVAL RESERVE MANPOWER CENTER. BOTH THE SERVICE COPY AND THE TRIPLICATE RETAINED BY THE MEMBER ARE ALIKE IN EVERY RESPECT, EACH APPEARING TO BE COMPLETE AND REGULAR ON ITS FACE, BUT NEITHER COPY WAS SIGNED BY AN ATTESTING OFFICER.

ON THE BASIS OF THESE FACTS, A DETERMINATION IS REQUESTED AS TO WHETHER THE DUPLICATE COPY CONSTITUTES ADEQUATE EVIDENCE OF A VALID AND TIMELY ELECTION. YOU REFER TO OUR DECISION OF NOVEMBER 3, 1959, 39 COMP. GEN. 349, WHEREIN IT IS STATED THAT ANY SIGNED COPY OF THE ELECTION FORM CONSTITUTES PRIMARY EVIDENCE TO ESTABLISH THE FACT OF AN ELECTION OF OPTIONS.

SINCE THE DUPLICATE COPY WAS FOUND IN THE PLACE IT NORMALLY WOULD HAVE BEEN LOCATED IF THE ORIGINAL HAD BEEN FILED WITH THE PROPER NAVAL AUTHORITIES, SUCH COPY MAY BE ACCEPTED AS ESTABLISHING THE FACTS STATED ON ITS FACE IN THE ABSENCE OF EVIDENCE TO THE CONTRARY. NO INFORMATION HAS BEEN FURNISHED TENDING TO SHOW THAT THE ORIGINAL ELECTION FORM WAS NOT ACTUALLY SIGNED BY THE MEMBER WHEN HE SIGNED THE DUPLICATE COPY AND SINCE NOVEMBER 22, 1962, THE DATE APPEARING ON THE DUPLICATE, WAS THE LAST DAY ON WHICH MR. RABE COULD MAKE A VALID ELECTION, WE WILL CONSIDER SUCH COPY AS BEING SUFFICIENT EVIDENCE TO ESTABLISH THAT THE ORIGINAL OF THE ELECTION FORM TIMELY AND IRRETRIEVABLY PASSED BEYOND HIS CONTROL ON THAT DATE INTO THE POSSESSION OF THE APPROPRIATE NAVAL OFFICIALS. COMPARE 44 COMP. GEN. 229.

ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE AFFIRMATIVE AND PROPER MONTHLY DEDUCTIONS FROM THE MEMBER'S RETAINER PAY SHOULD BE CONTINUED.