B-163393, MARCH 4, 1968, 47 COMP. GEN. 483

B-163393, MARCH 4, 1968, 47 COMP. GEN. 483

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - INCOMPETENTS - EVIDENCE AN ANNUITY ELECTION BY THE SECRETARY OF THE ARMY PURSUANT TO 10 U.S.C. 1433 ON BEHALF OF A RESERVE COMMISSIONED OFFICER DIAGNOSED MENTALLY INCOMPETENT IN MAY 1964 AND RETIRED AT THE AGE OF 60 UNDER 10 U.S.C. 1331, EFFECTIVE MAY 1, 1967, WHOSE WIFE AS CONSERVATRIX OF HIS ESTATE REQUESTED THE ELECTION, IS NOT A VALID ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN ABSENT EVIDENCE TO ESTABLISH THAT AT LEAST 3 YEARS BEFORE THE FIRST DAY FOR WHICH RETIRED PAY WAS GRANTED--- PRIOR TO MAY 1, 1964--- THE OFFICER WAS MENTALLY INCOMPETENT AND COULD NOT MAKE THE ANNUITY ELECTION. THEREFORE, THE MONTHLY COST OF THE ANNUITY WITHHELD FROM THE OFFICER'S RETIRED PAY MAY BE PAID.

TO LIEUTENANT COLONEL FRANK BERRISH, DEPARTMENT OF THE ARMY, MARCH 4, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 21, 1967, REQUESTING AN ADVANCE DECISION AS TO WHETHER IN THE CIRCUMSTANCES DESCRIBED IN THE CASE OF LIEUTENANT COLONEL PASCAL D. FORGIONE, O360618, AUS, RETIRED, THE ELECTION MADE BY THE COMMANDING OFFICER OF THE FINANCE CENTER IN THAT CASE MAY BE CONSIDERED A VALID ELECTION UNDER THE PROVISIONS OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. YOUR LETTER WAS FORWARDED HERE BY LETTER DATED JANUARY 18, 1968, FROM THE OFFICE OF THE COMPTROLLER OF THE ARMY UNDER D.O. NUMBER A982 ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

COLONEL FORGIONE BECAME 60 YEARS OF AGE ON APRIL 18, 1967, AND HE WAS PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST WITH ENTITLEMENT TO RETIRED PAY UNDER 10 U.S.C. 1331 EFFECTIVE MAY 1, 1967. HE HAD ACCEPTED AN INDEFINITE APPOINTMENT AS A RESERVE COMMISSIONED OFFICER ON NOVEMBER 22, 1952, WHICH STATUS EXISTED AT THE TIME OF HIS TRANSFER TO THE RETIRED LIST. THERE IS NO EVIDENCE THAT HE MADE AN ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, CH. 393, 67 STAT. 501, OR UNDER 10 U.S.C. 1431 AS AMENDED BY THE ACT OF OCTOBER 4, 1961, PUBLIC LAW 87- 381, 75 STAT. 810, WITHIN THE TIME LIMITATIONS FIXED BY THOSE LAWS.

IN MAY 1964 DR. FRANCIS H. O-BRIEN DIAGNOSED COLONEL FORGIONE'S MENTAL DETERIORATION AS ALZHEIMER'S PRESENILE DEMENTIA, WHICH HE LATER CONCLUDED BEGAN AT LEAST 5 YEARS PREVIOUSLY. ON JANUARY 28, 1965, THE PROBATE COURT, DISTRICT OF SOUTHINGTON, CONNECTICUT, APPOINTED HIS WIFE, MARY J. FORGIONE, CONSERVATRIX OF HIS ESTATE. AT THE TIME OF HIS RETIREMENT, HE WAS A PATIENT IN THE VETERANS ADMINISTRATION HOSPITAL, NORTHHAMPTON, MASSACHUSETTS, HAVING BEEN ADMITTED IN SEPTEMBER 1965. IN A LETTER DATED OCTOBER 17, 1967, THE ACTING CHIEF, MEDICAL SERVICE, AT THAT HOSPITAL STATED THAT THE OFFICER'S SYMPTOMS OF MENTAL DETERIORATION DEVELOPED GRADUALLY TO THE POINT WHERE HE LOST HIS SUCCESSFUL ACCOUNTING BUSINESS IN FEBRUARY 1964.

ON MAY 10, 1967, MRS. FORGIONE EXECUTED DA FORM 1041 INDICATING HER DESIRE FOR AN ELECTION OF OPTION 1 WITH OPTION 4 AT ONE-HALF REDUCED RETIRED PAY TO PROVIDE AN ANNUITY ON HER BEHALF. THE FORM WAS FORWARDED FOR CONSIDERATION AS A REQUEST THAT THE SECRETARY OF THE ARMY MAKE AN ELECTION UNDER THE PROVISIONS OF 10 U.S.C. 1433. ON SEPTEMBER 11, 1967, THE COMMANDING OFFICER, FINANCE CENTER, U.S. ARMY--- ACTING FOR THE SECRETARY OF THE ARMY--- MADE THE REQUESTED ELECTION PURSUANT TO PARAGRAPH 6-3E (1) (A), CHANGE 1, DATED AUGUST 16, 1962, OF AR 37 104-1. HOWEVER, DOUBT EXISTS AS TO WHETHER THE ELECTION MAY BE CONSIDERED A VALID ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN AND YOU HAVE REQUESTED A DECISION IN THE MATTER.

NOT HAVING MADE AN ELECTION PURSUANT TO THE 1953 ACT, COLONEL FORGIONE WAS PRECLUDED FROM MAKING AN ELECTION OF ANNUITY UNTIL THE ENACTMENT OF THE 1961 AMENDMENTS. THEREAFTER UNDER 10 U.S.C. 1431, AS AMENDED, AN ELECTION BY HIM WOULD HAVE PERMITTED PAYMENT OF AN ANNUITY IF THE ELECTION WAS MADE AT LEAST 3 YEARS BEFORE THE FIRST DAY FOR WHICH RETIRED PAY WAS GRANTED. SEE 45 COMP. GEN. 112, SEPTEMBER 8, 1965. YOUR DOUBT IN THE MATTER APPEARS TO RELATE TO THE SUFFICIENCY OF THE EVIDENCE WHICH HAS BEEN FURNISHED, TO ESTABLISH THAT PRIOR TO MAY 1, 1964, HE BECAME MENTALLY INCOMPETENT TO MAKE AN ELECTION, SO AS TO CONSTITUTE THE ELECTION MADE ON HIS BEHALF PURSUANT TO 10 U.S.C. 1433 A VALID ELECTION.

INSOFAR AS RELEVANT HERE, 10 U.S.C. 1433 PROVIDES:

IF A PERSON WHO WOULD BE ENTITLED TO MAKE AN ELECTION UNDER SECTION 1431 OR 1432 OF THIS TITLE IS DETERMINED TO BE MENTALLY INCOMPETENT BY MEDICAL OFFICERS OF THE ARMED FORCE CONCERNED OR OF THE VETERAN'S ADMINISTRATION, OR BY A COURT OF COMPETENT JURISDICTION, AND FOR THAT REASON CANNOT MAKE THE ELECTION WITHIN THE PRESCRIBED TIME, THE SECRETARY CONCERNED MAY MAKE AN ELECTION FOR THAT PERSON UPON THE REQUEST OF HIS SPOUSE OR, IF THERE IS NO SPOUSE, OF HIS CHILDREN WHO WOULD BE ELIGIBLE TO BE MADE BENEFICIARIES UNDER SECTION 1435 OF THIS TITLE * * *.

UNDER THE PLAIN TERMS OF THE LAW, THE SECRETARY MAY MAKE AN ELECTION ONLY IN THOSE CASES WHERE A PERSON IS DETERMINED BY PROPER AUTHORITY TO HAVE BEEN MENTALLY INCOMPETENT TO MAKE HIS OWN ELECTION PRIOR TO THE PRESCRIBED TIME, VIZ., AT LEAST 3 YEARS BEFORE THE FIRST DAY FOR WHICH RETIRED PAY IS GRANTED. THERE IS NO EVIDENCE THAT AN OFFICIAL DETERMINATION OF MENTAL INCOMPETENCE WAS MADE BY MEDICAL OFFICERS OF THE ARMY OR OF THE VETERANS ADMINISTRATION AND THE CONNECTICUT COURT FIRST FOUND COLONEL FORGIONE "INCAPABLE" ON JANUARY 28, 1965. SINCE THERE IS NO PROPER DETERMINATION THAT HE WAS MENTALLY INCOMPETENT TO MAKE AN ELECTION PRIOR TO MAY 1, 1964, THE ELECTION MADE ON SEPTEMBER 11, 1967, MAY NOT BE CONSIDERED A VALID ELECTION. ACCORDINGLY, THE VOUCHER SUBMITTED WITH YOUR LETTER AND RETURNED HEREWITH, REPRESENTING THE MONTHLY COST OF THE ANNUITY WITHHELD FROM HIS RETIRED PAY FOR THE PERIOD MAY 1, 1967, THROUGH AUGUST 31, 1967, MAY BE PAID, IF OTHERWISE CORRECT.