B-171793, APR 5, 1971

B-171793: Apr 5, 1971

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REESE DID IN FACT REQUEST THAT HIS WIFE TAKE APPROPRIATE ACTION TO WAIVE HIS MILITARY RETIRED PAY IN ORDER THAT HE MIGHT HAVE HIS MILITARY SERVICE INCLUDED IN COMPUTATION OF HIS CIVIL SERVICE RETIREMENT ANNUITY ON THE BASIS OF AN APPROPRIATE UNDERSTANDING OF THE EFFECT OF SUCH WAIVER. REQUESTS A DECISION WHETHER YOU ARE AUTHORIZED TO PAY THE ARREARS OF RETIRED PAY OF $10.56 DUE AND UNPAID IN THE RETIRED PAY ACCOUNT OF MASTER SERGEANT HORACE J. REESE WAS EMPLOYED WITH THE MARINE CORPS SUPPLY CENTER AT BARSTOW. REESE WAS HOSPITALIZED PRIOR TO HIS DEATH AND WAS TOO ILL TO SIGN HIS NAME. FURTHER STATES THAT MASTER SERGEANT REESE WAS SEPARATED FOR RETIREMENT BY HIS AGENCY ON APRIL 7. STATES IN PERTINENT PART: "IT IS MY DESIRE TO WAIVE MY MILITARY RETIRED PAY WHICH WILL ENABLE ME TO (RECEIVE) AN IMMEDIATE CIVIL SERVICE ANNUITY.".

B-171793, APR 5, 1971

MILITARY PERSONNEL - MILITARY RETIRED PAY - WAIVER DECISION ADVISING THAT IF MASTER SERGEANT HORACE J. REESE DID IN FACT REQUEST THAT HIS WIFE TAKE APPROPRIATE ACTION TO WAIVE HIS MILITARY RETIRED PAY IN ORDER THAT HE MIGHT HAVE HIS MILITARY SERVICE INCLUDED IN COMPUTATION OF HIS CIVIL SERVICE RETIREMENT ANNUITY ON THE BASIS OF AN APPROPRIATE UNDERSTANDING OF THE EFFECT OF SUCH WAIVER, MRS. REESE'S ACTION TO IMPLEMENT THIS INTENT NEED NOT BE SUPPORTED BY A POWER OF ATTORNEY.

TO MR. J. J. BURKHOLDER:

YOUR LETTER OF FEBRUARY 3, 1971, REQUESTS A DECISION WHETHER YOU ARE AUTHORIZED TO PAY THE ARREARS OF RETIRED PAY OF $10.56 DUE AND UNPAID IN THE RETIRED PAY ACCOUNT OF MASTER SERGEANT HORACE J. REESE, USMC (RETIRED), DECEASED, TO HIS WIDOW, MRS. DOROTHY E. REESE, THE BENEFICIARY DESIGNATED UNDER 10 U.S.C. 2771(A)(1). YOUR REQUEST FOR DECISION HAS BEEN ASSIGNED CONTROL NO. DO-MC-1113 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

A LETTER DATED JUNE 26, 1970, FROM THE UNITED STATES CIVIL SERVICE COMMISSION TO YOU STATES IN PERTINENT PART:

"MR. REESE WAS EMPLOYED WITH THE MARINE CORPS SUPPLY CENTER AT BARSTOW, CALIFORNIA FROM SEPTEMBER 4, 1959 UNTIL HIS DEATH ON MAY 1, 1970. AS MR. REESE WAS HOSPITALIZED PRIOR TO HIS DEATH AND WAS TOO ILL TO SIGN HIS NAME, HIS WIFE, DOROTHY E. REESE, ACTING UNDER A POWER OF ATTORNEY PREVIOUSLY EXECUTED BY HER HUSBAND, EXECUTED AN APPLICATION FOR CIVIL SERVICE RETIREMENT ON HIS BEHALF AND ELECTED TO WAIVE HIS MILITARY RETIRED PAY SO THAT HIS MARINE CORPS SERVICE COULD BE USED IN THE COMPUTATION OF HIS CIVIL SERVICE ANNUITY."

THE LETTER OF JUNE 26, 1970, FURTHER STATES THAT MASTER SERGEANT REESE WAS SEPARATED FOR RETIREMENT BY HIS AGENCY ON APRIL 7, 1970. WITH THAT LETTER THE CIVIL SERVICE COMMISSION FORWARDED A COPY OF THE POWER OF ATTORNEY - UNDER WHICH MRS. REESE PURPORTEDLY WAIVED MASTER SERGEANT REESE'S MILITARY RETIRED PAY - AND REQUESTED "YOUR DETERMINATION AS TO WHETHER IT CAN BE ACCEPTED AS A WAIVER OF MR. REESE'S RETIRED PAY."

THE CIVIL SERVICE COMMISSION ALSO ADVISED YOU THAT MASTER SERGEANT REESE DIED ON MAY 1, 1970. A LETTER DATED APRIL 7, 1970, ADDRESSED TO THE BUREAU OF ACCOUNTS DIVISION, DEPARTMENT OF THE NAVY, TO WHICH MRS. REESE APPARENTLY SIGNED HER HUSBAND'S NAME, STATES IN PERTINENT PART:

"IT IS MY DESIRE TO WAIVE MY MILITARY RETIRED PAY WHICH WILL ENABLE ME TO (RECEIVE) AN IMMEDIATE CIVIL SERVICE ANNUITY."

YOU STATE THAT YOU HAVE BEEN INFORMALLY ADVISED BY THE CIVIL SERVICE COMMISSION THAT THE LATE MASTER SERGEANT REESE'S ANNUITY HAS BEEN COMPUTED ON THE BASIS OF HIS CIVILIAN SERVICE ONLY, PENDING DECISION AS TO WHETHER THE WAIVER OF HIS RETIRED PAY BY MRS. REESE IS EFFECTIVE. YOU SAY THAT THERE IS DOUBT WHETHER THE REQUEST SIGNED BY MRS. REESE, ACTING UNDER THE ABOVE-MENTIONED POWER OF ATTORNEY IS A VALID ELECTION TO WAIVE HIS RETIRED PAY EFFECTIVE APRIL 7, 1970.

THE POWER OF ATTORNEY DATED NOVEMBER 18, 1952, UNDER WHICH MRS. REESE PURPORTEDLY ACTED RECITES THAT, ANTICIPATING THAT HE MAY BE REQUIRED TO GO OVERSEAS AS A MEMBER OF THE MARINE CORPS (DURING THE PERIOD OF THE KOREAN HOSTILITIES), MASTER SERGEANT REESE NAMED "MRS. DORTHY E. REESE" AS HIS TRUE AND LAWFUL ATTORNEY TO ACT IN, MANAGE, AND CONDUCT ALL HIS ESTATE AND ALL HIS AFFAIRS, AND FOR THAT PURPOSE FOR HIM AND IN HIS NAME AND FOR HIS USE AND BENEFIT, TO DO AND EXECUTE ALL OF THE ENUMERATED ACTS, DEEDS, AND THINGS RELATING TO PROPERTY AND BUSINESS TRANSACTIONS, INCLUDING THE RECEIPT, COLLECTION, COMPROMISE, SETTLEMENT AND ADJUSTMENTS OF ALL ACCOUNTS, ANNUITIES, ETC., WHICH MIGHT THEREAFTER BE DUE OR PAYABLE TO HIM, AND GIVING AND GRANTING HER FULL POWER AND AUTHORITY TO DO AND PERFORM EVERY ACT WITH RESPECT TO HIS PROPERTY AND AFFAIRS AS FULLY AND EFFECTUALLY AS HE MIGHT OR COULD DO IN HIS "OWN PROPER PERSON IF PERSONALLY PRESENT."

IT WILL BE NOTED THAT THE POWER OF ATTORNEY WAS EXECUTED OVER 17 YEARS PRIOR TO THE DATE OF THE PURPORTED WAIVER OF THE MEMBER'S MILITARY RETIRED PAY; THAT IT WAS EXECUTED INCIDENT TO MASTER SERGEANT REESE'S ANTICIPATION THAT HE MIGHT BE REQUIRED TO GO OVERSEAS DURING THE PERIOD OF THE KOREAN HOSTILITIES; THAT WHILE IT AUTHORIZED MRS. REESE TO RECEIVE AND ADJUST ALL ANNUITIES, IT DID NOT EMPOWER HER TO WAIVE HIS MILITARY RETIRED PAY, A RIGHT TO WHICH HE MIGHT OR MIGHT NOT ACCRUE AT A FUTURE TIME; AND THAT IT EMPOWERED MRS. REESE TO ACT IN HIS STEAD AS HIS ATTORNEY AS HE MIGHT "IF PERSONALLY PRESENT."

THERE IS NOTHING IN THE POWER OF ATTORNEY TO INDICATE THAT MRS. REESE WAS TO PERFORM ANY ACT ON HER HUSBAND'S BEHALF WHERE HE WAS PERSONALLY PRESENT, NOR IS THERE ANY OTHER EVIDENCE THAT THE SAID POWER OF ATTORNEY WAS INTENDED TO REMAIN IN FULL FORCE AND EFFECT MORE THAN 17 YEARS AFTER IT WAS EXECUTED AND MORE THAN 10 YEARS AFTER HE HAD RETURNED TO CIVILIAN LIFE, DURING ALL OF WHICH PERIOD HE WAS EMPLOYED IN THE AREA WHERE HE AND MRS. REESE APPARENTLY CONTINUOUSLY RESIDED. SINCE THE POWER OF ATTORNEY RECITES NO REASON FOR ITS EXECUTION OTHER THAN THAT IT WAS MADE IN ANTICIPATION THAT MASTER SERGEANT REESE MIGHT BE REQUIRED TO GO OVERSEAS AS A MEMBER OF THE MARINE CORPS, IT WOULD SEEM THAT ITS PURPOSE WAS FULFILLED WHEN HE RETURNED TO THE UNITED STATES - IF HE ACTUALLY LEFT THIS COUNTRY - AND COULD THEN HANDLE HIS OWN AFFAIRS.

WE ARE NOT AWARE OF ANY LAW AUTHORIZING MILITARY PERSONNEL TO DELEGATE TO ANOTHER THE POWER TO ELECT ANY RETIREMENT OR ANNUITY BENEFIT ON THEIR BEHALF, OR THE EXERCISE OF ANY SUCH POWER BY ANOTHER, OTHER THAN THE PROVISION IN 10 U.S.C. 1433, WHICH AUTHORIZES THE SECRETARY OF THE DEPARTMENT CONCERNED TO ELECT AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446 (FORMERLY CONTINGENCY OPTION ACT OF 1953), WHICH ELECTION MAY BE CHANGED BY SUCH MEMBER UPON HIS RECOVERY.

IN DECISIONS OF JANUARY 13, 1956, 35 COMP. GEN. 397, AND AUGUST 19, 1959, 39 COMP. GEN. 112, WE HELD THAT THE ELECTION OF AN ANNUITY OPTION UNDER THE CONTINGENCY OPTION ACT OF 1953 IS A PERSONAL DECISION WHICH MUST BE MADE BY THE MILITARY MEMBER, IN THE ABSENCE OF A STATUTE PERMITTING SUCH AN ELECTION TO BE MADE FOR HIM, AND THAT THEREFORE ANNUITY ELECTIONS PURPORTEDLY MADE BY THE MEMBER'S DAUGHTER AND WIFE, RESPECTIVELY, UNDER POWERS OF ATTORNEY HELD BY THEM WERE WITHOUT LEGAL EFFECT.

IN OUR DECISION OF FEBRUARY 29, 1956, B-126034, 35 COMP. GEN. 489, WE CONSIDERED THE CASE OF A CHIEF DENTAL TECHNICIAN, U.S. NAVY. INFORMATION CONTAINED IN AFFIDAVITS OF NAVY MEDICAL SERVICE CORPS OFFICERS AND OTHER EVIDENCE FURNISHED IN THAT CASE INDICATED THAT DURING A PERIOD OF HOSPITALIZATION, THE MEMBER THERE INVOLVED WAS FULLY INFORMED ON JUNE 30, 1955, WITH REGARD TO THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953; THAT HE WAS COMPLETELY AWARE THAT HIS RETIREMENT FOR DISABILITY WAS ABOUT TO BE ACCOMPLISHED; AND THAT BASED ON SUCH KNOWLEDGE HE FULLY COMPREHENDED HIS RIGHT TO MAKE AN ELECTION "AT THE TIME OF RETIREMENT" IN ORDER TO PROVIDE AN ANNUITY FOR HIS WIDOW AND CHILDREN. IT WAS FURTHER SHOWN THAT WHILE HE WAS LUCID AND APPARENTLY MENTALLY COMPETENT AT THAT TIME, HE WAS PHYSICALLY INCAPABLE OF AFFIXING HIS SIGNATURE; THAT AFTER AN EXPLANATION OF THE CONTINGENCY OPTION ACT OF 1953 HE "INDICATED A DESIRE FOR THE (ANNUITY) OPTION ELECTED BY HIS WIFE" IN HER LETTER OF JUNE 30, 1955, ADDRESSED TO THE COMMANDANT, THIRTEENTH NAVAL DISTRICT, IN WHICH SHE SPECIFIED "OPTION NO. 3, WITH ONE-HALF (1/2) OF REDUCED RETIRED PAY"; AND THAT HIS FAILURE TO SIGN THE ELECTION FORMS WHICH WERE SUBMITTED TO HIM DURING THE PROCESSING OF HIS RETIREMENT RESULTED SOLELY FROM HIS PHYSICAL INCAPACITY. THERE WAS NO RELIANCE ON ANY POWER OF ATTORNEY IN THIS CASE.

IN SUCH CIRCUMSTANCES WE CONCLUDED THAT, IF EVIDENCE ESTABLISHING CERTAIN FACTS WITH RESPECT TO WHEN THE LETTER OF JUNE 30, 1955, PASSED OUT OF THE CONTROL OF THE MEMBER AND HIS WIFE WERE MADE A PART OF THE RECORD, ANNUITY PAYMENTS UNDER THE CONTINGENCY OPTION ACT OF 1953 PROPERLY COULD BE MADE TO HER ON THE BASIS OF A VALID ELECTION OF OPTION 3. COMPARE DECISION OF AUGUST 19, 1959, B-135468, 39 COMP. GEN. 112, WHERE THE WIFE ATTEMPTED TO ACT ON HER HUSBAND'S BEHALF SOLELY UNDER A POWER OF ATTORNEY HELD BY HER.

IN A LETTER DATED JANUARY 18, 1971, TO THE HONORABLE JERRY L. PETTIS, HOUSE OF REPRESENTATIVES, A COPY OF WHICH HAS RECENTLY BEEN FURNISHED THIS OFFICE, MRS. REESE STATED THAT PRIOR TO HER HUSBAND'S DEATH "IT WAS HIS DECISION TO RELINQUISH HIS MILITARY RETIRED PAY IN ORDER TO COMBINE HIS MILITARY SERVICE TIME WITH CIVIL SERVICE TIME TO ENABLE HIM TO RECEIVE AN IMMEDIATE CIVIL SERVICE ANNUITY" AND THAT SINCE THIS "WAS HIS REQUEST TO BE EFFECTIVE 7 APRIL 1970" AND HE WAS HOSPITALIZED AT THAT TIME, SHE "CHOSE TO USE MY POWER OF ATTORNEY TO EXECUTE SAME."

THE RECORD BEFORE US, HOWEVER, CONTAINS NOTHING TO SUPPORT MRS. REESE'S STATEMENTS AND IT FAILS TO ESTABLISH THAT AT THE TIME OF HIS ASSERTED REQUEST MASTER SERGEANT REESE UNDERSTOOD THE RETIREMENT AND ANNUITY BENEFITS AVAILABLE TO HIM AND TO HIS WIFE; THE EFFECT OF A WAIVER OF HIS MILITARY RETIRED PAY IN FAVOR OF A CIVIL SERVICE ANNUITY ON HIS OWN BEHALF; AND THAT, ON THE BASIS OF HIS UNDERSTANDING THEREOF HE DID IN FACT REQUEST THAT SHE TAKE APPROPRIATE ACTION TO WAIVE HIS MILITARY RETIRED PAY IN ORDER THAT HE MIGHT HAVE HIS MILITARY SERVICE INCLUDED IN THE COMPUTATION OF HIS CIVIL SERVICE RETIREMENT ANNUITY. IF UPON FURTHER INVESTIGATION EVIDENCE IS DEVELOPED TO ESTABLISH SUCH FACTS, THE POWER OF ATTORNEY IS NOT NECESSARY TO SUPPORT MRS. REESE'S ACTION AND THIS OFFICE WILL NOT OBJECT TO THE ISSUANCE OF A CERTIFICATION TO THE CIVIL SERVICE COMMISSION THAT MASTER SERGEANT REESE WAIVED HIS MILITARY RETIRED PAY AT THE TIME OF HIS CIVIL SERVICE RETIREMENT IN ORDER TO HAVE HIS MILITARY SERVICE INCLUDED IN THE COMPUTATION OF HIS CIVIL SERVICE ANNUITY.

THE VOUCHER IS RETURNED HEREWITH FOR PAYMENT IN THE EVENT FURTHER INVESTIGATION FAILS TO ESTABLISH THE MATTERS MENTIONED ABOVE.