B-178748, JAN 31, 1974, 53 COMP GEN 519

B-178748, JAN 31, 1974, 53 COMP GEN 519

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - DEATH OF MEMBER - PRIOR TO RECEIPT OF ELECTION A MEMBER OF THE UNIFORMED SERVICES RETIRED PRIOR TO THE EFFECTIVE DATE OF THE SURVIVOR BENEFIT PLAN, PUBLIC LAW 92-425 AS AMENDED BY PUBLIC LAW 93- 155, WHO EXECUTED AN ELECTION WITHIN 1 YEAR TO PROVIDE AN ANNUITY FOR HIS WIDOW BUT DIED PRIOR TO THE RECEIPT OF THE ELECTION IN THE ADMINISTRATIVE OFFICE MADE A VALID ELECTION WHERE THE ELECTION DOCUMENT HAD BEEN SIGNED IN THE PRESENCE OF WITNESSES AND THE ELECTION FORM HAD PASSED FROM THE MEMBER'S CONTROL PRIOR TO HIS DEATH, AND FURTHERMORE, SECTIONS 3(B) AND 3(E) PROVIDE THAT AN ELECTION MADE WITHIN 18 MONTHS OF THE EFFECTIVE DATE OF THE ACT IS EFFECTIVE WHEN RECEIVED BY THE SECRETARY CONCERNED.

TO J.J. BURKHOLDER, JANUARY 31, 1974:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 3, 1973 (FILE REFERENCE RP-JJB-DM 3 MAY 1973), WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYING A SURVIVOR BENEFIT ANNUITY TO MRS. DORIS A. HOWELL, WIDOW OF THE LATE LIEUTENANT COLONEL PRESTON E. HOWELL, UNITED STATES MARINE CORPS, RETIRED, AND TO MRS. SHIRLEY FORDHAM, WIDOW OF THE LATE CAPTAIN PALMER B. FORDHAM, UNITED STATES MARINE CORPS, RETIRED, UNDER THE PROVISIONS OF THE SURVIVOR BENEFIT PLAN, 10 U.S.C. 1447-1455, AS ADDED BY PUBLIC LAW 92-425, SEPTEMBER 21, 1972, 86 STAT. 706, IN THE CIRCUMSTANCES DESCRIBED. THE REQUEST HAS BEEN ASSIGNED CONTROL NO. DO-MC- 1188 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT LIEUTENANT COLONEL HOWELL WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST ON JUNE 1, 1970, AND THAT HE DIED ON DECEMBER 13, 1972. YOU ALSO SAY THAT A SURVIVOR BENEFIT PLAN ELECTION CERTIFICATE, SIGNED BY THE MEMBER AND DATED DECEMBER 11, 1972, WAS RECEIVED AT THE MARINE CORPS FINANCE CENTER AT 10:47 A.M. ON DECEMBER 15, 1972. THE ENVELOPE IN WHICH THE ELECTION WAS MAILED WAS NOT RETAINED AND THEREFORE A POSTMARK DATE IS NOT AVAILABLE.

YOU SAY THAT CAPTAIN FORDHAM WAS TRANSFERRED TO THE RETIRED LIST OF REGULAR OFFICERS OF THE MARINE CORPS ON JULY 1, 1959, AND THAT HE DIED ON MARCH 1, 1973. YOU ALSO SAY THAT A SURVIVOR BENEFIT PLAN ELECTION CERTIFICATE, SIGNED BY THE MEMBER AND DATED FEBRUARY 28, 1973, WAS RECEIVED AT THE FINANCE CENTER AT 12:17 P.M., MARCH 5, 1973. THE ENVELOPE IN WHICH THE CERTIFICATE WAS MAILED IN CAPTAIN FORDHAM'S CASE BEARS A METERED CANCELLATION OF FEBRUARY 28, 1973, AND A POSTAL SERVICE CANCELLATION OF MARCH 2, 1973.

IN YOUR LETTER YOU POINT OUT THAT SECTION 3(B) OF PUBLIC LAW 92-425 (10 U.S.C. 1448(A)) PROVIDES THAT A PERSON WHO IS ENTITLED TO RETIRED OR RETAINER PAY ON THE EFFECTIVE DATE OF THE ACT MAY ELECT TO PARTICIPATE IN THE PLAN BEFORE THE FIRST ANNIVERSARY OF THAT DATE. YOU ALSO NOTE THAT SECTION 601.B OF THE INTERIM REGULATIONS DRAFTED BY THE DEPARTMENT OF DEFENSE PROVIDES THAT ANY PERSON ENTITLED TO RETIRED PAY ON SEPTEMBER 21, 1972, MAY ELECT TO PARTICIPATE IN THE PLAN BEFORE SEPTEMBER 21, 1973, AND THE EFFECTIVE DATE OF SUCH AN ELECTION SHALL BE THE DATE OF RECEIPT BY THE OFFICE ADMINISTERING PAYMENT OF RETIRED PAY.

IN CONNECTION WITH THE ABOVE REGULATION, YOU SAY THAT THE COMMITTEE COUNSEL OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE IN A MEMORANDUM DATED DECEMBER 8, 1972, STATED THAT SINCE THE U.S. MAIL WOULD BE THE MEANS BY WHICH RETIREES ORDINARILY WILL EFFECT DELIVERY OF THEIR ELECTIONS TO THE FINANCE CENTERS, THE DATE OF POSTMARK MAY BE CONSIDERED AS THE DATE OF RECEIPT AT THE FINANCE CENTER.

IN VIEW OF THE ABOVE, YOU ASK WHETHER THE ELECTION OF LIEUTENANT COLONEL HOWELL AND CAPTAIN FORDHAM MAY BE CONSIDERED VALID SINCE THEY WERE RECEIVED IN THE FINANCE CENTER SUBSEQUENT TO THE DATES OF THEIR DEATHS. IN THE EVENT THE POSTMARK MAY BE CONSIDERED AS THE DATE OF RECEIPT, YOU EXPRESS DOUBT REGARDING THE VALIDITY OF LIEUTENANT COLONEL HOWELL'S ELECTION SINCE THE ENVELOPE WAS NOT RETAINED. IN CAPTAIN FORDHAM'S CASE YOU ASK WHETHER THE METERED CANCELLATION OR THE POSTAL SERVICE CANCELLATION WOULD BE APPROPRIATE FOR USE AS AN EFFECTIVE DATE IF A POSTMARK MAY BE CONSTRUED AS THE EFFECTIVE DATE.

IN A LETTER DATED MAY 23, 1973, FORWARDING YOUR LETTER TO THIS OFFICE, THE HEAD OF THE DISBURSING BRANCH, FISCAL DIVISION, UNITED STATES MARINE CORPS, EXPRESSES DOUBT IN THE MATTER, CITING SUBSECTION 3(E) OF PUBLIC LAW 92-425 WHICH PROVIDES THAT AN ELECTION TO PARTICIPATE "IS EFFECTIVE ON THE DATE IT IS RECEIVED BY THE SECRETARY CONCERNED." IT IS ALSO POINTED OUT IN THAT LETTER THAT IN 44 COMP. GEN. 186 (1964) WE HELD, IN CONSTRUING LANGUAGE SIMILAR TO THAT CONTAINED IN SUBSECTION 3(E), THAT AN ELECTION UNDER SECTION 201(F) OF THE DUAL COMPENSATION ACT (5 U.S.C. 3102(G) (1964 ED.)) HAD TO HAVE BEEN RECEIVED IN THE DEPARTMENT CONCERNED ON A CERTAIN DATE IN ORDER TO BE EFFECTIVE.

AS INDIACTED ABOVE, THE SURVIVOR BENEFIT PLAN IN SUBSECTION 3(B) OF PUBLIC LAW 92-425 PROVIDES THAT A PERSON RECEIVING RETIRED PAY ON THE EFFECTIVE DATE OF THE ACT MAY ELECT TO PARTICIPATE IN THE PLAN BEFORE THE FIRST ANNIVERSARY OF THAT DATE.

SINCE RECEIPT OF THE ABOVE-MENTIONED LETTER DATED MAY 23, 1973, SUBSECTION 3(B) HAS BEEN AMENDED BY SECTION 804 OF PUBLIC LAW 93-155, ENACTED NOVEMBER 16, 1973, 87 STAT. 615, TO EXTEND THE 1-YEAR PERIOD TO 18 MONTHS FROM THE DATE OF ENACTMENT OF THE SURVIVOR BENEFIT PLAN, OR, MARCH 21, 1974.

IN THIS CONNECTION, SUBSECTION 3(E) OF THE PLAN PROVIDES IN PERTINENT PART:

(E) AN ELECTION MADE UNDER SUBSECTION (A) OR (B) OF THIS SECTION IS EFFECTIVE ON THE DATE IT IS RECEIVED BY THE SECRETARY CONCERNED ***.

IN THE CASES OF BOTH LIEUTENANT COLONEL HOWELL AND CAPTAIN FORDHAM, WHILE IT APPEARS THAT THEY DIED PRIOR TO THE RECEIPT OF THE ELECTION IN THE OFFICE ADMINISTERING THE PROGRAM, IT APPEARS REASONABLY CLEAR THAT THE MEMBERS SIGNED THE DOCUMENTS IN THE PRESENCE OF WITNESSES AND THAT THE ELECTION FORMS PASSED FROM THEIR CONTROL PRIOR TO THEIR DEATHS.

SINCE THE ABOVE-CITED SUBSECTIONS REQUIRE ONLY THAT ELECTIONS BE MADE PRIOR TO THE EXPIRATION OF THE PERIOD AUTHORIZED BY THE ACT FOR MAKING ELECTIONS AND ONLY THAT SUCH ELECTIONS BE RECEIVED IN THE APPROPRIATE ADMINISTRATIVE OFFICE IN ORDER TO BE EFFECTIVE, IT IS OUR VIEW THAT SUCH REQUIREMENTS HAVE BEEN FULLY COMPLIED WITH IN BOTH CASES.

THEREFORE, UNDER THE SPECIFIC CIRCUMSTANCES OF THE CASES AS SET FORTH IN THE SUBMISSION AS VIEWED IN LIGHT OF SUBSECTIONS 3(B) AND 3(E) OF THE ACT, THE WIDOWS OF BOTH DECEASED MEMBERS MAY BE PAID THE ANNUITIES ELECTED BY THEIR LATE HUSBANDS AND YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.