B-122507, SEP. 29, 1955

B-122507, SEP. 29, 1955

TO THE SECRETARY OF DEFENSE:

REFERENCE IS MADE TO A LETTER DATED JULY 25, 1955, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING RECONSIDERATION OF OUR DECISION OF MAY 2, 1955, B-122507 (34 COMP. GEN. 555), WHICH HELD THAT AN ELECTION BY A MEMBER OF THE UNIFORMED SERVICES OF A COMBINATION OF OPTIONS (2) AND (3) UNDER THE PROVISIONS OF SUBSECTION 4/A) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, 503, WAS NOT A VALID ELECTION AND THAT A LATER ELECTION OF OPTION (3) ONLY WOULD BE AN ORIGINAL ELECTION AND COULD NOT BE REGARDED AS A MODIFICATION OR REVISION OF THE PRIOR ELECTION WITHIN THE MEANING OF SUBSECTION 3/A) OF THE ACT.

IT IS STATED IN THE LETTER OF JULY 25, 1955, THAT UNDER THE PROVISION OF SECTION 3/A) OF THE ACT, AS AMENDED BY PUBLIC LAW 346, APPROVED APRIL 29, 1954, 68 STAT. 64, ACTIVE MEMBERS WHO HAVE COMPLETED 18 YEARS OF SERVICE CREDITABLE FOR PAY PURPOSES WERE REQUIRED TO MAKE AN ELECTION NOT LATER THAN NOVEMBER 1, 1954, TO BE COVERED BY THE ACT, AND THAT, IN VIEW OF OUR DECISION, SUCH MEMBERS WHO ATTEMPTED SUBSEQUENT TO NOVEMBER 1, 1954, TO CORRECT THEIR INVALID SELECTION OF OPTIONS (2) AND (3) ARE FOREVER PRECLUDED FROM PARTICIPATION IN THE BENEFITS EXTENDED BY THE ACT. IT IS FURTHER STATED THAT APPROXIMATELY 500 MEMBERS ARE AFFECTED ADVERSELY BY THE DECISION, ALTHOUGH AT THE TIME OF THEIR ELECTION THEY SELECTED IN GOOD FAITH, EITHER THROUGH MISINFORMATION FURNISHED OR A MISUNDERSTANDING OF THE ACT'S PROVISIONS, A COMBINATION OF OPTIONS NOW HELD TO BE INVALID.

AS A BASIS FOR THE REQUEST FOR RECONSIDERATION THERE WERE CITED OUR DECISIONS OF JULY 22, 1954, B-119867 (34 COMP. GEN. 35), AND AUGUST 13, 1954, B-120438 (34 COMP. GEN. 63), AS BEING ANALOGOUS TO THE SITUATION IN THE PRESENT CASE, CONTRARY TO SUCH VIEW, HOWEVER, THE OPTIONS OR COMBINATION OF OPTION SELECTED BY THE MEMBERS IN THOSE CASES WERE EXPRESSLY AUTHORIZED BY THE STATUTE, THE ONLY DEFECTS IN SUCH ELECTIONS BEING THAT THE COMBINED TOTALS OF THE ANNUITY PROVISIONS ELECTED EXCEEDED THE MAXIMUM PERCENTAGE OF THE REDUCED AMOUNT OF THE MEMBER'S RETIRED PAY AUTHORIZED TO BE PAID TO HIS SURVIVOR, OR THE MEMBERS' FAILURE TO INDICATE EXACTLY THE PERCENTAGE OF SUCH RETIRED PAY TO BE PAID TO THEIR SURVIVORS. IN SUCH CIRCUMSTANCES, WE HELD THAT THE ELECTION INTENDED COULD BE INFERRED FROM THE CIRCUMSTANCES OR THAT IT WAS PROPER TO PERMIT THE MEMBER, IF ALIVE, TO STATE HIS INTENT IN THE MATTER, AND IF DECEASED, HIS INTENT COULD BE ESTABLISHED BY THE AFFIDAVITS OF PERSONS COGNIZANT OF THE MEMBER'S INTENTIONS.

ELECTION OF OPTIONS (2) AND (3) IS NOT PERMITTED BY THE STATUTE. ACTION COULD BE TAKEN ON A PURPORTED ELECTION OF OPTIONS (2) AND (3) NOR COULD SUCH PURPORTED ELECTION BE COMPLETED, THERE BEING NO ELECTION THAT COULD BE CLEARED UP OR PERFECTED; THE MEMBER IN EFFECT MUST RETRACT THE SELECTION OF ONE OR BOTH OF SUCH OPTIONS. IT FOLLOWS THAT ANY SUBSEQUENT ELECTION IS A NEW OR ORIGINAL ELECTION. THEREFORE, TO PERMIT A MODIFICATION OR CORRECTION OF A PURPORTED ELECTION OF OPTIONS (2) AND (3) NOW WOULD VIOLATE THE PROVISION OF THE STATUTE REQUIRING THAT THE ELECTION BE MADE BEFORE THE DATES PRESCRIBED IN THE STATUTE. IN THE CASES RELIED UPON FOR THE REQUEST FOR RECONSIDERATION THE OPTIONS ELECTED WERE EXPRESSLY AUTHORIZED AND, CONSIDERING THE NATURE OF THE LEGISLATION, THE STATUTE WAS LIBERALLY INTERPRETED; SUCH DOUBT AS EXISTED WAS RESOLVED IN FAVOR OF RECOGNIZING THE VALIDITY OF THE ELECTION MADE PROVIDED THE PERCENTAGE FACTOR COULD BE REASONABLY INFERRED OR ASCERTAINED IN THE MANNER OUTLINED. IN SUCH CASES THE COMPLETION OF THE ELECTION MADE WAS AUTHORIZED; NO NEW ELECTION WAS PERMITTED.

IN THE PRESENT CASES, SINCE NO VALID ELECTIONS WERE MADE DURING THE TIME FIXED BY THE STATUTE, WE PERCEIVE NO LEGAL BASIS TO MODIFY THE CONCLUSIONS REACHED IN THE DECISION OF MAY 2, 1955.