B-205199 L/M, JAN 28, 1982

B-205199 L/M, JAN 28, 1982

DIGEST: WIDOW OF RETIRED MILITARY MEMBER IS NOT ENTITLED TO AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN (RFSPP) WHERE THERE IS NO RECORD IN OFFICIAL FILES THAT THE REQUIRED ELECTION FORM WAS SUBMITTED. AFFIDAVITS OF THE DECEASED MEMBER'S FRIENDS AND STATEMENT OF HIS WIDOW INDICATING THAT THE MEMBER BELIEVED HE HAD ELECTED COVERAGE UNDER THE RSFPP ARE NOT SUFFICIENT SECONDARY EVIDENCE TO ESTABLISH THAT COVERAGE UNDER RFSPP WAS ELECTED BY THE FORMER SERVICE MEMBER.

DAVID L. BOREN, UNITED STATES SENATOR:

WE REFER FURTHER TO YOUR CORRESPONDENCE DATED AUGUST 24, 1981, WITH ENCLOSURES, ON BEHALF OF MRS. GLADYS CATER, THE WIDOW OF MR. DENZIL W. CATER, A RETIRED CHIEF WARRANT OFFICER, ARMY NATIONAL GUARD, CONCERNING HER CLAIM FOR AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. 10 U.S.C. 1431-1446. BASED ON THE RECORD BEFORE US, WE MUST AGREE WITH THE FINDINGS OF THE DEPARTMENT OF THE ARMY, THAT MRS. CATER HAS FAILED TO ESTABLISH ENTITLEMENT TO THE ANNUITY.

MR. CATER RETIRED FROM THE NATIONAL GUARD ON FEBRUARY 1, 1970, AND DIED ON DECEMBER 16, 1978. SUBSEQUENT TO HIS DEATH MRS. CATER FILED A CLAIM WITH THE ARMY FOR AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN; HOWEVER, THE ARMY HAS DENIED HER CLAIM ON THE BASIS THAT THERE IS NOTHING IN MR. CATER'S MILITARY RECORDS TO SHOW THAT HE EVER ELECTED TO PARTICIPATE IN THE PLAN. THAT IS, HE DID NOT AGREE TO RECEIVE REDUCED MILITARY RETIRED PAY IN ORDER TO PROVIDE HIS WIFE AN ANNUITY AFTER HIS DEATH. MRS. CATER HAS STATED, HOWEVER, THAT HER HUSBAND DID INTEND TO PROVIDE HER WITH AN ANNUITY UNDER THE PLAN AND THAT HE FULLY BELIEVED THAT HE HAD IN FACT PROVIDED THAT SHE RECEIVE SUCH ANNUITY UPON HIS DEATH. SUPPORT OF HER CLAIM FOR AN ANNUITY SHE HAS SUBMITTED SEVERAL COPIES OF AFFIDAVITS WHEREIN FORMER SUPERIOR OFFICERS AND CO-WORKERS OF MR. CATER HAVE STATED THEIR BELIEF THAT HE SINCERELY BELIEVED THAT HE HAD TAKEN THE PROPER AND LEGALLY VALID ACTION NECESSARY FOR PROVIDING HIS WIFE WITH AN ANNUITY OF 50 PERCENT OF HIS MILITARY RETIRED PAY.

WITH EXCEPTIONS AND LIMITATIONS, NOT MATERIAL HERE, THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN PERMITTED A MEMBER OF THE ARMED FORCES TO ELECT TO RECEIVE REDUCED MILITARY RETIRED OR RETAINER PAY IN ORDER TO PROVIDE ONE OF THE SPECIFIED ANNUITIES PAYABLE AFTER HIS DEATH TO HIS WIDOW, CHILD, OR CHILDREN. GENERALLY, UNLESS THIS ELECTION WAS MADE BEFORE THE COMPLETION OF 19 YEARS OF SERVICE CREDITABLE IN THE COMPUTATION OF BASIC PAY, THE ELECTION MUST HAVE BEEN MADE AT LEAST 2 YEARS BEFORE THE FIRST DAY FOR WHICH RETIRED PAY OR RETAINER PAY WAS GRANTED. TO BE EFFECTIVE THE ELECTION MUST HAVE BEEN FILED WITH THE APPROPRIATE ARMY OFFICIALS. 44 COMP.GEN.665 (1965).

AS SET FORTH IN THE RECORD ON FEBRUARY 1, 1963, MR. CATER SIGNED A VALID DA FORM 1041, ELECTION OF OPTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 (WHICH LATER BECAME THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN), IN WHICH HE INDICATED THAT HE DID NOT WISH TO RECEIVE REDUCED RETIRED PAY IN ORDER TO PROVIDE AN ANNUITY FOR HIS DEPENDENTS. FORM FOR MAKING AN ELECTION AFTER DECEMBER 21, 1968, WAS DD FORM 1668. THE ARMY HAS NO RECORD THAT MR. CATER EXECUTED THAT FORM IN EITHER HIS MILITARY RECORDS OR IN THE RECORDS AT THE ARMY FINANCE AND ACCOUNTING CENTER.

IN CASES INVOLVING MISSING ELECTION FORMS WE HAVE SAID THAT WHILE A SIGNED COPY OF THE ELECTION FORM CONSTITUTES THE PRIMARY EVIDENCE OF AN ELECTION, THE USE OF SECONDARY EVIDENCE TO ESTABLISH THE FACT OF AN ELECTION IS NOT BARRED WHEN THE PRIMARY EVIDENCE CANNOT BE LOCATED DUE TO INADVERTENT LOSS OR DESTRUCTION. HOWEVER, IN ANY CASE WHICH REQUIRES THE USE OF SECONDARY EVIDENCE, THE QUESTION OF WHETHER A VALID OR BINDING ELECTION OF OPTIONS CAN BE ESTABLISHED IS DEPENDENT UPON THE PARTICULAR FACTS OF THE INDIVIDUAL CASE, THE NATURE OF THE SECONDARY EVIDENCE, AND THE DEGREE OF CERTAINTY THAT SUCH SECONDARY EVIDENCE DOES REASONABLY ESTABLISH THE FACT AT ISSUE. CF. 44 ID. 665 (1965). IN CASES INVOLVING MISSING ELECTION FORMS IN WHICH WE HAVE HELD THAT THE SECONDARY EVIDENCE WAS SUFFICIENT TO ESTABLISH VALID ELECTIONS THERE WAS AVAILABLE EVIDENCE OF A DUPLICATE COPY OF THE MEMBER'S ELECTION FORM SHOWING THE AMOUNT AND TYPE OF ELECTION AND A STATEMENT FROM THE ADMINISTRATIVE OFFICER WHO ATTESTED TO SUCH FORM TENDING TO ESTABLISH THAT A VALID ELECTION FORM PASSED OUT OF THE CONTROL OF THE MEMBER INTO THE POSSESSION OF THE PROPER AUTHORITY IN A TIMELY MANNER. SEE FOR EXAMPLE 43 COMP.GEN. 309 (1963). SEE ALSO 39 COMP.GEN. 349, (1959), IN WHICH THERE WAS OTHER DOCUMENTARY EVIDENCE INCLUDING PUNCH CARD DATA IN THE ADMINISTRATIVE FILES SUFFICIENT TO ESTABLISH WITH AMPLE CERTAINTY THE FACT THAT AN ELECTION HAD BEEN MADE; INCLUDING THE TIME OF EXECUTION, A DESIGNATED BENEFICIARY, AND A SPECIFIC AMOUNT.

WHILE THE COPIES OF AFFIDAVITS SUBMITTED INDICATE THAT MR. CATER BELIEVED THAT HE HAD ELECTED AN ANNUITY FOR HIS WIFE UNDER THE PLAN, THEY DO NOT SHOW THAT A VALID ELECTION FORM WAS PROPERLY EXECUTED AND SUBMITTED TO APPROPRIATE AUTHORITIES IN A TIMELY MANNER. THE AFFIDAVITS ONLY INDICATE THAT MR. CATER INTENDED TO PROVIDE AN ANNUITY FOR HIS WIFE UNDER THE PLAN AND HIS BELIEF THAT SUCH AN ANNUITY HAD BEEN ELECTED.

FURTHER, THERE IS NOTHING IN THE RECORD WHICH SHOWS THAT MR. CATER WAS RECEIVING REDUCED RETIRED PAY AS WOULD HAVE BEEN THE CASE HAD HE ELECTED COVERAGE UNDER THE PLAN. ALTHOUGH HE RETIRED IN 1970, OVER 8 YEARS BEFORE HIS DEATH, THE RECORD DOES NOT INDICATE THAT HE EVER QUESTIONED THE FACT THE HE WAS NOT APPARENTLY RECEIVING REDUCED RETIRED PAY. ACCORDINGLY, ON THE BASIS OF THE EVIDENCE PRESENTED, WE CANNOT HOLD THAT MR. CATER, IN FACT, ELECTED COVERAGE FOR HIS WIFE UNDER THE RETIRED SERVICEMEN'S FAMILY PROTECTION PLAN.

THE ARMY BOARD FOR THE CORRECTION OF MILITARY RECORDS, CONSTITUTED PURSUANT TO 10 U.S.C. SEC. 1552 (1976), HAS AUTHORITY TO ALTER THE RECORD WHEN SUCH ACTION IS NECESSARY TO CORRECT AN ERROR OR AVOID AN INJUSTICE. HOWEVER, THE BOARD DENIED MRS. CATER'S APPLICATION TO CORRECT HER LATE HUSBAND'S MILITARY RECORDS TO SHOW THAT HE TIMELY ELECTED COVERAGE UNDER THE PLAN. THIS IS AN EQUITABLE REMEDY WITHIN THE DISCRETION OF THE SERVICE CONCERNED. ACTION BY THE BOARD IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES AND IS NOT SUBJECT TO OUR REVIEW. SEE 55 COMP.GEN. 961 (1976).

SINCE IT CANNOT BE DETERMINED THAT MR. CATER MADE A VALID ELECTION UNDER THE PLAN AND SINCE CORRECTION OF RECORDS UNDER 10 U.S.C. SEC. 1552 WAS DENIED THERE IS NO AUTHORITY FOR ESTABLISHING AN ANNUITY FOR MRS. CATER.

WE REGRET THAT ACTION MORE FAVORABLE TO YOUR CONSTITUENT IS NOT POSSIBLE.