B-124568, JULY 15, 1955, 35 COMP. GEN. 21

B-124568, JULY 15, 1955, 35 COMP. GEN. 21

RETIREMENT - MILITARY, NAVAL, ETC., PERSONNEL - SURVIVORSHIP ANNUITY ELECTIONS - EFFECTIVE DATE OF ELECTION AN AFFIDAVIT EVIDENCING A SURVIVORSHIP ANNUITY ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 WHICH WAS EXECUTED ON APRIL 29, 1954, BY A RETIRED NAVAL OFFICER AND GIVEN TO HIS ATTORNEY WHO MAILED IT ON MAY 1, 1954--- THE DAY THE OFFICER DIED--- REMAINED IN THE CONTROL AND POSSESSION OF THE OFFICER'S AGENT UNTIL AFTER APRIL 30, 1954, THE DATE THE STATUTORY TIME LIMITATION EXPIRED AND, THEREFORE, IS NOT A VALID ELECTION.

TO LIEUTENANT COLONEL M. L. JOHNSON, DEPARTMENT OF THE ARMY, JULY 15, 1955:

YOUR LETTER OF JUNE 30, 1955, REQUESTS A DECISION AS TO THE PROPRIETY OF PAYING A VOUCHER IN THE AMOUNT OF $547.96, REPRESENTING SURVIVORSHIP ANNUITY PAYMENTS FOR THE PERIOD MAY 1, 1954, THROUGH JUNE 30, 1955, UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, IN THE CASE OF LIEUTENANT COLONEL JAMES G. TAYLOR, U.S. ARMY, RETIRED, DECEASED.

IT APPEARS THAT ON APRIL 29, 1954, WHILE HOSPITALIZED IN THE U.S. NAVAL HOSPITAL, UNITED STATES NAVAL ACADEMY, ANNAPOLIS, MARYLAND, COLONEL TAYLOR EXECUTED AN AFFIDAVIT EVIDENCING THE ELECTION OF OPTION (1) UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 (ANNUITY PAYABLE ON BEHALF OF HIS WIDOW), AND THAT HE DIED AT THE HOSPITAL ON MAY 1, 1954. THE AFFIDAVIT WAS WITNESSED BY THREE PERSONS WHO WERE MEMBERS OF THE HOSPITAL STAFF ACTING IN THEIR OFFICIAL CAPACITY AND WAS GIVEN TO CAPTAIN LEON F. BROWN, A RETIRED NAVAL OFFICER, WHO WAS ACTING AS COLONEL TAYLOR'S ATTORNEY, FOR TRANSMITTAL TO THE PROPER AUTHORITY. BY LETTER DATED APRIL 30, 1954, CAPTAIN BROWN FORWARDED THE AFFIDAVIT TO THE RETIRED PAY DIVISION, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS 49, INDIANA; HOWEVER, HE DID NOT POST THE LETTER UNTIL MAY 1, 1954, BECAUSE HE WAS OF THE OPINION THAT THE TIME FOR SUBMITTING ELECTIONS HAD BEEN EXTENDED TO " NOVEMBER 30TH.' ON MAY 28, 1954, THE ARMY FINANCE CENTER ADVISED CAPTAIN BROWN THAT UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 THE ELECTION MUST HAVE BEEN POSTMARKED BY MIDNIGHT OF APRIL 30, 1954, AND THAT SINCE THE REGISTERED ENVELOPE WAS POSTMARKED MAY 1, 1954, THE ELECTION WAS NOT VALID.

YOU INDICATE THAT DOUBT EXISTS AS TO THE VALIDITY OF THE ELECTION AND PAYMENT OF THE ANNUITY BECAUSE OUR DECISION OF MAY 20, 1955, B 122222, DOES NOT APPEAR TO COVER THIS CASE,"SINCE THE ELECTION WAS NOT SUBMITTED DIRECTLY INTO OFFICIAL CHANNELS AS WAS THE CASE REFERRED TO IN THE CITED DECISION.'

UNDER SUBSECTION 3 (B) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 37 U.S.C. 372B, A RETIRED MEMBER IN RECEIPT OF RETIRED PAY WAS PERMITTED TO ELECT WITHIN 180 DAYS AFTER THE EFFECTIVE DATE OF THE ACT, OR NOT LATER THAN APRIL 30, 1954, TO RECEIVE A REDUCED AMOUNT OF THAT RETIRED PAY IN ORDER TO PROVIDE AN ANNUITY TO BE PAID AFTER HIS DEATH TO HIS WIDOW OR CHILDREN. SECTION 8 OF THE ACT, 37 U.S.C. 377, PROVIDES THAT THE ACT SHALL BE ADMINISTERED UNDER REGULATIONS PRESCRIBED BY THE PRESIDENT, WHICH REGULATIONS SHALL BE UNIFORM INSOFAR AS PRACTICABLE FOR ALL OF THE UNIFORMED SERVICES. THE 1953 ACT WAS AMENDED BY THE ACT OF APRIL 29, 1954, 68 STAT. 64, 37 U.S.C. 372, EXTENDING THE TIME FROM 180 DAYS TO ONE YEAR ( NOVEMBER 1, 1954) WITHIN WHICH AN "ACTIVE" MEMBER WITH OVER 18 YEARS OF SERVICE COULD MAKE HIS ELECTION. SECTION 203 OF THE REGULATIONS FOR THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 PROVIDES THAT TO BE EFFECTIVE THE ELECTION OF A MEMBER RETIRED PRIOR TO NOVEMBER 1, 1953, MUST BE SIGNED AND POSTMARKED NOT LATER THAN APRIL 30, 1954.

WITH RESPECT TO THAT REGULATION, IT WAS STATED IN THE DECISION OF MAY 20, 1955---

* * * SUCH PROVISIONS, HOWEVER, APPEAR TO HAVE BEEN FRAMED IN THE LIGHT OF THE USUAL SITUATION OF RETIRED PERSONNEL LIVING AMONG CIVILIANS, APART FROM MILITARY AND NAVAL INSTALLATIONS, AND WHO NORMALLY WOULD BE EXPECTED TO AVAIL THEMSELVES OF POSTAL FACILITIES FOR PURPOSES OF SUBMITTING THE ELECTION FORMS, IT BEING NOTED THAT FOR MEMBERS ON ACTIVE DUTY THE REGULATIONS REQUIRE ONLY THAT THE FORM BE SIGNED AND WITNESSED PRIOR TO APRIL 30, 1954. CONSEQUENTLY SUCH PROVISIONS DO NOT REQUIRE A CONCLUSION THAT AN OTHERWISE VALID ELECTION MADE ON A FORM SUBMITTED IN A WAY WHICH EFFECTIVELY TERMINATES THE MEMBER'S CONTROL OVER THE FORM IS NULLIFIED SIMPLY BECAUSE THE FORM WAS NOT TRANSMITTED THROUGH THE MAILS, OR WAS NOT IMMEDIATELY PUT IN THE MAILS, WHERE IT WAS OTHERWISE DELIVERED INTO OFFICIAL CHANNELS.

THE QUESTION FOR DETERMINATION IN THE DECISION OF MAY 20, 1955, WAS NOT WHETHER THE RETIRED MEMBER'S ELECTION OF OPTION WAS MADE WITHIN THE 180 DAYS SPECIFIED IN THE STATUTE AND REGULATIONS, BUT WHETHER THE RETIRED MEMBER'S ELECTION WAS PROPERLY EXECUTED. THE EVIDENCE IN THAT CASE SHOWED THAT THE RETIRED MEMBER WAS HOSPITALIZED AT THE U.S. NAVAL HOSPITAL, OAKLAND, CALIFORNIA, THAT HE DIED AT 12:35 P.M. ON APRIL 16, 1954, AND THAT HIS ELECTION OF OPTIONS FORM WAS SIGNED BY HIS WIDOW AND WITNESSED BY A MEDICAL OFFICER OF THE HOSPITAL STAFF ON APRIL 16, 1954. ALSO, IT APPEARED THAT THE OPTION FORM WAS MAILED TO THE CHIEF OF NAVAL PERSONNEL BY THE PERSONNEL OFFICE AT THE HOSPITAL, AND THAT THE ENVELOPE WAS POSTMARKED 12:30 P.M., APRIL 17, 1954. IN SUCH CIRCUMSTANCES IT WAS CONCLUDED THAT, IF EVIDENCE WAS MADE A PART OF THE RECORD TO ESTABLISH THE FACT THAT THE ELECTION FORM PASSED IRRETRIEVABLY OUT OF THE CONTROL OF THE RETIRED MEMBER AND HIS WIFE AND INTO THE HANDS OF THE AUTHORITIES OF THE U.S. NAVAL HOSPITAL AT OAKLAND PRIOR TO THE TIME OF HIS DEATH, THE ELECTION SHOULD BE CONSIDERED VALID. IN THE CASE PRESENTED, HOWEVER, THE RETIRED MEMBER'S AFFIDAVIT ELECTING TO PROVIDE AN ANNUITY FOR HIS WIFE WAS NOT DELIVERED INTO OFFICIAL CHANNELS, BUT WAS GIVEN TO HIS ATTORNEY TO MAIL FOR HIM. SINCE THE ELECTION REMAINED IN THE POSSESSION AND CONTROL OF THE OFFICER'S AGENT UNTIL AFTER THE STATUTORY TIME HAD EXPIRED, IT MAY NOT BE CONSIDERED A VALID ELECTION. IT NECESSARILY FOLLOWS THAT THE PROPOSED ANNUITY PAYMENT IS NOT AUTHORIZED.

THE VOUCHER, TOGETHER WITH THE OTHER PAPERS TRANSMITTED WITH YOUR LETTER, WILL BE RETAINED HERE.