B-119867, JULY 22, 1954, 34 COMP. GEN. 35

B-119867, JULY 22, 1954, 34 COMP. GEN. 35

PAY - RETIRED - ANNUITIES FOR DEPENDENTS - UNIFORMED SERVICES CONTINGENCY OPTION ACT, 1953--- COMBINED ANNUITIES IN EXCESS OF STATUTORY LIMITATION A NAVY FLEET RESERVIST WHO EXECUTED A FORM FOR ELECTION OF OPTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 IN ORDER TO PROVIDE SURVIVORSHIP ANNUITIES FOR WIFE AND CHILDREN, THE COMBINED AMOUNTS OF WHICH EXCEEDED THE LIMITATION FIXED IN THE ACT, AND WHO DIED BEFORE HE WAS ABLE TO SIGN A NEW SET OF ELECTION FORMS, MAY BE CONSIDERED TO HAVE INTENDED TO PROVIDE THE MAXIMUM ANNUITY AUTHORIZED TO BE PAID WIFE AND CHILDREN UNDER THE OPTIONS SELECTED.

ACTING COMPTROLLER GENERAL WEITZEL TO COMMANDER E. J. BEASLEY, DEPARTMENT OF THE NAVY, JULY 22, 1954:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 19, 1954, XR:1HA:AK L16 4/1, TRANSMITTED HERE BY LETTER OF APRIL 27, 1954, FROM THE OFFICE OF THE JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE NAVY, REQUESTING A DECISION AS TO WHETHER UNDER THE FACTS AND CIRCUMSTANCES SET FORTH IN YOUR LETTER, THE EXECUTION BY BORDEN E. WOLF OF A FORM ( NAVPERS 591A) FOR ELECTION OF OPTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 CAN BE ACCEPTED AS AN ELECTION OF THE MAXIMUM BENEFITS OF OPTIONS 1 AND 2, EACH WITH OPTION 4 AND AT ONE-FOURTH OF REDUCED RETIRED PAY.

IT APPEARS THAT BORDEN E. WOLF, 359 69 50, ADEC, USNFR, EXECUTED THE FORM ON DECEMBER 2, 1953, TO PROVIDE AN ANNUITY FOR HIS DEPENDENTS--- WIFE AND THREE CHILDREN UNDER EIGHTEEN YEARS OF AGE--- BY ELECTING TO RECEIVE REDUCED RETIRED PAY, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4 OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, 502-503. UNDER THE SAID SECTION 4, AN ACTIVE OR RETIRED MEMBER MAY ELECT ONE OR MORE OF THE ANNUITIES, PAYABLE UNDER THE ACT, IN SUCH AMOUNT, EXPRESSED AS A PERCENTAGE OF THE REDUCED AMOUNT OF HIS RETIRED PAY, AS HE MAY SPECIFY AT THE TIME OF ELECTION, IN AMOUNTS EQUAL TO ONE-HALF, ONE-QUARTER OR ONE- EIGHTH OF THE REDUCED AMOUNT OF HIS RETIRED PAY, FOUR OPTIONS BEING PROVIDED FOR IN THE RESPECTIVE SUBSECTIONS 1 TO 4 OF SECTION 4, WITH A PROVISO THAT IN NO CASE MAY THE COMBINED AMOUNTS OF THE ANNUITIES SELECTED EXCEED 50 PERCENTUM OF THE AMOUNT OF THE MEMBER'S REDUCED RETIRED PAY. UNDER OPTION 1, MR. WOLF DESIGNATED AN ANNUITY OF "1/2 OF MY REDUCED RETIRED PAY PAYABLE TO OR ON BEHALF OF MY WIDOW UNTIL HER REMARRIAGE OR DEATH; " UNDER OPTION 2, HE DESIGNATED AN ANNUITY OF "1/2 OF MY REDUCED RETIRED PAY PAYABLE TO OR ON BEHALF OF MY SURVIVING CHILD OR CHILDREN UNMARRIED AND UNDER 18 YEARS OF AGE AND SURVIVING CHILD OR CHILDREN UNMARRIED AND OVER 18 YEARS OF AGE INCAPABLE OF SELF-SUPPORT BECAUSE OF BEING MENTALLY OR PHYSICALLY INCAPACITATED; " AND UNDER OPTION 4, HE INDICATED HIS DESIRE THAT THIS OPTION BE COMBINED WITH OPTIONS 1 AND 2, SAID OPTION 4 PROVIDING THAT NO FURTHER DEDUCTIONS WERE TO BE MADE FROM THE MEMBER'S RETIRED PAY COMMENCING WITH THE FIRST DAY OF THE MONTH FOLLOWING THAT IN WHICH THERE IS NO BENEFICIARY ELIGIBLE TO RECEIVE AN ANNUITY UPON HIS DEATH. IN VIEW OF THE FACT THAT MR. WOLF ELECTED A COMBINATION OF OPTIONS 1 AND 2, WITH ONE-HALF OF HIS REDUCED RETIRED (OR RETAINER) PAY TO BE PAID TO HIS SURVIVING WIDOW UPON HIS DEATH (OPTION 1) AND ONE HALF OF SUCH PAY TO BE PAID TO HIS CHILD OR CHILDREN UNDER CONDITIONS AS INDICATED (OPTION 2) AND SINCE THE COMBINED ANNUITIES UNDER THE ACT CANNOT EXCEED 50 PERCENTUM OF HIS REDUCED RETIRED PAY, THE CLEVELAND FIELD BRANCH, BUREAU OF SUPPLIES AND ACCOUNTS, ADVISED HIM BY LETTER DATED DECEMBER 22, 1953, OF THE LIMITATION AS TO COMBINED ANNUITIES AND FURNISHED HIM THE RATES OF THE MONTHLY ANNUITIES, BASED ON THE MAXIMUM OF ONE-FOURTH EACH UNDER OPTIONS 1 AND 2 COMBINED WITH OPTION 4, IT BEING THE OPINION OF THAT OFFICE THAT HE WAS INTERESTED IN THE MAXIMUM ANNUITY TO BE PAID UNDER OPTIONS 1-4 AND 2-4. ALSO, HE WAS ADVISED TO COMPLETE A NEW SET OF ELECTION FORMS WHICH WERE TRANSMITTED WITH THE LETTER OF DECEMBER 22D. HOWEVER, IT APPEARS THAT WHEN MR. WOLF RECEIVED THE NEW SET OF ELECTION FORMS, HE WAS SERIOUSLY ILL AND NEVER WAS ABLE TO SIGN THE PAPERS. IT IS SHOWN THAT HE DIED ON JANUARY 4, 1954.

IT IS CLEAR THAT MR. WOLF INTENDED TO ELECT UNDER THE ACT NOT ONLY BECAUSE HE EXECUTED A FORM PROVIDED FOR THAT PURPOSE BUT ALSO BECAUSE HE ACCOMPANIED HIS ELECTION WITH A CHECK FOR $37.53 PAYABLE TO THE TREASURER OF THE UNITED STATES, MORE THAN TWICE THE MAXIMUM AMOUNT REQUIRED FOR THE FIRST MONTH REDUCTION FROM HIS RETIRED PAY. IT APPEARS EQUALLY CLEAR THAT HE INTENDED TO PROVIDE ANNUITIES FOR HIS ELIGIBLE SURVIVING CHILDREN AS WELL AS HIS WIDOW--- THE SHARE TO BE PAID TO THE CHILDREN TO BE THE SAME AS THAT TO BE PAID TO THE WIDOW--- RATHER THAN TO PROVIDE FOR AN ANNUITY ON SOME OTHER AUTHORIZED BASIS. SINCE HE CHECKED IN THE APPROPRIATE SQUARES THE MAXIMUM ANNUITY THAT COULD BE PAID UNDER EITHER OPTION 1 OR OPTION 2, PLUS OPTION 4, IT REASONABLY MAY BE CONCLUDED THAT HE INTENDED TO PROVIDE FOR THE MAXIMUM ANNUITY WHICH WAS AUTHORIZED TO BE PAID UNDER OPTIONS 1-4 AND 2-4. ACCORDINGLY, AN ANNUITY MAY BE PAID TO HIS SURVIVING WIDOW AND CHILDREN ON THE BASIS OF ONE-FOURTH OF THE REDUCED PAY UNDER OPTIONS 1 AND 2, EACH WITH OPTION 4.