B-123960, JULY 22, 1955, 35 COMP. GEN. 40

B-123960, JULY 22, 1955, 35 COMP. GEN. 40

RETIRED PAY - DISABILITY - ELECTION OF PAY COMPUTATION METHOD - VALID TIMELY ELECTIONS INASMUCH AS THE CAREER COMPENSATION ACT OF 1949 DOES NOT DEFINE AN EFFECTIVE RETIREMENT PAY OPTION ELECTION FOR PURPOSES OF SECTION 411, AND THE REGULATIONS DO NOT REQUIRE THE ELECTION TO BE EXECUTED ON A PARTICULAR FORM OR IN A PRESCRIBED MANNER, A LETTER FORWARDED TO THE NAVY DEPARTMENT PRIOR TO THE EXPIRATION DATE OF THE FIVE-YEAR LIMITATION IN SECTION 411 BY A NAVAL OFFICER WHO REQUESTED A CHANGEOVER TO THE NEW PAY LAW, ON THE BASIS OF AN INCREASED DISABILITY PERCENTAGE RATING, CONSTITUTES AN EFFECTIVE ELECTION TIMELY MADE.

TO THE DIRECTOR, SPECIAL PAYMENTS DIVISION, DEPARTMENT OF THE NAVY, JULY 22, 1955:

REFERENCE IS MADE TO YOUR LETTER OF MAY 3, 1955, FORWARDED HERE BY THE JUDGE ADVOCATE GENERAL OF THE NAVY REQUESTING DECISION WHETHER IN THE CIRCUMSTANCES DISCLOSED LIEUTENANT (JG) GORDON GRIFFIN, JR., U.S. NAVY, RETIRED, MAY BE DEEMED TO HAVE EXECUTED A TIMELY ELECTION FOR THE PURPOSE OF COMPUTING HIS RETIRED PAY UNDER OPTION (A) IN SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949.

IT APPEARS FROM THE REGISTER OF COMMISSIONED AND WARRANT OFFICERS OF THE U.S. NAVY AND MARINE CORPS, JANUARY 1, 1953 (PAGE 497), THAT LIEUTENANT GRIFFIN WAS RETIRED EFFECTIVE AUGUST 1, 1946, BY REASON OF PHYSICAL DISABILITY. HIS STATUS ON OCTOBER 1, 1949, THEREFORE, FELL SQUARELY WITHIN THE PURVIEW OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823, 37 U.S.C. 281, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

PURSUANT TO SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, (1) ANY MEMBER OR FORMER MEMBER OF THE UNIFORMED SERVICES HERETOFORE RETIRED BY REASON OF PHYSICAL DISABILITY AND NOW RECEIVING OR ENTITLED TO RECEIVE RETIRED OR RETIREMENT PAY * * * MAY ELECT WITHIN THE FIVE YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF THIS TITLE, (A) TO QUALIFY FOR DISABILITY RETIREMENT PAY UNDER THE PROVISIONS OF THIS ACT AND, DEPENDENT ON HIS QUALIFICATION, SHALL BE ENTITLED TO RECEIVE EITHER THE DISABILITY RETIREMENT PAY OR THE DISABILITY SEVERANCE PAY PRESCRIBED IN THIS TITLE: PROVIDED, THAT THE DETERMINATION OF THE PERCENTAGE OF DISABILITY AS PRESCRIBED IN SECTIONS 402 (A) (3), 402 (B) (3), OR 402 (C) (3), AS APPLICABLE, SHALL BE BASED UPON THE DISABILITY OF SUCH MEMBER * * * AS OF THE TIME HE WAS LAST RETIRED * * * OR (B) TO RECEIVE RETIRED PAY OR RETIREMENT PAY COMPUTED BY ONE OF THE TWO METHODS CONTAINED IN SECTION 511 OF THIS ACT. * * *

IT WOULD APPEAR THAT ON THE BASIS OF THE PERCENTAGE OF DISABILITY INITIALLY DETERMINED TO BE APPLICABLE IN HIS CASE, LIEUTENANT GRIFFIN CONTINUED, AFTER OCTOBER 1, 1949, TO RECEIVE RETIRED PAY IN THE AMOUNT AUTHORIZED BY THE PROVISIONS OF LAW WHICH WERE IN EFFECT ON SEPTEMBER 30, 1949, THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF SECTION 411. (SEE SECTION 3, EXECUTIVE ORDER NO. 10124, APRIL 25, 1950.) IN THAT CONNECTION IT IS STATED IN YOUR LETTER THAT THE SECRETARY OF THE NAVY, ON AUGUST 10, 1954, APPROVED THE DETERMINATION OF THE PHYSICAL DISABILITY APPEALS BOARD, MADE UPON A REVIEW OF THE MATTER BY THAT BOARD, THAT THE SUBJECT OFFICER'S PERCENTAGE OF DISABILITY AT THE TIME OF HIS RETIREMENT AUGUST 1, 1946, ACTUALLY WAS 100 PERCENTUM.

THE RECORD SHOWS THAT THE CHIEF OF NAVAL PERSONNEL NOTIFIED LIEUTENANT GRIFFIN, RESPECTING THE DETERMINATION OF A 100 PERCENTUM DISABILITY RATING IN HIS CASE, IN ELECTION FORM LETTER (F-129) DATED AUGUST 25, 1954. THIS FORM LETTER WAS ADDRESSED TO LIEUTENANT GRIFFIN VIA THE FIELD BRANCH, BUREAU OF SUPPLIES AND ACCOUNTS, CLEVELAND, OHIO (NOW THE U.S. NAVY FINANCE CENTER), SO THAT THE ESSENTIAL RETIRED PAY INFORMATION APPLICABLE IN HIS CASE COULD BE INDORSED ON IT FOR THE OFFICER'S GUIDANCE CONCERNING HIS RETIRED PAY STATUS UNDER OPTIONS (A) AND (B) IN SECTION 411. THE FORM LETTER IS STATED TO HAVE BEEN RECEIVED AT THE U.S. NAVY FINANCE CENTER ON SEPTEMBER 3, 1954. THROUGH INADVERTENCE IT WAS NOT FORWARDED TO LIEUTENANT GRIFFIN UNTIL OCTOBER 26, 1954. HENCE, IT IS CLEAR THAT AN EFFECTIVE ELECTION COULD NOT HAVE BEEN EXECUTED BY THE OFFICER, ON THE ELECTION FORM LETTER (F-129) ADDRESSED TO HIM BY THE CHIEF OF NAVAL PERSONNEL, PRIOR TO THE EXPIRATION AT MIDNIGHT ON OCTOBER 1, 1954, OF THE FIVE-YEAR PERIOD PRESCRIBED IN SECTION 411. SEE DECISION OF JUNE 2, 1955, B-122601, TO THE SECRETARY OF THE NAVY, 34 COMP. GEN. 642.

IN VIEW OF THE FOREGOING THERE IS FOR CONSIDERATION THE QUESTION WHETHER LIEUTENANT GRIFFIN'S LETTER OF AUGUST 26, 1954, ADDRESSED TO COMMANDER HAROLD HUTCHINSON, U.S. NAVY, OFFICE OF THE JUDGE ADVOCATE GENERAL, NAVY DEPARTMENT, PENTAGON BUILDING, WASHINGTON 25, D.C., MAY BE VIEWED AS CONSTITUTING A TIMELY ELECTION WITHIN THE PURVIEW AND FOR THE PURPOSES OF SECTION 411. SUCH LETTER, IN PERTINENT PART, IS AS FOLLOWS:

DEAR COMMANDER HUTCHINSON:

RE:JAG:III:7:1H.H:SO

I HAVE RECEIVED A WIRE FROM SENATOR DANIEL THAT THE NAVY HAS AWARDED ME A DISABILITY RATING OF 100 PERCENT EFFECTIVE FROM THE DATE OF MY RETIREMENT. NO DOUBT I SHALL RECEIVE OFFICIAL CONFIRMATION FROM THE NAVY AT AN EARLY DATE.

PLEASE ACCEPT BY SINCERE THANKS FOR A JOB WELL DONE. I DO APPRECIATE THE TIME AND EFFORT YOU HAVE SPENT IN MY BEHALF.

I HAVE TWO OTHER QUESTIONS THAT NEED ANSWERING AND THROUGH LACK OF KNOWLEDGE OF THE PROPER PLACE TO GO, I AM COMPELLED TO BURDEN YOU WITH THEM. FIRST, I SHALL WANT TO CHANGE OVER TO THE NEW PAY LAW AT THE EARLIEST POSSIBLE DATE. I WOULD LIKE TO KNOW TO WHOM I SHOULD WRITE TO ACCOMPLISH THIS. * * *

IT HAS BEEN ASCERTAINED INFORMALLY THAT COMMANDER HUTCHINSON, AN OFFICER ON DUTY IN THE OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE NAVY, WAS ASSIGNED AS LEGAL COUNSEL TO REPRESENT LIEUTENANT GRIFFIN BEFORE THE PHYSICAL DISABILITY APPEALS BOARD IN CONNECTION WITH THE DISABILITY PERCENTAGE PROCEEDINGS IN THE CASE. COMMANDER HUTCHINSON, UPON RECEIPT OF THE LETTER OF AUGUST 26, 1954, AND LONG PRIOR TO THE EXPIRATION OF THE FIVE-YEAR PERIOD PRESCRIBED IN SECTION 411, SOUGHT INFORMATION FROM THE BUREAU OF NAVAL PERSONNEL ON BEHALF OF LIEUTENANT GRIFFIN FOR THE EXPRESS PURPOSE OF ASSISTING HIM IN MAKING AN ELECTION UNDER OPTION (A) OF SECTION 411, THAT IS, TO QUALIFY UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949 FOR DISABILITY RETIREMENT PAY EFFECTIVE FROM OCTOBER 1, 1949.

SECTION 2, EXECUTIVE ORDER NO. 10124, APRIL 25, 1950 (PROMULGATED BY THE PRESIDENT PURSUANT TO THE AUTHORITY OF SECTION 411), PROVIDES THAT THE SECRETARY OF THE UNIFORMED SERVICE CONCERNED SHALL DETERMINE AND INFORM EACH MEMBER AND EACH FORMER MEMBER OF THAT UNIFORMED SERVICE OF (1) THE STATUS AND BENEFITS TO WHICH SUCH PERSON IS OR MAY BE ENTITLED UNDER THE ALTERNATIVE CLAUSES (A) AND (B) OF SECTION 411, (2) SUCH PERSON'S RIGHT TO MAKE AN ELECTION OF BENEFIT UNDER THAT SECTION WITHIN THE FIVE-YEAR PERIOD PRESCRIBED AND (3) THE EFFECT OF THE TAX PROVISIONS OF SECTION 402 (H) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 272, WITH RESPECT TO THE DISABILITY RETIREMENT PAY TO WHICH SUCH PERSON IS OR MAY BE ENTITLED. SUPPLEMENTAL INSTRUCTIONS ISSUED ON MAY 8, 1950, BY THE SECRETARY OF THE NAVY PROVIDED THAT, UPON NOTIFICATION THAT THE SECRETARY HAD DETERMINED THE PERCENTAGE OF DISABILITY TO BE ASSIGNED TO A MEMBER OR FORMER MEMBER OF THE NAVAL SERVICE, THE CHIEF OF NAVAL PERSONNEL OR THE COMMANDANT OF THE MARINE CORPS, AS APPROPRIATE, WOULD INFORM SUCH MEMBER OF FORMER MEMBER AS TO THE PERTINENT FACTS IN THE MATTER AND PROCESS TO CONCLUSION ANY ELECTION BY SUCH MEMBER OR FORMER MEMBER MADE IN CONFORMITY WITH THE PROVISIONS OF SECTION 411.

THE CAREER COMPENSATION ACT OF 1949 DOES NOT DEFINE WHAT SHALL CONSTITUTE AN EFFECTIVE ELECTION FOR THE PURPOSES OF THE ALTERNATIVE OPTIONS (A) AND (B) OF SECTION 411. NOR DO THE REGULATIONS AND THE SUPPLEMENTAL INSTRUCTIONS DULY PRESCRIBED UNDER SUCH STATUTORY AUTHORITY REQUIRE, EXPRESSLY OR OTHERWISE, THAT AN ELECTION, IN ORDER TO BE EFFECTIVE, MUST HAVE BEEN EXECUTED ON A SPECIFIC FORM OR IN A PARTICULAR MANNER OR BY THE USE OF CERTAIN SPECIFIED LANGUAGE. HENCE, THE FAILURE OF LIEUTENANT GRIFFIN TO MAKE AN ELECTION ON A PRESCRIBED FORM PRIOR TO MIDNIGHT OF OCTOBER 1, 1954, IS NOT CONTROLLING OF HIS RIGHTS AND THE QUESTION WHEN AN EFFECTIVE ELECTION HAS OR HAS NOT BEEN MADE UNDER SECTION 411 IS ONE OF FACT DEPENDENT ON THE PARTICULAR CIRCUMSTANCES OF THE CASE. COMPARE 33 COMP. GEN. 455. OF COURSE, ANY ACTION WHICH MAY BE DEEMED TO CONSTITUTE AN EFFECTIVE ELECTION MUST BE SHOWN TO HAVE BEEN TAKEN PRIOR TO THE EXPIRATION DATE OF THE FIVE-YEAR PERIOD PRESCRIBED IN SECTION 411. SEE DECISION OF JUNE 2, 1955, B 122601, CITED ABOVE.

THE RETIRED PAY INFORMATION INDORSED BY THE NAVY FINANCE CENTER ON THE ELECTION FORM LETTER OF AUGUST 25, 1954, ADDRESSED TO LIEUTENANT GRIFFIN DISCLOSES THAT HE WOULD CONTINUE TO RECEIVE RETIRED PAY AT THE MONTHLY GROSS RATE OF $150, UNLESS HE ELECTED TO RECEIVE RETIRED PAY UNDER OPTIONS (A) OR (B) OF SECTION 411. IT IS FURTHER DISCLOSED THAT THE GREATEST AMOUNT OF RETIRED PAY, $197.72 PER MONTH, WOULD ACCRUE TO LIEUTENANT GRIFFIN, EFFECTIVE FROM OCTOBER 1, 1949, UNDER OPTION (A) OF SECTION 411, BASED UPON THE DETERMINATION APPROVED AUGUST 10, 1954, THAT HIS PERCENTAGE OF DISABILITY AT THE TIME OF HIS RETIREMENT, AUGUST 1, 1946, WAS 100 PERCENTUM. IT IS EVIDENT, HOWEVER THAT EVEN BEFORE HE HAD RECEIVED SUCH INFORMATION LIEUTENANT GRIFFIN WAS FULLY AWARE OF THE SUBSTANTIAL INCREASE IN RETIRED PAY BENEFITS TO BE GAINED BY HIM PROVIDED THAT HE ELECTED TO QUALIFY THEREFOR UNDER THE PROVISIONS OF OPTION (A) OF SECTION 411. UNDER SUCH CIRCUMSTANCES, IT WOULD APPEAR THAT THE DOUBTS IN THE MATTER SHOULD BE RESOLVED IN THE OFFICER'S FAVOR AND THAT IT REASONABLY MAY BE CONCLUDED THAT HIS LETTER OF AUGUST 26, 1954, TO COMMANDER HUTCHINSON, IN WHICH HE DEFINITELY STATED THAT HE WANTED "TO CHANGE OVER TO THE NEW PAY LAW," ON THE BASIS OF HIS INCREASED DISABILITY RATING, COUPLED WITH COMMANDER HUTCHINSON'S SUBSEQUENT ACTION BRINGING THAT REQUEST TO THE DEPARTMENT'S ATTENTION ON BEHALF OF AND AS LEGAL COUNSEL FOR LIEUTENANT GRIFFIN, CONSTITUTED AN EFFECTIVE ELECTION TIMELY MADE WITHIN THE PURVIEW AND FOR THE PURPOSES OF SECTION 411. COMPARE 30 COMP. GEN. 40.