B-126969, FEB. 27, 1956

B-126969, FEB. 27, 1956

TO CAPTAIN THOMAS J. BUTLER, USNR (RETIRED):

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 28, 1956, REQUESTING THAT YOU BE PERMITTED TO CANCEL AN ELECTION MADE BY YOU UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953. ALSO, THERE HAS BEEN RECEIVED HERE BY REFERENCE FROM HONORABLE JOHN PHILLIPS, HOUSE OF REPRESENTATIVES, YOUR LETTER OF THE SAME DATE CONCERNING THE SAME SUBJECT MATTER.

YOU RELATE THAT THE NAVY FINANCE CENTER, CLEVELAND, OHIO, ADVISED YOU THAT ON THE BASIS OF OUR DECISIONS (B-118336 AND B-118907 DATED APRIL 15, 1954) YOU MAY NOT BE PERMITTED TO REVOKE AN ELECTION OF OPTIONS MADE BY YOU UNDER THE 1953 ACT. YOU FURTHER STATE THAT "ON OCTOBER 1, 1955 I RETIRED AS CAPTAIN USNR UNDER PUBLIC LAW 810. IN MIDYEAR 1954 I ELECTED AN OPTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION TO HAVE A PART OF MY RETIREMENT HELD FOR MY WIFE IN CASE OF MY DEATH AS THE ACT PROVIDES.' ALSO, YOU URGE THAT WHEN YOU MADE THE ELECTION YOU WERE IN FAIRLY GOOD HEALTH AND DID NOT FULLY CONSIDER THE MATTER, BUT SINCE THAT TIME YOU HAVE HAD SOME PHYSICAL AND FINANCIAL REVERSES WHICH ARE NOW WORKING A HARDSHIP ON YOU.

THERE ARE ENCLOSED FOR YOUR INFORMATION COPIES OF THE DECISIONS DATED APRIL 15, 1954, B-118336, 33 COMP. GEN. 455, AND B-118907, 33 COMP. GEN. 460, CITED IN YOUR LETTER. IT WILL BE NOTED THAT THOSE DECISIONS WERE BASED ON THE EXPRESS PROVISION IN SECTION 3 (B) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 502, THAT "AN ELECTION SO MADE SHALL THEREAFTER BE IRREVOCABLE.' THAT PROVISION APPLIES TO "RETIRED" MEMBERS OF THE UNIFORMED SERVICES WHO PRIOR TO THE DATE OF THE ACT HAD BEEN AWARDED RETIRED PAY (AS DISTINGUISHED FROM ACTIVE MEMBERS WHO ARE COVERED BY OTHER PROVISIONS OF THE ACT). IN THAT CONNECTION, THERE WAS ENACTED PUBLIC LAW 696, 83D CONGRESS, APPROVED AUGUST 28, 1954, 68 STAT. 915, WHICH PERMITTED "RETIRED" MEMBERS OF THE UNIFORMED SERVICES WHO HAD ELECTED UNDER SECTION 3 (B) OF THE 1953 ACT, TO REVOKE,"WITHIN 60 AYS" AFTER THE ENACTMENT OF THAT ACT, ELECTIONS MADE UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 WHERE TO THE SATISFACTION OF THE SECRETARY CONCERNED IT WAS ESTABLISHED THAT THE RETIRED MEMBER MADE THE ELECTION BASED ON MISINFORMATION OR A MATHEMATICAL ERROR AND THAT THE ELECTION HAD RESULTED IN UNDUE HARDSHIPS. SINCE, AS YOU STATE, YOU WERE ON ACTIVE DUTY WHEN YOU MADE YOUR ELECTION, YOUR CASE IS FOR CONSIDERATION AS AN ACTIVE MEMBER UNDER THE PROVISIONS OF SECTION 3 (A) OF THE 1953 ACT, 63 STAT. 502, AS AMENDED, 37 U.S.C. SUPP. II, 372 IN PERTINENT PART AS FOLLOWS:

"AN ACTIVE MEMBER MAY ELECT, PRIOR TO THE COMPLETION OF EIGHTEEN YEARS OF SERVICE WHICH IS CREDITABLE IN THE COMPUTATION OF ACTIVE-DUTY PAY IN THE UNIFORMED SERVICE OF WHICH HE IS A MEMBER, TO RECEIVE A REDUCED AMOUNT OF ANY RETIRED PAY WHICH MAY BE AWARDED HIM AS THE RESULT OF SERVICE IN HIS UNIFORMED SERVICE IN ORDER TO PROVIDE ONE OR MORE OF THE ANNUITIES SPECIFIED IN SECTION 373 * * * PAYABLE AFTER HIS DEATH IN A RETIRED STATUS TO HIS WIDOW, CHILD, OR CHILDREN, IF SUCH WIDOW, CHILD, OR CHILDREN ARE LIVING AT THE DATE OF HIS RETIREMENT. * * * AN ACTIVE MEMBER WHO HAS HERETOFORE COMPLETED THE EIGHTEEN YEARS OF SERVICE MAY MAKE THIS ELECTION WITHIN ONE YEAR AFTER THE EFFECTIVE DATE OF THIS CHAPTER. * * * THE TERMS OF THE ELECTION MAY BE MODIFIED OR REVOKED BY A MEMBER AT ANY TIME PRIOR TO HIS RETIREMENT BUT ANY MODIFICATION OR REVOCATION SO MADE SHALL NOT BE EFFECTIVE IF HE RETIRES WITHIN FIVE YEARS AFTER THE DATE IT IS MADE. * *

REGULATIONS FOR THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 (PROMULGATED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 8 OF THE ACT, 67 STAT. 504, AND EXECUTIVE ORDER 10499, NOVEMBER 4, 1953) PROVIDE IN PERTINENT PART, IN SECTION 204C, AS FOLLOWS:

"ANY ACTIVE MEMBER MAY REVOKE AN ELECTION AT ANY TIME, BUT HE SHALL NOT THEREAFTER BE PERMITTED TO WITHDRAW OR MODIFY HIS REVOCATION,AND AFTER IT BECOMES EFFECTIVE HE SHALL NOT BE PERMITTED TO BE COVERED IN ANY WAY BY THIS ACT. IF THE MEMBER RETIRES WITHIN 5 YEARS AFTER A REVOCATION, SUCH REVOCATION SHALL HAVE NO EFFECT.'

IT WILL BE SEEN THAT UNDER THE ABOVE-QUOTED PROVISIONS OF LAW AND REGULATION, AN ACTIVE MEMBER MAY REVOKE AN ELECTION AT ANY TIME "PRIOR TO HIS RETIREMENT," BUT IF THE MEMBER RETIRES WITHIN FIVE YEARS AFTER THE REVOCATION, THE REVOCATION IS OF NO EFFECT. THE LAW PERMITS AN EFFECTIVE REVOCATION OF AN ELECTION PROVIDED THE MEMBER DOES NOT RETIRE WITHIN FIVE YEARS AFTER THE DATE IT IS MADE. HENCE, EVEN IF YOU HAD REVOKED YOUR 1954 ELECTION PRIOR TO RETIREMENT, IT WOULD APPEAR THAT UNDER THE PLAIN TERMS OF SECTION 3 (A) OF THE STATUTE, SUCH REVOCATION WOULD HAVE HAD NO EFFECT SINCE IT APPEARS YOU WERE PLACED ON THE RETIRED LIST AND GRANTED RETIRED PAY THE FOLLOWING YEAR. AS POINTED OUT ON PAGE 6 OF THE DECISION DATED APRIL 15, 1954, B 118907, CONCERNING ,RETIRED" MEMBERS, WE ARE NOT UNMINDFUL OF POSSIBLE HARDSHIP IN INDIVIDUAL CASES, IT BEING RECOGNIZED THAT SOME MEMBERS MAY HAVE MADE UNWISE ELECTIONS WHICH WILL CAUSE THEIR RETIRED PAY TO BE REDUCED BELOW THE LEVEL WHICH THEY HAD EXPECTED. IT WAS CONCLUDED, HOWEVER, IN VIEW OF THE EXPRESS PROHIBITION AGAINST THE REVOCATION OF ELECTIONS BY RETIRED MEMBERS, THAT WE HAVE NO AUTHORITY TO RELIEVE SUCH MEMBERS OF THE CONSEQUENCES OF THEIR ELECTIONS.

WE KNOW OF NO CONDITION UNDER WHICH A VALID ELECTION MAY NOW BE REVOKED OR CANCELED BY ONE IN YOUR SITUATION AND, HENCE, IT WOULD APPEAR THAT THE NAVY FINANCE CENTER PROPERLY ADVISED YOU THAT YOUR REQUEST FOR CANCELLATION OF YOUR ELECTION MAY NOT BE GRANTED.