B-130872, APRIL 23, 1957, 36 COMP. GEN. 730

B-130872, APRIL 23, 1957, 36 COMP. GEN. 730

MILITARY PERSONNEL - ANNUITY ELECTIONS FOR DEPENDENTS - INCOMPETENT MEMBERS - TIME FOR ELECTIONS A SURVIVOR ANNUITY ELECTION WHICH IS AUTHORIZED TO BE MADE ON BEHALF OF A MENTALLY INCOMPETENT MEMBER OF THE UNIFORMED SERVICES BY THE SECRETARY OF THE PARTICULAR SERVICE, PURSUANT TO SECTION 3 (C) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, BUT WHICH IS NOT MADE UNTIL AFTER A SUBSEQUENT DETERMINATION THAT THE MEMBER IS MENTALLY INCOMPETENT IS WITHOUT EFFECT AND NO RIGHT MAY ACCRUE AS THE RESULT OF SUCH ELECTION. ALTHOUGH A FINDING OF MENTAL INCOMPETENCY OF A MEMBER OF THE UNIFORMED SERVICES MADE AT THE TIME OF THE MEMBER'S DISABILITY RETIREMENT WOULD EXTEND (FOR A REASONABLE PERIOD) THE TIME FOR ACTION BY THE SECRETARY IS MAKING A SURVIVOR ANNUITY ELECTION ON BEHALF OF THE MEMBER, A DETERMINATION OF INCOMPETENCY MADE AFTER RETIREMENT IS TOO LATE TO PERMIT A SECRETARIAL ANNUITY ELECTION.

TO THE SECRETARY OF THE NAVY, APRIL 23, 1957:

FURTHER REFERENCE IS MADE TO LETTER OF FEBRUARY 25, 1957, FROM THE ASSISTANT SECRETARY OF THE NAVY ( AIR), REQUESTING DECISION ON VARIOUS PROBLEMS WITH RESPECT TO ELECTIONS OF OPTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, AS THEY RELATE TO THE CASES OF TWO MEMBERS OF THE UNITED STATES NAVY, RETIRED.

IT APPEARS THAT ONE OF THE NAVY ENLISTED MEN WAS DETERMINED TO BE MENTALLY INCOMPETENT TO HANDLE HIS AFFAIRS ON MARCH 24, 1954, BY A NAVAL BOARD OF MEDICAL OFFICERS, AND THAT ON MAY 1, 1954, PRIOR TO THE COMPLETION OF 18 YEARS OF SERVICE CREDITABLE IN THE COMPUTATION OF BASIC PAY, HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST WITH A DISABILITY RATING OF 100 PERCENT. ON AUGUST 12, 1954, HIS WIFE ATTEMPTED TO MAKE AN ELECTION OF BENEFITS IN FAVOR OF HERSELF AND THEIR MINOR CHILD UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT (OPTIONS 3 AND 4) USING NAVPERS FORM 591A, USED BY SERVICE MEMBERS IN MAKING AN ELECTION UNDER THAT ACT, BUT IT WAS NOT UNTIL THE RECEIPT OF A LETTER FROM HER ON NOVEMBER 29, 1954, THAT SHE REQUESTED THAT THE SECRETARY OF THE NAVY MAKE AN ELECTION ON BEHALF OF HER HUSBAND. IN THE MEANTIME, ON SEPTEMBER 2, 1954, THE VETERANS ADMINISTRATION DETERMINED HIM TO BE COMPETENT AS OF MAY 1, 1954. APPARENTLY UNAWARE OF SUCH DETERMINATION, THE SECRETARY OF THE NAVY ON JANUARY 9, 1955, ELECTED OPTIONS 3 AND 4 UNDER THE CONTINGENCY OPTION ACT. SUBSEQUENTLY THE MEMBER WAS INFORMED SEVERAL TIMES THAT HE COULD EITHER REVOKE OR MODIFY THE SECRETARIAL ELECTION AND BY COMMUNICATION DATED DECEMBER 22, 1955, HE ADVISED THE NAVY FINANCE CENTER, CLEVELAND, OHIO, THAT HE WISHED TO "CANCEL THE PENSION FOR MY WIFE AFTER DEATH.'

SECTION 3 (C) OF THE CONTINGENCY OPTION ACT, 37 U.S.C. 373 (C), IN EFFECT DURING THE PERIOD HERE INVOLVED, PROVIDED AS FOLLOWS:

WHENEVER AN ACTIVE MEMBER, FORMER MEMBER, OR RETIRED MEMBER IS DETERMINED TO BE MENTALLY INCOMPETENT BY MEDICAL OFFICERS OF THE SERVICE CONCERNED OR OF THE VETERANS' ADMINISTRATION, OR IS ADJUDGED MENTALLY INCOMPETENT BY A COURT OF COMPETENT JURISDICTION, AND BECAUSE OF SUCH MENTAL INCOMPETENCY IS INCAPABLE OF MAKING ANY ELECTION PROVIDED IN THIS SECTION WITHIN THE TIME LIMITATIONS SPECIFIED THEREIN, THE HEAD OF THE DEPARTMENT CONCERNED MAY MAKE THE APPROPRIATE ELECTION PROVIDED FOR IN THIS SECTION ON BEHALF OF SUCH MEMBER IF SO REQUESTED BY THE SPOUSE OR IF THERE BE NO SPOUSE BY THE CHILD OR CHILDREN OF SUCH MEMBER. IF SUCH MEMBER IS SUBSEQUENTLY DETERMINED TO BE MENTALLY COMPETENT BY MEDICAL OFFICERS OF THE VETERANS' ADMINISTRATION, OR WHERE APPROPRIATE IS SUBSEQUENTLY ADJUDGED MENTALLY COMPETENT BY A COURT OF COMPETENT JURISDICTION, HE MAY, WITHIN ONE HUNDRED AND EIGHTY DAYS OF SUCH DETERMINATION OR JUDGMENT, MODIFY, OR TERMINATE THE ELECTION MADE ON HIS BEHALF. DEDUCTIONS THEREFORE MADE SHALL NOT BE REFUNDED.

UNDER THE FOREGOING PROVISIONS OF LAW, THE SECRETARY OF THE NAVY'S AUTHORITY TO MAKE AN ELECTION ON BEHALF OF THE MEMBER WAS DEPENDENT ON A DETERMINATION OF THE LATTER'S INCOMPETENCY BY EITHER MEDICAL OFFICERS OF THE NAVY OR OF THE VETERANS' ADMINISTRATION OR BY A COURT OF COMPETENT JURISDICTION. WHILE SUCH DETERMINATION WAS MADE IN THIS CASE, THE STATUTE SPECIFICALLY PROVIDED THAT THE MEMBER CONCERNED COULD MODIFY OR TERMINATE AN ELECTION MADE IN HIS BEHALF BASED ON SUCH DETERMINATION, IF HE SUBSEQUENTLY WAS DETERMINED TO BE MENTALLY COMPETENT BY MEDICAL OFFICERS OF THE VETERANS ADMINISTRATION OR, WHERE APPROPRIATE,WAS SUBSEQUENTLY ADJUDGED TO BE MENTALLY COMPETENT BY A COURT OF COMPETENT JURISDICTION. THE STATUTE THUS RECOGNIZED THAT THE EFFECT OF SUCH SUBSEQUENT ACTION WAS TO RESTORE TO THE MEMBER FULL CONTROL OVER THE MATTER OF MAKING AN ELECTION UNDER THAT ACT AND IT APPEARS CLEAR THAT IF NO ELECTION HAS BEEN MADE BY THE APPROPRIATE SECRETARY ON HIS BEHALF BEFORE THAT TIME, THE EARLIER DETERMINATION OF INCOMPETENCY NO LONGER FURNISHES A BASIS FOR SECRETARIAL ACTION. IF THE ELECTION BY THE SECRETARY OF THE NAVY ON JANUARY 9, 1955, COULD BE REGARDED AS OTHERWISE PROPER (COMPARE 33 COMP. GEN. 428), IT WAS WITHOUT EFFECT AND NO RIGHTS ACCRUED AS A RESULT OF THAT ELECTION.

IT IS REPORTED THAT ON APRIL 28, 1955, A PHYSICAL EVALUATION BOARD SUMMARIZED THE OTHER MEMBER'S CONDITION AS "SCHIZOPHRENIC REACTION, N.E.C., ACUTE, SEVERE, IMPROVED," BUT A " MEDICAL BOARD" WHICH RECOMMENDED THAT HE APPEAR BEFORE THE PHYSICAL EVALUATION BOARD STATED THAT HE WAS "COMPETENT TO MANAGE HIS OWN AFFAIRS.' IT IS MAY 6, 1955, AND ON JUNE 1, 1955, PRIOR TO COMPLETION OF 18 YEARS OF CREDITABLE SERVICE, HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST WITH A DISABILITY RATING OF 100 PERCENT. THE FILE IN HIS CASE INDICATES THAT AN ATTEMPT TO EXPLAIN THE PROVISIONS OF THE CONTINGENCY OPTION ACT TO HIM WAS UNSUCCESSFUL BECAUSE OF HIS INABILITY TO UNDERSTAND WHAT HE WAS TOLD. IN MAKING AN ELECTION ON JUNE 3, 1955, OF THE METHOD OF COMPUTING HIS DISABILITY RETIRED PAY UNDER SECTION 402 (D) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 818, 37 U.S.C. 272 (D), HE FAILED TO FILL IN THE BLANKS ON THE FORM USED BY HIM WHICH WOULD HAVE INDICATED WHETHER HE DID OR DID NOT WISH TO MAKE AN ELECTION OF BENEFITS UNDER THE CONTINGENCY OPTION ACT.

IT IS SHOWN THAT ON JULY 12, 1955, AND AGAIN ON SEPTEMBER 12, 1955, HE ADVISED THE NAVY FINANCE CENTER THAT HE DID NOT WISH TO MAKE AN ELECTION UNDER THE CONTINGENCY OPTION ACT; THAT ON AUGUST 8, 1955, MEDICAL OFFICERS OF THE NAVY DETERMINED THAT HE WAS MENTALLY INCAPABLE OF HANDLING HIS OWN AFFAIRS; THAT ON OCTOBER 4, 1955, HIS WIFE STATED THAT SHE DID NOT WANT SECRETARIAL ACTION UNDER THAT ACT, BUT ON OCTOBER 14, 1955, SHE REQUESTED SUCH ACTION, BOTH LETTERS BEING STATED TO HAVE BEEN WRITTEN BY HER ON BEHALF OF HER HUSBAND; AND THAT ON OCTOBER 26, 1955, SHE SPECIFIED THE OPTIONS SHE DESIRED.

IT APPEARS THAT ON NOVEMBER 11, 1955, THE NAVY FINANCE CENTER WAS INFORMED BY THE VETERANS' ADMINISTRATION THAT THE MEMBER'S DIAGNOSIS WAS CHANGED FROM MENTAL INCOMPETENCY TO IMMATURITY AND THAT HE WAS COMPETENT TO HANDLE ORDINARY FUNDS. THAT DIAGNOSIS AGAIN WAS CHANGED BY THE VETERANS' ADMINISTRATION ON SEPTEMBER 3, 1956, AND IT WAS THEN DETERMINED THAT HE WAS INCOMPETENT.

UNDER THE PROVISIONS OF SECTION 3 (A) OF THE CONTINGENCY OPTION ACT, 37 U.S.C. 372 (A), AN ACTIVE MEMBER WHO WISHES TO MAKE AN ELECTION OF BENEFITS IN FAVOR OF HIS DEPENDENTS, MUST TAKE SUCH ACTION PRIOR TO COMPLETING 18 YEARS OF CREDITABLE SERVICE, UNLESS HE IS AWARDED RETIRED PAY FOR PHYSICAL DISABILITY BEFORE THAT TIME, IN WHICH EVENT THE ELECTION MAY BE MADE "AT THE TIME OF RETIREMENT.' IN ORDER TO FURNISH A BASIS FOR A SECRETARIAL ELECTION AFTER THE MEMBER'S RETIREMENT, IT WAS REQUIRED THAT MEDICAL OFFICERS OF THE NAVY DETERMINE BEFORE HIS RETIREMENT THAT HE WAS MENTALLY INCOMPETENT TO HANDLE HIS AFFAIRS. WHILE IT APPEARS THAT A FINDING OF INCOMPETENCY AT THE TIME OF DISABILITY RETIREMENT WOULD EXTEND THE TIME FOR MAKING AN ELECTION FOR A REASONABLE PERIOD TO PERMIT SECRETARIAL ACTION AT THE REQUEST OF THE MEMBER'S SPOUSE, CHILD OR CHILDREN, A DETERMINATION OF INCOMPETENCY MADE AFTER SUCH RETIREMENT COMES TOO LATE.

THERE BEING NO RECORD OF A DETERMINATION MADE PRIOR TO THE MEMBER'S RETIREMENT, THAT HE WAS MENTALLY INCOMPETENT, AND IT APPEARING THAT THE NAVY MEDICAL OFFICERS WHO CONSIDERED HIS CASE AT THE TIME REGARDED HIM AS BEING "COMPETENT TO MANAGE HIS OWN AFFAIRS," THE SECRETARY OF THE NAVY IS WITHOUT AUTHORITY TO MAKE AN ELECTION ON HIS BEHALF. THE DETERMINATIONS OF AUGUST 8, 1955, AND SEPTEMBER 3, 1956, FURNISH NO BASIS FOR A SECRETARIAL ELECTION AT THIS TIME.