B-131732, JUN. 3, 1957

B-131732, JUN. 3, 1957

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF MAY 2, 1957, FROM THE ASSISTANT SECRETARY OF THE NAVY (AIR), REQUESTING DECISION WHETHER COMMANDER F. W. REICHELDERFER, U.S. NAVY, RETIRED, HAS MADE A VALID ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, UNDER THE CIRCUMSTANCES STATED BELOW.

IT APPEARS THAT THE OFFICER WAS PLACED ON THE RETIRED LIST ON JANUARY 1, 1939, BUT NO RETIRED PAY HAS BEEN PAID TO HIM BECAUSE OF HIS EMPLOYMENT SINCE THAT TIME BY THE GOVERNMENT AT A SALARY IN EXCESS OF THE DUAL COMPENSATION LIMITATIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A. ON APRIL 21, 1954, HE EXECUTED THE USUAL FORM FOR MAKING AN ELECTION UNDER THAT ACT (POSTMARKED APRIL 23, 1954), DESIGNATED OPTION 1 AT ONE-HALF OF REDUCED RETIRED PAY, BUT TYPED THEREON WAS THE STATEMENT "SUBJECT TO THE EXPLANATION GIVEN IN MY LETTER OF MARCH 20, 1954.' THAT LETTER IS AS FOLLOWS:

"SUBJECT: ELECTION OF OPTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 (RETIRED MEMBERS)

"ENCLOSED IS FORM NAVPERS 591A (NEW 9/53) COMPLETED TO SIGNIFY MY OPTION 1 (1/2) SELECTION UNDER THE SUBJECT PROVISIONS. I HAVE BEEN ADVISED TO FILE THIS FORM AND OPTION IN ORDER TO PROTECT MY FUTURE RIGHTS TO RETIREMENT PAY ALTHOUGH I EXPECT TO AVAIL MYSELF OF THE CIVIL SERVICE RETIREMENT PROVISIONS WHICH WOULD INCLUDE THE PERIOD OF MY NAVAL SERVICE TOGETHER WITH MY CIVIL SERVICE RETIREMENT SEPARATELY.

"I HAVE NEVER DRAWN RETIRED PAY ALTHOUGH I RETIRED FROM THE NAVY IN 1939 IN ORDER TO ACCEPT MY PRESENT CIVIL SERVICE POSITION. THE DUAL COMPENSATION RESTRICTION PRECLUDED RETIRED PAY IN MY PRESENT EMPLOYMENT STATUS.

"IT IS MY UNDERSTANDING THEREFORE THAT THE ENCLOSED FORM WILL NOT APPLY IN MY CASE WHEN I RETIRE AND AM ELIGIBLE TO RECEIVE CIVIL SERVICE RETIREMENT PAY COMPUTED ON THE TOTAL PERIOD OF MY COMBINED NAVAL AND CIVIL SERVICES, A TOTAL OF MORE THAN 36 YEARS. AS STATED ABOVE, I AM NEVERTHELESS FILING THIS OPTION APPLICATION FORM WITH YOU BEFORE THE CLOSING DATE IN ORDER THAT I MAY PROTECT MY WIDOW SURVIVAL BENEFITS IN CASE THE STATUS OF THE CASE IS QUESTIONED.

"I SHOULD LIKE TO STATE DEFINITELY HOWEVER, THAT I DO NOT WISH THIS APPLICATION TO INTERFERE WITH OR SUPERSEDE ANY RIGHTS I MAY HAVE WITH RESPECT TO COMPUTATION OF MY RETIREMENT PAY ON BASIS OF COMBINED YEARS OF NAVAL AND CIVIL SERVICE IN EVENT SUCH COMBINATION IS TO MY ADVANTAGE, AS IT NOW APPEARS.'

WHEN ADVISED BY LETTER OF MAY 27, 1954, THAT HIS "ELECTION" REQUIRED HIM TO REMIT THE SUM OF $50.18 PER MONTH TO COVER THE COST OF PURCHASING AN ANNUITY FOR HIS WIFE IF SHE SURVIVED HIM, HE REPLIED BY LETTER DATED JUNE 7, 1954, THAT IN SUBMITTING THE ELECTION FORM AND LETTER HE HAD NO INTENTION OF APPLYING FOR SURVIVORSHIP RIGHT BENEFITS FOR HIS WIFE UNDER THE CONTINGENCY OPTION ACT, BUT ONLY TO SHOW THAT HE EXPECTED TO REQUEST WIDOW SURVIVOR RIGHTS PROVIDED BY THE "CIVIL SERVICE ACT" UNDER WHICH HE PLANNED TO RETIRE, AS HE HAD EXPLAINED IN HIS PREVIOUS LETTER; THAT HE HAD EXPERIENCED DIFFICULTLY IN OBTAINING ADVICE AS TO WHAT HE SHOULD DO AT THAT TIME; AND THAT HE HAD SINCE CONCLUDED THAT THE FILING OF THE APPLICATION FORM WAS AN ERROR AND THAT IT SHOULD BE SO REGARDED BY THE DEPARTMENT OF THE NAVY. APPARENTLY THAT LETTER WAS LOST IN THE MAILS OR AFTER IT WAS RECEIVED- - HE LATER FORWARDED A COPY OF SUCH LETTER--- AND ON SEPTEMBER 28, 1955, HE WAS INFORMED THAT HIS ARREARSIN BACK PREMIUMS THEN AMOUNTED TO $903.24, PLUS INTEREST, AND THAT, IF IN THE FUTURE HIS ACCOUNT IS REINSTATED ON THE NAVY RETIRED ROLLS, THE AMOUNT DUE PLUS INTEREST WOULD BE WITHHELD FROM HIS RETIRED PAY. HE WAS REQUESTED TO INFORM THE NAVY FINANCE CENTER AS TO HIS INTENTIONS IN THE MATTER. HIS LETTER OF OCTOBER 22, 1956, REITERATED MUCH OF WHAT WAS SAID IN HIS LETTER OF JUNE 7, 1954, AND EXPLAINED THE DELAY IN ANSWERING AS BASED ON ADVICE THAT NO HARM WOULD RESULT IF THE MONTHLY REMITTANCE OF $50.18 "IS ALLOWED TO ACCUMULATE UNPAID SINCE I SHALL NEVER APPLY FOR NAVAL RETIREMENT.' STATED, HOWEVER, THAT HE PREFERRED TO HAVE THE "MATTER CLEARED UP IF POSSIBLE.'

IN ORDER TO CONSTITUTE A VALID ELECTION UNDER THE CONTINGENCY OPTION ACT, A PERSON MUST INTEND TO MAKE SUCH AN ELECTION. WHILE A PERSON WHO SUBMITS AN UNCONDITIONAL ELECTION TO THE PROPER SERVICE AUTHORITIES IS PRESUMED TO INTEND THE NATURAL CONSEQUENCES OF HIS ACT AND A SUBSEQUENT CONTENTION THAT HE DID NOT FULLY UNDERSTAND HIS RIGHTS AND LIABILITIES UNDER THAT ACT DOES NOT FURNISH A BASIS FOR NULLIFYING OR REVOKING HIS ELECTION, WHERE THE ELECTION IS ACCOMPANIED BY EQUIVOCAL OR UNCLEAR STATEMENTS WHICH ARE NOT PROMPTLY CLARIFIED, IT IS DOUBTFUL THAT ANY SURVIVORSHIP BENEFITS CAN ACCRUE TO THE PERSONS CONCERNED.

COMMANDER REICHELDERFER'S LETTER OF MARCH 20, 1954, ADVISED THE DEPARTMENT OF THE NAVY AS TO HIS BELIEF THAT HIS ELECTION UNDER THE CONTINGENCY OPTION ACT WAS WITHOUT SIGNIFICANCE, BUT THAT HE WAS FILING THE OPTION TO "PROTECT ANY WIDOW SURVIVAL BENEFITS IN CASE THE STATUS OF THE CASE IS QUESTIONED.' HE SEEMED TO BE OF THE OPINION THAT UNLESS HE DREW RETIRED PAY FROM THE NAVY THE CONTINGENCY OPTION ACT WAS NOT APPLICABLE IN HIS CASE. IT IS NOT CLEAR WHAT WIDOW SURVIVOR RIGHTS HE HAD IN MIND, NOR HOW THEY COULD BE QUESTIONED. WHILE HE STATED IN HIS LETTER OF JUNE 7, 1954, THAT HE FILED THE OPTION FORM ONLY TO SHOW THAT HE EXPECTED "TO REQUEST WIDOW SURVIVOR RIGHTS IN MYCIVIL SERVICE RETIREMENT WHEN I EVENTUALLY APPLY FOR IT," IT IS NOT UNDERSTOOD HOW HE COULD VIEW THE FILING OF AN ELECTION UNDER ONE ACT AS CLARIFYING OR MAKING MORE CERTAIN RIGHTS UNDER A SEPARATE AND UNRELATED STATUTE. POSSIBLY HE FELT THAT BY FILING THE ELECTION FORM HE WOULD INITIATE OR IN SOME WAY PRESERVE "WIDOW SURVIVOR BENEFITS" UNDER THE CONTINGENCY OPTION ACT, WHICH HE LATER COULD PERFECT IN THE EVENT HE CHANGED HIS INTENTION OF COUNTING HIS NAVAL SERVICE IN CONNECTION WITH HIS RETIREMENT AS A CIVILIAN EMPLOYEE OF THE GOVERNMENT AND REQUESTED RESUMPTION OF PAYMENT OF HIS NAVAL RETIRED PAY UPON TERMINATION OF HIS CIVILIAN EMPLOYMENT.

IN ANY EVENT, IT APPEARS REASONABLY CLEAR THAT HE DID NOT INTEND TO MAKE AN UNQUALIFIED ELECTION UNDER THE CONTINGENCY OPTION ACT AND HIS LETTER OF MARCH 20, 1954, IS REGARDED AS CONSTITUTING A SUFFICIENT NOTICE OF THAT FACT. ACCORDINGLY, THE SUBMITTED QUESTION IS ANSWERED IN THE NEGATIVE.