B-140260, AUG. 28, 1959

B-140260, AUG. 28, 1959

TO COMMANDER R. A. WILSON, USN, UNITED STATES NAVY FINANCE CENTER:

BY SECOND ENDORSEMENT DATED JULY 17, 1959, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF JUNE 29, 1959, AND ENCLOSURES, REQUESTING AN ADVANCE DECISION CONCERNING THE SUFFICIENCY OF THE PRESENT RECORD TO ESTABLISH THE ELIGIBILITY OF EILEEN (AILEEN) MOORE, DAUGHTER OF JOHN JOSEPH MOORE, 143 58 50, GMMC, USN (RETIRED), AS HIS BENEFICIARY UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953,67 STAT. 501 (NOW CODIFIED IN 10 U.S.C. 1431-1444). THERE ALSO HAS BEEN RECEIVED SECOND ENDORSEMENT DATED JULY 23, 1959, FROM THE COMPTROLLER OF THE NAVY TRANSMITTING YOUR LETTER OF JULY 8, 1959, WITH ENCLOSURE, FURTHER CONCERNING THIS MATTER. THE REQUEST FOR ADVANCE DECISION WAS APPROVED BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AND ASSIGNED SUBMISSION NO. DO-N 435.

IT IS REPORTED THAT THE MEMBER WAS TRANSFERRED TO THE FLEET RESERVE ON JULY 14, 1922, AND PLACED ON THE RETIRED LIST ON JANUARY 1, 1939, UPON COMPLETION OF 30 YEARS' SERVICE. ON APRIL 22, 1954, HE EXECUTED AN ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, ELECTING OPTION 2 FOR ONE-HALF OF HIS REDUCED RETIRED PAY, PAYABLE UPON HIS DEATH TO HIS CHILD, EILEEN, THEN STATED TO BE OVER 18 YEARS OF AGE AND INCAPABLE OF SELF-SUPPORT BECAUSE OF BEING MENTALLY OR PHYSICALLY INCAPACITATED. ON THE BASIS OF SUCH ELECTION, SINCE APRIL 1, 1954, THE NAVY FINANCE CENTER HAS BEEN DEDUCTING FROM THE MEMBER'S RETIRED PAY THE SUM OF ONLY $0.47 REPRESENTING APPARENTLY THE AMOUNT DETERMINED TO BE THE MONTHLY COST OF THE ELECTION.

THE ELECTION FORM SHOWS THAT MOORE'S DAUGHTER, EILEEN, WAS BORN APRIL 5, 1919. THUS, SHE ATTAINED THE AGE OF 18 ON APRIL 5, 1937. THE MEMBER AVERRED ON THE ELECTION FORM THAT THE DAUGHTER WAS "OVER 18 YEARS OF AGE, UNMARRIED, AND INCAPABLE OF SELF-SUPPORT BECAUSE OF BEING MENTALLY DEFECTIVE SINCE THE AGE OF 16.' IN SUPPORT OF THE ALLEGATION OF MENTAL INCOMPETENCE THE MEMBER FURNISHED A LETTER DATED APRIL 12, 1954, FROM THE DIRECTOR, CREEDMOOR STATE HOSPITAL, QUEENS VILLAGE, JAMAICA 27, NEW YORK, TO THE EFFECT THAT THE DAUGHTER WAS FIRST ADMITTED TO THE BROOKLYN STATE HOSPITAL ON FEBRUARY 11, 1942; DISCHARGED ON JULY 21, 1944; READMITTED TO CENTRAL ISLIP STATE HOSPITAL ON NOVEMBER 4, 1946; DISCHARGED MARCH 27, 1950 AFTER ONE YEAR OF CONVALESCENT CARE; READMITTED TO CREEDMOOR STATE HOSPITAL MARCH 17, 1953; PLACED ON CONVALESCENT CARE JANUARY 15, 1954; RETURNED TO CREEDMOOR STATE HOSPITAL ON MARCH 9, 1954, BECAUSE OF A RECURRENCE OF MENTAL SYMPTOMS; AND THAT SHE HAS SHOWN PERSONALITY CHANGES SINCE 1937 AND WAS NEVER EMPLOYABLE.

DURING A RECENT AUDIT OF THE MEMBER'S RETIRED PAY ACCOUNT IT WAS DISCOVERED THAT THE LETTER OF APRIL 12, 1954, DID NOT CONTAIN THE INFORMATION SET FORTH IN LETTER DATED SEPTEMBER 30, 1953, FROM OUR FORMER DIRECTOR OF AUDITS TO THE HONORABLE WILFRED J. MCNEIL, ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), DEPARTMENT OF DEFENSE, AS BEING NECESSARY TO SUBSTANTIATE DEDUCTIONS IN RETIRED PAY OF MEMBERS ELECTING ONE OF THE OPTIONS CONTAINED IN THE UNIFORMED SERVICES CONTINGENCY OPTION ACT. THAT LETTER STATES, IN PERTINENT PART, AS FOLLOWS:

"A CONFERENCE WAS HELD ON SEPTEMBER 17, 1953, IN THIS OFFICE BETWEEN REPRESENTATIVES OF THE GENERAL ACCOUNTING OFFICE, THE OFFICE OF THE SECRETARY OF DEFENSE, AND CERTAIN OF THE UNIFORMED SERVICES TO DETERMINE THE REQUIREMENTS OF THIS OFFICE WITH REGARD TO THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 (P.L. 239 - 83RD CONGRESS).

"THE FOLLOWING IS A STATEMENT OF UNDERSTANDING OF THE REQUIREMENTS OF THE GENERAL ACCOUNTING OFFICE TO SUBSTANTIATE DEDUCTIONS IN RETIRED PAY OF MEMBERS WHO HAD ELECTED ONE OR MORE OF THE OPTIONS PROVIDED IN THE ACT:

"4. CHILDREN. BIRTH CERTIFICATES WILL BE REQUIRED FOR ALL ELIGIBLE CHILDREN. IN ADDITION, THERE WILL BE REQUIRED FOR:

"/C) CHILDREN OVER 18 YEARS AND UNMARRIED WHO ARE INCAPABLE OF SELF- SUPPORT BECAUSE OF BEING MENTALLY DEFECTIVE OR PHYSICALLY INCAPACITATED IF THAT CONDITION EXISTED PRIOR TO REACHING AGE EIGHTEEN- - A CERTIFICATE OF ATTENDING PHYSICIAN, APPROPRIATE OFFICIAL OF A HOSPITAL OR INSTITUTION CERTIFYING TO THE PHYSICAL INCAPACITY OR MENTAL INCOMPETENCE WILL BE REQUIRED. SUCH CERTIFICATES SHOULD CONTAIN A STATEMENT OF THE FACTS ON WHICH THE PHYSICIAN OR INSTITUTION OFFICIAL BASES HIS CONCLUSION THAT THE CHILD IS INCAPACITATED OR INCOMPETENT.'

BY LETTER DATED FEBRUARY 20, 1959, THE NAVY FINANCE CENTER REQUESTED THE MEMBER TO FURNISH A CERTIFICATE OF THE ATTENDING PHYSICIAN, OR APPROPRIATE HOSPITAL OR INSTITUTION OFFICIAL, CERTIFYING THE MENTAL INCAPACITY OF THE DAUGHTER, THE DATES THE DISABILITY COMMENCED AND THE NATURE AND EXTENT OF THE DISABILITY. UNDER DATE OF APRIL 11, 1959, THE MEMBER'S SON (BROTHER OF THE DAUGHTER), MR. E. R. MOORE, ADVISED THE NAVY FINANCE CENTER THAT THE MEMBER HAD BEEN DECLARED MENTALLY INCOMPETENT AND THAT HE (THE SON) WAS UNABLE TO SUPPLY THE DATA REQUESTED BY THE LETTER OF FEBRUARY 20, 1959. RESPECTING THE MENTAL INCOMPETENCY OF HIS SISTER, PRIOR TO THE DATE SHE ATTAINED THE AGE OF 18, MR. MOORE SAYS THAT AS A MEMBER OF THE HOUSEHOLD HE KNOWS IT TO BE TRUE THAT SHE WAS MENTALLY DEFECTIVE IN 1935 WHEN SHE WAS 16 AND A SOPHOMORE IN HIGH SCHOOL, HE HAVING WITNESSED, AMONG MANY OTHER VIOLENT EPISODES, HER DESTRUCTION OF FURNITURE, CHINAWARE, CROCKERY, AND CLOTHING. MR. MOORE ALSO SAYS THAT AS THESE EVENTS BECAME MORE FREQUENT AND VIOLENT DOCTORS WERE CONSULTED BUT THAT THEIR MOTHER, NOW DECEASED, RESISTED EVERY ATTEMPT BY THE MEMBER AND OTHERS TO HAVE THE DAUGHTER COMMITTED TO A MENTAL INSTITUTION, AND THAT IT WAS NOT UNTIL THE EARLY PART OF 1942, WHEN THE DAUGHTER HAD BECOME TOTALLY AND COMPLETELY UNCONTROLLABLE THAT THE WISHES OF THE MEMBER PREVAILED OVER THOSE OF THE MOTHER AND THE DAUGHTER WAS FORCIBLY REMOVED BY THE POLICE FROM THEIR HOME TO A MENTAL INSTITUTION. MR. MOORE LIKEWISE SAYS THAT THE POLICE WERE CALLED MANY TIMES BUT THAT HE DOES NOT KNOW THE NAMES OF THE DOCTORS OR THE POLICE THAT WERE IN ATTENDANCE FROM 1935 TO 1942. THE NAVY FINANCE CENTER REQUESTED INFORMATION FROM THE BROOKLYN STATE HOSPITAL AND THE CREEDMOOR STATE HOSPITAL, WHERE THE DAUGHTER IS CURRENTLY CONFINED, AS TO THE SPECIFIC DATE THE PERSONALITY CHANGES COMMENCED, AND THE NATURE AND EXTENT OF SUCH CHANGES. WHILE REPLIES FROM THOSE HOSPITALS SHOW THAT THEIR RECORDS CONTAIN NO MEDICAL REPORTS TO SUBSTANTIATE THE EXISTENCE AND EXTENT OF THE DAUGHTER'S INCOMPETENCE--- HER NAME IS THERE SPELLED "AILEEN"--- PRIOR TO HER EIGHTEENTH BIRTHDAY, SUCH RECORDS CONTAIN A HISTORY GIVEN BY HER FATHER AT THE TIME OF HER FIRST ADMISSION TO THE BROOKLYN STATE HOSPITAL ON FEBRUARY 11, 1942, WHEN SHE WAS 22 YEARS OF AGE, SHOWING THAT SHE HAD BEEN MENTALLY ILL FOR FIVE YEARS AT THAT TIME AND HAD BEEN CONFUSED, DISORIENTED, WITHDRAWN AND SECLUSIVE, BEING UNABLE TO GET ALONG IN SCHOOL AND WORKING ONLY SPASMODICALLY.

YOU REQUEST DECISION WHETHER THE STATEMENTS BY THE MEMBER ON THE ELECTION FORM AND BY THE BROTHER IN HIS LETTER OF APRIL 11, 1959, MAY BE ACCEPTED IN LIEU OF A CERTIFICATE FROM AN ATTENDING PHYSICIAN, OR INSTITUTION, OR HOSPITAL OFFICIAL, TO SUBSTANTIATE THE INCOMPETENCE OF THE DAUGHTER PRIOR TO HER EIGHTEENTH BIRTHDAY. IN THE EVENT OUR REPLY IS IN THE NEGATIVE YOU ASK WHAT DOCUMENTARY EVIDENCE THE MEMBER'S SON SHOULD BE REQUESTED TO FURNISH.

THE EVIDENCE OF RECORD MAY BE ACCEPTED AS ESTABLISHING THAT THE DAUGHTER PRESENTLY IS INCAPABLE OF SELF-SUPPORT BECAUSE OF A MENTAL DEFECT EXISTING PRIOR TO HER EIGHTEENTH BIRTHDAY AND HENCE, THAT SHE IS AN ELIGIBLE BENEFICIARY TO RECEIVE ANNUITY PAYMENTS WITHIN THE PURVIEW OF 10 U.S.C. 1435 (2) (B). ACCORDINGLY, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, WE WOULD NOT BE REQUIRED TO OBJECT TO ANNUITY PAYMENTS ON HER BEHALF SO LONG AS HER CONDITION CONTINUES, IF SHE SHOULD SURVIVE HER FATHER AND SUCH PAYMENTS ARE OTHERWISE CORRECT. SEE 10 U.S.C. 1444 (C).

THE FOREGOING ANSWER TO YOUR FIRST QUESTION MAKES AN ANSWER TO YOUR SECOND QUESTION UNNECESSARY.