B-150416, FEBRUARY 1, 1963, 42 COMP. GEN. 407

B-150416, FEBRUARY 1, 1963, 42 COMP. GEN. 407

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - OVERPAYMENTS - ERRONEOUS ANNUITY DEDUCTIONS IN RECOMPUTING THE INCREASED COST OF A SURVIVORSHIP ANNUITY ELECTION AND THE ANNUITY BENEFITS PAYABLE TO THE WIDOW UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 (10 U.S.C. 1431-1446), THE ELECTION OF OPTIONS FORM SHOWING A LATER DATE OF BIRTH THAN THE CONFLICTING DATES IN THE MEMBER'S MILITARY RECORD, THE PRIMARY EVIDENCE OF THE PUBLIC RECORDS BEING LACKING TO ESTABLISH THE TRUE DATE OF BIRTH, THE SECONDARY EVIDENCE OF THE MILITARY RECORDS IS ACCEPTABLE, AND THE DATE FURNISHED AT THE TIME OF THE FIRST ENLISTMENT BEING THE MOST RELIABLE IT SHOULD BE USED TO ESTABLISH THE OVERPAYMENT OF RETIRED PAY TO THE MEMBER, AND UNTIL THE INDEBTEDNESS FOR THE OVERPAYMENT, PLUS INTEREST, HAS BEEN LIQUIDATED, ANNUITY PAYMENTS MAY NOT BE MADE TO THE WIDOW, THE WAIVER AUTHORITY IN 10 U.S.C. 1442 HAVING NO APPLICATION, ANNUITY PAYMENTS TO THE WIDOW HAVING BEEN WITHHELD PENDING THE DETERMINATION OF THE PROPER AMOUNT PAYABLE.

TO COLONEL WEBSTER MILLS, DEPARTMENT OF THE ARMY, FEBRUARY 1, 1963:

BY FIRST INDORSEMENT DATED DECEMBER 5, 1962, THE OFFICE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER DATED AUGUST 23, 1962, AND ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYING A VOUCHER REPRESENTING SURVIVORSHIP ANNUITY PAYMENTS FOR THE PERIOD NOVEMBER 1, 1961, TO JULY 31, 1962, TO MRS. GENEVA WEZONTWERCH AS UNREMARRIED WIDOW OF THE LATE MASTER SERGEANT THOMAS WEZONTWERCH, REGULAR ARMY, RETIRED. YOUR REQUEST FOR ADVANCE DECISION HAS BEEN ALLOCATED D.O. NO. 682 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IN YOUR LETTER YOU STATE THAT SERGEANT WEZONTWERCH WAS PLACED ON THE RETIRED LIST EFFECTIVE JUNE 30, 1937. A WDAGO FORM NO. 50 "RECORD OF PAYMENT OF RETIRED ENLISTED MAN" DATED JUNE 30, 1937, SHOWS THE MEMBER'S AGE ON DATE OF LAST ENLISTMENT, NOVEMBER 1, 1934, AS 58 YEARS AND ONE MONTH, INDICATING HIS YEAR OF BIRTH AS 1876. ON APRIL 27, 1954, THE SERVICEMAN EXECUTED AN ELECTION OF OPTIONS FORM ELECTING OPTION 1 AT ONE- FOURTH THE REDUCED RETIRED PAY, AS ANNUITY FOR HIS WIFE GENEVA WEZONTWERCH, UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, AS AMENDED, NOW CODIFIED IN 10 U.S.C. 1431-1446. HIS DATE OF BIRTH WAS SHOWN ON THE ELECTION FORM AS SEPTEMBER 5, 1885, AND IT IS STATED THAT THE REDUCTION IN RETIRED PAY AND THE PROSPECTIVE ANNUITY WERE COMPUTED BASED UPON THAT DATE OF BIRTH.

IT IS REPORTED THAT ON NOVEMBER 10, 1961, THE MEMBER DIED. YOU SAY THAT THE CERTIFICATE OF DEATH SHOWS HIS DATE OF BIRTH AS SEPTEMBER 30, 1889, BASED ON INFORMATION FURNISHED BY THE WIDOW. THE REPORT OF CASUALTY DATED DECEMBER 31, 1961, ISSUED BY THE ADJUTANT GENERAL'S OFFICE SHOWS DATE OF BIRTH AS SEPTEMBER 5, 1878. THIS WAS CHANGED MARCH 1, 1962, AS FOLLOWS:

CORRECTED TO SHOW DATES OF BIRTH AS SHOWN ON ENLISTMENT RECORDS, UNABLE TO VERIFY DATE OF BIRTH.

CHART

ENLISTMENT DATE DATE OF BIRTH SHOWN

1 NOV 1919 5 SEP 1878

1 NOV 1922 5 MAR 1877

1 NOV 1925 5 SEP 1879

1 NOV 1928 5 SEP 1878

1 NOV 1931 5 SEP 1876

1 NOV 1934 5 SEP 1878

OTHER DOCUMENTS SHOW THE MEMBER'S YEAR OF BIRTH TO RANGE FROM 1876 TO 1887. A SEARCH THROUGH LOCAL COUNTRY RECORDS AND CENSUS RECORDS AT THE PLACE OF HIS BIRTH IS SAID TO HAVE FAILED TO DISCLOSE ANY ENTRY REGARDING THE MEMBER'S DATE OF BIRTH, AND NEITHER THE ADMINISTRATIVE OFFICE NOR HIS WIDOW HAS BEEN ABLE TO OBTAIN EVIDENCE TO ESTABLISH THE DECEASED MEMBER'S TRUE DATE OF BIRTH. IT IS REPORTED, HOWEVER, THAT IN AN AFFIDAVIT EXECUTED BY THE WIDOW SHEALLEGES THAT DURING THEIR MARRIAGE THE DECEDENT MADE STATEMENTS AT VARIOUS TIMES AS TO HIS AGE WHICH INDICATE HIS YEAR OF BIRTH AS 1876 OR 1877.

YOU STATE THAT IF THE ELECTION IS RECOMPUTED BASED ON THE EARLIEST DATE OF RECORD, SEPTEMBER 5, 1876, THE COST WILL BE INCREASED FROM $53.20 TO $90.24 AND THE ANNUITY BENEFITS DECREASED FROM $44.03 TO $34.77 A MONTH. APPLICATION OF THE ANNUITY BENEFITS AT THE REDUCED RATE WILL REQUIRE A PERIOD OF EIGHT YEARS AND THREE MONTHS TO LIQUIDATE THE INDEBTEDNESS. YOU STATE FURTHER THAT THE WIDOW IS NOW 63 YEARS OF AGE AND IS CLAIMING SEVERE FINANCIAL HARDSHIP AND HAS REQUESTED THAT SINCE THE TRUE DATE OF BIRTH CANNOT BE ESTABLISHED, EITHER THE FULL AMOUNT OF THE DEDUCTION BE REFUNDED OR THE ORIGINAL COMPUTATION BE ALLOWED TO STAND. FINALLY, YOU STATE THAT IT APPEARS THAT TO WITHHOLD SURVIVORSHIP BENEFITS MAY BE AGAINST EQUITY AND GOOD CONSCIENCE AND ENTIRELY CONTRARY TO THE PURPOSE OF THE ACT, SINCE THE DATE OF BIRTH OF THE DECEASED MEMBER IS DOUBTFUL AND NEITHER PRIMARY NOR ACCEPTABLE SECONDARY EVIDENCE IS OBTAINABLE. HOWEVER, YOU SAY YOU ARE NOT AWARE OF ANY ADMINISTRATIVE AUTHORITY WHICH WOULD PERMIT PAYMENT OF BENEFITS UNDER THE ORIGINAL COMPUTATION OR REFUND OF THE AMOUNTS WITHHELD UNDER THESE CIRCUMSTANCES AND SINCE DOUBT EXISTS AS TO THE DATE AND DOCUMENTS TO BE RELIED UPON IF A RECOMPUTATION IS IN ORDER, AN ADVANCE DECISION IS REQUESTED.

BY SUPPLEMENTAL LETTER FROM YOUR OFFICE DATED JANUARY 3, 1963, FURTHER DATES OF BIRTH AS SHOWN ON THE ENLISTMENT RECORDS WERE FURNISHED AS FOLLOWS:

CHART

ENLISTMENT DATE DATE OF BIRTH AGE

31 MARCH 1908 5 SEPTEMBER 1878

31 MARCH 1911 5 SEPTEMBER 1879

2 APRIL 1914 35 YEARS 7 MONTHS

ALSO, IT WAS INDICATED THAT THE MEMBER'S PERSONNEL RECORD SHOWS YEARS OF BIRTH AS 1872, 1875, 1876, 1877 AND 1879.

PARAGRAPH 302 OF THE REGULATIONS FOR THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, ISSUED PURSUANT TO THE AUTHORITY DELEGATED TO THE SECRETARIES OF THE UNIFORMED SERVICES BY THE PRESIDENT UNDER EXECUTIVE ORDER NO. 10499, 18 F.R. 7003, AND IN EFFECT AT THE TIME THE SERVICEMAN MADE HIS ELECTION ON MARCH 15, 1954, PROVIDED THAT AT THE TIME OF SUBMITTING THE ELECTION, THE MEMBER HAD TO FURNISH EVIDENCE TO SUBSTANTIATE THE DATE OF BIRTH OF HIS DEPENDENT AND ALSO FURNISH HIS BIRTH DATE FOR VERIFICATION WITH INFORMATION ON THE SERVICE RECORD. SINCE THE ELECTION FORM SIGNED BY THE MEMBER ON MARCH 15, 1954, SHOWED HIS DATE OF BIRTH AS SEPTEMBER 5, 1885, AND THE FORM FILLED OUT AT THE TIME HE RETIRED JUNE 30, 1937, SHOWED THAT HIS AGE AT THE TIME OF ENLISTMENT ON NOVEMBER 1, 1934, WAS 58 YEARS AND 1 MONTH, WHICH SET HIS YEAR OF BIRTH AS 1876, THIS DISCREPANCY COULD HAVE BEEN NOTED AT THE TIME THE APPLICATION FOR DEPENDENT'S ANNUITY WAS CONSIDERED. MOREOVER, A CHECK OF THE MEMBER'S STATEMENTS MADE FROM THE TIME OF HIS FIRST ENLISTMENT MARCH 31, 1908, THROUGH NOVEMBER 1, 1934, WOULD HAVE INDICATED THAT THERE WERE DISCREPANCIES IN HIS DATE OF BIRTH THROUGHOUT HIS ENLISTED CAREER.

AS A GENERAL RULE, IN ESTABLISHING A DATE OF BIRTH, THE EVIDENCE WHICH IS OF GREATEST PROBATIVE VALUE CONSISTS OF PROOF ESTABLISHED AT OR NEAR BIRTH, SUCH AS PUBLIC RECORDS OF BIRTH, CHURCH RECORDS OF BIRTH OR BAPTISM, NOTIFICATION OF REGISTRATION OF BIRTH, PHYSICIANS' OR MIDWIVES' BIRTH RECORDS, BIBLE OR OTHER FAMILY RECORD. IN THE ABSENCE OF SUCH EVIDENCE, OTHER EVIDENCE OF PROBATIVE VALUE INCLUDES MILITARY RECORDS, SCHOOL RECORDS, MARRIAGE RECORDS AND CENSUS RECORDS, ESPECIALLY IF ESTABLISHED DURING CHILDHOOD. STATEMENTS MADE IN EARLY LIFE BY AN INDIVIDUAL AS TO HIS AGE HAVE GREATER PROBATIVE VALUE THAN THOSE MADE IN LATER YEARS SINCE THE LIKELIHOOD OF ERROR AND THE MARGIN OF ERROR IN THE CASE OF RECORDS ESTABLISHED EARLIER IN LIFE IS LESS THAN WHEN ESTABLISHED IN LATER YEARS. HOWEVER, THE EVIDENCE MUST BE EVALUATED NOT ONLY IN LIGHT OF ITS AGE BUT ALSO IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THE RECORD WAS MADE.

SINCE THE RECORD DOES NOT CONTAIN PRIMARY EVIDENCE WHICH MAY BE ACCEPTED AS CLEARLY ESTABLISHING THE MEMBER'S DATE OF BIRTH, THE MILITARY RECORDS APPEAR TO BE THE BEST SECONDARY EVIDENCE OF PROBATIVE VALUE. ALTHOUGH THE MILITARY RECORDS SHOW CONFLICTING DATES OF BIRTH, THE VARIATION IN YEARS OF BIRTH AS SHOWN IN THE ENLISTMENT RECORDS FROM THE MEMBER'S FIRST ENLISTMENT MARCH 31, 1908, TO HIS LAST ENLISTMENT NOVEMBER 1, 1934, IS NO MORE THAN 3 YEARS. SINCE SEPTEMBER 5, 1878, THE DATE ESTABLISHED IN THE MEMBER'S FIRST ENLISTMENT ON MARCH 31, 1908, WAS THE FIRST DATE FURNISHED BY THE MEMBER AND WAS USED MORE FREQUENTLY IN SUBSEQUENT ENLISTMENT RECORDS THAN THE OTHER DATES, AND SINCE NO REASON IS EVIDENT FOR THE MEMBER TO FALSIFY HIS AGE AT THE TIME OF HIS FIRST ENLISTMENT, SEPTEMBER 5, 1878, MAY BE ACCEPTED--- IN THE ABSENCE OF MORE CONCLUSIVE EVIDENCE ESTABLISHING ANOTHER DATE--- AS THE MEMBER'S DATE OF BIRTH IN RECOMPUTING HIS ELECTION OF ANNUITY, AS TO ITS COST TO HIM AND THE ANNUITY BENEFITS TO THE WIDOW.

WE HELD IN 41 COMP. GEN. 28 THAT WHERE THE OVERPAYMENT OF RETIRED PAY TO A MEMBER RESULTED IN THE WITHHOLDING OF LESS MONEY THAN WAS REQUIRED FOR THE PURCHASE OF AN ANNUITY, THE ANNUITY PAYMENTS TO THE WIDOW MAY BE REDUCED IN AN AMOUNT SUFFICIENT TO RECOVER THE OVERPAYMENTS. THIS WAS ON THE BASIS THAT THE REQUIREMENT FOR PAYMENT OF THE PURCHASE PRICE OF THE ANNUITY IS IMPLICIT IN THE TERMS OF 10 U.S.C. 1431 (B) AND UNLESS THE PROPER AMOUNTS ARE WITHHELD IN ALL CASES, THE ANNUITY PLAN WILL NOT BE SELF-SUSTAINING AND DEFICIT WILL HAVE TO BE MADE UP BY THE GOVERNMENT OR BY THE OTHER MEMBERS WHO PARTICIPATE IN THE PLAN. SEE, ALSO, 36 COMP. GEN. 325, 326. THE WAIVER AUTHORITY CONTAINED IN 10 U.S.C. 1442 RELATES TO OVERPAYMENTS OF ANNUITY PAYMENTS TO THE DESIGNATED BENEFICIARY AND SINCE IN THIS CASE, PAYMENT TO THE BENEFICIARY HAS BEEN WITHHELD PENDING A DETERMINATION OF THE PROPER AMOUNT TO BE PAID, NO ANNUITY OVERPAYMENT HAS BEEN MADE. ACCORDINGLY, THERE IS NO BASIS UPON WHICH THE WAIVER AUTHORITY OF 10 U.S.C. 1442 MAY BE APPLIED TO THE INDEBTEDNESS INVOLVED. YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER PRESENTED, WHICH WILL BE RETAINED HERE.

THE INDEBTEDNESS RESULTING FROM THE ELECTION MADE BY THE MEMBER SHOULD BE RECOMPUTED BASED ON THE DATE OF HIS BIRTH AS SEPTEMBER 5, 1878, AND THE TOTAL OVERPAYMENT OF RETIRED PAY ON THE BASIS OF THE INCREASED COST OF THE ANNUITY, TOGETHER WITH INTEREST THERE, SHOULD BE DETERMINED. NO ANNUITY PAYMENTS MAY BE MADE TO MRS. WEZONTWERCH UNTIL THIS OVERPAYMENT IS LIQUIDATED. SEE 41 COMP. GEN. 500.