B-153234, FEBRUARY 17, 1964, 43 COMP. GEN. 570

B-153234, FEBRUARY 17, 1964, 43 COMP. GEN. 570

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - REVOCATION - TIME LIMITATION A MEMBER OF THE UNIFORMED SERVICES PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE AUGUST 3, 1963, WHOSE ELECTION ON JUNE 3, 1960, UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN (10 U.S.C. 1431- 1446), TO PURCHASE ON ANNUITY FOR BOTH HIS WIFE AND CHILD AND TO RECEIVE A REDUCED AMOUNT OF RETIRED PAY WAS AN UNAUTHORIZED COMBINATION OF OPTIONS WITHOUT LEGAL EFFECT, AND WHOSE REVOCATION ON OCTOBER 10, 1960 OF A SECOND ELECTION FILED ON AUGUST 4, 1960, IN FAVOR OF HIS WIFE, WAS MADE LESS THAN 3 YEARS BEFORE HE BECAME ENTITLED TO RETIRED PAY HAD AN EFFECTIVE ANNUITY ELECTION IN FORCE ON AUGUST 3, 1963, AND THE DEDUCTIONS MADE FROM HIS RETIRED PAY WERE PROPER, THE MEMBERS' FIRST ELECTION HAVING NO LEGAL EFFECT, THE SUBSEQUENT ELECTION WAS AN ORIGINAL ELECTION WHICH GOVERNS HIS RIGHTS, THE ACT OF OCTOBER 4, 1961 (10 U.S.C. 1431 (C) ( PROVIDING THAT A REVOCATION FILED LESS THAN 3 YEARS BEFORE ENTITLEMENT TO RETIRED PAY IS INEFFECTIVE.

TO LIEUTENANT COLONEL J. L. CLANCY, DEPARTMENT OF THE ARMY, FEBRUARY 17, 1964:

BY FIRST INDORSEMENT DATED JANUARY 7, 1964, THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER DATED OCTOBER 4, 1963, WITH ENCLOSURES, SUBMITTING FOR ADVANCE DECISION A VOUCHER IN THE AMOUNT OF $36.87 STATED IN FAVOR OF SERGEANT FIRST CLASS HOWARD C. DEFOE, RA 34 364 242, RETIRED, REPRESENTING THE AMOUNT BY WHICH HIS RETIRED PAY WAS REDUCED FOR THE PERIOD FROM AUGUST 3 THROUGH AUGUST 31, 1963, UNDER THE PROVISIONS OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, CODIFIED IN 10 U.S.C. 1431-1446. YOU REQUEST A DECISION AS TO WHETHER THE ELECTION HAS BEEN CORRECTLY ESTABLISHED. THE REQUEST WAS ASSIGNED NO. DO- A-742 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

10 U.S.C. 1436 PROVIDES THAT THE REDUCTION IN THE RETIRED PAY OF ANY PERSON WHO ELECTS AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN SHALL BE COMPUTED AS OF THE DATE WHEN THE MEMBER CONCERNED BECOMES ELIGIBLE FOR RETIRED PAY. YOU SAY THAT SERGEANT DEFOE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE AUGUST 3, 1963, AND THAT HIS ELECTION HAS BEEN ESTABLISHED AS OPTION (1) IN COMBINATION WITH OPTION (4) AT THE RATE OF 1/2 OF THE MEMBER'S REDUCED RETIRED PAY.

THE RECORD SHOWS THAT SERGEANT DEFOE EXECUTED DA FORM 1041 ON JUNE 3, 1960, ELECTING OPTIONS (1) AND (2) IN COMBINATION WITH OPTION (4) AT THE RATES OF 1/4 AND 1/8 OF HIS REDUCED RETIRED PAY. IN ADDITION, IN THE SPACES PROVIDED THEREFOR, HE CHECKED THE 1/2 RATE AND 1/4 RATE PERTAINING TO OPTIONS (1) AND (2) ONLY. OPTION (1) PROVIDED AN ANNUITY PAYABLE TO THE MEMBER'S SURVIVING SPOUSE AND OPTION (2) PROVIDED AN ANNUITY PAYABLE TO HIS SURVIVING CHILD, EACH IN HIS OWN RIGHT. SERGEANT DEFOE HAD COMPLETED 17 YEARS, 3 MONTHS AND 3 DAYS OF SERVICE AT THE TIME FOR BASIC PAY PURPOSES. BY LETTER DATED JULY 22, 1960, THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, INFORMED THE MEMBER'S COMMANDING OFFICER THAT THE AMOUNT OF THE COMBINED ANNUITIES COULD NOT EXCEED 50 PERCENT OF THE AMOUNT OF THE MEMBER'S REDUCED RETIRED PAY AND THAT THE OPTIONS SELECTED COULD NOT BE SPLIT. AS A RESULT OF THE REQUEST FOR INFORMATION AS TO THE OPTIONS AND PERCENTAGE OF PARTICIPATION DESIRED, SERGEANT DEFOE, ON AUGUST 4, 1960, FILED A SECOND APPLICATION IN WHICH HE ELECTED OPTIONS (1) AND (4) AT THE RATE OF 1/2 OF HIS REDUCED RETIRED PAY. A THIRD APPLICATION WAS FILED BY THE MEMBER ON OCTOBER 10, 1960, ELECTING NOT TO PARTICIPATE IN THE PLAN.

UNDER THE PROVISIONS OF 10 U.S.C. 1431 AND 1434 A MEMBER ON ACTIVE DUTY IS PERMITTED TO ELECT, PRIOR TO THE COMPLETION OF 18 YEARS OF SERVICE, TO RECEIVE A REDUCED AMOUNT OF ANY RETIRED PAY WHICH HE MIGHT BE AWARDED IN ORDER TO PROVIDE CERTAIN ANNUITIES AFTER HIS DEATH IN A RETIRED STATUS FOR HIS SURVIVING SPOUSE AND CHILD, EACH IN HIS OWN RIGHT OR IN CERTAIN COMBINATIONS. THE MEMBER COULD MODIFY OR REVOKE SUCH AN ELECTION AT ANY TIME PRIOR TO HIS RETIREMENT EXCEPT THAT SUCH MODIFICATION OR REVOCATION WAS NOT EFFECTIVE IF HE BECAME ENTITLED TO RETIRED PAY WITHIN 5 YEARS AFTER THE DATE OF SUCH MODIFICATION OR REVOCATION. THE ACT OF OCTOBER 4, 1961, PUBLIC LAW 87-381, 75 STAT. 810, 10 U.S.C. 1431, MADE CERTAIN CHANGES IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. THE TIME FOR CHANGES OR REVOCATIONS TO BECOME EFFECTIVE WAS REDUCED FROM 5 YEARS TO 3 YEARS IN ADVANCE OF RETIREMENT. 10 U.S.C. 1431 (C), AS AMENDED, PROVIDES THAT THE CHANGE OF REVOCATION IS NOT EFFECTIVE "IF MADE LESS THAN 3 YEARS BEFORE THE FIRST DAY FOR WHICH RETIRED OR RETAINER PAY IS GRANTED.'

UNDER 10 U.S.C. 1434 (B), OPTIONS (1) AND (2) WERE AUTHORIZED TO BE SELECTED, EITHER SINGLY OR COMBINED, IN COMBINATION WITH OPTION (4) BY THE MEMBER. IT HAS BEEN HELD THAT IF AN ATTEMPTED ELECTION DOES NOT EMBODY AN UNAUTHORIZED COMBINATION OF OPTIONS AND IS OTHERWISE PROPER EXCEPT THAT IT IS SILENT AS TO THE AMOUNT OF THE DESIRED ANNUITY, IT IS NEVERTHELESS A VALID ELECTION AND MAY BE CLARIFIED BY THE MEMBER; THAT IF HE SHOULD DIE WITHOUT TAKING SUCH ACTION, HIS INTENT IN EXECUTING IT--- PRESUMED OR OTHERWISE PROVED--- WILL GOVERN. ALSO, IT HAS BEEN HELD THAT IF AN ATTEMPTED ELECTION IS OTHERWISE PROPER EXCEPT THAT IT CONTAINS SOME PATENT AMBIGUITY AS TO THE AMOUNT OF THE DESIRED ANNUITY, IT IS A VALID ELECTION AND THE MEMBER'S PRESUMED INTENT IN EXECUTING IT WILL GOVERN SHOULD HE DIE WITHOUT CLARIFYING THE MATTER OR SHOULD HE REFUSE TO CLARIFY IT AND ATTEMPT TO RESCIND. SEE 39 COMP. GEN. 481, 483, AND THE DECISIONS THERE CITED.

WHILE THE ELECTION FORM SIGNED BY SERGEANT DEFOE ON JUNE 3, 1960, EVIDENCED AN INTENT TO PURCHASE AN ANNUITY FOR BOTH HIS WIFE AND HIS CHILD, THE FORMER TO BE TWICE THE LATTER IN AMOUNT, THERE IS NOTHING IN THE LAW WHICH PERMITS A COMBINATION OF OPTIONS (1) AND (2) WITH (4) AND (1) AND (2) WITHOUT (4). THEY ARE LISTED IN THE FORM AS ALTERNATES TO EACH OTHER AND HE SELECTED BOTH ALTERNATIVES. SINCE THE ELECTION FORM SIGNED ON JUNE 3, 1960, CONTAINS THE ONLY INFORMATION WHICH IS AVAILABLE AS TO THIS MATTER AND HIS ACTUAL INTENT AS TO WHETHER OPTION (4) WAS TO BE PART OF HIS ELECTION CANNOT BE DETERMINED THEREFROM, THERE IS NO WAY OF GIVING EFFECT TO SUCH ELECTION. IN THE CIRCUMSTANCES, THE ELECTION MUST BE VIEWED AS WITHOUT LEGAL EFFECT. HIS SUBSEQUENT ELECTION ON AUGUST 4, 1960, IN FAVOR OF HIS WIFE, WAS AN ORIGINAL ELECTION AND, SINCE IT WAS FILED BEFORE HE COMPLETED 18 YEARS OF SERVICE, HIS RIGHTS ARE GOVERNED BY THAT ELECTION. THE ELECTION FORM SIGNED ON OCTOBER 10, 1960, WAS, IN EFFECT, A REVOCATION OF THE AUGUST 1960 ELECTION, BUT SINCE IT WAS FILED LESS THAN 3 YEARS BEFORE HE BECAME ENTITLED TO RETIRED PAY, IT DID NOT BECOME EFFECTIVE.

ACCORDINGLY PAYMENT ON THE VOUCHER TRANSMITTED WITH YOUR LETTER IS NOT AUTHORIZED AND SUCH VOUCHER WILL BE RETAINED HERE.