B-155793, MAY 10, 1965

B-155793, MAY 10, 1965

TO BRIGADIER GENERAL L. B. MARKEY, HEADQUARTERS, DEPARTMENT OF THE ARMY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 3, 1964, IN WHICH YOU, AS COMMANDING GENERAL, FINANCE CENTER, U.S. ARMY, ACTING FOR THE SECRETARY OF THE ARMY, RECOMMEND THAT RECOVERY OF CERTAIN ERRONEOUS ANNUITY PAYMENTS MADE TO MRS. SALLIE A. BRIDGES, LATTIMORE, NORTH CAROLINA, AS WIDOW OF LIEUTENANT COLONEL HAL BRIDGES, 0 20 917, RETIRED, DECEASED, BE WAIVED UNDER THE PROVISIONS OF 10 U.S.C. 1442. YOU SAY THAT YOU SO RECOMMEND FOR THE REASON THAT IT APPEARS THAT MRS.BRIDGES IS WITHOUT FAULT, AND RECOVERY WOULD CREATE AN UNDUE HARDSHIP AND IS AGAINST EQUITY AND GOOD CONSCIENCE.

THE FACTS IN THE CASE ARE STATED AS FOLLOWS:

"LIEUTENANT COLONEL HAL BRIDGES, 0 20 917, RETIRED, DECEASED, ELECTED OPTION I AT ONE-HALF REDUCED RETIRED PAY COMBINED WITH OPTION IV, UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, CHAPTER 393, 8 AUGUST 1953, 67 STAT. 501-505. THAT ACT, REDESIGNATED AS THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN IN PUBLIC LAW 87-381, 4 OCTOBER 1961, 75 STAT. 810-812, IS CODIFIED IN 10 U.S.C. CHAPTER 73, SECTIONS 1431-1446, AS AMENDED. THE ELECTION DOCUMENT DATED AND SIGNED ON 7 JANUARY 1955 SHOWS 17 YEARS SERVICE COMPLETED FOR PAY PURPOSES. THE NAMED BENEFICIARY IS SALLIE ANN BRIDGES, SPOUSE, BORN 14 APRIL 1899. COLONEL BRIDGES WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON 3 NOVEMBER 1959, BY REASON OF 70 PERCENT DISABILITY UNDER AUTHORITY OF TITLE 10, UNITED STATES CODE 1202. AT RETIREMENT HE HAD COMPLETED 22 YEARS, 9 MONTHS, AND 23 DAYS TOTAL ACTIVE SERVICE AND 27 YEARS, 11 MONTHS, AND 6 DAYS SERVICE FOR BASIC PAY PURPOSES. THE SERVICE FOR BASIC PAY PURPOSES INCLUDED 5 YEARS ADDITIONAL SERVICE ALLOWABLE FOR MEDICAL SCHOOL AND INTERNSHIP UNDER THE PROVISIONS OF PUBLIC LAW 84-497, 70 STAT. 122, ACT OF 30 APRIL 1956. HIS ELECTION WAS ESTABLISHED EFFECTIVE 3 NOVEMBER 1959. THE COST WAS $75.19 A MONTH; THE PROSPECTIVE ANNUITY, $233.66 A MONTH. DEATH OCCURRED ON 29 OCTOBER 1961. TOTAL COST WAS $1,797.04 FOR THE PERIOD 3 NOVEMBER 1959 THROUGH 29 OCTOBER 1961. ANNUITY PAYMENTS WERE ESTABLISHED, EFFECTIVE 1 OCTOBER 1961.'

YOU REFER TO OUR DECISION OF MARCH 20, 1964, B-153503, 43 COMP. GEN. 617, AND TO OUR DECISION OF MARCH 24, 1964, B-153502, IN WHICH WE IN EFFECT HELD THAT, IN DETERMINING WHETHER AN OTHERWISE VALID ELECTION WAS MADE BEFORE A MEMBER COMPLETED 18 YEARS OF SERVICE WITHIN THE MEANING OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, THERE MUST BE USED THE ACTUAL YEARS OF SERVICE PROPERLY CREDITABLE IN THE COMPUTATION OF BASIC PAY AT THE TIME OF ELECTION, IRRESPECTIVE OF WHETHER OR NOT SUCH MEMBER WAS THEN IN RECEIPT OF ACTIVE DUTY BASIC PAY BASED ON THAT SERVICE. YOU SAY THAT IN VIEW OF SUCH DECISIONS, THE ADJUTANT GENERAL OF THE ARMY WAS REQUESTED TO FURNISH A COMPLETE STATEMENT OF SERVICE IN COLONEL BRIDGES' CASE. YOU THEN STATE:

"THE STATEMENT OF SERVICE FOR COLONEL BRIDGES SHOWS HE ACCEPTED AN APPOINTMENT IN THE ORC ON 27 NOVEMBER 1936. HIS ACTIVE DUTY MILITARY PAY RECORDS SHOW THAT ACTIVE DUTY PAY WAS ADJUSTED IN APRIL 1955 TO INCLUDE CREDIT FOR ADDITIONAL SERVICE FROM THE DATE HE ACCEPTED THE ORC APPOINTMENT ON 27 NOVEMBER 1936 TO DATE OF ENTRY ON ACTIVE DUTY, 10 JANUARY 1937. IT WAS DETERMINED ON 15 JULY 1964, THAT COLONEL BRIDGES COMPLETED 18 YEARS' SERVICE FOR BASIC PAY PURPOSES ON 26 NOVEMBER 1954. HENCE, HIS ELECTION ON 7 JANUARY 1955 WAS NOT TIMELY MADE AND, THEREFORE, WAS WITHOUT FORCE AND EFFECT. ACCORDINGLY, ANNUITY PAYMENTS WERE TERMINATED, EFFECTIVE 1 AUGUST 1964. MRS. BRIDGES WAS INFORMED BY LETTER, 29 SEPTEMBER 1964, AND REFUND WAS REQUESTED IN THE AMOUNT OF $6,381.06, REPRESENTING TOTAL ANNUITY PAYMENTS FOR THE PERIOD 1 OCTOBER 1959 THROUGH 31 JULY 1964, LESS COST. IN ADDITION, SHE WAS ADVISED OF HER RIGHT TO REQUEST CORRECTION OF COLONEL BRIDGES' MILITARY RECORDS UNDER AUTHORITY OF CHAPTER 79, TITLE 10, U.S.C. 1552. MRS. BRIDGES STATES THAT HER ONLY INCOME IS, NOW, A SMALL SOCIAL SECURITY BENEFIT AND A NOMINAL VETERANS ADMINISTRATION DEATH BENEFIT WHICH WILL NOT PERMIT HER TO LIVE AND REPAY THE INDEBTEDNESS. SHE REQUESTED ONLY WAIVER OF RECOVERY, AND NO MENTION WAS MADE REGARDING CORRECTION OF MILITARY RECORDS.'

IN THIS CONNECTION, IT IS NOTED THAT MRS. BRIDGES STATED, AMONG OTHER THINGS, THAT SHE RECEIVES $229 A MONTH FROM THE VETERANS ADMINISTRATION AND $89.10 A MONTH FROM SOCIAL SECURITY; THAT IT TAKES ALL OF THOSE AMOUNTS FOR HER LIVING EXPENSES; AND THAT SHE IS NOT IN A POSITION TO CREATE ANY SAVINGS THEREFROM OR TO REPAY THE ERRONEOUS PAYMENTS WHICH SHE RECEIVED.

SECTION 1442, TITLE 10, U.S. CODE, WHICH IS A PART OF CHAPTER 73, ENTITLED "ANNUITIES BASED ON RETIRED OR RETAINER PAY," AND WHICH WAS DERIVED, WITHOUT SUBSTANTIVE CHANGE, FROM SECTION 7 OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, READS AS FOLLOWS:

"IN ADDITION TO OTHER METHODS OF RECOVERY PROVIDED BY LAW, THE SECRETARY CONCERNED MANY AUTHORIZE THE RECOVERY, BY DEDUCTION FROM LATER PAYMENTS TO A PERSON, OF ANY AMOUNT ERRONEOUSLY PAID TO HIM UNDER THIS CHAPTER. HOWEVER, RECOVERY IS NOT REQUIRED IF, IN THE JUDGMENT OF THE SECRETARY CONCERNED AND THE COMPTROLLER GENERAL, THERE HAS BEEN NO FAULT BY THE PERSON TO WHOM THE AMOUNT WAS ERRONEOUSLY PAID AND RECOVERY WOULD BE CONTRARY TO THE PURPOSES OF THIS CHAPTER OR AGAINST EQUITY AND GOOD CONSCIENCE.'

IN CONSTRUING SUCH PROVISIONS, WE HELD IN OUR DECISION OF JANUARY 16, 1956, B-126390, 35 COMP. GEN. 401, THAT, IN DETERMINING WHETHER A PROPER BASIS EXISTS FOR WAIVER OF RECOVERY OF ERRONEOUS ANNUITY PAYMENTS, THERE MUST BE MORE THAN A SHOWING OF FREEDOM FROM FAULT ON THE PART OF THE PAYEE, SUCH AS A SHOWING THAT COLLECTION OF THE ERRONEOUS PAYMENTS WOULD INFLICT UNDUE HARDSHIP ON THE PAYEE.

IT APPEARS THAT MRS. BRIDGES WAS WITHOUT FAULT IN THIS CASE, AND, ON THE BASIS OF THE EVIDENCE OF RECORD, IT REASONABLY MAY BE CONCLUDED THAT COLLECTION OF THE ERRONEOUS PAYMENTS OUT OF CURRENT INCOME WOULD INFLICT UNDUE HARDSHIP ON HER AND WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE WITHIN THE INTENT AND MEANING OF THE PROVISIONS OF 10 U.S.C. 1442. ACCORDINGLY, WE CONCUR IN YOUR RECOMMENDATION THAT RECOVERY OF SUCH ERRONEOUS PAYMENTS BE WAIVED.