B-158330, FEB. 21, 1966, 45 COMP. GEN. 522

B-158330, FEB. 21, 1966, 45 COMP. GEN. 522

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - ADMINISTRATIVE ERRORS IN HANDLING - VALIDITY OF ELECTION AN ANNUITY ELECTION MADE FOR DEPENDENTS UNDER 10 U.S.C. 1431, WHICH INADVERTENTLY FILED IN THE PERSONNEL FOLDER OF A NAVY OFFICER WAS NOT REFLECTED IN HIS RECORD AT THE TIME OF RETIREMENT, RESULTING IN HIS RETIRED PAY ACCOUNT BEING ESTABLISHED WITHOUT PROVIDING FOR ANNUITY DEDUCTIONS, IS A TIMELY AND VALID ELECTION--- AND NOT REQUIRED BY LAW, IT IS IMMATERIAL THAT THE OFFICER'S SIGNATURE WAS NOT ATTESTED TO OR NOTARIZED--- AND THE ELECTION DISCOVERED AFTER A 5-YEAR LAPSE REQUIRING ESTABLISHMENT OF REGULAR DEDUCTIONS, PLUS ADDITIONAL DEDUCTIONS FOR ARREARAGES, THE ELECTION FORM FILED A YEAR AFTER THE ORIGINAL ELECTION EXPRESSING NO DESIRE TO PARTICIPATE IN THE ANNUITY PROGRAM, AN ATTEMPTED REVOCATION, HAVING NO FORCE OR EFFECT, THE DEDUCTIONS FROM THE OFFICER'S RETIRED PAY MAY NOT BE REFUNDED; HOWEVER, THE SECRETARY OF THE NAVY MAY AUTHORIZE THE WITHDRAWAL OF THE OFFICER FROM PARTICIPATING IN THE ANNUITY PROGRAM UNDER 10 U.S.C. 1436 (B).

TO COMMANDER M. L. CONNER, DEPARTMENT OF THE NAVY, FEBRUARY 21, 1966:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 13, 1965, WITH ENCLOSURES, FORWARDED BY THE COMPTROLLER OF THE NAVY BY SECOND ENDORSEMENT DATED JANUARY 12, 1966, REQUESTING AN ADVANCE DECISION AS TO THE VALIDITY OF AN ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, CH. 393, 67 STAT. 501, 10 U.S.C. 1431 (RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN), AND THE PROPRIETY OF REFUNDING DEDUCTIONS ALREADY MADE FROM THE MEMBER'S RETIRED PAY. THE REQUEST WAS ASSIGNED NO. DO-N-888 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE PAPERS SUBMITTED TO THIS OFFICE DISCLOSE THAT THE MEMBER, LIEUTENANT GEORGE H. SCHAFFNER, RETIRED FROM THE NAVY ON MAY 1, 1956, AFTER HAVING SERVED ON ACTIVE DUTY FOR MORE THAN 20 YEARS. AT THE TIME HIS RETIRED PAY ACCOUNT WAS BEING ESTABLISHED, THE RECORDS IN YOUR OFFICE AND IN THE U.S. NAVY FAMILY ALLOWANCE ACTIVITY, FAILED TO SHOW THAT HE HAD MADE AN ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT. AS A RESULT, IT WAS PRESUMED THAT NO ELECTION WAS INTENDED AND HIS RETIRED PAY ACCOUNT WAS ESTABLISHED WITHOUT ANNUITY DEDUCTIONS BEING MADE.

THE FILE FURTHER REFLECTS THAT BY LETTER DATED JULY 7, 1961, THE U.S. NAVY FAMILY ALLOWANCE ACTIVITY FORWARDED TO YOU VARIOUS PAPERS AND OTHER DOCUMENTS PERTAINING TO LIEUTENANT SCHAFFNER, AMONG WHICH WERE TWO NAVPERS 591 FORMS DATED MARCH 23, 1954, AND MARCH 4, 1955, SIGNED BY THE MEMBER. WHILE IT WAS AT FIRST BELIEVED THAT THE LATTER FORM BORE A 1958 DATE, IT IS REPORTED THAT THE DATE STAMPED ON THE REVERSE SIDE INDICATES THAT IT WAS RECEIVED ON APRIL 25, 1955. IT APPEARS THAT THESE ANNUITY OPTION FORMS HAD INADVERTENTLY BEEN FILED IN HIS PERSONNEL FOLDER AT THE BUREAU OF NAVAL PERSONNEL AND HAD JUST RECENTLY BEEN DISCOVERED AFTER A 5-YEAR LAPSE. ALSO CONTAINED IN THIS CORRESPONDENCE WAS A COPY OF A LETTER FROM THE BUREAU OF NAVAL PERSONNEL DATED JUNE 1, 1954, TO THE MEMBER, ADVISING HIM THAT HIS ELECTION OF MARCH 23, 1954, FAILED TO INCLUDE THE SIGNATURE OF AN ATTESTING OFFICER, OR NOTARY, AND THAT PROOF OF HIS WIFE'S DATE OF BIRTH WAS NOT ATTACHED. APPARENTLY, HE DID NOT REPLY TO THAT LETTER; BUT INSTEAD, ON MARCH 4, 1955, ALMOST A YEAR LATER, RETURNED THE SECOND NAVPERS 591 FORM, PROPERLY COMPLETED, INDICATING THAT HE DID NOT WISH TO PARTICIPATE IN THE PROGRAM.

APPARENTLY, NO FURTHER ACTION WAS TAKEN UNTIL JULY 13, 1961, WHEN LIEUTENANT SCHAFFNER WAS ADVISED BY YOUR OFFICE THAT REGULAR DEDUCTIONS WOULD BE MADE BEGINNING JULY 1961, PLUS ADDITIONAL DEDUCTIONS FOR ALL ARREARAGES TOTALING $1,825.28, DUE UNDER THE PROGRAM FROM THE TIME OF HIS RETIREMENT TO JULY 1961. IN RESPONSE, HE STATED HIS OBJECTION TO THIS PROCEDURE, STATING THAT HE HAD NO IDEA HOW THE NAVPERS 591 FORM, DATED MARCH 23, 1954, CAME TO BE IN HIS PERSONNEL FILE AS IT WAS ONLY A "ROUGH DRAFT" AND THAT HE NEVER HAD ANY INTENTION OF PARTICIPATING IN THE PROGRAM. IN AN EFFORT TO SUPPORT HIS POSITION, HE CONTENDS THAT THE SIGNATURE OF AN ATTESTING OFFICER ON THE ORIGINAL OPTION FORM, WAS MANDATORY AND HENCE THAT SUCH FORM DID NOT CONSTITUTE A VALID ELECTION, CITING OUR DECISION 44 COMP. GEN. 665, AS CONTROLLING. HOWEVER, THE FACT THAT HIS SIGNATURE WAS NOT ATTESTED TO OR NOTARIZED DOES NOT NECESSARILY AFFECT THE VALIDITY OF THE ELECTION SIGNED BY LIEUTENANT SCHAFFNER ON MARCH 23, 1954, IT HAVING BEEN HELD THAT NEITHER THE LAW GOVERNING SUCH ELECTIONS NOR THE REGULATIONS ISSUED UNDER THAT LAW REQUIRE THAT THE SIGNATURE OF THE MEMBER MAKING THE ELECTION BE ATTESTED BY A NOTARY PUBLIC OR OTHER ATTESTING OFFICER. 33 COMP. GEN. 455; 36 COMP. GEN. 244.

THE QUESTION INVOLVED IN OUR DECISION OF APRIL 29, 1965, 44 COMP. GEN. 665, THE DECISION ON WHICH LIEUTENANT SCHAFFNER BASES HIS CLAIM, WAS NOT THE VALIDITY OF THE ELECTION, BUT WHETHER AN ELECTION HAD, IN FACT, BEEN MADE BY DELIVERING AN EXECUTED ELECTION FORM TO THE PROPER SERVICE OFFICIAL AS CONTEMPLATED BY APPLICABLE REGULATIONS, THERE BEING NO PROOF OF SUCH DELIVERY IN OFFICIAL FILES. AS TO THE MATTER OF PROOF OF DELIVERY IN SUCH CIRCUMSTANCES, WE HELD IN DECISIONS OF SEPTEMBER 30, 1963, 43 COMP. GEN. 309, AND NOVEMBER 1, 1963, B-151999, THAT SINCE THE ATTESTING OFFICERS SIGNED THE ELECTION FORMS OF THE ELECTING MEMBERS IN THOSE CASES, IN CONNECTION WITH THEIR ASSIGNED DUTIES RELATING TO THE FAMILY PROTECTION PLAN AS THERE DESCRIBED, PROOF OF THEIR SIGNATURES ON THE RESPECTIVE COPIES OF THE ELECTION FORM RETAINED BY THE MEMBER CONCERNED MAY BE ACCEPTED AS ESTABLISHING THAT THE DULY EXECUTED ORIGINAL ELECTION FORM PASSED OUT OF THE MEMBER'S CONTROL INTO THE POSSESSION OF THE PROPER AUTHORITIES AT HIS STATION. THE ABSENCE OF SUCH PROOF IN 44 COMP. GEN. 665, PREVENTED A DETERMINATION THAT THE MEMBER HAD DELIVERED THE REQUISITE ELECTION FORM TO THE PROPER SERVICE OFFICIALS. WE WOULD NOT HAVE QUESTIONED THE UNATTESTED ELECTION IN THAT CASE IF THE ORIGINAL ELECTION FORM HAD BEEN FOUND IN OFFICIAL FILES.

WE BELIEVE THAT A TIMELY AND VALID ELECTION WAS MADE BY LIEUTENANT SCHAFFNER ON MARCH 23, 1954, WHEN HE SIGNED THE PRESCRIBED FORM AND THAT FORM WAS DELIVERED TO THE NAVY. THE OPTION FORM DATED MARCH 4, 1955, SEEMS TO CONSTITUTE NOTHING MORE THAN AN ATTEMPTED REVOCATION OF THE PRIOR ELECTION, WHICH UNDER THE STATUTE HAS NO FORCE OR EFFECT. ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, LIEUTENANT SCHAFFNER IS NOT ENTITLED TO REFUND OF DEDUCTIONS MADE IN ACCORDANCE WITH THAT ELECTION.

IT WOULD APPEAR APPROPRIATE TO INVITE LIEUTENANT SCHAFFNER'S ATTENTION TO THE AUTHORITY VESTED IN THE SECRETARY OF THE NAVY TO TAKE APPROPRIATE ACTION PERMITTING WITHDRAWAL BY A MEMBER FROM PARTICIPATING IN THE ANNUITY PROGRAM, UNDER 10 U.S.C. 1436 (B).