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THIS MATTER WAS CONSIDERED IN DECISION OF AUGUST 14. THE FACTS INVOLVED ARE STATED IN THAT DECISION. YOU WERE ADVISED THAT THE RECORD PRESENTED WAS NOT SUFFICIENT TO AUTHORIZE PAYMENT OF AN ANNUITY TO MRS. TOGETHER WITH SUPPORTING AFFIDAVITS FROM HERSELF AND THE THIRD PERSON SHOWN TO HAVE BEEN PRESENT AT THE TIME HER HUSBAND SIGNED THE ELECTION DATED DECEMBER 8. SWORN STATEMENTS HAVE NOW BEEN FURNISHED FROM MRS. IN WHICH IT IS AVERRED THAT HE EXPRESSED HIS INTENTION TO ELECT THAT AN ANNUITY BE PAID TO HIS WIFE AT ONE-HALF OF HIS REDUCED RETIRED PAY. MAJOR DAVIS' SIGNATURE ON THE LETTER WAS WITNESSED BY TWO PERSONS. THE DAY OF THE MONTH WAS PUNCHED OUT. ALTHOUGH THE DATE OF MAILING AND DATE OF RECEIPT ARE NOT SHOWN IT APPEARS PROBABLE THAT THE LETTER WAS WRITTEN AND MAILED BEFORE THE ELECTION OF DECEMBER 8.

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B-120438, JUN. 15, 1955

TO LIEUTENANT COLONEL EUGENE PALETZ, FC, DISBURSING OFFICER, DEPARTMENT OF THE ARMY:

YOUR LETTER OF MARCH 17, 1955, FORWARDED HERE UNDER DATE OF APRIL 5, 1955, BY FIRST INDORSEMENT FROM THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, RESUBMITS FOR DECISION THE QUESTION OF THE RIGHT OF MRS. MARIE C. DAVIS TO PAYMENT OF AN ANNUITY UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501.

THIS MATTER WAS CONSIDERED IN DECISION OF AUGUST 14, 1954, B-120438, ADDRESSED TO YOU, AND THE FACTS INVOLVED ARE STATED IN THAT DECISION. YOU WERE ADVISED THAT THE RECORD PRESENTED WAS NOT SUFFICIENT TO AUTHORIZE PAYMENT OF AN ANNUITY TO MRS. DAVIS AT THE RATE OF ONE-HALF OF HER DECEASED HUSBAND'S REDUCED RETIRED PAY AND THAT SHE SHOULD BE REQUESTED TO FURNISH AN ADDITIONAL SWORN STATEMENT FROM WARRANT OFFICER ALLEN CLARIFYING CERTAIN POINTS, TOGETHER WITH SUPPORTING AFFIDAVITS FROM HERSELF AND THE THIRD PERSON SHOWN TO HAVE BEEN PRESENT AT THE TIME HER HUSBAND SIGNED THE ELECTION DATED DECEMBER 8, 1953.

SWORN STATEMENTS HAVE NOW BEEN FURNISHED FROM MRS. DAVIS, MR. ALLEN AND LIEUTENANT COMMANDER W. W. BRENNER, MC, USNR, SAID TO BE THE PHYSICIAN WHO ATTENDED MAJOR DAVIS DURING HIS LAST ILLNESS, IN WHICH IT IS AVERRED THAT HE EXPRESSED HIS INTENTION TO ELECT THAT AN ANNUITY BE PAID TO HIS WIFE AT ONE-HALF OF HIS REDUCED RETIRED PAY. YOU ALSO FORWARDED A PHOTOSTAT COPY OF A LETTER FROM MAJOR DAVIS ADDRESSED TO THE ARMY FINANCE CENTER, RETIREMENT FINANCE DIVISION, FORT BENJAMIN HARRISON, INDIANA, IN WHICH THE OFFICER STATED THAT "I WISH TO ASK AND CONSIDER THIS AN APPLICATION FOR 25 PERCENT TWENTY FIVE PERCENT OF MY RETIREMENT ARMY MONTHLY PAY TO BE RETAINED BY THE GOVERNMENT, IN ORDER TO PROVIDE FOR MY WIDOW. BENEFITS TO BE PAID TO MARIE C. DAVIS IN CASE OF MY DEATH.' MAJOR DAVIS' SIGNATURE ON THE LETTER WAS WITNESSED BY TWO PERSONS. SUCH LETTER BEARS A DATE IN DECEMBER 1953, BUT IT APPEARS THAT IN PREPARING THE LETTER FOR FILING, THE DAY OF THE MONTH WAS PUNCHED OUT. ALTHOUGH THE DATE OF MAILING AND DATE OF RECEIPT ARE NOT SHOWN IT APPEARS PROBABLE THAT THE LETTER WAS WRITTEN AND MAILED BEFORE THE ELECTION OF DECEMBER 8, 1953, WAS SIGNED.

THE ELECTION MADE IN THE LETTER BEING FIRST IN POINT OF TIME, THE PROVISION IN SECTION 303 (B) OF THE ACT THAT "AN ELECTION SO MADE SHALL THEREAFTER BE IRREVOCABLE," WOULD REQUIRE THAT A DETERMINATION OF MRS. DDAVIS' RIGHTS BE MADE ON THE BASIS OF SUCH ELECTION IF IT CONSTITUTED A VALID ELECTION UNDER THE ACT. THE LANGUAGE USED IN THE LETTER IS NOT THAT CONTEMPLATED BY THE STATUTE. WHILE IT APPEARS THAT RETENTION OF ONE- FOURTH OF HIS RETIRED PAY WOULD NOT HAVE BEEN SUFFICIENT TO PURCHASE AN ANNUITY AT THE RATE OF ONE-HALF OF HIS REDUCED RETIRED PAY, IT WAS SUCH MORE THAN ENOUGH FOR AN ANNUITY AT THE ONE-QUARTER RATE AND WAS WITHIN A FEW PERCENTAGE POINTS OF BEING ENOUGH FOR THE ONE-HALF RATE. SUCH ELECTION, LIKE THE LATER ELECTION OF DECEMBER 8, 1953, REQUIRED THE SUBMISSION OF FURTHER EVIDENCE AS TO HIS ACTUAL INTENT. THE ADDITIONAL EVIDENCE NOW FURNISHED MAY BE ACCEPTED AS ESTABLISHING AN INTENT TO ELECT THE ONE-HALF RATE.

THE VOUCHER SUBMITTED WITH YOUR LETTER IS RETURNED HEREWITH AND PAYMENT IS AUTHORIZED, IF OTHERWISE CORRECT.

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