B-141116, JUL. 10, 1962
Highlights
CHILDRESS: REFERENCE IS MADE TO YOUR LETTER OF MAY 28. KRESS MENTALLY INCAPACITATED FOR FURTHER MILITARY SERVICE AND CONSEQUENTLY HE WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST WITH A 100 PERCENT DISABILITY RATING EFFECTIVE MARCH 1. YOU SERVICES CONTINGENCY OPTION ACT BETWEEN THE TIME HE WAS TRANSFERRED TO THE ROANOKE VETERANS ADMINISTRATION HOSPITAL (FEBRUARY 13. 1959) AND THE DATE HE WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST. IT IS YOUR CONTENTION THAT AT THAT TIME MR. KRESS WAS NOT MENTALLY COMPETENT TO MAKE A VALID ELECTION AND THEREFORE YOU REQUEST THAT SUCH ELECTION BE DECLARED A NULLITY AND VACATED AND THAT ALL DEDUCTIONS MADE FROM HIS RETIRED PAY UNDER THE ELECTION BE REFUNDED TO HIM.
B-141116, JUL. 10, 1962
TO MR. CALVIN H. CHILDRESS:
REFERENCE IS MADE TO YOUR LETTER OF MAY 28, 1962, WITH ENCLOSED POWER OF ATTORNEY, PRESENTING CLAIM ON BEHALF OF THOMAS JOHN KRESS, BMC, USN, RETIRED, FOR REFUND OF AMOUNTS DEDUCTED FROM HIS RETIRED PAY PURSUANT TO HIS ELECTION (OPTION 3) EXERCISED UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 10 U.S.C. 1434.
YOU STATE IN YOUR LETTER THAT A NAVY PHYSICAL EVALUATION BOARD FOUND MR. KRESS MENTALLY INCAPACITATED FOR FURTHER MILITARY SERVICE AND CONSEQUENTLY HE WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST WITH A 100 PERCENT DISABILITY RATING EFFECTIVE MARCH 1, 1959. YOU SERVICES CONTINGENCY OPTION ACT BETWEEN THE TIME HE WAS TRANSFERRED TO THE ROANOKE VETERANS ADMINISTRATION HOSPITAL (FEBRUARY 13, 1959) AND THE DATE HE WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST. IT IS YOUR CONTENTION THAT AT THAT TIME MR. KRESS WAS NOT MENTALLY COMPETENT TO MAKE A VALID ELECTION AND THEREFORE YOU REQUEST THAT SUCH ELECTION BE DECLARED A NULLITY AND VACATED AND THAT ALL DEDUCTIONS MADE FROM HIS RETIRED PAY UNDER THE ELECTION BE REFUNDED TO HIM. YOU SAY THAT BY LETTER OF AUGUST 22, 1961, THE U.S. NAVY FINANCE CENTER DENIED YOUR CLAIM FOR SUCH DEDUCTIONS.
THE RECORD SHOWS THAT A BOARD OF MEDICAL EXAMINERS APPOINTED BY THE COMMANDANT, FIFTH NAVAL DISTRICT, ON APRIL 13, 1959, FOUND THAT MR. KRESS WAS CAPABLE OF HANDLING HIS OWN AFFAIRS. ON THE BASIS OF THAT FINDING AND OTHER FACTS OF RECORD, WE RENDERED A DECISION TO MR. R. A. WILSON, A NAVY DISBURSING OFFICER, ON DECEMBER 31, 1959, B-141116, IN WHICH WE CONCLUDED THAT AN ANNUITY ELECTION MADE BY MR. KRESS ON APRIL 3, 1959--- A DATE SUBSEQUENT TO HIS TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST--- WAS VALID. A COPY OF THAT DECISION IS ENCLOSED FOR YOUR INFORMATION.
THE NAVY BOARD OF MEDICAL EXAMINERS WAS APPOINTED AND CONSTITUTED UNDER APPLICABLE REGULATIONS OF THE NAVY FOR THE SOLE PURPOSE OF DETERMINING WHETHER MR. KRESS WAS CAPABLE OF MANAGING HIS OWN AFFAIRS AND AN AFFIRMATIVE FINDING WAS REACHED. THERE IS NO INDICATION THAT THAT FINDING HAS BEEN MODIFIED IN ANY WAY AND, HENCE, THERE IS NO BASIS FOR MODIFICATION OF OUR DECISION OF DECEMBER 31, 1959, B-141116.