pay and for purposes of the annuity payable to my dependent wife on the basis of the retirement pay due me after election under the Career Compensation Act of 1949." By letter of 2 November 1953, the officer reaffirmed the action taken in his first letter. Thereafter, by letter dated 13 November 1953, he requested that his previous letters be disregarded stating that he had been erroneously advised as to the amount by which his retired pay would be reduced in order to afford his wife the maximum benefits. He died on 19 December 1953.

Held that:

while the officer's letter of 23 October is ambiguous, when considered in its entirety, it may reasonably be construed as an election under the Uniformed Services Contingency Option Act to take effect on the effective date of the act, 1 November 1953.

the letter also indicates that it was the officer's intention to elect option (B) of sec 411 of the Career Compensation Act on 1 November 1949, since he had over thirty years of active service and his retired pay computed under method (b) in sec 511 would be substantially higher than the retired pay he actually received prior to his death, and since such election under the Career Compensation Act was required to be made prior to or concurrent with his election under the Uniformed Services Contingency Option Act if his wife was to have the maximum benefit in the event of his death.

- the election under the Uniformed Services Contingency Option Act was not invalid because of the fact that it was not executed on the form prescribed for registering elections under such act since the act does not require that elections be submitted in any particular manner or on any particular form.

because of the express provision of sec 3 (b) of the Uniformed Services Contingency Option Act to the effect that an election is irrevocable, the officer's letter of 13 November may not be given effect as a revocation or cancellation of the election made by the letter of 23 October and reaffirmed in the letter of 2 November. Accordingly, his wife is entitled to the annuity. (See Comp Gen B-118907, 33 Comp Gen 460, 15 Apr 1954.) MS Comp Gen B-118336, 33 Comp Gen 455. 15 April 1954.

Two deceased officers had elected options under the Uniformed Services Contingency Option Act of 1953, 67 Stat 501, to provide annuities for their wives but neither indicated whether the annuity was to be paid at the rate of one-eighth, one-fourth or one-half of his reduced retired pay. In the case of one officer there was no indication of his intention. In the case of the other a warrant officer submitted an affidavit to the effect that at the time the officer executed the form used in exercising the option in the presence of the warrant officer, his wife, and a notary, the officer had expressed an intent to apply for benefits under the Act at one-half percent, apparently meaning one-half of his reduced retired pay. Held: While an election is not complete unles it indicates the percentage of reduced retired pay to be paid to the dependent, the intent of the member in such cases may be determined from

evidence other than that appearing on the election form. Where an otherwise valid election is received which fails to show the percentage of reduced retired pay to be paid, and sufficient evidence of intent to elect a particular percentage cannot be obtained, it should be assumed that the minimum rate of one-eighth was chosen. If it can be determined from all the evidence that a particular rate was intended, it should be considered that election was made on that basis. Where the member is alive and able to state his intention, his statement may be accepted. In the cases of deceased members evidence in affidavit form from the attesting officer and others having knowledge of the member's intent should be obtained. In the instant case the widow of the officer as to whose intent there is no evidence should be given an opportunity to present any information she may have of intent and if there is no evidence to establish a particular rate she should be paid at the one-eighth rate. In the case of the other officer's widow, the warrant officer's affidavit is not sufficient to authorize payment to her at the one-half rate. The warrant officer should submit an additional affidavit showing the circumstances under which he prepared the election form and why it did not show the officer's intent if he had in fact indicated his intent. Also, a statement of the officer's state of health at the time of executing the election might help to determine intent. MS Comp Gen B-120438, 34 Comp Gen 63. 13 August 1954.

While in good health and of sound mind, an Army officer filled out the form for election of options under the Uniformed Services Contingency Option Act of 1953. He showed it to his wife and informed her that it was what he wanted, but he did not sign it because he intended to do so in the presence of a Notary Public. He died suddenly without signing the form. The attending physician certified that from the time he became ill until his death the officer was unconscious and wholly unable to write his name or to understand anything of a legal nature. The officer's widow sent the form to the Commanding General, Finance Center, and requested that an election be made on her behalf pursuant to subsec 3(c), Uniformed Services Contingency Option Act of 1953 (67 Stat 502, 37 USC 372(c)). This section provides in substance that whenever a retired member is determined to be mentally incompetent by medical officers of the service concerned or of the Veterans' Administration, or is adjudged mentally incompetent by a court of competent jurisdiction, and because of such mental incompetence he is incapable of making any election provided in the law within the time limitation specified therein, the head of the department concerned may make the appropriate election if requested

by the spouse. Held: Since the determination of mental incompe

tency was not made in the manner required by the cited statute, an election would not be authorized at this time. The required determination of mental incompetence need not precede the request for election. However, before the election requested by the officer's widow may be made by the Commanding General, Finance Center, United States Army, acting for the Secretary of the Army, the determination must be made by one of those authorized to determine that the officer

was mentally incompetent as required by the cited statute. Whether such determination should be made is a question for the medical officers of the Army, the Veterans' Administration or a court which may be called upon to determine the issue. (Citing JAGA 1954/9745, 22 December 1954; 33 Comp Gen 428.) JAGA 1955/1568. 28 January 1955.

§ 73.13. Modification or revocability of election.

Six retired members of the Army sought refund of deductions made from their retired pay in accordance with elections exercised by them under the authority of the Uniformed Services Contingency Option Act of 1953, 8 August 1953, Public Law 239, 67 Stat 501, which act authorizes such deductions, at the retired member's election, in order to provide an annuity payable after his death to dependents. In five of the six cases the retired member stated he was not informed of the actual amount of the monthly deduction from his retired pay until after his election had been made and that such amount was higher than he had anticipated. The sixth member contended that through error of the stenographer in typing his election form, two elections were checked whereas it was intended to elect only one. Section 3 of the act provides than an election once made by a retired member shall be irrevocable and sec 4 (c) sets forth the basis upon which the reduction in the retired pay of any member making an election under the act will be computed. In addition, it appeared that there was mailed to each retired member an Army pamphlet together with option tables and explanatory information which, when considered together, provided each retired member a means of determining at least the approximate cost of each election authorized under the act. It also appeared that the election form itself contained a statement that the election was irrevocable. Held: In view of the specific terms of the act, it is doubtful whether the election could be revoked under any circumstances. However, even if an election under the act could be revoked under certain circumstances, the elections involved herein are clearly irrevocable, since each of the retired members was furnished sufficient information for determining the cost of the option he selected and was expressly advised that his election would be irrevocable. The failure of the member to utilize the information furnished prior to making an election affords no proper basis for accepting and giving effect to the revocation of his election.

Held also: With respect to the case of the member who alleged a stenographic error in marking the elections, he is presumed to have read the typed election form prior to signing it and if such a mistake was made it did not result from any action or inaction on the part of the government. Since the mistake, if any, was unilateral and was not corrected prior to the time he signed the election, such election became irrevocable and not subject to modification. MS Comp Gen B-118907, 33 Comp Gen 460. 15 April 1954.

See also B-118336, supra § 73.11.

§ 73.21. Computation of reduced retired pay.

The Uniformed Services Contingency Option Act of 1953, 67 Stat

501, which provides for election of a reduction in retired pay in order to provide annuities for dependents, indicates that only one computation of the amount of the reduction is contemplated and that the amount of the annuity to be paid to the dependents of the member making the election is to be based on the retired pay of the member at the time such computation is made. In order to comply with these statutory requirements in cases of retired members who are receiving reduced retired pay by reason of having elected one or more of the options provided by the act, and whose retired pay is changed in amount subsequent to election, the following procedure should be followed: Continue the deductions at the same dollar value as was computed at the time of retirement or of election, as the case may be, based upon attained ages and retired pay existing at that time, and base the annuity upon the amount of reduced retired pay in effect prior to the change in amount of retired pay. Under this method a change in amount of retired pay would have no effect upon either the money amount of the reduction in retired pay or in the amount of annuity payable to elected dependents after the death of the retired member. MS Comp Gen B-118480, 33 Comp Gen 491. 19 April 1954.

A Navy man who had been transferred to the Fleet Reserve and released to inactive duty was recalled to active duty. While on such active duty, he elected, under the Uniformed Services Contingency Option Act of 1953, 67 Stat 501, to receive reduced retired pay in order to provide an annuity for his wife. By reason of his recall to active duty he was entitled to an increase in retainer pay under the provisions of the Career Compensation Act of 1949, Section 516. However, such increase is not payable until release from active duty and the amount thereof depends on the length of the active duty, while the Uniformed Services Contingency Option Act requires that certain computations be made on the basis of retired pay at the time of election under the act. In view of the foregoing a decision was requested as to the pay to be used in making the computations required under the Uniformed Services Contingency Option Act where a member of the Fleet Reserve who is still on active duty is involved. Held: The rate of retainer pay to be used in making the computations required under the Uniformed Services Contingency Option Act is the rate which would have been payable had the individual involved been released from active duty on the day prior to the day on which he made his election under the act. MS Comp Gen B-118480, 33 Comp Gen 491. 19 April 1954.

$75. Miscellaneous

§ 75.5. Recall to active duty.

Reevaluation of per centum of disability upon return to retired list after recall to active duty during which a new disability was incurred, see JAGA 1954/7565, supra § 31.7.

§ 75.11. Stoppages and deductions.

It would appear that the Comptroller General considers the pro

hibition against payment of compensation to persons who fail to account for public funds, contained in sec 1766 of the Revised Statutes, as amended (5 USC 82), to be applicable to the retired pay of an officer who incurred an indebtedness incident to service as a United States property and disbursing officer. However, the authority contained in the mentioned section is limited by the provisions of the act of 16 July 1892 (27 Stat 177), as amended (10 USC 877), so that a stoppage cannot be made against the pay of an officer unless the indebtedness in question is admitted, or shown by the judgment of a court, or the stoppage is made by the special order of the Secretary of the Army. The authority of the Secretary of the Army to make such a special order is exclusive and discretionary. (Citing Baker v. McCarl et al, 24 F2d 897; 30 Comp Gen 255; McCarl v. Pence, 18 F2d 809; 22 Comp Gen 541.) JAGA 1954/6681. 5 August 1954.

A member placed on the retired list as a master sergeant was advanced on the retired list to the grade of captain and in receiving his pay adjustment he received an overpayment. Requests for refund of the overpayment were ignored. Held: The retired member occupies the status of an enlisted man on the retired list and pursuant to the provisions of the Act of 22 May 1928 (45 Stat 698), as amended (10 USC 875a), deductions may be made from his retired pay to satisfy the indebtedness to the United States resulting from the overpayment to him. In addition, should a disallowance in the account of the disbursing or certifying officer involved be raised in the General Accounting Office for the overpayment, the retired member's retired pay may be withheld to satisfy such overpayment pursuant to the provisions of the Act of 26 May 1936 (49 Stat 1374), as amended (5 USC 46b). (Citing CSJAGA 1948/9109, 15 Feb 1949; CSJAGA 1949/1119, 2 Mar 1949; 26 Comp Gen 271; JAGA 1951/6864, 15 Nov 1951.) JAGA 1954/7465. 9 September 1954.

§ 75.61. Incompetent persons.

A determination that a person is competent is not, strictly speaking, within the purview of a board appointed under PL 569, 81st Cong (Act of 21 June 1950, 64 Stat 249, 37 USC 351 et seq), for the purpose of determining whether retired pay should be paid to a representative designated by the Secretary when a payee, "in the opinion of competent medical authority, is mentally incapable of managing his own affairs." The law was enacted to provide a technically legal method of making payments to a person, apparently incompetent, without necessity for a judicial proceeding to determine competency. If the board is not able to state that it is of the opinion that the payee is mentally incapable of managing his affairs, then the Secretary cannot legally make payment to a person other than the payee.

Under the statute, the board is expected to furnish its own medical opinion and the evidence to be considered appears to be essentially a medical question. A determination made by the Veterans' Administration cannot form the basis for action by the Secretary, but the board in forming its opinion, could properly consider the Veterans'