[B-140533]

Military Personnel—Survivorship Annuity Option Elections-Evidence

Although the regulations issued pursuant to the Uniformed Services Contingency Option Act of 1953, 10 U.S.C. 1431-1444, provide that any signed copy of the election form constitutes primary evidence of an election of options, they do not bar the use of secondary evidence when the primary evidence cannot be located by the administrative office due to inadvertent loss or destruction; however, any determination of the validity of an option on the basis of secondary evidence depends upon the particular facts of the individual case, the nature of the secondary evidence, and the degree of certainty of the evidence to establish the facts.

In the absence of a signed copy of a survivorship annuity option election form which cannot be located, secondary evidence including punch card data which indicates the amount of the option and the time of execution, together with information from the member which implies that he had previously executed a valid election, although the member now desires to withdraw from the program, afford certainty of the fact that a timely and valid election was made so that the right of the enlisted member's wife to receive survivorship benefits on the basis that the member had made a timely and valid election could not be denied solely for the reason that primary evidence cannot be located.

To Commander R. A. Wilson, United States Navy, November 3, 1959:

Your letter of August 11, 1959, and enclosures, presents for advance decision, under Department of Defense Military Pay and Allowance Committee Submission No. DO-N-447, the question whether, in the circumstances set forth below, Alan A. Forbush, 2831505, who was transferred to the United States Naval Fleet Reserve effective July 14, 1958, may be considered as having "made a valid election of options 1 and 4 at one-half reduced pay" under the provisions of the Uniformed Services Contingency Option Act of 1953, as amended, 10 U.S.C. 1431-1444 "so that upon his death annuity payments may be established to his spouse, Juanita Emily Forbush, if she survives him?"

The point at issue in this case may be summarized by stating that a signed and duly executed form NavPers 591 (the form prescribed by the Department of the Navy for the use of naval personnel in exercising an election of options and designation of beneficiaries for purposes of the Contingency Option Act) cannot be located and thus the Department of the Navy is without any primary written evidence as to whether the subject enlisted man has in fact made a valid and binding election of options under the act.

The Contingency Option Act of 1953, as amended, contains no language requiring that an election under that act be submitted in any particular manner or form. See 33 Comp. Gen. 455, 458. Section 206 of the Regulations for the Uniformed Services Contingency Option Act of 1953, as approved by the Secretary of Defense pursuant to the

authority of Executive Order No. 10499, dated November 4, 1953, provides as follows:

The form for making elections will be submitted as indicated by the department concerned. All copies forwarded will be signed, and any signed copy may be used to substantiate the fact of election. [Italics supplied.]

Thus, under the express terms of section 206 "any signed copy" of the election form constitutes primary evidence to establish the fact of an election of options. However, section 206 does not bar the use of secondary evidence to establish the fact of a valid election when, in a case such as here presented, the primary written evidence of record cannot be located due to inadvertent destruction or loss. Of course, in any case where the primary written evidence has been lost or detroyed, the question whether a valid and binding election of options can be established on the basis of secondary evidence is dependent upon the particular facts of the individual case, the nature of the secondary evidence and the degree of certainty that such secondary evidence may be viewed as reasonably establishing the actual fact at issue.

In the nature of secondary evidence in this case, there are several facts of record which indicate that Forbush did make a valid election of options. The Fleet Reserve Transfer Authorization form issued May 29, 1958, by the Chief of Naval Personnel, approving the enlisted man's transfer to the United States Naval Fleet Reserve effective July 14, 1958, contains the statement "Form NavPers 591 showing the member's USCO election has been forwarded to the U.S. Navy Finance Center." Also, the Chief of Naval Personnel responding to an inquiry from the Navy Finance Center seeking information concerning the member's "USCO election and Birth Certificate" replied on September 3, 1958, that "Subject man's Uniformed Services Contingency Option election and copy of birth certificate of Juanita Emily Miller (wife) was forwarded your office by reference (b)." The said "reference (b)" is a Bureau of Naval Personnel letter dated May 29, 1958, addressed to the Commanding Officer, Navy Finance Center, Cleveland, Ohio. There appears to be no record at the Navy Finance Center of the receipt of the election form NavPers 591, and neither the original form nor any copy thereof can now be located by the Department of the Navy. However, the punch card records maintained by the Bureau of Naval Personnel indicate that "on 27 October 1954 Forbush elected options 1 and 4 at one-half reduced pay and that such election was received *** prior to the deadline of 1 November 1954."

The actions and statements of the subject man lend substantial weight to the view that he did make a valid election of options under the Contingency Option Act. A questionnaire, Form T-553 (copy received as enclosure 4 to your letter), submitted to Forbush by the Department of the Navy "To INSURE THAT OUR RECORDS

ARE CURRENT WITH RESPECT TO YOUR ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT" was duly executed and signed by Forbush on November 10, 1958. No reason is perceived as to why Forbush would furnish to the Department of the Navy the information requested concerning the date of birth of his wife and child for purposes of the Uniformed Services Contigency Option Act unless he had in fact previously made an election of options under that act. Therefore, the information supplied by Forbush on Form T-553 would strongly imply an acknowledgment by him that he had previously executed a valid election of options. His letter of July 16, 1959, addressed to the United States Navy Finance Center (enclosure 3 to your letter), which combines a statement that he could not find the form requested (NavPers 591) with an expression of his opinion concerning the Contingency Option Act, is far from constituting even a denial that he had theretofore made an election of options.

You state that on the basis of the evidence of record as above set forth the Navy Finance Center has computed the monthly cost of the election and has been deducting such cost from the member's retainer pay since July 15, 1958, even though he has expressed in writing an emphatic desire to "withdraw from the program." A desire to withdraw from the program would be ineffective in the absence of an express revocation accomplished by Forbush in accordance with the provisions of 10 U.S.C. 1431 (c). The subject man's election of options appears to have been made in the month of October 1954 and the record discloses that he became entitled to receive retainer pay in July 1958. Hence, less than five years could have elapsed after the date of any possible revocation by Forbush and under the specific provisions of 10 U.S.C. 1431 (c) such a revocation would be ineffective.

It reasonably appears that the evidence of record in this case, although secondary in nature, affords ample certainty of the fact of a timely and valid election. Hence, the right of the enlisted man's wife (in the event of his death) to receive the benefits of the Uniformed Services Contingency Option Act on the grounds that he made a timely and valid election of options under the act apparently could not be successfully denied by the Government solely for the reason that the primary evidence of the fact of an election (a signed copy of the election Form NavPers 591) cannot be located. Accordingly, the action which has been taken by the Department of the Navy in deducting the monthly cost of the annuity computed on the basis of a valid election of options in accordance with the information disclosed by the official evidence of record, including the punch card data maintained by the Bureau of Naval Personnel, is deemed correct and proper. The question presented is answered in the affirmative.

[B-131939]

Transportation-Section 22 Motor Carrier Tenders-Offer and Acceptance—Continuing Offer v. Continuing Contract

A section 22 motor carrier tender for Government shipments of explosives between Romulus, New York, and Madison, Indiana, which provides that the tender when accepted by the Government by making any shipment will constitute a transportation agreement, is not a continuing contract upon acceptance of the first shipment which obligates the Government by reason of the carrier voluntarily making available its trucks at specified points on a regularly scheduled basis, regardless of whether any freight is shipped, but instead is a continuing offer to enter into a series of contracts governing each shipment as tendered; therefore, the carrier being under no obligation to make services available on a regular basis, except to the extent required under the Interstate Commerce Act and its certificate of authority, there is no consideration moving to the Government to pay the higher charge under the tender for shipments from Atlas, Ohio, to Madison, Indiana.

A motor carrier who voluntarily files a section 22 quotation with a Government agency and makes trucks available at the designated points specified in the tender on a regularly scheduled basis cannot preclude the Government from making its shipments at the lower published tariff rates, there being no authority in the Interstate Commerce Act or elsewhere whereby carriers may contract to furnish services to the United States at rates or charges higher than those in traiffs lawfully on file with the Interstate Commerce Commission.

A section 22 motor carrier tender which offers the Government transportation services for shipments of explosives and ammunition from Romulus, New York, to Madison, Indiana, with a stop to partially load at Atlas, Ohio, must be construed as contemplating a load of freight originating at Romulus, New York, with only a stop at Atlas, Ohio, for partial loading and is not for application where the entire shipment is loaded at Atlas, Ohio, the tender having been drafted by the carrier without indicating that the rate would become applicable upon merely making the vehicle available at Romulus, New York, whether or not loaded with freight, must be construed most strongly against the carrier and any question concerning the interpretation resolved in favor of the Government.

To Lester M. Bridgeman, November 4, 1959:

Reference is made to your requests for review of our audit action, files Nos. OC-10,780; OC-10,752; OC-10,753; OC-10,755; OC-10,798; OC-10,964; OC-10,875; OC-10,756; OC-10,614; OC-10,757; OC10,781; OC-10,779; OC-10,751; OC-11,164, OC-11,165; OC-11,603; OC-12,270; and OC-12,269, by which overpayments in the aggregate amount of $6,958.54 were stated against 18 bills presented by and paid to Riss and Company, Inc., for the transportation of 44 shipments of explosives, ammunition, and parts from Ravenna Arsenal, Atlas, Ohio, to Jefferson Proving Ground, Madison, Indiana, at various times during 1953.

For the service performed, the carrier claimed and was paid transportation charges computed on the basis of a rate of 217 cents per 100 pounds and at a minimum truckload weight of 20,000 pounds, as provided in Riss & Company section 22 tender No. 272-52. On audit of the payment vouchers in our Office it was determined that tender No. 272-52 had no application to the shipments which originated at Atlas, Ohio, but, at most, could apply only to shipments which originated at Seneca Ordnance Depot, Romulus, New York, and which were stopped

at Atlas, Ohio, to partially load other material. Consequently, the charges were recomputed on the basis of lower rates, published in tariffs on file with the Interstate Commerce Commission or Riss & Company section 22 tender No. 2C-52, for application to commodities shipped from Atlas, Ohio, to Madison, Indiana, resulting in the overpayment assessments which you now protest.

In support of your request for review you allege that upon acceptance of section 22 tender No. 272-52 by making the first shipment under its terms, the tender became a continuing contract, the essence of which was the availability of trucks at Romulus, New York, and at Atlas, Ohio, on a regularly scheduled basis, and that payment under the contract became due upon so making the trucks available whether or not any freight actually moved. As evidence that the trucks were made available at Romulus, New York, and then at Atlas, Ohio, in accordance with the terms of the tender, you submitted copies of your manifests, freight bills, and the canceled checks made out to your truck drivers in payment of their service.

In connection with the evidence submitted, however, Manifest No. RO-171-MA-A, covering the movements of trailer bearing Pennsylvania license No. 55 P 5, under Government bill of lading No. WY2365962, indicates that the subject trailer was authorized to deadhead direct from Bristol, Pennsylvania, to Ravenna Arsenal, Atlas, Ohio, and the origin point on the Riss system manifest is shown as Ravenna, Ohio. Manifest No. RV-768-MA, covering the movements of the same trailer under Government bill of lading No. WY-2553341, indicated that the trailer was authorized to deadhead direct from Chambersburg, Pennsylvania, to Ravenna, Ohio, and the origin point is shown as Ravenna, Ohio. The freight bills, Nos. E-783272 and E-825763, cross-referenced to these manifests and bills of lading, substantiate the information shown on the manifests. Consequently, even if the section 22 tender had the effect you assert, Riss and Company would not be entitled to the higher charge on these two shipments, since the evidence submitted shows that the trucks were not, in fact, made available at Romulus, New York, in accordance with the terms of the tender.

The manner and effect of acceptance of the tender is set forth in item 10, which provides as follows:

This tender, when accepted by the government by making any shipment or settlement under the terms hereof or otherwise, will constitute an agreement between the parties hereto as to the transportation services herein described. *** [Italics supplied.]

Nothing is said about entering into a continuing contract upon tender of the first shipment. The words of this provision do not differ from those used in similar provisions of other quotations, which constitute continuing offers to enter into a series of contracts governing each