Parsons v. United States
| Decision Date | 27 January 1982 |
| Docket Number | No. 357-80C.,357-80C. |
| Citation | 670 F.2d 164 |
| Parties | Burl F. PARSONS v. The UNITED STATES. |
| Court | U.S. Claims Court |
Stephanie Wickouski, with whom was Acting Asst. Atty. Gen. Thomas S. Martin, Washington, D. C., for defendant.
Before DAVIS, Judge, SKELTON, Senior Judge, and KASHIWA, Judge.
ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT
This case comes before the court on cross-motions for summary judgment. The plaintiff, Burl F. Parsons, is the widow of Lieutenant Colonel Clyde C. Parsons, USAF (Ret.). She seeks the recovery of annuity benefits since August 22, 1973, under the Retired Serviceman's Family Protection Plan (RSFPP, or the plan, formerly titled the Uniformed Services Contingency Option Act or USCOA), 10 U.S.C. §§ 1431-1446. The facts are briefly as follows.
On November 12, 1957, while plaintiff's husband, Major Clyde C. Parsons (Parsons), was serving on active duty in the United States Air Force, he made an election under the USCOA to participate in a plan which would give him a reduced annuity upon his retirement so as to allow a continuing annuity to his widow upon his death. Parsons retired from the Air Force with the rank of lieutenant colonel on June 30, 1962. He received retired pay according to applicable statutes and regulations from that date until his death on August 22, 1973.
Prior to his retirement, Parsons filed an application on November 8, 1961, seeking to revoke his previous election to participate in the RSFPP. At that time the election to receive a reduced annuity to permit a continuing annuity to a surviving spouse was irrevocable under the statute, and, therefore, his application was denied. On August 13, 1968, the RSFPP was amended by Section 1(6) of Public Law 90-485, 82 Stat. 751, 10 U.S.C. § 1436(b), to permit a retired member to revoke a prior election and to withdraw from the reduced annuity program if he desired to do so.
The records of the Air Force Accounting and Finance Center reflect that on September 27, 1971, the Secretary of the Air Force approved a recommendation that a request of Parsons to withdraw from participation in the RSFPP be granted, such approval to be effective February 1, 1972. The actual written request of Parsons to withdraw from the RSFPP in 1971 cannot be located, although the Air Force produced his withdrawal application of 1961. The record shows that the 1971 application was routinely destroyed along with other papers by the Air Force in 1973.
A statement of Lt. Col. Jerry L. Walker, the Director of the Directorate of Retired Pay Operations, Air Force Accounting and Finance Center (AFAFC) in Denver, Colorado, who was the custodian of the retired pay files of all retired Air Force members including the file of Parsons, was introduced into evidence. This statement shows that Parsons was notified of the approval by the Secretary of the Air Force of his request for withdrawal from the RSFPP and the consequent adjustment of his pay account eliminating the RSFPP deduction, and that his pay records do not reflect the receipt of any comment or objection from Parsons regarding such action.
The written approval of the Secretary of the Air Force of Parsons' application to withdraw from the plan was introduced into evidence. It is dated September 27, 1971, to be effective February 1, 1972. The record shows further that in January, 1972, before the effective date of Parsons' withdrawal from RSFPP, he received gross pay of $608.40 per month from which was deducted $50.43 for the RSFPP. The next pay statement introduced as an exhibit and dated February 29, 1972, after the effective date of his withdrawal from the plan, shows that his retired pay was increased by $50.43, which was the amount previously deducted for the RSFPP. He received payments containing such increase for eighteen months between the time of his withdrawal from the plan and his death on August 22, 1973. During this eighteen month period, Parsons never questioned the action of the Air Force nor objected to the adjustment in his pay check.
Also, on October 1, 1971, the AFAFC received a letter from the Secretary of the Air Force advising that office of his approval of Parsons' request to withdraw from participation in the program and directing the AFAFC to change his records accordingly. On February 1, 1972, the AFAFC terminated deductions for coverage under RSFPP from Parsons' retired pay and restored his full pay.
In response to inquiries made by plaintiff about her failure to receive survivor's annuity benefits, she was told by the Air Force in February, 1974, that Parsons did not elect to participate in the Plan. Plaintiff sought the assistance of her congressman, who was informed by the Air Force that Parsons' request to withdraw from participation in the RSFPP was approved by the Secretary on September 27, 1971, effective February 1, 1972. This suit to recover such annuity benefits in the sum of $18,516, together with...
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