tion 2105 (b) provides that the Secretaries of the Army, Navy, Air Force, and Treasury, shall make such regulations, not inconsistent with the 1952 law, as may be necessary effectively to carry out the provisions thereof, and makes the decisions of the Secretaries in the administration of the law final and not subject to review by any court or other Government official.

Section 1 of the act of June 25, 1956, 70 Stat. 333, 50 U.S.C. 1411, provides that the enlistment contract or period of obligated service of a member of any of the Armed Forces who "hereafter" accepts an appointment as a midshipman at the United States Naval Academy shall not be terminated by reason of such appointment during the continuation of the midshipman status of such member. Section 2 of the act, 50 U.S.C. 1412, provides that hereafter a person who accepts an appointment as a midshipman, while having a period of obligated service as an enlisted member of any of the Armed Forces or while serving under an enlistment contract, and who thereafter is separated from the United States Naval Academy for some reason other than the acceptance of a commission in the regular or reserve components of one of the Armed Forces, or for physical disability, shall have his appointment as midshipman terminated "and his enlisted status shall thereupon be resumed." Section 2 of the act further provides that a person who has reverted to his former enlisted status shall be continued in such enlisted status for the remainder of his obligated service or until sooner promoted or discharged and that, in computing the unexpired portion of an enlistment contract or period of obligated service, "for [the] purposes of this Act," time served as a midshipman shall be counted as time served under such contract or period of obligated service. The legislative history of the 1956 law indicates that the law was considered necessary to prevent certain abuses; specifically, the utilization of appointments as cadets or midshipmen at service academies in order to modify and shorten the terms of obligated military service. BUPERS INSTRUCTION 1530.21B, dated October 16, 1956, issued for the purpose of implementing the act of June 25, 1956, provides that, in accordance with the provisions of the said law, enlisted and inducted members of the Armed Forces who accept appointments as midshipmen at the service academy, while having a period of obligated service as an enlisted member or while serving under an enlistment contract will, upon separation from the academy under certain conditions, resume their enlisted status, and that time served as a midshipman will be counted in computing the unexpired portion of an enlistment contract or period of obligated service. In this connection, we note that paragraph 044165–5 (15) Ch. 83, Navy Comptroller Manual, provides that "cadets and mid

551978 O 61-8

shipmen dismissed or resigning from the Military, Naval, or Coast Guard Academy, regardless of service performed immediately prior to entering such academy" are not entitled to mustering-out pay under Title V of the Veterans' Readjustment Assistance Act of 1952. This regulation, however, by its own terms relates only to such payment as an incident to discharge from the Academy.

In the case of the enlisted member concerned, it is reported that he entered on active duty to serve a four-year enlistment on January 29, 1955, prior to February 1, 1955. It is reported further that he accepted an appointment to the United States Naval Academy on June 25, 1956, and under the act of June 25, 1956, his enlisted status was not terminated; that he resigned from the academy on October 15, 1956, and under the provisions of the act of June 25, 1956, reverted to his enlisted status and continued on active duty as an enlisted member through January 28, 1959. Under applicable law and regulations his Academy service is creditable as enlisted service under his enlistment contract. Thus, while he served for a portion of his enlistment at the Naval Academy, he nevertheless was discharged January 28, 1959, because of expiration of term of service at the end of his four-year enlistment. This discharge had nothing to do with his appointment to or discharge from the Academy and we are not aware of any law or regulation precluding payment of mustering-out pay to an enlisted man otherwise entitled to such payment when he is discharged for expiration of term of service.

Accordingly, the voucher, which is returned herewith, may be paid, if otherwise correct.

[B-139866]

Military Personnel-Retired Pay-Annuity ElectionsValidity

A survivor's annuity election form which was signed, witnessed and submitted within the one-year time limitation for application by active members stipulated in section 3(a) of the Uniformed Services Contingency Option Act of 1953, 10 U.S.C. 1432, but which, when returned for correction and/or completion of the designated options, was inadvertently mislaid and not located until over a year and a half later constitutes a valid, effective, election and the corrections which were consistent with the original election do not constitute a modification of the original election or a new and different election.

To Lieutenant Colonel J. L. Whipple, Department of the Army, August 7, 1959:

Reference is made to your letter of June 1, 1959, and enclosures, forwarded here under D.O. No. 426 (allocated by the Department of Defense Military Pay and Allowance Committee), requesting an advance decision concerning the payment proposed on a voucher

stated in favor of Major Ernest P. Gregory, United States Army Reserve, retired, representing refund of the deduction made in his retired pay account for the month of May 1959, under authority of the Uniformed Services Contingency Option Act of 1953, as codified in Chapter 73, 10 U.S. Code. In the absence of a valid election of benefits under that act, Major Gregory is entitled to a refund of the amount deducted from his retired pay.

It appears that on November 1, 1953, the effective date of the Uniformed Services Contingency Option Act of 1953, Major Gregory had completed over 20 satisfactory years of service as defined in section 302 of the Army and Air Force Vitalization and Retirement Equalization Act of 1948, 62 Stat. 1087, 10 U.S.C. 1036. Hence, he was an "active member" for the purposes of the Contingency Option Act (section 2(c), 67 Stat. 501), and since he had theretofore completed over 18 years of service, under section 3(a) of that act, 10 U.S.C. 1432, as amended by the act of April 29, 1954, 68 Stat. 64, he could make an election of benefits under that act "within one year" after the effective date of the act.

It is stated that Major Gregory executed DA Form 1041, "Election of Options under the Uniformed Services Contingency Option Act of 1953" on April 29, 1954; that he mailed the election form to the South Carolina Military District Office at Columbia, South Carolina; and that the form as executed by him showed that he "elected to combine Options III and IV and erroneously checked the block authorizing 1⁄2 reduced retired pay under Option I." The election form was returned to Major Gregory (apparently before October 31, 1954) with a note from the Assistant Adjutant of the South Carolina Military District Office "for correction and/or completion of Options 1 and 3." Major Gregory explaining in his letter dated June 22, 1956, that his election form "was completed and/or corrected immediately, but was inadvertently mislaid and was only discovered this week" returned it to the South Carolina Military District Office and on June 26, 1956, the form was forwarded to The Adjutant General, Department of the Army.

Major Gregory was placed on the retired list on December 31, 1958, with entitlement to retired pay effective from January 1, 1959, under the provisions of 10 U.S.C. 1331-1337. You state that "Doubt exists as to the validity of an election where a member has erroneously completed DA Form 1041 and failed to return the corrected document within the prescribed time limitation." The issue thus presented is whether Major Gregory made a timely and valid election of options under the Uniformed Services Contingency Option Act.

The Contingency Option Act affords each member of the uniformed services an opportunity to provide one or more annuities to

be paid after his death in a retired status, to his widow, child, or children. In order to secure the advantage of such benefits for his survivors, the member is required to make an election to that effect within the period specified in the act, in this case prior to November 2, 1954, the amounts payable in each case being based on his agreement to receive a reduced amount of the retired pay which may be awarded him as a result of his military service. Under the pertinent regulations, the election of an "active member" (Major Gregory's status) became effective when "signed, witnessed, and submitted [or postmarked] not later than 1 November 1954." See paragraph 5a, Department of the Army Special Regulation No. 35-1365-1, Changes No. 2, July 19, 1954.

As above stated, the record indicates that Major Gregory's DA Form 1041, fully executed, signed and witnessed, was mailed and received in the South Carolina Military District Office prior to November 2, 1954. It will be seen that the three basic essentials required to make his election of options effective-signature, witnessing and submission (mailing) prior to November 2, 1954—were met when he mailed and relinquished all control over his signed and witnessed DA Form 1041. Compare 35 Comp. Gen. 489. Consequently, Major Gregory's election of options.under the Contingency Option Act became effective prior to November 2, 1954, unless the manner in which he initially executed DA Form 1041 is so ambiguous or defective as to render his election of options thereon null and void.

The photostatic copy of DA Form 1041 (received as an enclosure with the letter of June 1, 1959) discloses that Major Gregory elected Options 3 and 4-an authorized and proper election (compare 34 Comp. Gen. 555)—and that he had checked the 1⁄2 of reduced retired pay factor in the block applicable to Option 1. However, since he clearly elected Options 3 and 4 and not Option 1, the sole ambiguity which we can perceive in this situation rested not between Options 3 and 4 and Option 1, but merely raised the issue whether the 1/2 rate factor which he had checked in the block applicable to Option 1 was in fact intended by him to apply to his election of Options 3 and 4. His election of Options 3 and 4, being an otherwise valid and authorized election of options, became effective prior to November 2, 1954, and in the absence of any subsequent clarification as to the exact percentage rate intended to apply to his election of Options 3 and 4, it would have been appropriate to apply the minimum rate (one-eighth) prescribed in the Contingency Option Act. Compare 34 Comp. Gen. 63.

DA Form 1041 was returned to Major Gregory and the corrections which he made thereon-eliminating the 2 rate in the block under Option 1 and entering the same rate in the block applicable

to Option 3—are basically consistent with his initial action and do not constitute a modification of his original election or a new and different election. Compare 36 Comp. Gen. 764. Hence, it is our view that while the election form is shown to have remained in his custody until the month of June 1956, such fact in the circumstances shown does not nullify the validity of his election of Options 3 and 4 which was accomplished and became effective prior to November 2, 1954.

Accordingly, the payment proposed to Major Gregory representing refund of the Contingency Option Act deduction for the month of May 1959, is not authorized, and the voucher submitted will be retained here.

[B-140052]

Contracts-Specifications-Bid Bond on Other Than Required Form-Competition Restriction

Although the submission of a bid bond on other than the standard Government form prescribed in the invitation is not in itself a sufficient basis for rejection of an otherwise acceptable bid, a limitation in the bid bond on the time for actions against the surety, when the standard Government form does not contain any such time limitation, is regarded as a material deviation which goes beyond the form and affects the rights and obligations of the parties and, therefore, renders the bid nonresponsive to the invitation.

The failure of a low bidder to submit a bid bond on the standard Government bid bond form prescribed in the invitation which contained a provision advising bidders that the required forms could be obtained from the contracting officer, when none of the other bidders experienced difficulty in obtaining the required forms, does not make the procurement restrictive of the full and free competition required by the laws governing advertised Federal procurement, and the fact the low bidder submitted the same form in satisfaction of the bid bond requirement in previous procurements does not establish that it should be considered interchangeable with the required form.

To Widell Associates, Inc., August 7, 1959:

We refer again to your telegram received June 29, 1959, protesting the rejection of your low bid submitted pursuant to invitation No. ENG-08-123-59-68, issued June 2, 1959, by the Army Engineer District at Jacksonville, Florida, for a water supply treatment system at Homestead Air Force Base, Homestead, Florida.

When bids were opened on June 18, 1959, as scheduled, it was found that the low bid had been submitted by your firm in the amount of $70,600. The contracting officer determined that your bid was not responsive because the bid bond furnished therewith was on a form furnished by the surety which provided for rights and obligations with respect to the parties materially differing from those established in Standard Form 24, prescribed for use by the terms of the invitation. You were notified of the contracting officer's determination by letter mailed June 25, 1959. Pursuant to