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8. Had Mr. Elser lived just 8 days longer, his elected joint and survivorship annuity would have become effective. Mrs. Elser would then have received an annuity estimated at $1,769 per annum, for as long as she lived. This income is badly needed for the maintenance of her family of two small children.

9. At age 46, Mrs. Elser's life expectancy is approximately 25 years. Her total expected income from this annuity may thus be estimated at $43,900.

10. Because, under the quoted provision of the Retirement Act, Mr. Elser's death is regarded as a “death in active service", Mrs. Elser has been informed that she now may receive payment of only $7,120—the estimated amount in Mr. Elser's retirement account. This represents only his accumulated retirement deductions, plus accrued interest.

This does not at all represent the assured income to which Mr. Elser and his wife very properly thought Mrs. Esler would be entitled.

DEPARTMENT OF AGRICULTURE,

Washington, June 3, 1949, Hon. EMANUEL CELLER, Chairman, Committee on the Judiciary,

House of Representatives. DEAR MR. CELLER: This is in reply to your request of April 7, 1949, for a report on H. R. 2594, a bill for the relief of Grace L. Elser. This bill would provide a survivorship annuity to Mrs. Elser in an amount equal to the annuity she would have been entitled to receive had the retirement of her husband, Wilbur L. Elser, a former employee in the Soil Conservation Service, become effective on May 15, 1947, and had he elected in writing, at the time of such retirement, to receive a reduced annuity equal to such reduced annuity payable after his death to the said Grace L. Elser, as surviving beneficiary.

Our records show that Wilbur L. Elser, the husband of Grace L. Elser, was employed as soil conservationist in the Soil Conservation Service up to June 22, 1947, the date of his death. Mr. Elser was eligible for optional retirement since he was 60 years old and had had over 35 years of creditable service. After these long years of work in the service of Agriculture, he became seriously ill and submitted to a major operation. The operation disclosed that he was in a critical state due to cancer. His doctor and his family apparently kept this information from him, and he never did know just how critically ill he was. Knowing only that he was becoming worse, he requested and signed, on May 27, 1947, en application for optional civil service retirement. On June 7, 1947, he completed the application papers by signing his “Application for Joint and Survivorship Annuity." His one concern during this time was making sure that his wife and small children would be taken care of in case he died. However, with his extended illness they were also in need of ready cash and he wanted, naturally enough, to remain on the rolls as long as possible. As evidence of this, he originally indicated his wish to have his retirement effective August 1, 1947, but later changed that date to July 1, 1947.

Mr. Elser died on June 22, 1947, just 26 days after he signed his application for retirement. If his retirement had been consummated on May 27, 1947, the then-current provision of law would have defeated the right of his widow to the survivorship benefit. This proviso reads as follows: "Provided, That no election in lieu of the life annuity provided herein shall become effective in case an employee dies within 30 days after the effective date of his retirement, and in the event of such death within this period, such death shall be considered as a death in active service.” Under this proviso, Mr. Elser's widow became entitled to receive only the amount in his own retirement account, plus accrued interest, instead of the estimated $1,796 per annum that she would have been entitled to as a survivorship benefit. Mr. Elser died, still believing that his wife would without question, receive the survivorship annuity in the event of his death.

The Department feels that this case illustrates the situations which the Congress, in the interest of employee welfare and in the interest of Government service as a whole, has been very much interested in correcting. This has been accomplished to a great extent by the approval February 28, 1948, of the new retirement act. Situations such as the Elser case will have no chance of developing after the effective date of that act. Favorable action on H. R. 2594 for the relief of Mrs. Grace L. Elser, would be extending to the survivor of a faithful employee of the Department with long years of competent service, benefits which Congress has now clearly indicated to be part of Government-wide personnel policy.

For these reasons this Department recommends favorable action on the bill H. R. 2594, and recommends also that legislation be enacted which would provide relief for any other similar cases which may exist throughout the Federal service.

The Bureau of the Budget advises that it has no objection to the submission of this report. Sincerely yours,

CHARLES F. BRANNAN, Secretary. UNITED STATES Civil SERVICE COMMISSION,

Washington 25, D. C., June 6, 1949. Hon. EMANUEL CELLER, Chairman, Committee on the Judiciary,

House of Representatives. DEAR MR. CELLER: Further reference is made to your communication of May 3, 1949, transmitting copy of H. R. 2594, a bill “For the relief of Grace L. Elser."

The proposal would direct the Civil Service Commission to pay to Grace L. Elser, widow of Wilbur L. Elser, an annuity equal in amount to the annuity which she would have been entitled to receive had his retirement become effective on May 15, 1947, and had he elected in writing, at the time of such retirement, to receive a reduced annuity payable after his death to Grace L. Elser as surviving beneficiary::

Section 4 (d) of the Civil Service Retirement Act of May 29, 1930, as amended, which was in effect at the time of Mr. Elser's death, provided:

“Any employee retiring under the provisions of section 1 of this Act may at the time of his retirement elect to receive in lieu of the life annuity described herein a reduced annuity payable to him during his life, and an annuity after his death payable to his beneficiary, duly designated in writing, and filed with the Civil Service Commission at the time of his retirement, during the life of such beneficiary (a) equal to or (b) 50 per centum of ch reduced annuity and upon the death of such surviving beneficiary all payments shall cease and no further annuity shall be due or payable. The amounts of the two annuities shall be such that their combined actuarial value on the date of retirement as determined by the Civil Service Commission shall be the same as the actuarial value of the single life increased annuity with forfeiture provided by this section: Provided, That no election in lieu of the life annuity provided herein shall become effective in case an employee dies within thirty days after the effective date of the retirement, and in the event of such death within this period, such death shall be considered as a death in active service.”

On June 7, 1947, Mr. Elser executed an application for annuity, electing therein a joint and survivorship annuity and naming Grace L. Elser, wife, as his survivor annuitant. By his own election, he set June 30, 1947, as the date of separation from service for purposes of retirement. Since he was not retired, the annuity application was never forwarded to the Commission but was retained by the Department in his personnel file. He was properly being carried on the rolls of the Department of Agriculture on June 22, 1947, the date of his death, and was paid salary to that date.

In order to meet the conditions stipulated in the law for vesting of annuitable title in his widow, it would have been necessary that he have lived until July 30, 1947. Inasmuch as he died prior to that date, his widow is entitled only to the sum contributed by him to the retirement fund with interest. The 30-day waiting period was placed in the retirement law to prevent, to a certain extent, adverse elections against the retirement fund by employees on their deathbed.

Special legislation which would grant Mrs. Èlser the benefits of this survivorship provision would undoubtedly establish a precedent which would open the way for numerous other similar claims of equal merit. The Commission has consistently recommended against the enactment of private relief legislation which would grant in a particular case annuity benefits to which other persons similarly situated are not entitled. The Commission therefore recommends that adverse action be taken on H. R. 2594.

The Bureau of the Budget advises that there would be no objection to the presentation of this report to your committee. By direction of the Commission: Very sincerely yours,

HARRY B. MITCHELL, President.

AULDON ALBERT AIKEN

JULY 7, 1949.—Committed to the Committee of the Whole House and ordered

to be printed

Mr. DENTON, from the Committee on the Judiciary, submitted the

following

REPORT

(To accompany H. R. 2628)

The Committee on the Judiciary, to which was referred the bill
(H. R. 2628) for the relief of Auldon Albert Aiken, baving considered
the same, report favorably thereon with an amendment and recom-
mend that the bill as amended do pass.

The amendment is as follows:
Page 1, line 6, strike out "$10,000” and insert "$5,000”.

The purpose of the proposed legislation is to pay the sum of $5,000 to Auldon Albert Aiken, of Hampton, Va. The payment of such sum shall be in full settlement of all claims of the said Auldon Albert Aiken against the United States on account of personal injuries (including medical and hospital expenses), property damage, and loss of earnings by him as a result of gunfire by an Army sentry on January 5, 1942, at the airport of the College of William and Mary, on the old Richmond Highway near Williamsburg. Va

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STATEMENT OF FACTS It appears that on January 4, 1942, Mr. Auldon Albert Aiken, accompanied by Mr. Thomas Renn Harris, set out from Hampton, Va., in Mr. Aiken's automobile on a hunting trip. At about 1:45 a. m., on January 5, 1942, while proceeding along United States Highway No. 60, Mr. Aiken and Mr. Harris and a Mr. Haley, who was riding in the car with them, observed a large fire on their left and turned off said highway onto the old Richmond Road to investigate the fire.

As they approached the fire, they observed an Army airplane that had crashed and was being guarded by two soldiers. Upon observing that the plane was guarded by soldiers, Mr. Harris, who was driving the Aiken automobile, turned the car around in the road and

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started back toward United States Highway No. 60. It appears that as Mr. Aiken and his companions were leaving the scene one of the soldier guards, who was about 196 yards away, ordered the driver of the automobile to stop, but that the occupants of the car did not hear such order. When the car failed to stop, the soldier fired upon it. One of the bullets fired by the .45-caliber pistol of the guard struck Mr. Aiken in the back of his neck, passing therethrough, and then went through the glass window of the automobile. Mr. Aiken was taken from the scene of the incident to Dr. Bell's Hospital in Williamsburg, Va., where he received emergency treatment and then was carried to the Dixie Hospital at Hampton, Va., for hospitalization and treatment.

Mr. Aiken asserts that from the time of his injury until the present time his weight has increased from 180 pounds to 345 pounds; that since his injury he has had a tendency to fall asleep; that he tires easily, and that he suffers from severe headaches.

The Department of the Army in its report states that after a careful consideration of all of the evidence in this case the Department of the Army is of the opinion that the soldier who shot Mr. Aiken was not, under the circumstances then existing, justified in firing upon the Aiken automobile; that the occupants of the Aiken car did not hear the order of the soldier to balt, and that the wounds sustained by Mr. Aiken were not caused by any fault or negligence on his part. Under the circumstances it is believed that Mr. Aiken should be compensated in a reasonable amount for the damages sustained by him on account of this incident. The proposed award of $10,000 stated in the bill is excessive. The Department is of the view that an appropriation for the relief of the claimant in the sum of $1,500 ($21.44 for damage to automobile, and $1,478.56 for personal injuries, medical and hospital expenses, and loss of earnings) would constitute a fair and reasonable settlement for all of the damages sustained by Mr. Aiken as a result of this incident. The Department, accordingly, would have no objection to the enactment of this bill if it should be so amended as to provide for an award for the relief of the claimant in an amount not exceeding $1,500.

Your committee disagree with the recommendation of the Secretary of the Army in that an award of $1,500 would be commensurate with Mr. Aiken's injuries. Mr. Aiken was a man 34 years old at the time he was wounded, weighing 180 pounds. After the accident he immediately began to put on weight; and, though he weighed only 180 pounds in 1942, the year of the accident, he now tips the scales at 345 pounds and is unable to do a full day's work, as he did before the accident, and it is the opinion of your committee that the sum of $5,000 would not be excessive, in view of his serious injuries, and recommend favorable consideration to the bill, as amended.

DEPARTMENT OF THE ARMY,

Washington, D. C., June 2, 1948. Hon. EMANUEL CELLER Chairman, Committee on the Judiciary,

House of Representatives. DEAR MR. CELLER: The Department of the Army would have no objection to the enactment of H, R. 2628, Éighty-first Congress, a bill for the relief of Auldon Albert Aiken, if it should be amended as hereinafter recommended.

This bill would authorize and direct the Secretary of the Treasury "to pay out of any money in the Treasury not otherwise appropriated, to Auldon Albert, Aiken, of Hampton, Virginia, the sum of $10,000

in full settlement of

all claims of the said Auldon Albert Aiken against the United States on account of personal injuries (including medical and hospital expenses), property damage, and loss of earnings sustained by him as a result of gunfire by an Army sentry on January 5, 1942, at the airport of the College of William and Mary, on the old Richmond Highway near Williamsburg, Virginia."

On January 4, 1942, Mr. Auldon Albert Aiken, accompanied by Mr. Thomas Renn Harris, set out from Hampton, Va., in Mr. Aiken's automobile on a hunting trip. At about 1:45 a. m., on January 5, 1942, while proceeding along United States Highway No. 60, Mr. Aiken and Mr. Harris and a Mr. Haley, who was riding in the car with them, observed a large fire on their left and turned off said highway onto the old "Richmond Road to investigate the fire. As they approached the fire they observed an Army airplane that had crashed and was being guarded by two soldiers. Upon observing that the plane was guarded by soldiers, Mr. Harris, who was driving the Aiken automobile, turned the car around in the road and started back toward United States Highway No. 60. It appears that as Mr. Aiken and his companions were leaving the scene one of the soldier guards, who was about 196 yards away, ordered the driver of the automobile to stop, but that the occupants of the car did not hear such order. When the car failed to stop, the soldier fired upon it. One of the bullets fired by the .45-caliber pistol of the guard struck Mr. Aiken in the back of his neck, passing therethrough, and then went through the glass window of the automobile. Mr. Aiken was taken from the scene of the incident to Dr. Bell's Hospital in Williamsburg, Va., where he received emergency treatment and then was carried to the Dixie Hospital at Hampton, Va., for hospitalization and treatment.

Mr. Aiken asserts that from the time of his injury until the present time his weight has increased from 180 pounds to 345 pounds; that since his injury he has had a tendency to fall asleep; that he tires easily, and that he suffers from severe headaches.

On September 28, 1948, Auldon Albert Aiken made the following sworn statement:

"On or about October 15, 1929, I moved to Hampton, Va., and went to work with the Newport News Shipyard & Dry Dock Co. At that time I weighed approximately 155 pounds and was about 6 feet 2 inches tall. I have always followed the trade as a mechanic. I was never bothered with any illness and did not have a family doctor. I always considered my health very good. I like the outdoor life and fished and hunted a great deal.

"Sometime in June 1935, I went into the automobile-repair business for myself and was actively engaged in that business at the time I was wounded. In the first part of January 1942, my weight was approximately 180 pounds. I still was enjoying good health and had not, at this time, employed a doctor often enough to consider having a family doctor. On or about 12 noon, on January 4, 1912, a Mr. Thomas Renn Harris and I left Hampton to go to New Kent County turkey hunting. We had with us the necessary guns for this sport. We hunted up until it became dark in New Kent County, which is near Walker, Va. After sundown we went down to Penneman, Va., and bought some eggs from Mr. Haley: We took him and drove up to Williamsburg to eat. After we ate, we drove toward Richmond back to Walker on Route 60. Mr. Harris, Mr. Haley, and I were in

"Mr. Harris was driving the car. I was sitting on the right-hand side in the front seat. Mr. Haley was in the back seat. We were driving a 1940 Chevrolet two-door sedan. As we were driving along Route 60, on the left Mr. Harris saw a large fire and he pulled off of Route 60 onto the old Richmond Road. He told me that we should go over to the fire and put it out, as this was during the time We were at war and we thought that we were doing our duty to protect property. As we approached the fire, we saw an airplane and two soldiers standing guard. We backed our car up and drove down the old Richmond Highway. As we were leaving, one single shot was fired at our car. The shot struck the left rear quarter glass of my car, penetrated Mr. Haley's coat and struck me in the neck. The bullet passed through my neck and out of the car through the right door. The driver then immediately stopped the car, At the time the shot was fired the soldiers were 196 yards off as we stepped off the distance from our car to the plane. After it was discovered that I had been shot, Mr. Harris drove me to the Bell Hospital at Williamsburg, Va., where Dr. Bell examined me, and then I was placed in an ambulance and brought to the Dixie Hospital, at Hampton, Va., where I was treated by Dr. Howe and Dr. Jones of Hampton, Va.

"I stayed at the Dixie Hospital for approximately 3 days and then I was removed to my home, where my wife took care of me. I was seen by the doctor every other day for approximately 3 weeks. I was operating a service station at that time

the car.

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