PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            12 May1999  
	DOCKET NUMBER:   AC 96-08713
				   AR1998013310

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. James E. Anderholm		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his Retired Serviceman’s Family Protection Plan (RSFPP) election be changed to “spouse.”

3.  The applicant states, in effect, that his youngest child was born on                30 December 1959, not 1 January 1960 as reflected on his account, and he is ineligible as a beneficiary now.  Also, he changed his participation option to “spouse” sometime in 1968/1969.

4.  The applicant’s military records show that, after having had prior enlisted service, he was appointed a commissioned officer and entered active duty in 1961.  

5.  On 17 December 1964, the applicant elected participation in the RSFPP for “child only.”

6.  The applicant retired, in pay grade O-5, on 1 January 1972.  His RSFPP election became effective.  

7.  Public Law 92-245, enacted 21 September 1972, repealed the Retired Serviceman’s Family Protection Plan and established the SBP.  The SBP provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  It declared a 12-month Open Season for those members who retired prior to enactment of the law.

8.  Public Law 93-155, enacted 16 November 1973, extended that Open Season from 12 to 18 months (21 September 1972 – 20 March 1974).

9.  Public Law 97-34, enacted 12 August 1981, established the second Open Season from 1 October 1981 – 30 September 1982.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.

10.  Public Law 101-189 established an Open Season to be conducted 1 October 1991 – 30 September 1992.  It required that enrollees live two years from the effective date of election for beneficiaries to be eligible for an annuity.

11.  Public Law 101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 – 31 March 1993.

12.  In the processing of this case, an advisory opinion was obtained from the Army Retirement Services office.  That office noted that the only evidence they 

could find of the applicant’s RSFPP election was the DA Form 1041 completed on 17 December 1964.  That office could not access his finance file to search for documents supporting his claim of changing his election to “spouse” and he has not provided any such evidence.  Until such time as documents supporting his claim can be located, the only change that office recommends is that his participation for “child only” be suspended, retroactive to the date his son lost eligibility, 1 January 1978.  

13.  A copy of this opinion was provided to the applicant for comment/rebuttal.  He failed to respond within the given time frame.

CONCLUSIONS:

1.  The applicant has failed to provide evidence to support his claim that he changed his RSFPP participation election to “spouse” in 1968/1969.

2.  However, the Board concludes that RSFPP premiums for “child only” participation were wrongfully collected from 1 January 1978, the date his youngest son became an ineligible beneficiary, to the present.  The barring statute should not be used to penalize the applicant for what was a government error.

3.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by reimbursing to the applicant all RSFPP “child only” premiums collected from his retired pay from 1 January 1978 to the present.

2.  That so much of the application as is in excess of the foregoing be denied 

BOARD VOTE:  

__GDP___  __AAO__  __JEA__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			George D. Paxson
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC96-08713/AR1998013310	
SUFFIX		
RECON		
DATE BOARDED	19990512	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.