PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           13 June 2000                   
	DOCKET NUMBER:   AR1999031570

	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.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Mr. John H. Kern		Member	
	Ms. Barbara J. Ellis		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, in effect, that his election under the Uniformed Services Contingency Option Act (USCOA) of 1953 and the Retired Serviceman’s Family Protection Plan (RSFPP) be changed to option 4.

3.  The applicant states that when he retired he was in poor health and did not expect he would outlive his wife; therefore, he did not elect option 3 with option 4.

4.  The applicant’s military records show that he first experienced chest pain in April 1958.  On 10 November 1958, he elected option 3, annuity payable to or on behalf of his widow and surviving child or children, under the USCOA.  On an unknown date, he was diagnosed with arterroiluiote (sic) heart disease with angina.  He was allowed to retire for length of service and did so on 1 June 1962.

5.  The applicant’s spouse died on 31 March 1997.

6.  On 8 September 1997, the applicant wrote to the Army Pension Clerk (sic) requesting, in effect, that collection of his RSFPP premiums stop.  On 29 October 1998, after the Defense Finance and Accounting Service (DFAS) denied his request, he wrote to the Secretary of the Army requesting the same.  He applied to the Board on 23 September 1999.

7.  Public Law 83-239, enacted 8 August 1953, established the USCOA.  It covered only persons dependent on the member at the time of his retirement.  Unless option 4 was elected along with either option 1 (annuity payable to or on behalf of widow), option 2 (annuity payable to or on behalf of surviving child or children) or option 3 (annuity payable to or on behalf of widow and surviving child or children), premiums continued to be paid after the death of the beneficiary.

8.  Public Law 87-381, enacted 4 October 1961, changed the USCOA to the RSFPP.  The USCOA automatically converted to the RSFPP with the same election options and annuity amounts as the USCOA.  It also covered only persons dependent on the member at the time of his retirement.  The provisions of the former option 4 were made automatic with the enactment of Public Law  90-485 on 13 August 1968 for members retired on or after 13 August 1968.  At this time but before 1 September 1969, a retired member who was participating in the RSFPP without inclusion of the former option 4 could have elected to have that option included in his election.  The retired member must have agreed to pay both the total additional amount to cover the option had it been effective when he retired plus the interest which would have accrued on the additional amount up to the effective date of the new option 4.

9.  Public Law 92-245, enacted 21 September 1972, repealed the RSFPP and established the SBP.  The RSFPP was not automatically converted to the SBP.  A 12-month Open Season enrollment period was established for retired members.  Public Law 93-155, enacted 16 November 1973, extended that Open Season from 12 to 18 months (21 September 1972 – 20 March 1974).  Premium deductions continued after the loss of a spouse until enactment of Public Law 94-496, effective 1 October 1976, which suspended spouse costs if the marriage ends in death or divorce.

10.  Public Law 97-35, enacted 12 August 1981, established the second Open Season from 1 October 1981 – 30 September 1982. 

11.  Public Law 101-189, enacted 29 November 1989, established an Open Season to be conducted 1 October 1991 – 30 September 1992.  Public Law  101-510, enacted 5 November 1990, delayed the start of the third Open Season to 1 April 1992 – 31 March 1993.

CONCLUSIONS:

1.  The Board finds no evidence of Government error but does find that an injustice has occurred in this case.

2.  The evidence of record shows that the applicant did not elect option 4 to the RSFPP in 1968 or 1969 when he had the opportunity to do so.  He did not convert his RSFPP to SBP during the first Open Season enrollment period or during several subsequent Open Seasons.  The Board concludes that, since the automatic option 4 provisions were not enacted until 6 years after and the SBP was not established until 10 years after his retirement, he was not fully cognizant of the benefits of doing so in either instances.  Had he either elected option 4 in 1968 or 1969 or enrolled in the SBP, his premiums would have been suspended upon the death of his spouse.

3.  However, it would nevertheless be in the interest of justice to correct his records to show that he elected option 3 with option 4, USCOA, which automatically converted to the RSFPP with the same option.  This would have permitted the termination of costs associated with the USCOA/RSFPP option 3 benefit when his spouse preceded him in death.

4.  The Board also notes that the applicant paid RSFPP premiums for almost 40 years and will have no beneficiary when he dies.  This resulted from the applicant’s own decision when he retired and his failure to take action to change that decision any number of times in subsequent years.  However, the applicant is 81 years old and his only income appears to be his retired pay.  In the interest of fairness and although he does not make this request, it would be appropriate to grant him a partial reimbursement of the premiums he has paid since his spouse’s death.  Since he first appealed to the Secretary of the Army for relief on 29 October 1998, it would be appropriate to grant him a refund retroactive to that date.

5.  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 showing that the applicant elected option 3 with option 4, USCOA, on 10 November 1958, which automatically converted to the RSFPP. 

2.  That the Defense Finance and Accounting Service be instructed not to make any premium cost or interest due adjustments as a result of this correction.  The applicant will be paid a refund of his RSFPP premiums from 29 October 1998, the date of his request to the Secretary of the Army to terminate his premiums, until the present.

BOARD VOTE:  

__eb____  __jhk___  __bje___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Elizabeth Buchanon
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999031570	
SUFFIX		
RECON		
DATE BOARDED	20000613	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.