PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            7 October 1998                                    
	DOCKET NUMBER:   AC97-07185

	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. Samuel A. Crumpler		Chairperson	
	Mr. James E. Vick		Member	
	Mr. Luther L. Santiful		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 a full cost refund of Retired Serviceman’s Family Protection Plan (RSFPP) payments erroneously withheld.

3.  The applicant states he made a mistake when he applied for the RSFPP.  He signed a blank form and trusted his clerk to finish it.  The clerk then checked the wrong option (“child” when the applicant wanted “widow”).  He never realized this, since his monthly statements only showed a deduction for the RSFPP and not the category of deduction, until 1996 when he finally received a detailed Retired Pay Statement.  However, his child became an ineligible beneficiary in 1985, when she reached age 22.  

4.  The applicant’s military records show that he initially enlisted in the Army on 16 September 1943.  He was commissioned a second lieutenant on 15 May 1945 and had continuous service.  On 11 March 1970, he made his first election under the RSFPP.  The “child” option is checked and the applicant signed the form.  He retired on 1 July 1972, in pay grade O-6, after completing over            28 years of active federal service.

5.  The applicant first submitted a request to the Department of the Army Survivor Benefit Plan (SBP) board to change his RSFPP election from “child only” to ”spouse only.”  This was denied since there was no evidence of government error.  At this time, that board realized that RSFPP deductions for his child were being erroneously withheld since the law in effect when he retired stated that “when there is no eligible beneficiary remaining to benefit from the option elected, the member’s retired pay will be restored.”  

6.  The SBP board helped the applicant obtain a refund of six years of erroneously withheld premiums but could not get him more than that due to the Barring Statute.  They referred him to this Board since RSFPP costs should automatically have stopped when there was no longer an eligible child beneficiary.

7.  The RSFPP was the forerunner of Public Law 92-425, the SBP, which was not enacted until 21 September 1972.  Both programs provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving spouse and dependent children.  The election made by the soldier was irrevocable.

8.  Title 32, U. S. Code, section 3702 states that a claim against the government must be received within 6 years after the claim accrues.

CONCLUSIONS:

1.  The applicant is not claiming government error on the type of option elected (“child” vice “widow”).  He realizes that was his mistake.

2.  The government did make an error in not stopping RSFPP deductions when his child reached age 22 in 1985.  By law, this was to have been an automatic stoppage, no action required on the part of the member.

3.  On 19 August 1996, the applicant received six year’s worth of overpaid child RSFPP costs and is now requesting the rest of the refund due from May 1985 until August 1990.

4.  The Barring Statute does not apply in this case.  The claim accrued in May 1985 and was automatically claimed by the retiree at this time because the law stated when there is no eligible beneficiary remaining to benefit from the option elected, the member’s retired pay will be restored.

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by refunding to the applicant the remaining amount of his overpaid child RSFPP costs.

BOARD VOTE:  

SAC____  JEV_____  LLS____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON