RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 July 2007
	DOCKET NUMBER:  AR20060017320 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Ms. Kathleen Newman

Chairperson

Ms. Susan Powers

Member

Mr. Edward Montgomery

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, as the son of a service member (SM), requests that his father’s military records be corrected by canceling his Survivor Benefit Plan (SBP) election for spouse coverage.

2.  The applicant states, in effect, that both his parents reside in a nursing home and that his father was diagnosed with Alzheimer’s disease.  He contends that his father has been paying SBP premiums since 1959, that he tried to cancel the SBP in 1961 due to financial hardship being the father of 13 children, and that his request was denied.  The applicant is requesting that his father’s SBP be terminated due to severe financial hardship.     

3.  The applicant provides a letter, dated 26 October 2005, from the Defense Finance and Accounting Service (DFAS); a letter, dated 5 October 2005, from his sister to the Adjutant General; the SM’s Retiree Account Statement; a checking account statement; two Powers of Attorney for his parents; and trustee documentation.

CONSIDERATION OF EVIDENCE:

1.  The SM was born on 24 April 1918.  He initially enlisted on 11 February 1941. 

2.  The SM completed a DA Form 1041 (Election of Options Under the Uniformed Services Contingency Option Act (USCOA) of 1953) on 9 April 1959 electing annuity payable to or on behalf of his widow and surviving children.  

3. The SM completed a DA Form 1041 on 21 November 1962 requesting revocation of the USCOA.  This form states, in pertinent part, that the terms of the election may be modified or revoked by a member at any time prior to his retirement but any modification or revocation so made shall not be effective if he retires within five years after the date it is made.  Any member who revokes an election shall not thereafter be permitted to withdraw or modify his revocation and after it becomes effective, he shall not be permitted to be covered in any way by this Act.  

4.  The SM retired on 31 December 1962 in the rank of master sergeant.  

5.  The SM was advanced in grade on the retired list to captain effective 15 July 1971. 

6.  Records at DFAS show the SM elected to participate in the SBP on 
24 November 1972 for spouse coverage. 
7.  Public Law 83-239, enacted 8 August 1953, established the USCOA (Uniformed Services Contingency Option Act).  It covered only persons dependent on the member at the time of his retirement.  Annuity was 1/2, 1/4, or 1/8 of retired pay.  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 Retired Serviceman’s Family Protection Plan (RSFPP).  The USCOA automatically converted to the RSFPP with the same election options and annuity amounts as the USCOA.

9.  Public Law 92-425, the SBP, enacted 21 September 1972, repealed the RSFPP and established the SBP.  The SBP provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  

10.  Title 10, U.S. Code, section 1436 provided for withdrawal from the RSFPP for extreme financial hardship upon application to the Secretary concerned.

11.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP.  Members retired for more than two years as of 17 May 1998 were authorized a one-year opportunity (17 May 1998 through 16 May 1999) to disenroll.  The spouse's concurrence is required.  No premiums will be refunded to those who opt to disenroll.  The effective date of termination is the first day of the first calendar month following the month in which the election is received by the Secretary concerned.

12.  Public Law 105-261, enacted 17 October 1998, established paid-up coverage under the SBP.  Effective 1 October 2008, no reduction may be made in the retired pay of a participant in the SBP for any month after the later of:  
(1) the 360th month for which the participant’s retired pay is reduced; or (2) the month during which the participant attains age 70.   

DISCUSSION AND CONCLUSIONS:

1.  The SM attempted to revoke his RSFPP election in 1961.  However, the DA Form 1041 informed him that a revocation would not be effective if he retired within five years after the date it is made.  He retired in December 1962.  
2.  The RSFPP was repealed in 1972 when the SBP was established.  The SM voluntarily elected to participate in the SBP on 24 November 1972.     

3.  The SM had a 1-year option from 17 May 1998 to 18 May 1999 to terminate his participation in the SBP.  It appears he did not attempt to do so.  

4.  Regrettably, there is no evidence available to warrant granting the applicant’s request.  However, effective 1 October 2008 the SM’s SBP deductions should end.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

KN_____  ___SP___  __EM___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



___Kathleen Newman____
          CHAIRPERSON




INDEX

CASE ID
AR20060017320
SUFFIX

RECON

DATE BOARDED
20070710
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
137.0000
2.

3.

4.

5.

6.