B-164695, JUL. 31, 1968

B-164695: Jul 31, 1968

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T. COBB: FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER POSTMARKED JUNE 3. YOUR SIGNATURE WAS PROPERLY ATTESTED BY THE "EXECUTIVE OFFICER" - - TO PROVIDE ANNUITIES FOR YOUR WIFE AND CHILDREN. YOU WERE TRANSFERRED TO THE FLEET RESERVE ON OCTOBER 11. YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT THERE IS NO STATUTORY AUTHORITY FOR REVOCATION OF YOUR ELECTION NOR FOR THE REFUND OF ANY DEDUCTIONS MADE FROM YOUR PAY FOR THE COST OF THE ANNUITIES ELECTED. YOUR REQUEST FOR REVIEW APPARENTLY IS BASED ON YOUR BELIEF THAT SINCE YOU HAVE NOW EXHAUSTED YOUR ADMINISTRATIVE REMEDIES THE MATTER IS PROPERLY FOR CONSIDERATION BY THIS OFFICE. SECTION 3 (A) OF THE 1953 ACT PROVIDED THAT THE TERMS OF AN ELECTION COULD BE MODIFIED OR REVOKED BY A MEMBER AT ANY TIME PRIOR TO HIS RETIREMENT BUT ANY MODIFICATION OR REVOCATION SO MADE WOULD NOT BE EFFECTIVE IF HE RETIRED WITHIN FIVE YEARS AFTER THE DATE IT WAS MADE.

B-164695, JUL. 31, 1968

TO MR. WILFORD H. T. COBB:

FURTHER REFERENCE IS MADE TO YOUR RECENT LETTER POSTMARKED JUNE 3, 1968, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT OF OUR CLAIMS DIVISION DATED OCTOBER 31, 1963, WHICH DISALLOWED YOUR CLAIM FOR REVOCATION OF YOUR ELECTION TO RECEIVE THE BENEFITS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, APPROVED OCTOBER 8, 1953, CH. 393, 67 STAT. 501 (NOW RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446) AND REFUND OF DEDUCTIONS MADE FROM YOUR RETIRED PAY AS A RETIRED MEMBER OF THE UNITED STATES NAVY FROM OCTOBER 12, 1954, TO DATE.

THE RECORD DISCLOSES THAT YOU EXECUTED A VALID ELECTION OF OPTIONS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 ON FEBRUARY 25, 1954, -- YOUR SIGNATURE WAS PROPERLY ATTESTED BY THE "EXECUTIVE OFFICER" - - TO PROVIDE ANNUITIES FOR YOUR WIFE AND CHILDREN. YOU WERE TRANSFERRED TO THE FLEET RESERVE ON OCTOBER 11, 1954, AND IT APPEARS THAT THE COST OF THE ANNUITIES ELECTED HAS BEEN DEDUCTED FROM YOUR RETAINER AND RETIRED PAY FROM OCTOBER 12, 1954.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT THERE IS NO STATUTORY AUTHORITY FOR REVOCATION OF YOUR ELECTION NOR FOR THE REFUND OF ANY DEDUCTIONS MADE FROM YOUR PAY FOR THE COST OF THE ANNUITIES ELECTED. YOUR LETTER YOU INDICATE THAT THE BOARD FOR CORRECTION OF NAVAL RECORDS HAS DENIED YOUR APPLICATION FOR CORRECTION OF YOUR RECORDS TO SHOW THAT YOU DID NOT MAKE AN ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953. YOUR REQUEST FOR REVIEW APPARENTLY IS BASED ON YOUR BELIEF THAT SINCE YOU HAVE NOW EXHAUSTED YOUR ADMINISTRATIVE REMEDIES THE MATTER IS PROPERLY FOR CONSIDERATION BY THIS OFFICE.

SECTION 3 (A) OF THE 1953 ACT PROVIDED THAT THE TERMS OF AN ELECTION COULD BE MODIFIED OR REVOKED BY A MEMBER AT ANY TIME PRIOR TO HIS RETIREMENT BUT ANY MODIFICATION OR REVOCATION SO MADE WOULD NOT BE EFFECTIVE IF HE RETIRED WITHIN FIVE YEARS AFTER THE DATE IT WAS MADE. SINCE YOU WERE TRANSFERRED TO THE FLEET RESERVE ON OCTOBER 11, 1954, ANY MODIFICATION OR REVOCATION MADE BY YOU COULD NOT, UNDER THE PLAIN TERMS OF THE STATUTE, HAVE BECOME EFFECTIVE. SINCE YOU STATE THAT NO HARDSHIP IS INVOLVED IN THIS CASE (SEE IN THIS CONNECTION 10 U.S.C. 1436 (B) AS TO SITUATIONS INVOLVING "SEVERE FINANCIAL HARDSHIP"), IT APPEARS THAT THE ONLY REMEDY AVAILABLE TO YOU WAS TO APPLY TO THE BOARD FOR CORRECTION OF NAVAL RECORDS FOR RELIEF.

UNDER THE PROVISIONS OF 10 U.S.C. 1552 THE SECRETARY OF A MILITARY DEPARTMENT, UNDER PROCEDURES ESTABLISHED BY HIM AND APPROVED BY THE SECRETARY OF DEFENSE, AND ACTING THROUGH BOARDS OF CIVILIANS OF THE EXECUTIVE PART OF THAT MILITARY DEPARTMENT, MAY CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. WE HAVE BEEN ADVISED INFORMALLY THAT YOUR APPLICATION TO THE BOARD FOR CORRECTION OF NAVAL RECORDS FOR CORRECTION OF YOUR RECORDS IN SUCH A WAY AS TO PERMIT YOU TO RECOVER THE AMOUNT DEDUCTED FROM YOUR RETIRED PAY ON ACCOUNT OF YOUR ANNUITY ELECTION, WAS DENIED AFTER FULL AND CAREFUL CONSIDERATION BY THE BOARD FOR THE REASON THAT NO ERROR OR INJUSTICE WAS FOUND TO EXIST IN YOUR CASE. CORRECTION ACTION UNDER SECTION 1552 "IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES.'

THIS OFFICE HAS NO JURISDICTION TO REVIEW A DECISION MADE PURSUANT TO 10 U.S.C. 1552. SINCE THERE IS NO ACTION WE LEGALLY MAY TAKE ON YOUR CLAIM, THE SETTLEMENT OF OCTOBER 31, 1963, IS SUSTAINED.