Title: APPLICANT REQUESTS: That his Survivor Benefit Plan (SBP) participation be canceled
Author: WoodsHN

ABCMR Memorandum of                                                              AC97-10261
Consideration (cont)

APPLICANT REQUESTS:  That his Survivor Benefit Plan (SBP) participation be canceled.

APPLICANT STATES:  In effect, that he was never counseled on the SBP program.  At the time he elected to participate in the Reserve Component SBP (RCSBP), he was told that when he reached age 60, he could elect or reject SBP.

EVIDENCE OF RECORD:  The applicant’s military records show:

He was born on 8 November 1936.  He entered the U.S. Army Reserve on         7 December 1959.  

He received his 20-year letter, notifying him he was eligible for retired pay at age 60, on 10 February 1983.  This letter informed him that he was eligible to participate in the RCSPB.  It also informed him that “after making an election to participate, that decision is irrevocable unless you revoke it before the end of the 90 day period following receipt of this notification.”  

On 22 February 1983, the applicant elected to participate in the RCSBP, Option C (immediate coverage if he died before age 60).  The DD Form 1883 states:  “IM PORTANT:  The decision you make with respect to participation in this Survivor Benefit Plan is a permanent irrevocable decision.  Please consider your decision and its effect very carefully.”

On 4 March 1996, the applicant, in applying for retired pay, checked that he did not wish to participate in the SBP.

On 8 November 1996, upon reaching age 60, the applicant was placed on the retired list in pay grade O-5.

Public Law 92-245, the SBP, enacted 21 September 1972, 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.  The election made by the soldier was irrevocable as long as the marriage was in effect.

Public Law 95-397, the RCSBP, dated 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 (and participate in SBP), to provide an annuity for their survivors should they die before reaching age 60.

In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the Headquarters Army Retirement Services, which recommended the applicant’s request be disapproved.  The opinion states that it found no evidence of government administrative error.  The election form he signed clearly stated participation in the Plan was a permanent, irrevocable decision.  Also, had he died prior to receipt of retired pay at age 60, his spouse would have received an immediate annuity based on his RCSP election.  Costs for RCSBP coverage begin, along with continued SBP, when a member reaches age 60.

DISCUSSION:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  However, the applicant should be aware that Public Law 105-85, enacted    18 November 1997, provides an opportunity to disenroll from the SBP.  The Law gives retirees participating in the SBP a one-year period, beginning on the second anniversary of the date on which their retired pay started, to withdraw from SBP.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.  The applicant should contact his nearest servicing Retirement Services Officer for assistance or more information.

3.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error injustice.

BOARD VOTE:

                       GRANT 

                       GRANT FORMAL HEARING

                       DENY APPLICATION

                              Loren G. Harrell
                      		         Director