MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 22 July 2003
         DOCKET NUMBER: AR2003086320

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Thomas D. Howard		Member
Mr. Thomas Lanyi		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that his records be corrected to show he did not enroll in the Reserve Component Survivor Benefit Plan (RCSBP).

APPLICANT STATES: In effect, that he was forced to enroll in the RCSBP 8 years before his 60th birthday. If his Army National Guard (ARNG) doctor who gave him his last physical, which was after he had his colostomy, had suggested he apply for a Department of Veterans Affairs (VA) disability, he would have had his disability approved back in 1991. He was already receiving his VA disability when he turned age 60. He thought he and his spouse filed a form sometime later declining the SBP.

COUNSEL CONTENDS: That the Board should give careful and compassionate consideration to the applicant.

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

He was born on 6 November 1939. He initially served in the Regular Army from January 1959 to January 1962 when he was transferred to the U. S. Army Reserve Control (USAR) Group (Reinforcement). He served in a USAR troop program unit from March 1964 to January 1965. He had a break in service from January 1965 to March 1973. He enlisted in the ARNG in March 1973. He was promoted to Staff Sergeant, E-6 on 25 August 1979. He had another break in service from May 1983 to March 1985. He reenlisted in the ARNG in March 1985.

The applicant's notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 28 January 1992. An SBP Summary was enclosed with the letter when it was sent to him.

On 1 February 1992, the applicant completed a DD Form 1883 (Survivor Benefit Plan Election Certificate). In Section II (Marital, Dependency, and Election Status), he checked that he elected to participate in the RCSBP for spouse only coverage, option C, full base amount. Section II also states, "IMPORTANT: 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." The reverse of the DD From 1883 provided instructions for completing item 9c (the RCSBP options) and explained the three options, A, B, or C, available. Both the applicant and his spouse signed the reverse immediately below these instructions.

The applicant continued to actively participate in the ARNG, earning more than 50 retirement points a year, until he was discharged from the ARNG and transferred to the Retired Reserve on 12 March 1993.

On 22 August 1998, the applicant applied for retired pay by completing a DD Form 2656 (Data for Payment of Retired Personnel). In section VII (Survivor Benefit Plan election), he indicated that he did not elect to participate in the SBP. His spouse concurred in his election.

A VA Rating Decision dated 4 August 1999 indicates the applicant's 23 January 1962 Regular Army separation physical had noted he had episodes of pain in his chest when overeating or overdrinking, episodes of prolonged vomiting two months earlier, rectal bleeding, blood streaking of stools, and a history of proctoscopy which showed mild cryptitis and papillitis of the rectum. The Rating Decision noted that over the years the applicant developed a full-blown clinical picture of ulcerative colitis and in 1991 underwent an ileostomy and completion of a total colectomy. He was awarded a 100 percent disability rating.

Records at the Defense Finance and Accounting Service (DFAS) indicate that the applicant elected to terminate his participation in the SBP on 16 November 2001 and that he has waived his retired pay in lieu of VA compensation. DFAS also indicated that the RCSBP portion is still required to be paid.

Public Law 95-397, the RCSBP, enacted 30 September 1978, provided a way for those who had qualified for reserve retirement but were not yet age 60 to provide an annuity for their survivors should they die before reaching age 60. Three options are available: (A) elect to decline enrollment and choose at age 60 whether to start SBP participation; (B) elect that a beneficiary receive an annuity if they die before age 60 but delay payment of it until the date of the member’s 60^th birthday; (C) elect that a beneficiary receive an annuity immediately upon their death if before age 60. If death does not occur before age 60, the RCSBP costs for options B and C are deducted from the member’s retired pay. Once a member elects either options B or C in any category of coverage, that election is irrevocable. Option B and C participants do not make a new SBP election at age 60. They cannot cancel SBP participation or change options they had in RCSBP – it automatically rolls into SBP coverage. If RCSBP option B or C is elected, there is a Reservist Portion cost added to the basic cost of the SBP to cover the additional benefit and assured protection had the member died prior to age 60.

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. The spouse’s concurrence is required. No premiums will be refunded to those who opt to disenroll. Reservists who elected an option under the RCSBP will continue to have the Reservist Portion cost deducted from their retired pay. 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.
The Department of Veterans Affairs booklet, Federal Benefits for Veterans and Dependents, 2002 edition states that Dependency and Indemnity Compensation (DIC) payments may be available for surviving spouses of deceased service members or veterans, who have not remarried. To be eligible, the deceased must have died from (1) a disease or injury incurred or aggravated while on active duty or active duty for training; (2) an injury incurred or aggravated in line of duty while on inactive duty training or (3) a disability compensable by VA.

Title 10, U. S. Code, section 1450(c) requires an SBP offset for the amount of DIC paid. Section 1450(c)(1) states that if, upon the death of a member participating in the SBP, the surviving spouse or former spouse is also entitled to DIC, the surviving spouse or former spouse may be paid an SBP annuity but only in the amount that the annuity otherwise payable would exceed that compensation.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

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 this requirement.

2. The applicant was a noncommissioned officer with 20 years of qualifying service for retirement when he completed the DD Form 1883. The form clearly indicated, in the section on the reverse both he and his spouse signed, that there were three options available and what protection (or lack thereof) those options provided. While the Board can conceive that he may have been pressured to complete the DD Form 1883, his contention that he was forced to enroll in the RCSBP is not convincing.

3. The applicant's contention that if his ARNG doctor had suggested he apply for a VA disability he would have had his disability approved in 1991 (implying that he then would not have enrolled in the RCSBP) is also not convincing. The evidence of record suggests the applicant was not unfit for duty. He continued to earn enough retirement points for additional qualifying years after his colostomy. Therefore, the Board does not find it reasonable to expect his ARNG doctor to have found him ill enough to suggest he apply for VA disability. In addition, again, the applicant was a noncommissioned officer. He could have sought a VA examination on his own initiative.

4. Once the applicant made an RCSBP election, that election rolled over into the standard SBP when he turned age 60. He was not authorized to make a new election.
5. DFAS records indicate the applicant disenrolled from the SBP during the second anniversary of his retirement date as provided for by law. However, because he had elected option C under the RCSBP, the Reservist Portion cost of the RCSBP is required to be deducted from his retired pay to pay for the protection his spouse would have received had he died prior to turning age 60.

6. 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 or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__jns___ __tdh___ __tl____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2003086320
SUFFIX
RECON
DATE BOARDED	20030722
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	137.04
2.
3.
4.
5.
6.