RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            6 January 2005
      DOCKET NUMBER:   AR2004105065


      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. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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 requests, in effect, that his Reserve Component Survivor
Benefit Plan (RCSBP) election be changed to “None” Option A (Defer).

2.  The applicant states, in effect, that he was divorced in 1990, at which
time he changed his RCSBP election to “None”, Option A (Defer).  In 1983,
he had elected Spouse and Child Option C (Immediate) coverage.  In 1990, he
provided his divorce decree and was able to remove his former spouse from
the RCSBP coverage.  However, he has been unable to get his money back and
drop the children portion of the coverage.  He states he has not seen or
heard from his children since 1992 and they have changed their name to his
former spouse’s new married name.  He further states that social security
would provide $1,067  per month, which is more than the RCSBP annuity would
provide.  He further requests that the RCSBP option election he made in
1990 be respected and that the child coverage be changed as requested and
that he be reimbursed the premiums he has paid.

3.  In support of his application, the applicant provides an RCSBP Election
Certificate (DD Form 1883), dated 12 July 1990, and correspondence between
him and Defense Finance and Accounting Service (DFAS) officials concerning
this issue.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he served in the Army National Guard
in both an enlisted and commissioned officer status between 1962 and 1992,
at which time he was transferred to the Retired Reserve, in the rank of
lieutenant colonel (LTC).  His date of birth is 2 December 1941.

2.  In 1983, the applicant received his Notification of Eligibility for
Retired Pay
at Age 60 (Twenty-Year) letter.  This letter informed him that he had
completed his initial RCSBP Election Certificate, which is dated 19 March
1983.  This
DD Form 1883 shows the applicant elected “Spouse and Child” coverage
under Option C (Immediate Coverage).

3.  On 17 May 1990, the applicant was divorced.  On 12 July 1990, he
completed a new DD Form 1883.  In this document, he confirmed he had
dependent children and elected RCSBP coverage of “None” under Option A
(Defer).

4.  On 21 February 2002, the Director, Retired Pay Operations, DFAS,
Cleveland Center, responded to a RCSBP cost inquiry from the applicant.
This letter informed the applicant that his initial RCSBP coverage election
of  “Spouse and Child”was effective 28 April 1983.  He was further advised
that when his initial retirement package was processed there was no
corrected election form on file to change his RCSBP election from “Spouse
and Child” to “Child Only” based on his 17 May 1990 divorce.  The applicant
was further informed that based on his divorce decree, his RCSBP coverage
was changed to the proper coverage and his cost was adjusted accordingly.

5.  On 4 March 2002, the applicant submitted a request to the DFAS
Cleveland Center, in which he stated that although his ex-spouse was
removed from RCSBP coverage, his sons had not been.  He further stated his
children had changed their names and he was under no obligation to provide
them RCSBP under the terms of the divorce decree and he requested his
children be removed from coverage.

6.  On 20 March 2002, a Retired Pay Operations official from the DFAS
Cleveland Center replied to the applicant’s RCSBP coverage inquiry.  This
official stated that the applicant had RCSBP coverage of “Child Only”.  He
further informed the applicant that this coverage would continue until the
applicant’s youngest child was no longer eligible, at which time his
premium would be reduced to the appropriate amount to account for his
Option C (Immediate Coverage) election.

7.  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 RCSBP 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 60th birthday; (C)  elect that a
beneficiary receive an annuity immediately upon their death if before age
60.  Normally an election, once made, is irrevocable except as provided for
by law.  RCSBP/SBP elections are made by category, and beneficiaries are
not designated by name.
8.  Title 10 of the United States Code, section 1552 (B), provides the
legal authority for reduction in retired pay for RCSBP participants.  It
states, in pertinent part, that in the case of a participant in the RCSBP
who provided
“Child-Only” coverage during a period before becoming entitled to receive
retired pay, the retired pay of the participant shall be reduced by an
amount prescribed under regulations by the Secretary of Defense to reflect
the coverage provided under the Plan during the period before the
participant became entitled to receive retired pay.  A reduction under this
paragraph is made without regard to whether there is an eligible dependent
child during a month for which the reduction is made.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his children should be removed from
RCSBP coverage and the supporting argument and documents he provides were
carefully considered.  However, although the applicant’s assertions that he
has no contact with his children and that social security would provide a
larger benefit than an RCSBP annuity are not in question, they do not
provide an evidentiary basis to support granting the requested relief.

2.  The evidence of record confirms that upon becoming eligible to receive
retired pay at age 60 in 1983, the applicant elected “Spouse and Child”
RCSBP coverage under Option C (Immediate Coverage), as evidenced by the DD
Form 1883 he completed at that time.  His initial election certificate
listed five children with dates of birth of 7 April 1968, 2 May 1970, 20
November 1975, 31 July 1982 and 1 January 1984.  This RCSBP election was
irrevocable except under specific circumstances identified by law.

3.  In the applicant’s case, his 1990 divorce allowed him to remove his
former spouse from coverage.  However, the applicable law does not provide
provisions that would allow him to remove coverage for his eligible
children based on a divorce.  As a result, his coverage subsequent to the
1990 divorce would have been properly changed from “Spouse and Child” to
“Child Only” Option C (Immediate Coverage) based on his initial election
form, as has been accomplished by DFAS.

4.  The governing law also provides a special rule for RCSBP participants
with “Child Only” coverage in force prior to reaching age 60, who had
eligible children during the period prior to receiving retired pay.  This
rule provides for a reduction in retired pay to reflect the coverage
provided during the period before the participant became entitled to
receive retired pay (immediate coverage).

5.  In the applicant’s case, his original RCSBP election was for immediate
coverage under Option C and subsequent to his 1990 divorce, he still had
eligible dependent children who remained covered under the RCSBP.
Therefore, there are no provisions of law or regulation that would allow a
change to the RCSBP reductions of his retired pay.

6.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LM __  ___FE __  __RTD __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





            ____Fred Eichorn________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004105065                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/01/06                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  346  |137.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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