RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 December 2005
      DOCKET NUMBER:  AR20050002726


      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. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Mr. Allen L. Raub                 |     |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 Option A (Defer) coverage.

2.  The applicant states, in effect, that at the time he made his RCSBP
election he was separated from his wife and son and believed his son to be
eligible for the RCSBP based upon his being a full-time student in college.
 However, his son was actually attending college on a part-time basis and
not eligible for RCSBP coverage.

3.  The applicant provides a copy of his DD Form 1883 (Survivor Benefit
Plan Election Certificate), dated 20 April 1995, in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's date of birth is 12 August 1944.  His record shows that
he served in the U.S. Army Reserve in both an enlisted and warrant officer
status between 1964 and 1996, at which time he was transferred to the
Retired Reserve in the rank of chief warrant officer four.

2.  The applicant's military personnel record contains a copy of
Headquarters, U.S. Army Reserve Personnel Center, St. Louis, Missouri, ARPC-
SFS-0151, Orders C-01-602411, dated 16 January 1996, which shows that he
was assigned to the Retired Reserve on 16 January 1996.

3.  The applicant's record is missing his Notification of Eligibility for
Retired Pay at Age 60 (Twenty-Year) letter; however, the applicant provides
a copy of a
DD Form 1883 that he completed on 20 April 1995.  Section II (Marital,
Dependency, and Election Status) of this form shows that, at that time, the
applicant indicated in Item 6 (Are you married?), "No"; in Item 7 (Do you
have dependent children?), "Yes"; in Item 8 (Check one of the following to
indicate the type of coverage you desire:), "Children only"; and in Item 9
he indicated an annuity based on the "Full" amount of his retired pay and
"Option C (Immediate Coverage)".

4.  During the processing of this case, an advisory opinion was obtained
from the Supervisor, Retirements and Annuities, Transition and Separations
Branch, U.S. Army Human Resources Command, St. Louis, Missouri.  On 8 March
2005, the Supervisor of Retirements and Annuities recommended that the
applicant's
DD Form 1883 concerning his enrollment in the RCSBP be corrected to read
"Option A (Defer) coverage".  He also recommend that the Defense Finance
and Accounting Service correct the applicant's records to reflect no RCSBP
enrollment, stop SBP deductions from his retired pay, and refund all
previous deductions.

5.  On 8 June 2005, the applicant was provided a copy of the advisory
opinion in order to have the opportunity to reply to its contents.  On 19
June 2005, the applicant signed the correspondence indicating he concurred
with the advisory opinion rendered in his case.

6.  On 5 December 2005, this agency contacted the Defense Finance and
Accounting Service, Contact Center, Army SBP Liaison Office, regarding the
applicant's SBP application.  That office provided a copy of the
applicant's
DD Form 1883, dated 20 April 1995, and DD Form 2656 (Data for Payment of
Retired Personnel), dated 15 October 2002.  Section VI (Federal Income Tax
Withholding Information), Item 14 (Marital Status) of the form contains an
entry indicating "Single"; Section VIII (Dependency Information), Item 22
(Spouse) and Item 25 (Dependent Children) both contain the entry "N/A";
Section IX (SBP Election), Item 26 (Beneficiary Category) contains an "X"
indicating "I Elect Not To Participate In SBP" and an "X" indicating "Do
Not Have Eligible Dependents Under The Plan"; and Section X (Remarks), Item
29, is absent an entry.

7.  The DD Form 2656 is used to collect information needed to establish a
retired/retainer pay account and provides instructions for completing the
form.  The instructions for Section IX (SBP Election) provide, in pertinent
part, that Reserve members who declined the RCSBP until age 60 must
complete Items 26 through 31.  The instructions further provide that, if
they elected either Immediate (Option C) or Deferred (Option B) RCSBP
coverage and the elected beneficiary is no longer eligible, to annotate
this in the Remarks section and provide supporting documentation with the
form.

8.  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; or (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.

9.  Title 10 of the United States Code (USC), section 1452(b)(1) provides
the legal authority for reduction in retired pay for RCSBP participants
with regard to "Child-Only Annuities."  Section 1452(b)(3) states, in
pertinent part, that in the case of a participant in the Plan who is
providing child-only coverage during a period before becoming entitled to
receive retired pay, the retired pay of the participant shall be
additionally 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.
Section 1452(b)(2) further states that there shall be no reduction in
retired pay for any month during which the participant has no eligible
dependent child.  However, Section 1452(b)(3) also states that the
additional deduction from retired pay taken to pay for RCSBP coverage
during the period before the participant became entitled to receive retired
pay is taken without regard to whether there is an eligible dependent child
during the month for which the deduction is made.  This assumes, of course,
that the participant was eligible to enroll in the Plan when he or she
received the 20 Year Letter because he or she had a dependent child at the
time (10 USC, 1448(a)(2)(B)).

10.  Title 10 of the United States Code, section 1452(f) provides, in
pertinent part, that a person is not entitled to a refund of any amount
deducted from retired pay, except in the case of a refund authorized by
section 1450(e) of this title or in the case of a deduction made through
administrative error.

DISCUSSION AND CONCLUSIONS:

1.  The applicant asserts, in effect, that his RCSBP election should be
corrected because at the time he made his election his son was not eligible
for the RCSBP.

2.  Absent from the applicant's military service records is documentary
evidence regarding his current marital status (e.g., divorce decree) or any
correspondence from the former spouse regarding the RCSBP.

3.  The evidence of record confirms that upon receiving his 20 Year Letter
in 1995, the applicant elected "Children only" RCSBP coverage under Option
C (Immediate Coverage), as evidenced by the DD Form 1883 he completed at
that time.  His election certificate listed one child with a date of birth
of 17 November 1976, indicating that his child was over 18 years of age at
the time of his RCSBP election.



4.  The evidence of record fails to show that the U.S. Army required the
applicant to provide proof that the child listed on his DD Form 1883 was
eligible for the RCSBP based upon being enrolled in full-time education, as
required by the applicable regulatory guidance.

5.  The evidence of record shows that the applicant was not an eligible SBP
participant in 1995 because he had no dependent child and no wife.

6.  In view of the error on the part of Government officials caused by not
following their own regulatory guidance during the applicant's RCSBP
processing, it is appropriate to rectify the resultant error at this time.
Therefore, the applicant's record concerning his enrollment in the RCSBP
should be corrected to reflect no enrollment in the RCSBP.

BOARD VOTE:

__SLP __  __MHM__  __ALR __  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for relief.  As a result, the Board recommends
that all Department of the Army records of the individual concerned be
corrected by amending the applicant's DD Form 1883 (Survivor Benefit Plan
Election Certificate), dated 20 April 1995, to:

      a.  delete the entry in Item 9c, which indicates "Option C (Immediate
coverage)"; and

      b.  add an entry in Item 9c, to indicate "Option A (Defer)".

2.  That as a result of the foregoing correction, the Defense Finance and
Accounting Service shall:

      a.  change the applicant's record to reflect no enrollment in the
Reserve Component Survivor Benefit Plan (RCSBP);

      b.  stop such deductions from the Soldier's retired pay; and

      c.  refund to the Soldier all previous deductions.




                            ___SHIRLEY L. POWELL____
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002726                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051213                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |137.0300.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]